ASCAP Rate Court Pandora Decision Reveals Publishers’ Abuse of Market Power

Judge using his gavelAs I noted in my earlier post, the public version of Judge Cote’s decision in the ASCAP / Pandora rate court proceeding was released today.  It is a remarkable and comprehensive 136-page opinion, thoroughly rejecting all of ASCAP’s arguments for a rate increase, and keeping Pandora’s rate at 1.85% of revenue.

One of the most remarkable features of the decision is its detailed look behind the curtain at the motivation and behavior of the withdrawing music publishers.  [Read more…]

Full ASCAP Rate Court Pandora Decision Released

The public version of Judge Cote’s ASCAP Pandora rate decision has been released.  Commentary to follow, once I have had the chance to read, but here is the decision for those interested:

Big Loss for ASCAP in Pandora Rate Case

Angry JudgeASCAP has suffered a significant defeat in its rate court litigation against Pandora.  In that proceeding, Pandora sought to have its current ASCAP musical composition public performance license rate (1.85% of revenue) cut to the same 1.7% rate paid by terrestrial radio.  ASCAP, as it has in several recent digital music rate cases, sought an increase to 3% of revenue.

[Read more…]

ASCAP Court Rules for Pandora: Music Publishers Cannot Partially Withdraw Songs From ASCAP Catalog for Only Certain Users

Judge using his gavel In a major victory for Pandora (and all other digital music services), the ASCAP Rate Court has ruled this evening that ASCAP’s recent changes to its governing rules, which purported to allow music publisher members to selectively withdraw their catalogs from the ASCAP repertory for certain digital music services while keeping the songs in the repertory for other licensees (such as broadcasters, bars and restaurants), violated the ASCAP consent decree and therefore any purported withdrawals were ineffective.

This whole mess started a couple of years ago.  After a series of losses in the ASCAP and BMI Rate Courts (in cases where ASCAP and BMI sought outrageously high royalty rates and were rebuffed by the Courts), various ASCAP members wanted to find a way out from the scrutiny provided by the Rate Courts.  [Read more…]

Fakler Speaking On Copyright Royalty Rate Litigation At NARM Conference

Copyright symbol largeI will be speaking on copyright royalty rate litigation at NARM’s Entertainment & Technology Law Conference this week, discussing the intricacies of litigating before the Copyright Royalty Board and the ASCAP and BMI rate courts.  For those interested in rate-setting litigation, it should be an excellent panel, with Jonathan Potter moderating.  Ken Steinthal and I will be speaking from the music service / licensee perspective, and Lucy Holmes Plovnick speaking from the copyright owner perspective.

There will also be other interesting panels, covering copyright, trademark/domain name and right of publicity issues of topical interest.  The conference will be held this Thursday, February 28, 2013, from 1:00 to 5:30 pm.  Here is a link for more information: http://digitalmusic.org/events/new-york-entertainment-technology-law-conference-2/