Back in September, a judge ruled that fractional licensing is permitted under BMI’s anti-trust consent decree. The Department of Justice, which has taken the position that the consent decrees for both BMI and ASCAP require 100 percent licensing, has appealed that Second Circuit decision.
The DOJ’s reasoning, in part, is that BMI and ASCAP themselves claim that purchasing a license gives users the immediate right to perform all the works in their repertories — not “interests in works.” It concluded in August that “the consent decrees must be read as requiring full-work licensing.”
BMI immediately sought a judgment to overturn, and got it in September, with Judge Louis Stanton writing, “Nothing in the consent decree gives support to the [antitrust] Division’s views.”
On Friday, the DOJ filed notice that it intends to appeal.
