How To Win: Don’t Help DOJ Get Out Of Licensing Hole They Dug [David Lowery]

1Although they started with a strong concept with 100% song licensing, the Department of Justice seems to be scrambling to get their decree to function within the parameters of the law, and their own set of rules, says David Lowery.

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Guest post by David Lowery of the Trichordist

1 (1)DOJ’s Renata Hesse appears to have started with desirable political outcome (100% song licensing) and is now working backwards trying to make it fit the law. 

There is something very curious going on with the new 100% licensing rule.  I mean aside from lobbying violations apparent in the fact a DOJ staff lawyer Renata Hesse forced through 100% licensing rule that seems to benefit  her former client (Google/YouTube).

Ask yourself. Why hasn’t the DOJ released the text of the new rule? Why are they asking for more comments and questions from rights holders on how this rule will work? This is the highest law enforcement agency in the land staffed with lawyers from Harvard and UC Berkeley and they want us to ask questions about a new rule before the text of the rule is revealed? How exactly is that supposed to work?  Clearly the DOJ antitrust division is a clown car loaded with political appointee clowns that have no idea what they are doing.

Here’s what I think. Certain DOJ staffers started with a concept  (100% licensing, effectively extending consent decrees to songwriters not covered by consent decrees)  and are trying to work backwards to make it work within the law, constitution and their own rules that govern the songwriter PROs.

If they were doing this based on real antitrust concerns and concepts based on the rule of law, the rule  would naturally flow from the law. Clearly they started with an outcome designed to benefit digital services.

Given Renata Hesse’s background working for Google should we be surprised the process is so googley:

“We need rights holders to tell us what content on our services belongs to them” = “We need rights holders to tell us how to create 100% licensing rules even though this is the job taxpayers pay us to do”

Here is how we win:  Don’t help them.   They dug this hole let them figure it out.  Save the challenges legal and otherwise until after they publish the rule.