UC Law SF Communications and Entertainment Journal


Janet L. Avery


Broadcast Music, Inc. (BMI) chose not to sell or renew blanket licenses for the performance rights to music for cable television programmers and operators unless they agreed to pay substantially higher fees for the licenses than they had in the past. This lead to multiple law suits between BMI and the cable companies in which BMI claimed copyright infringement and the cable programmers and operators claimed antitrust violations, violation of a consent decree, and copyright misuse. The trial court in one of these cases found for BMI. The American Society of Composers, Authors, and Publishers (ASCAP) also attempted to increase its profits from the cable industry. However, since ASCAP is subject to certain provisions in a consent decree to which BMI is not subject, ASCAP did not have the same bargaining power as BMI to effect such an increase. This note proposes that cable programmers and operators organize and change the industry standard from blanket licensing to source licensing, rather than pursue lengthy and expensive litigation. In addition, this note argues that cable programmers and operators should petition the Justice Department to amend BMI's consent decree to require BMI to issue blanket licenses to all applicants and to require BMI to submit to a rate court when a licensing fee cannot be negotiated. Such amendments would rectify BMI's excessive bargaining power in negotiations for blanket licenses.