What’s Yours Is Mine: What a Seventy-Year-Old Recording Industry Consent Decree Says About Modern Antitrust Law

In the waning days of the Trump administration, the DOJ moved to terminate a 70-year-old consent decree that required Decca Records — once one of the country’s most important labels — to license its master recordings to third parties under certain circumstances. Compulsory licensing and forced sharing may seem like a vestige of a bygone era in antitrust, but those remedies may soon see a resurgence. In the age of “Big Tech,” commentators, politicians, and enforcers have alleged that controlling access to electronic data may give rise to monopoly power — and some have suggested that forcing tech giants to share their data may be necessary to break down that alleged power. In the coming months, we will see whether the Biden administration intends to take a page from the mid-century playbook that led to the Decca consent decree.

By Stephen McIntyre & Katrina Robson¹

I. INTRODUCTION

Over 70 years ago, the Antitrust Division of the U.S. Department of Justice filed sued against Decca Records, a leading American record company. The lawsuit alleged that Decca and its British counterpart conspired with EMI, another major competitor, to carve up the world map into exclusive territories and to fix resale prices for records sold to American consumers, all in violation of the Sherman Act. After four years of litigation, but before the parties reached trial, the record companies settled with the Antitrust Division. They agreed to a consent decree that imposed a numb