PRO DMX Commercial Background Oral Argument – Recap

Having watched the oral arguments in the ASCAP and BMI appeals of the DMX commercial background music service rate decisions, I thought I would post a few of my impressions.

Overall, the arguments went as I expected.  Seth Waxman and Ted Olson performed like the former Solicitors General that they are: very polished speakers.  But they argued as if this was a Supreme Court case, and it is not (at least not yet).  Both emphasized big-picture policy grounds over the specific evidentiary record in the case.  On the rate side of the equation, both ASCAP and BMI argued that both rate court judges erred, as a matter of law, by rejecting ASCAP’s and BMI’s proposed benchmarks.  The PROs seem to believe that [Read more…]