Rep. Scott Fitzgerald did what members of Congress are purported to do when a regulated market begins throwing off smoke: he requested questions in writing, put the request on the report, and directed it to the chief department company that really has the instruments to research. (We’ll go away that entire separation of powers factor for an additional day.)
Fitzgerald’s letter urged the FTC to look at whether or not the latest performing rights organizations—particularly AllTrack and Professional Music Rights—could also be participating in unfair or misleading acts or practices, with a specific deal with representations about repertoire and the flexibility of licensees to confirm what they’re being requested to pay for. After recounting the historical past of PRO improvement Rep. Fitzgerald mentioned:
For the final 80 years, licensees had certainty that getting blanket licenses from [ASCAP, BMI, SESAC and GMR] would cowl a repertoire encompassing most, if not all, works carried out at their institution. Just lately, nevertheless, new, purported PROs have emerged, and have begun to solicit companies for thepurchase of a license. AllTrack, based in 2017, and Professional Music Rights, based in 2018, have begunapproaching companies with requests to buy a license for their catalog of works, and leveraging the specter of statutory damages for those that don’t comply. However whereas each entities feign legitimacy, it’s unclear whether or not AllTrack or Professional Music Rights have amassed a repertoire {that a} licensee would discover precious to its enterprise. Worse, nevertheless, it seems each entities could also be misrepresenting to licensees the our bodies of labor they really handle, thereby pressuring companies to receive a efficiency license they could not want.
AllTrack, for instance, lists a number of well-known artists on its homepage, together with singer songwriter, Billy Ray Cyrus, and music group, No Doubt. Nevertheless, as defined by commenters in response to the U.S. Copyright Workplace’s inquiry on PROs, AllTrack represents solely a partial curiosity inone Billy Ray Cyrus music, and a composition as soon as recorded by No Doubt, however doesn’t signify the artiststhemselves or a considerable quantity of their recorded works.
Professional Music Rights, equally, claims to signify “a market share of seven.4% within the U.S.,” but, in accordance with feedback supplied by BMI, that might equate to extra rights administration than a mixed SESAC and GMR. Sadly, licensees are unable to verify the full catalog of works both entity represents because of a lack of transparency in music possession. As stakeholders have famous, the dearth of a whole, authoritative database has allowed PROs like AllTrack and Professional Music Rights to misrepresent their quantity of works with out verification. For instance, a enterprise that is unfamiliar withAllTrack might obtain a solicitation…and, checking solely their web site to confirm, could also be led to imagine a license is vital primarily based on the perceived illustration of a roster of notable artists and songwriters.
Rep. Fitzgerald’s letter cited criticisms submitted by BMI within the Copyright Workplace’s PRO inquiry. Professional Music Rights has since publicly recommended it’s “exploring” litigation over each the letter and the cited submissions.
That menace is a reminder that when an entity can not win an oversight argument on the deserves, it could try to relax oversight itself. If profitable, that might begin to undermine our republic. Fortuitously, there are Constitutional protections for the legislative department enabling them to conduct strong oversight. In actual fact, the Speech or Debate Clause exists to forestall precisely this maneuver. The Supreme Court docket has lengthy handled congressional investigations and oversight as core legislative exercise, protected not solely from legal responsibility however from being questioned in courtroom in any respect. A proper letter from a member of Congress asking a federal company to research potential unfair or misleading practices matches squarely inside that protected legislative sphere.
Courts have drawn a transparent line between legislative acts and extra-legislative publicity. Whereas press releases or newsletters might fall outdoors constitutional safety, the oversight letter itself doesn’t. To the extent any threatened litigation targets the act of sending the letter to the FTC, it runs instantly into settled Speech or Debate doctrine.
BMI’s Copyright Workplace submission can be probably protected, although beneath a special physique of regulation. BMI’s feedback have been filed in response to an official Discover of Inquiry by the Copyright Workplace, a course of designed to solicit candid enter from stakeholders. That exercise is traditional petitioning of the federal government.
Beneath First Modification petitioning rules and associated privilege doctrines for statements made in official proceedings, events are typically shielded from legal responsibility for good-faith participation in regulatory and legislative processes. These protections exist to make sure companies can collect data with out individuals being sued into silence.
This doesn’t imply each assertion made wherever is immune from problem. However on this context—an oversight letter from a member of Congress and feedback submitted into an official Copyright Workplace report—the authorized protections are at their strongest.
As soon as these protections are taken critically, the threatened litigation seems much less like a viable authorized declare and extra like a stress tactic. Oversight is just not defamation. Petitioning the federal government is just not tortious conduct. The Structure and the First Modification have been designed to make sure that asking exhausting questions doesn’t itself develop into actionable wrongdoing.
