The Continuing Battle With the Performance Rights Societies: The Per Se Rule, the Rule of Reason Standard, and Copyright Misuse

The Supreme Court has consistently held that price fixing is unlawful per se under section 1 of the Sherman Act. However, in Broadcast Music, Inc. v. Columbia Broadcasting System, the Supreme Court refused to rule that the use of a blanket license to fix prices charged for the use of music was a species of the price fixing agreements categorically forbidden by the Sherman Act. Rather, the Court was of the opinion that the blanket license "should be subjected to a more discriminating examination under the rule of reason." Thus, the CBS case has threatened the per se doctrine in price fixing cases by forming an exception to its application. This case has also raised questions regarding future use of the blanket license by the performing rights organizations. This article will analyze the case law relating to price fixing and other issues relating to the use of the blanket license, specifically, tying arrangements and copyright misuse, in an attempt to demonstrate that use of the blanket license by the performing rights societies does violate the Sherman Act and also constitutes copyright misuse.