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June 13, 2019 News

Y. David Scharf Comments on DOJ’s Latest Music Licensing Review

June 13, 2019 – Morrison Cohen Partner Y. David Scharf was quoted in the article “Here We Go Again: DOJ’s Latest Music Licensing Review”, that appeared on June 11, 2019 in Law360.  Less than four years after its last review, the U.S. Department of Justice’s antitrust division has embarked on another review of decades-old court orders governing a key aspect of music licensing in the U.S.  The last review ended without any changes to the court orders, but a new White House administration may mean a different result.  

“The difference is the administration and the policy considerations that are present under the current regime that were not present under the Obama regime,” Y. David Scharf, a partner with Morrison Cohen LLP, told Law360. “And that's why you could potentially get a different outcome then you did last time.”

With the current administration placing a focus on deregulation, a new review of the orders could conclude they are no longer needed or should be scheduled to sunset.

Scharf of Morrison Cohen said he believes a sunsetting of the orders is likely, noting that “nobody likes things on the books for 80-plus years.” He also said that Trump’s deregulatory policy has been a part of his agenda from the beginning and that eliminating the ASCAP and BMI decrees could help him make the case during the next election cycle that he has been effective on that front.

But he also said any sunsetting provision would likely require another look at the decrees before they were actually eliminated, meaning the ultimate decision could be left to the next administration.

In addition, he said removing the decrees could have the unintended consequence of actually making more work for the government. The groups have been “swimming along” under the current regime for decades, and removing the orders will mean relying on the market to come forward with potential problems. This, he said, shifts the burden to the antitrust division’s investigative units to check out the complaints.

“You need to have enforcement agents doing things which you really haven't had to do,” Scharf said.