Amicus Curiae Brief — Broadcast Music, Inc., Petitioner v. North American Concert Promoters Association

Supreme Court briefSep 9, 2026

Ask Donna

What actually matters in this document.

Text

No. 26-238

In the Supreme Court of the United States

BROADCAST MUSIC, INC., PETITIONER

NORTH AMERICAN CONCERT PROMOTERS ASSOCIATION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE AMERICAN SOCIETY OF

COMPOSERS, AUTHORS AND PUBLISHERS

AS AMICUS CURIAE SUPPORTING PETITIONER

WILLIAM M. JAY

JAY COHEN

S. CONRAD SCOTT

Counsel of Record

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

2001 K Street, N.W.

Washington, DC 20006

New York, NY 10019

(202) 223-7300

wjay@paulweiss.com

CLARA KIM

AMERICAN SOCIETY OF

COMPOSERS, AUTHORS AND

PUBLISHERS

250 West 57th Street

New York, NY 10107

TABLE OF CONTENTS

Page

Interest of amicus curiae ............................................................. 1

Argument....................................................................................... 4

I. The Second Circuit’s decision is incorrect. ................... 4

A. The Second Circuit erred in substituting its own

judgment about how to determine a “reasonable”

rate. ............................................................................. 4

B. The Second Circuit likewise erred in limiting the

fee and the revenue base. ......................................... 5

II. This case is important and warrants this court’s

review. ............................................................................... 8

Conclusion ................................................................................... 11

TABLE OF AUTHORITIES

Cases:

Andy Warhol Foundation for the Visual

Arts, Inc. v. Goldsmith, 598 U.S. 508

(2023) ............................................................................... 11

ASCAP v. Showtime/The Movie Channel, Inc.,

912 F.2d 563 (2d Cir. 1990) ......................................... 4, 5

State of New York v. Live Nation Entertainment, Inc., No. 24-cv-3973 (S.D.N.Y.

Apr. 15, 2026).................................................................... 7

United States v. ASCAP, 627 F.3d 64 (2d

Cir. 2010)........................................................................... 6

United States v. ASCAP, No. 41-1395, 2001

WL 1589999 (S.D.N.Y. June 11, 2001) ........................... 2

U.S. Bank N.A. ex rel. CWCapital Asset

Management LLC v. Village at

Lakeridge, LLC, 583 U.S. 387 (2018) ............................. 5

Other authorities:

ASCAP, ASCAP Payment System ...................................... 2

(I)

Page

Other authorities—continued:

Makan Delrahim, “And the Beat Goes On”:

The Future of the ASCAP/BMI Consent

Decrees, Remarks as Prepared for

Delivery, Virtual Event Hosted by

Vanderbilt Law School (Jan. 15, 2021) ....................... 11

Chris Williams, BMI Wins Court Victory in

Revenue Dispute with Top Concert

Promoters, Says Its Writers Will Get a

138% Raise, Variety (Mar. 28, 2023)............................ 10

In the Supreme Court of the United States

BROADCAST MUSIC, INC.,

PETITIONER

NORTH AMERICAN CONCERT PROMOTERS ASSOCIATION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE AMERICAN SOCIETY OF

COMPOSERS, AUTHORS AND PUBLISHERS

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF AMICUS CURIAE

The American Society of Composers, Authors and

Publishers (“ASCAP”) is an unincorporated membership

association of more than 1.1 million songwriters, composers, lyricists, and music publishers, who together have

created and own the copyrights to more than 20 million

works. 1 Founded in 1914, ASCAP is the oldest performing rights organization (or “PRO”) in the United States.

Pursuant to Rule 37.6, amicus affirms that no counsel for a party

authored this brief in whole or in part; no such counsel or party made

a monetary contribution to fund its preparation or submission; and no

person other than amicus, its members, or its counsel made such a

monetary contribution. This brief is being filed more than ten days

(1)

It has numbered among its members legendary songwriters like Irving Berlin and Cole Porter, global superstars

like Sir Paul McCartney and Stevie Wonder, and contemporary icons like Beyoncé and Noah Kahan. ASCAP’s

members depend on ASCAP to negotiate licenses with

music users, track public performances, distribute royalties, and advocate on their behalf. ASCAP has granted

more than 700,000 businesses blanket licenses to perform

ASCAP members’ copyrighted works throughout the

public places and media in which music is played in America.

ASCAP,

ASCAP

Payment

System,

https://www.ascap.com/help/royalties-and-payment/payment/whocollect (last accessed September 8, 2026).

ASCAP has a substantial interest in the outcome of

this case. Like BMI, ASCAP has long operated under a

consent decree, the operative version of which requires

ASCAP to grant users blanket licenses upon request in

exchange for a “reasonable fee.” These mandatory licenses allow music users to play all of ASCAP’s music

even when the parties do not agree on the fee. When the

parties cannot agree on a fee, a party may initiate expensive “rate court” proceedings in the U.S. District Court

for the Southern District of New York, which, under a

longstanding consent decree, is exclusively authorized to

act as a rate court and set a “reasonable fee.” 2d Am. Final J. ¶¶ VI, IX, United States v. ASCAP, No. 41-1395,

2001 WL 1589999 (S.D.N.Y. June 11, 2001).

The Second Circuit’s decision with respect to the scope

of appellate review of the rate court’s decisions directly

affects ASCAP as well as future rate-court litigants. Although the decision below addresses BMI’s agreement

with respondent the North American Concert Promoters

Association (“NACPA”), the district court and Second

before the due date, satisfying the notice requirement under

Rule 37.2.

Circuit have frequently treated the ASCAP and BMI consent decrees as equivalent. The Second Circuit’s prescriptions about setting a “reasonable” fee thus will likely

be cited in disputes between ASCAP and its licensees. In

the decision below, the Second Circuit concluded that the

district court erred by not setting a fee more closely tied

to ASCAP’s and BMI’s historical rates and by taking account of rates negotiated by PROs that are not subject to

consent decrees. Should that decision remain binding

precedent in the only court of appeals to hear disputes under the ASCAP and BMI consent decrees, those flawed

conclusions will infect future ASCAP rate-court proceedings and spill over into ASCAP’s negotiations with licensees.

ASCAP also has a substantial interest in this case because the Second Circuit’s decision will lead to longer and

costlier license-fee disputes. Despite relying on economic

theory about “efficient” contract terms, the Second Circuit’s decision will undermine efficiency by discouraging

settlement and leading to protracted rate-court appeals.

ASCAP operates on a not-for-profit basis and distributes

all of the royalties it collects to its members, less administrative expenses. Those added litigation burdens will

therefore reduce the royalties that can be passed on to its

members. ASCAP files this brief as amicus curiae to vindicate its—and its members’—strong interest in the correct determination of reasonable license rates under the

consent decrees.

ARGUMENT

THE SECOND CIRCUIT’S DECISION IS INCORRECT.

A. The Second Circuit Erred In Substituting Its Own

Judgment About How To Determine A “Reasonable” Rate.

Two years after oral argument and after a recusal, a

two-judge quorum of the Second Circuit brushed aside

the district court’s extensive and careful fact-finding

based on its own review of a cold record. The district court

determined a reasonable rate for NACPA’s BMI license

after it conducted a bench trial that ran five weeks, admitted more than 300 exhibits into evidence, and considered

the testimony of two experts and 12 fact witnesses. Pet.

App. 13a, 66a-67a, 79a-89a; Pet. 12. Following further

post-trial briefing, the district court issued a 37-page

opinion identifying the relevant revenue base, setting reasonable retrospective and prospective rates, and explaining the findings of fact and conclusions of law supporting

that decision. See Pet. App. 58a-89a.

The panel afforded no deference to the district court’s

conclusions because, in its view, the district court’s determination of the correct revenue base, choices about which

licenses were sufficiently comparable to the BMI/NACPA

license, and selection of a reasonable rate “at the high end

of the benchmark range” all presented questions of law

reviewed de novo. Pet. App. 22a-23a.

The Second Circuit erred in substituting its own judgment for the district court’s in disapproving these building

blocks supporting the choice of a “reasonable” rate. “Fair

market value is a factual matter,” as are numerous components of the rate determination, including “the competitiveness of a market and the market power of a seller.”

ASCAP v. Showtime/The Movie Channel, Inc. (Showtime

II), 912 F.2d 563, 569 (2d Cir. 1990). Here, the district

court’s determinations about the reasonable rate and revenue base turned on “case-specific factual issues” such as

changes in the market for live-music performances and

details about the current and historic relationship between various PROs and music users. See Pet. App. 66a89a. The court also examined how the market has evolved

since the last license negotiation in 1998—literally a bygone era in which live concerts were used as promotional

tools to sell albums and CDs, rather than valuable and exclusive experiences in their own right. To make those determinations, the district court immersed itself in evidence and live-witness testimony. The Second Circuit

should have recognized that primary responsibility for

those determinations lay “in the court that has presided

over the presentation of evidence, that has heard all the

witnesses, and that has both the closest and the deepest

understanding of the record,” U.S. Bank N.A. ex rel.

CWCapital Asset Management LLC v. Village at Lakeridge, LLC, 583 U.S. 387, 398 (2018), rather than substituting its own views of the record for the district court’s

considered judgment.

B. The Second Circuit Likewise Erred In Limiting

The Fee And The Revenue Base.

In second-guessing the district court’s well-reasoned

decision, the Second Circuit went astray in several key respects. As a result, that court failed to set a “reasonable”

rate approximating the fair market value of a license to

perform the works in BMI’s catalog.

1. To begin with, the Second Circuit erred by downplaying the significance of licensing agreements executed

by PROs that best “approximate[] the rates that would be

set in a competitive market.” Showtime II, 912 F.2d at

576. ASCAP and BMI are subject to aggressive competition from two other PROs—Global Music Rights LLC

(“GMR”) and SESAC LLC (“SESAC”)—which have market shares of 4% and 5%, respectively. Pet. App. 61a.

GMR and SESAC are not subject to a consent decree and

are thus not required to issue blanket licenses upon user

requests. Accordingly, the licenses they voluntarily enter

into provide the best evidence of the price that willing licensees and licensors would agree to in arm’s-length

transactions in a competitive free market. As BMI

demonstrated below, these licenses, when adjusted to account for differences in contract terms, market share, and

other factors, imply rates that are in some cases meaningfully higher than those ASCAP and BMI currently receive. Pet. App. 70a-75a, 82a-86a.

The district court properly concluded that SESAC and

GMR licenses were appropriate benchmarks. Pet. App.

83a-86a. While the Second Circuit did not conclude that

these benchmarks were categorically irrelevant, it nevertheless found that the district court should have placed

less weight on these free-market licenses and more on the

rates previously paid to the regulated PROs. Pet. App.

41a-46a. In support of that conclusion, the court of appeals explained in error that the rate court’s job is to serve

as a “moderating influence” on ASCAP and BMI, and

speculated that GMR and SESAC might themselves be

charging supracompetitive fees. Pet. App. 42a-44a.

That reasoning is fundamentally flawed in multiple respects. To begin with, it inverts the proper role of rate

courts. The ASCAP and BMI consent decrees exist to ensure that the regulated PROs charge and obtain on behalf

of their creator members reasonable rates, based on “fair

market value” and approximating “what an applicant

would pay in a competitive market.” United States v.

ASCAP, 627 F.3d 64, 76 (2d Cir. 2010). But the Second

Circuit’s decision, which is couched as a legal conclusion,

would require future rate courts to downplay the best

available evidence of the price at which willing market

participants agree to enter into license agreements: GMR

and SESAC rates, which reflect market values because

those PROs can exercise their free-market right not to enter into agreements if the price is insufficient. Moreover,

the Second Circuit’s decision would require rate courts to

place more emphasis on the rates previously charged by

ASCAP and BMI, neither of which is a willing seller because each is sometimes compelled by its consent decree

to enter into licenses at below-market rates. That incorrectly privileges as a matter of law rates set by, or negotiated in the shadow of, the rate courts over those to which

willing buyers and sellers would agree.

That result is not only backwards, but risks locking in

artificially depressed historical rates and creating a feedback loop in which those rates drag down future rates and

prevent them from keeping pace with increased rates in

the private market. And it fetters rate courts’ ability to

adjust rates to account for market shifts. As NACPA

members Live Nation and AEG consolidate the market

for live-music performances and technology disrupts how

Americans access music, rate courts need the flexibility to

set fees that are fair in light of changed industry dynamics. 2 The Second Circuit’s undue focus on historical rates

in the regulated sector as a matter of law deprives rate

courts of the flexibility to consider those changed industry

dynamics when appropriate.

2. The Second Circuit similarly erred in concluding

(Pet. App. 28a-40a) that the district court could not decide

to base royalty payments on revenue streams other than

ticket sales. That conclusion—based on a theory supported by a law-review article and raised by the court sua

A jury recently found that Live Nation and its subsidiary Ticketmaster monopolized trade in violation of the Sherman Act. Verdict

Form, State of New York v. Live Nation Entertainment, Inc., No. 24cv-3973 (S.D.N.Y. Apr. 15, 2026), ECF No. 1417.

sponte—defied expert testimony, not to mention common

sense. As with its fee determination, the Second Circuit’s

revenue-base decision inordinately privileges past practice over the real-world market dynamics the district

court carefully identified. At a minimum, the court’s overturning of the revenue-base determination as a matter of

law, too, heightens the significance of the question presented to this case and future rate-court litigation.

II. THIS CASE IS IMPORTANT AND WARRANTS THIS

COURT’S REVIEW.

The Second Circuit’s legal conclusion will have farreaching consequences that heighten the need for this

Court’s review. Even if one set aside the circuit conflict

that petitioner describes (Pet. 17-23), the Second Circuit’s

holding is effectively a nationwide judgment governing an

important industry. Well beyond the rate determination

in this case, the Second Circuit’s decision will substantially affect how these determinations are made going forward.

1. The centralization of rate litigation in the Southern

District of New York gives the Second Circuit essentially

nationwide jurisdiction over the substance and procedure

of rate determinations. This Court has not hesitated to

review decisions by the Federal Circuit and D.C. Circuit

where they exercise nationwide jurisdiction, because such

a decision may satisfy the criteria for certiorari even without a circuit conflict. That is the case here as well. A

wrongheaded decision by the Second Circuit that will apply to rate-court adjudications going forward is exactly

the type of nationally important decision that this Court

should review.

2. The implications of this case sweep more broadly

than a contract dispute between two parties. Insofar as

the Second Circuit has concluded that a “reasonable” rate

is presumptively based primarily on historical rates paid

to regulated PROs by comparable licensees, calculated on

a revenue base presumptively based on previous license

agreements, that conclusion will loom large over future

negotiations and litigations in which ASCAP and BMI

seek to obtain fair compensation for their members and

affiliates. This decision will shape at a fundamental level

how all those determinations will be made.

Nor will this case solely affect license fees for live-music concerts. ASCAP and BMI provide public-performance licenses to all manner of businesses that publicly

perform music. Whether it is a radio station broadcasting

Top 40 hits, a TV station airing a show that contains music

for dramatic effect, an internet service that lets users

stream their favorite albums, or just a bar or hotel playing

background music—each must obtain ASCAP and BMI

licenses to play music in those PROs’ catalogs. And the

process for obtaining those licenses is much the same as

when a concert presenter wants to ensure that artists

have the right to perform copyrighted works: The user

requests a license from the PRO, which must issue a blanket license at a reasonable rate that is either negotiated

by the parties or set by the rate court under the terms of

the consent decrees. While this case directly affects only

the BMI/NACPA agreement, the Second Circuit’s reasoning threatens to spill over into other licensees and performance categories, unfairly anchoring the fees ASCAP

can obtain in the future to the rates it and BMI have

charged in the past even when there clearly have been

changes in industry circumstances that warrant an increase in rates. Small wonder, then, that trade associations representing the film, commercial and local radio,

digital-music, trade-show, and other industries all appeared as amici in the Second Circuit to argue that the

court should disregard the licenses actually set in a free

market—the GMR and SESAC licenses—when determining the fair market value of the BMI/NACPA license.

Br. of Amici Curiae MPA, Inc., et al., at 8, 19-26, BMI v.

NACPA, No. 23-935 (2d Cir. Oct. 11, 2023), 2023 WL

6879421.

The decision below also threatens to prolong and proliferate licensing disputes. Subjecting the building blocks

of “reasonable” fee determinations to de novo review

threatens to extend already-protracted and resource-intensive litigation. Take this case for example: BMI petitioned for a reasonable rate in 2018, yet the rate was not

determined until after a five-week trial held in 2022. The

appeal then lasted three years. Pet. App. 2a. Now, because the Second Circuit reviewed the trial court’s decision de novo, Pet. App. 22a-23a, BMI and NACPA can

look forward to retrial and presumably years of further

litigation. Despite the Second Circuit’s emphasis on efficiency and “administrative cost,” e.g., Pet. App. 33a-34a,

38a, that court’s decision on the standard of review stands

to undermine the former and increase the latter.

3. The losers in all this will be the songwriters who

rely on performance royalties, often as their primary income. The Second Circuit’s decision threatens to depress

the rates that ASCAP and BMI can obtain from users and

pass on to their rights-holding members and affiliates.

Respondent’s member Live Nation has contended that

millions of dollars are at stake just from this one rate dispute with one PRO. Chris Williams, BMI Wins Court

Victory in Revenue Dispute with Top Concert Promoters,

Says Its Writers Will Get a 138% Raise, Variety (Mar. 28,

2023),

https://variety.com/2023/music/news/bmi-winscourt-victory-concert-promoters-songwriters-raise-livenation-aeg-1235567435/. The number presumably increases when amounts to be paid by NACPA members

other than BMI members are considered.

That is not all. The Second Circuit’s holding on the

standard of review threatens to increase the number and

cost of rate-court disputes. And every increase in

ASCAP’s administrative costs reduces the amount it can

pass through to its members as compensation for their

creative effort.

* * * * *

In discussing the ASCAP and BMI consent decrees,

former Assistant Attorney General for the Antitrust Division Makan Delrahim commented that the “ultimate goal”

of the Antitrust Division “should be a market-based solution that ensures songwriters, publishers, and other artists are compensated fully for their creative efforts at

market rates” and warned that the Division should ensure

that creators “are not shortchanged by the non-market effects” of the consent decrees. Makan Delrahim, “And the

Beat Goes On”: The Future of the ASCAP/BMI Consent

Decrees, Remarks as Prepared for Delivery, Virtual

Event Hosted by Vanderbilt Law School (Jan. 15, 2021),

https://www.justice.gov/archives/opa/speech/file/

1355241/dl. Unfortunately, the Second Circuit’s decision

threatens to do just that. This Court’s review is necessary

to avoid undercompensating songwriters and thereby destroying the “incentive to create” that copyright law seeks

to protect. Andy Warhol Foundation for the Visual Arts,

Inc. v. Goldsmith, 598 U.S. 508, 531 (2023).

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.