Last month, the Department of Justice Antitrust Division (DOJ) announced its plans to review two music licensing antitrust consent decrees which have been in place, in some shape or form, for almost 80 years. Due to the newly-initiated review, the competitive mechanisms that dictate how music is broadcasted, streamed or played live could soon drastically change.

In 1941, the DOJ entered into two separate consent decrees with the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI)—the two largest performing rights organizations (PROs) in the United States, controlling nearly 90% of the market—to address competitive concerns arising from their significant market power. PROs, including ASCAP and BMI, distribute licenses to publicly perform musical works to entities, such as radio broadcasters, streaming services and live venues, that transmit the performance of musical works to listeners. In their current manifestations, the consent decrees require ASCAP and BMI to license the public performance rights to all musical works in their respective catalogues upon request and at a reasonable rate.

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