jcpa – Techdirt (original) (raw)

from the stop-cheering-this-on dept

As Mike has already chronicled, Meta has managed to alienate itself from reasonable people by first suppressing links to an independent Kansas journalism outlet, then links to others reporting on the suppression, and eventually entire accounts discussing the episode. I tend to be of the view that what happened was an error caught in a system that may have some design flaws, where the error was able to snowball in the enormity of its effect without there being adequate checks, more than I tend to think it was a deliberate choice by Meta. At the same time, large platform providers like Meta do need powerful systems in order to be able to take any sort of meaningful stand against actual abuse. And even if, rather than an error, the suppression was a conscious editorial decision by Meta, it would have and should have been a perfectly legal choice for it to make, albeit a really stupid one.

But it sort of doesn’t matter whether the suppression was deliberate or accidental: Meta suppressed voices, including voices practicing journalism, and, as a result, public discourse took a hit. Which is what prompts this post, because with things like the JCPA and link taxes and other such programs proposed in the US and abroad, what regulators are demanding is that this sort of thing happen all the time. These are laws that are all designed to force platforms to suppress links to journalistic expression because they essentially impose a penalty when the platforms do not.

Now, that may not be what regulators have in mind. They simply want platforms to share their money with any linked-to sites. But forcing anyone to share their money when they do something is a pretty significant deterrent against doing that something. And here that something is having platforms be vibrant forums for sharing links to journalistic voices. The outrage resulting from this particular link suppression episode is the outrage that results from when platforms are NOT being vibrant forums for sharing links to journalistic voices. We obviously want them to continue to be those forums, so how could we possibly support law that would deter them from providing us that service?

We have argued over and over again that these laws will only harm something we actually want social media to be good at, and harm in particular the independent journalistic voices that depend on social media being good at it to make sure those voices can be widely heard. And here is evidence for why we are right, because when Meta stopped being good at it, those voices got hurt. It is therefore dumb for anyone to support any sort of law that would only make them hurt those voices more.

Filed Under: jcpa, journalism, link tax, suppression
Companies: meta

from the never-a-good-idea dept

Earlier this year, we had an episode looking at Canada’s proposed social media link tax and the many ways it would be terrible. Since then, that link tax has become law (though not yet come into effect), and unsurprisingly proven that the dire predictions were correct. Also since then, the Cato Institute’s Paul Matzko published an excellent paper on link taxes in general, and Paul joins us on this week’s episode to discuss the many reasons that a link tax won’t save the newspaper industry.

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Filed Under: c-18, canada, cjpa, jcpa, link tax, paul matzko, podcast

News Publishers Admit They Get Value From Search Traffic, Even As They Demand Extra Compensation For It

from the revealing-their-true-beliefs dept

In recent years, major media organizations have been lobbying Congress to enact legislation, the “Journalism Competition and Preservation Act,” requiring search engine providers to engage in a form of collective bargaining about the tax they would pay to media publishers for the privilege of providing links to their news articles, backed up by mandatory interest arbitration in which the thumb would be placed on the scales by simply assuming that the search engine companies could not refuse to provide links and would be required to pay something. The contention of the “News Media Alliance” has been that the search engines take value (access to news reporting that is expensive to produce) and provide nothing in return.

I have never been persuaded by the arguments for this bill, so I have long argued against it (and Public Citizen has never taken a position). Yes, news is expensive to produce (especially quality news), and the pervasiveness of online advertising has destroyed a major source of the media’s former revenue stream. Moreover, journalism is a social good that is vital to our democracy, at the local level as well as nationally, and it needs to be supported somehow (I put my money where my mouth is – our own family gets two newspapers in the dead tree edition every morning, and we subscribe to other publications).

But it always seemed to me that search engines provide value to the media – traffic to media websites,. Beyond that I am troubled by the First Amendment implications of creating a modern version of the tort of “hot news misappropriation,” not to speak of the “compelled speech” implications of requiring search engine companies to provide links and payments to speakers whose content they might abhor. (The proposed statute would make it illegal for search engines to deny links to any entity represented in the collective bargaining process).

And it is easy to see through the news media’s economic argument. Such simple devices as robots.txt, “noindex,” and password protection could wall off any news media web page from search engines. But no media companies were doing that, because they WANT the traffic delivered by search engines. So it has always been clear that the media recognized the value of being seen by search engines.

The Ugly Truth

And now they admit it.

Now that the media feel threatened by new AI Search tools, which would deliver whole paragraphs in answer to search engine queries, the media industry’s lies about the economics of their relationship with search engines have been revealed.

The New York Times carries a story this morning, “Publishers Gird for Threat from A.I.” that includes these revealing admissions.

“Content publishers have an uneven but largely reciprocal relationship with search engines. The search sites benefit from having trusted sources of information in the results, and the publishers benefit from the traffic to their sites that the search engines generate.

“Search traffic from Google accounts for half of overall visits, or more, to many sites, said Brian Morrissey, who writes The Rebooting, a media business newsletter.

‘Search has been the mainstay of the publishing business on the internet,’ he said.”

And then there is this

“Kyle Sutton, director of search and product at the newspaper publisher Gannett, said the relationship had, until now, been mutually beneficial.

‘While all search results are taking from our data and, from our perspective, crawling our content, aggregating our content, there is the return there of them driving traffic to our site,’ Mr. Sutton said. ‘So I think that relationship is kind of first and foremost what we want to see maintained.’”

It would be worth looking to past hearings on the JCPA to see whether Sutton (or anybody else from Gannett) has testified under oath in contradiction to these startling admissions.

Legislation for the Future

The Times story indicates that the longtime sponsors of the JCPA plan to reintroduce that bill this week, but why? The news media now admit that they like the status quo; the JCPA would disrupt it. Of course, members of Congress love their media endorsements, so their willingness to truckle to local media should not be underestimated. But it makes sense to put a hold on the JCPA and think about a different kind of legislation.

Unlike search snippets, the delivery of entire paragraphs implicates copyright, without any need to create a new cause of action. And either an economic or a statutory compromise may be needed to avoid years of litigation over whether the replication of entire paragraphs of copyrighted text qualifies as fair use. Those considerations can only be resolved after years of high-stakes litigation and damages awards, as lower courts decide cases, legal tests develop, circuits disagree, and the Supreme Court weighs in, perhaps more than once.

Search engine operators and media groupings may want to enter into negotiations about the forms of payment that are required when entire paragraphs are being copied. A statute embodying such standards might take the form of compulsory licensing and some system of assessing appropriate payments for use, not just to the news media but to other sources of substantial online content.

The standards that are set by such discussions could well influence the fair use analysis as applied to non-participants, comparable to the models that the “Best Practices” initiatives pioneered by Peter Jaszi and his colleagues in American University’s Program on Information Justice and Intellectual Property have set in several areas of the law. The compensation systems set by such negotiations might also establish a market standard for lost license fees to be awarded in copyright litigation.

Paul Alan Levy is an attorney for Public Citizen Litigation Group. This post originally appeared on its Consumer Law & Policy blog, and is reposted here with permission.

Filed Under: jcpa, journalism, link tax, search, traffic
Companies: gannett

from the save-the-open-web dept

Well, here we go again. For years now, the legacy news industry, often led by lobbyists for Rupert Murdoch, have been pushing a bizarre plan to tax links on the internet. The entire rationale for this plan seems to be “news organizations used to be rolling in easy money, they failed to innovate with the times, and now Google and Meta are rolling in easy money, so we should just make Google and Meta give news orgs cash.”

That’s it. That’s the entire rationale. Sometimes people try to get all high minded and talk about the importance of journalism, which I agree is important and which certainly could use new sustainable business models, but that doesn’t explain why they should break the fundamental nature of the internet (everyone can link to everyone) to solve that problem. Also, none of it explains why internet companies should magically be responsible for paying journalism outfits.

At best supporters of these plans come up with this rationale: Google and Meta take a huge percentage of digital advertising, and it’s likely that those ad budgets used to be what supported news orgs, so therefore, they should share some of the cash. When people look askance at that — or point out that under that logic any business that successfully competes with a legacy business should be forced to share its revenue with the business they out competed — they might say “but Google and Meta “use” news without paying for it.

But, let’s interrogate that claim as well. No, Google and Meta don’t “use” news without compensation. Quite the opposite. Both sites have a very, very small part of their sites that may link people to news. Google News is an aggregator/news search engine that sends traffic to people’s sites by linking to those news stories. Meta’s Facebook property similarly allows its users (who often include news sites themselves) to link to their stories elsewhere and drive traffic to them.

If those sites fail to monetize that traffic, that’s kinda on them.

Now, when I point that out, some people claim that those links don’t really send that much traffic, because too many people just see the link/headline/snippet and decide they don’t need to click. And, um, the answer to that is again to suggest that it’s difficult to see how that’s Google or Facebook’s fault. If your news articles provide so little value beyond the headline, image, and a snippet, I dunno, you kinda don’t deserve to make that much money? Good journalism has to add value, and part of that is building up a reputation that readers should want to read the details and nuances.

Also, what this article kinda highlights is that many of these news publishers who are whining for a bailout from Google and Meta spent many years focused on gaming Google and Facebook’s algorithms for clicks rather than building a loyal audience who recognized and valued their journalism.

And this takes us to the real proof that news publishers are full of shit in all of this: just look at what they do rather than what they say. If Google and Facebook sending them traffic was really a problem, they could easily fix that themselves. They can use robots.txt to block Google. They can use referrer tags to block traffic from Facebook. They can change the social graph content to make it less appealing.

But, of course, they do the opposite of that. They hire Search Engine Optimization (SEO) and Social Media Marketing experts to try to help them “rank better” on these sites and get more traffic. They explicitly try to get better promotion from those sites because they already get tremendous value from that traffic.

Now they want to get paid for that traffic that they already value! It’s basically news orgs saying “hey Google and Meta, not only must you advertise us for free, you must ALSO pay to advertise us.” The whole equation seems backwards.

Similarly, you sometimes see people make quasi-copyright arguments in favorite of this scheme, but that’s a fundamental perversion of copyright, an already extremely perverted concept designed to create incentives for creation. In order to function in a free society, copyright has to be limited to more egregious levels of copying. But linking an including a headline/snippet can never reach that level of a copyright violation, and changing the law to make it so would have so many downstream negative effects, enabling all sorts of copyright abuse and silencing speech.

And, of course, the only way that these link tax plans actually work is by breaking the most fundamental element of the open web: the hyperlink. For the entire history of the open web, a key attribute was the freedom to link to others. Now, those others could block the traffic, or put up a paywall, or whatever else they wanted. But everyone must be free to link to one another.

These “big tech pays news” schemes break this fundamental idea. They announce that some companies, these big companies who apparently no one likes, must suddenly pay to link. And sure, you can easily state (1) these big companies can afford it, and (2) no one likes them any way, so maybe you think that’s good. But nothing good comes from breaking the fundamental principles of the open web.

Once you break this concept of the freedom to link, you’re flinging open Pandora’s box to all sorts of mischief. Once industries learn that the government has no problem stepping in and forcing companies to pay for links, does anyone really believe it will stop at news organizations? Of course it won’t. Then the whole internet just becomes a food fight for lobbyists to argue with politicians over which industries they can force to subsidize other industries.

It’s pure unadulterated crony capitalism at its worst. Those with the best connections get to have the government force those with weaker connections to subsidize their own failures to innovate and compete.

And yet, this idea remains inexplicably popular (I mean, it’s quite explicable for the news orgs, but it’s inexplicable why so many others have jumped on board). As you’ll recall there were a few early experiments with this in Europe. In Belgium, when such a law passed, Google threatened to block any publisher who didn’t give them a free license, and all the publishers rushed in to give Google a free license, showing again how much they actually value the traffic. In Germany, the tax was applied to snippets, so Google did the only sensible thing and removed snippets, causing the publishers to freak out again.

In response, Spain passed an even more problematic version that said that Google literally couldn’t block those it didn’t want to pay. They literally said that if you have a news aggregator product, paying for links is mandatory. So Google did the only reasonable thing: shutting down Google News in Spain. Still the program went ahead, and, of course, it was the smaller news orgs who suffered the most.

Of course, the biggest success for all this, not surprisingly came in Australia, where everyone freely admitted that it was a plan to extract money from Meta and Google and hand it to Rupert Murdoch, who has been most pleased with the arrangement. Yet again, while this subsidy to Murdoch may have made him happy, it served to screw over smaller publications.

This whole scheme has now come to North America. Last year, Senator Amy Klobuchar pushed to help Rupert Murdoch and to harm the open internet with her JCPA. While that failed, it’s quite likely it’ll come back in some form — probably worse — soon.

But now the biggest push is up in Canada, where bill C-18 has been a big point of discussion for months. As in Australia, backers of the bill insist it’s not a link tax, it’s just a law to require a negotiation on how much to pay. But… pay for what? The answer is to link. It’s a link tax. The people claiming otherwise think you’re stupid.

Already, both Google and Meta have said they’ll block news links in Canada if this bill passes. And, again, this is the only reasonable move: if the government taxes something you expect to get less of it. The stupidest thing in all of this is not only is the government trying to force the payment of something that is fundamentally free, they seem to expect the sites to just continue letting news flow across their platform, despite its costs.

The Canadian government is so mad that Google and Meta are doing exactly what the government is pressuring them to do by taxing an activity, that they’re calling it “intimidation” and demanding internal communications from both companies. It’s kind of a galaxy brain take to say “you’re engaged in intimidation by following the incentives we’re creating, so in response, we’re going to intimidate you by demanding your private communications.”

Meanwhile, it’s worth noting that the whole framework of C-18 is particularly disingenuous. The bill’s title is: “An Act respecting online communications platforms that make news content available to persons in Canada.”

Can you spot the problem? I knew you could, because you’re not as stupid as people pushing this bill think you are.

Google and Facebook are not “making news content available” to people in Canada. They’re linking to that news that the news organizations are themselves making available.

The whole thing is problematic… and has a decent chance of becoming law in Canada. The days of the open web where concepts like “linking” were unquestioned may be coming to an end.

Filed Under: australia, c-18, canada, competition, crony capitalism, jcpa, link tax, news, rupert murdoch, subsidies
Companies: facebook, google, meta

Some Temporary Good News: None Of The Really Bad Internet Bills Seem To Have Made It Into The NDAA

from the now-the-omnibus dept

Phew. As we’ve noted over the past few weeks, there’s been a big push by some in Congress over the last couple of weeks to sneak in some really terrible bills, among them JCPA, KOSA, INFORM, and SHOP SAFE. We’ve covered the problems with each of these bills and the very serious problem with trying to slip them into year end “must pass” bills like the NDAA, often skipping over several levels of congressional process while doing so.

Last night Congress came to an agreement on the NDAA and released a 4400 page draft. And, somewhat amazingly, none of the bills we talked about ended up making it in! Much of this was due to people speaking out and calling their Senators and Representatives.

It’s a stupid, stupid process, but because of the nature of it, Congress will often try to slip in “non-controversial” bills just to get them over the finish line. All the talk and buzz over the last few weeks about these bills was really Congress “testing the waters” to see if they could sneak the bills through this way. People speaking up made it clear that including them would create controversy, and thus helped keep them out of this bill.

Of course, I’m sure there’s a lot of other garbage in the bill as well (there always is), but for the moment, the worst bills that we were most concerned with seem to have been kept out.

That said, this congressional session isn’t over yet, and there’s still the other big year end “must pass” bill: the omnibus spending bill. That one is also prone to adding questionable laws like these. Hopefully the controversy from this past week about them will help keep them out of the next bill as well… but we can’t be sure until the bill is finally released.

Filed Under: congress, inform act, jcpa, kosa, ndaa, shop safe

How Will Elon Feel When He Realizes Congress Is Trying To Force Him To Throw Free Money At Newspapers He Hates?

from the pay-attention-elon dept

We’ve written many times about the many problems of the JCPA (the Journalism Competition and Preservation Act). As noted, the bill is a really sketchy bit of corruption: creating a link tax to force internet companies to funnel money to news organization owners for… sending them traffic. Everything about the JCPA is wrong and broken. Supporters insist it’s not a link tax nor a change to copyright law, but it is both. The fundamental argument in the bill is that large sites that link to news organizations need to pay for a license for “access.” But access to what? There’s no license for access for content put on the web for free. It’s just… the web.

The bill also has a bunch of nasty features. The main mechanism by which it works is that it allows “news organizations” to join together to “negotiate” for such a license. The collective bargaining part isn’t such a big deal, other than the fact that it’s collective bargaining over something that is inherently free: the right to link and send traffic to a website. But, as part of the bill, sites that can’t reach a negotiated agreement to pay up have to go to baseball-style arbitration, where each side submits a number and the arbitrator chooses which one wins. So sites can’t just say “we’re not paying.” They may be forced to.

Furthermore, this will allow today’s worst disinformation providers to demand free cash from tech companies and, because the bill forbids any sort of “retaliation,” it effectively allows the worst propagandists to force sites like Google and Facebook to carry and promote their links, because anything else will be seen as retaliation. So the bill will help give free money to nonsense peddlers.

And, contrary to the claims of supporters of the bill, it won’t help journalism either. Most of the money will go to large private equity firms that have been buying up regional newspapers, firing most of the employees, setting up a barebones staff, and taking in the pretty significant regular cash flow from long time subscribers who just continue subscribing via inertia. Do we really think those private equity folks are going to take this money and invest in better journalism, or just pocket it?

Anyway, as we noted yesterday, reports are that some Congressional leaders (namely Senators Chuck Schumer and Mitch McConnell) have cut a deal to include the JCPA in the must-pass NDAA, despite this bill having literally nothing to do with national defense (the purported purpose of the NDAA).

Lots of organizations have put out statements and/or action tools to protest this. Public Knowledge released a big group letter. Fight for the Future has a tool to contact Congress about this. Chamber of Progress has a really nice tool for sending a letter to Congress as well, while also highlighting how the law would help fund nonsense peddlers. CCIA also has some TV ads explaining the problems with the bill.

It’s unclear how the companies would react. While the bill does effectively say that sites cannot punish websites for demanding payment, it does seem like sites could just stop linking to news. And Meta/Facebook is already threatening to do just that:

“If Congress passes an ill-considered journalism bill as part of national security legislation,” Meta said in a statement tweeted by spokesman Andy Stone, “we will be forced to consider removing news from our platform altogether rather than submit to government-mandated negotiations that unfairly disregard any value we provide to news outlets through increased traffic and subscriptions.”

This is not an idle threat. When similar legislation passed in Australia, the company blocked links to news stories for a few days, until the Australian government made some concessions in the law. While many argued that this step backfired for Facebook, I still don’t understand how. The company was only responding to the incentives placed before it. Of course, I’m not sure if Google could or would follow suit and block links to news sites, because that would be a huge mess for the entire internet.

And then there’s the question of Twitter. Technically, it does not seem that Twitter currently meets the requirements to be subject to the law, but as with so many of these laws, they base the requirements on statistics that are not entirely easy to determine. But, given Musk’s claims that he plans to have a billion users by 2024, that would trigger the law — meaning that Elon would then be forced to start paying news organizations.

That seems particularly interesting given Musk’s pretty vocal hatred for mainstream news organizations and his stated belief that users on Twitter can effectively replace them. Yet, under this law, should it pass, Musk would be forced to first negotiate with those media organizations and then pay them for merely sending traffic to them.

Of course, if Musk had a functioning policy and communications department he might be paying attention to all this and could speak out, like Meta did. Instead, he’s mostly fired them all and is focused on promoting culture war nonsense.

Filed Under: elon musk, jcpa, journalism, link tax, news, subisides
Companies: twitter

from the corrupt-bargain dept

We’ve been covering the Journalism Competition and Preservation Act (JCPA), which is a blatant handout by Congress in the form of a link tax that would require internet companies pay news orgs (mainly the vulture capitalist orgs that have been buying up local newspapers around the country, firing most of the journalists and living off of the legacy revenue streams) for… daring to send them traffic. We’ve gone over all the ways the bill is bad. We’ve gone over the fact that people in both the House and the Senate are (at this very moment) looking for ways to sneak it into law when no one’s looking. Indeed, there are reports that there will be an announcement tonight that it’s included as a part of the National Defense Appropriations Act (NDAA).

The whole thing stinks of corruption. Politicians often rely on local newspapers for endorsements to win re-election campaigns, so they want to keep local papers happy. And it’s the perfect kind of corrupt handout for Congress. It’s not even using “taxpayer” funds. It’s forcing other companies — the hated internet companies — to foot the bill.

And, here’s the thing: the newspapers themselves are now stumping for the bill.

Newspapers nationwide are running editorials today in favor of the Journalism Competition and Preservation Act, which passed a Senate committee with bipartisan support in September and has been waiting ever since for a floor vote.

Which… seems pretty sketchy when you think about it. The newspapers don’t seem likely to be running any editorials, or even op-eds, highlighting the problems and cronyism of the JCPA. Because, why would they? If it passes, it’s literally free cash for the companies.

What newspaper will run articles explaining how the JCPA won’t help journalists, but rather their private equity owners? What newspaper will run articles explaining how the JCPA fundamentally breaks the concept of the open internet where you can link anywhere you want for free? What newspaper will run op-eds explaining how the JCPA messes with copyright law in dangerous ways by implying a new right to demand a license for links or fair use snippets?

If “newspapers nationwide” are stumping for the JCPA in their editorial pages, then it looks like we have to assume that they’re not open to anything highlighting the problems and dangers of the bill.

And that, alone, should cause people to worry. It’s showing how these news orgs are willing to forget about basic fairness in their coverage in order to stump for a corrupt handout for their owners. Shameful.

Filed Under: congress, corruption, editorial, jcpa, journalism, links

Congress has a bad habit. They have stopped passing substantive legislation through normal procedure, debate and votes. The legislative process as designed by our Founders is not happening. Instead, Congress is saving most of its actual policy-making legislation for large end-of-the-year bills that can combine hundreds of separate pieces of legislation. And if reports are accurate, we could be shaping up for the granddaddy of them all this December. This process must change, particularly for bills as highly controversial and constitutionally concerning as the misleadingly named Journalism Competition and Preservation Act (JCPA).

The inclusion of controversial and poorly vetted legislation in these mega legislative packages is nothing new. In 2020 as lawmakers rushed off to their winter holidays, Congress included language in must-pass COVID relief that made unauthorized commercial streaming a felony that could lead to ten years in jail. Another controversial and likely unconstitutional small claims copyright tribunal was created at the same time, resulting in a colossal waste of time, money and resources. The CASE Act had only one hearing that had no witnesses from outside industry before inclusion in must-pass lame duck legislation.

This is a terrible way to make sound public policy.

This year, the Journalism Competition and Preservation Act (JCPA), is taking the lead as one of the most troubling riders being considered for the end of this Congress. This legislation uses antitrust law to circumvent constitutional guardrails for freedom of speech within copyright law, will boost the hedge funds and big media corporations already hurting local news, and would force Internet platforms to carry and pay for even the most extreme and false content coming out of “news” organizations.

Despite an outpouring of opposition from twenty diverse organizations – ranging from small publishers, civil society groups, and copyright law experts – and significant concerns raised by bipartisan Senators at the markup, there has not been sufficient public discussion of the harmful, reverberating impacts the JCPA would have on local news and the online information landscape. Flouting legislative debate and regular order is bad enough. It’s even worse when prospective legislation like the JCPA violates the Constitution and is poised to overhaul how consumers access information online.

Since massive media conglomerates like Gannett and Alden Global Capital stand to reap a financial windfall if it passes, it’s no surprise that the JCPA was drafted in conjunction with these conglomerates’ lobbyists behind closed doors. This insular process resulted in the bill’s language only being shared the day before a Senate markup and many Senate Judiciary members also raised serious concerns about the JCPA’s constitutionality and its intentional beneficiaries: massive media conglomerates.
Additionally, the process purposely turned a blind eye and ignored the many more structural problems facing local news. An FTC discussion draft on the issues facing local journalism found that the approach being taken by the JCPA is ill-advised.

So far, the legislative process surrounding the JCPA has been opaque. What is clear, however, is that massive media conglomerates’ fingerprints are all over it. Despite the best efforts of hedge funds and umbrella corporations like Gannett and Alden Global Capital to force this through Congress, there are numerous policymakers willing to acknowledge the JCPA’s expansive unintended impacts. Now, it’s time for Congress as a whole to recognize that legislation as controversial and constitutionally concerning as the JCPA deserves careful consideration on its own. If the JPCA cannot stand on its merits alone, then Congress should not include it as a rider on end-of-year legislation.

_Josh Lamel is the Executive Director of the Re:Create Coalition.

Filed Under: antitrust, competition, copyright, jcpa, journalism, link tax, must pass, omnibus
Companies: alden capital, gannett

Klobuchar’s Link Tax Is Back… And Somehow Even Worse? Helps Trumpist Grifters Get Free Money & No Moderation From Google

from the who-are-you-trying-to-help-here dept

So, we’ve talked quite a bit about the Journalism Competition and Preservation Act (JCPA), Senator Amy Klobuchar’s attempt to do Rupert Murdoch’s bidding and force successful internet companies to send cash to media companies for… linking to them. Yes, not only do the news orgs want the traffic from Google, but they also want to get paid for it. This whole scheme was dreamed up by Rupert Murdoch, who after decades of pretending to be about free markets, started demanding the government force internet companies to subsidize him for his own failures to innovate.

The nature of the JCPA is that it allows news organizations to band together into a cartel to “negotiate” with big internet companies to force them to “pay” for “access” where access really means “linking to us and sending us the traffic we crave, and already use search engine optimization tactics to try to increase.” If the big internet companies don’t agree to pay for this thing that does not require payment (on the internet, linking is and must remain fundamentally free), then the cartel can submit an amount they think they should get paid to an arbitrator. The internet company can submit their own alternative, but the arbitrator has to chose, baseball-style, between one of the two submissions, and can’t pick anything else.

Two weeks ago there was a “markup” in which Klobuchar seemed to think she had a deal to push the bill out of committee and onto the floor (despite no real hearings addressing the many, many issues with the bill). However, Ted Cruz blew up the bill by attaching an amendment about content moderation.

Apparently, Klobuchar and Cruz spent the last two weeks negotiating, and now the bill is back up for markup after they came to an agreement… that appears to give Cruz and Trumpist grifter disinfo peddlers exactly what they want. As pointed out by Adam Kovacevich, the new language in the manager’s amendment says that in the “negotiation” internet companies basically can’t even raise content moderation issues.

The mgrs amendment adds this ⬇️ language in several places, which seems to be Cruz's way of preventing platforms from engaging in content moderation against right-wing news:

In other words, Klobuchar folded on Cruz's anti-content moderation amdmt. 2/ pic.twitter.com/HZ4KGRDREW

— Adam Kovacevich (@adamkovac) September 21, 2022

Again, this gives much more power to Trumpist grifter sites who can band together, demand free cash from Google, and Google is prohibited from saying anything about content moderation issues. It’s… a weird thing for Klobuchar to be on board with, but she’s made it clear in this and other bills that she has no problem helping out Trumpist websites if it means attacking Google and/or the open internet. Seems like strange priorities to me, but what do I know?

Indeed, the Daily Caller, one of many Trumpist grifter sites is already celebrating how the deal “protects conservative media.” When Tucker Carlson’s publication is cheering on a Democrat’s bill for how it will “protect conservative media,” a sensible Democrat might reconsider what they’ve done.

But not Amy Klobuchar! If it’s bad for Google, who cares if it helps out Breitbart and the Daily Caller to spread more nonsense. Great work, Senator.

The co-sponsor of the bill, Senator Kennedy, is now saying out loud that the bill bars content moderation of conservatives:

“We have reached an agreement that clarifies what the bill was designed to do: give local news outlets a real seat at the negotiating table and bar the tech firms from throttling, filtering, suppressing or curating content,” Kennedy’s office told the DCNF. “The only reason I can see for parties to oppose this bill is that they have a problem either with healthy market competition or free speech.”

Kennedy’s final sentence is particularly ridiculous. Free speech includes (outside of the 5th Circuit) editorial discretion. And this bill is a huge attack on editorial discretion in multiple ways. It limits the ability of websites to remove content they find problematic. It forces companies to pay for content that is literally free to link to, it effectively rewrites copyright law. It also does not create “healthy market competition,” when businesses are not even allowed to freely associate or not. There are so, so many reasons to oppose this bill.

As Kovacevich notes, the other big change is that the bill is even more explicit that they are negotiating over “pricing terms” rather than just terms. That’s just doubling down on the fact that this is a tax, even as Klobuchar and fans of this bill (the news industry who will get free money out of it) pretend it’s not a tax.

In my original post about the bill, I had noted that there was no definition of “access” (the bill requires big tech companies to pay for “access”) which made no sense since that was the whole crux of the bill: that you were paying for “access” by linking to sites. In a proposed manager’s amendment that got passed around last week, there was a definition of access included, saying “the term ‘access’ means acquiring, crawling, or indexing content.”

That… would have been really bad, because it’s saying that crawling and indexing might require a fee. That can’t be how anything works.

Oddly, this new manager’s amendment no longer appears to have a definition included for access.

So, again, this bill seems like the worst of all worlds. It forces companies to pay grifters for “access” to sites they might not even want to link to. And, because of the bizarre baseball style arbitration here, we’re fundamentally setting up a system where big companies need to pay to do something that is fundamentally free on the open internet.

This is a horrifically dangerous bill. It takes a sledge hammer to a fundamental principle of the open internet… all to aid Trumpist media grifters. Why is this bill coming from a Democratic Senator?

Filed Under: amy klobuchar, crawling tax, indexing tax, jcpa, journalism, link tax, linking, news, ted cruz

from the ancillary-bad-ideas dept

It should not be this hard to stamp out a bad idea, but here we are, with the JCPA continuing to haunt the country like a zombie that simply refuses to die. The JCPA, for those just tuning in, is a bill designed to create a link tax. Its supporters sometimes blanch at that description, but it is an apt one, rooted in the perversely censorial notion that no one should be able to link to material available on the Internet (or facilitate others linking to material available on the Internet) without paying for the privilege.

There was a glimmer of hope last week that Senator Cruz may have accidentally driven a stake through its heart with his surprise amendment that upended Senator Klobuchar’s cursed legislative apple cart, but her steadfast refusal to acknowledge any legitimate concerns about her bills has led her to keep trying to ram this one down America’s throat.

But, notably, she is doing it without the support of the Copyright Office, which earlier this year considered whether the sort of monopoly power the JCPA creates was the sort of monopoly power copyright law either does, or should, create. Sensibly, it decided that it was not.

As it lays out in the Executive Summary, the Copyright Office noted that US copyright law already granted media outlets substantial protection.

Press publishers have significant protections under U.S. copyright law. They generally own a copyright in the compilation of materials that they publish. In addition, they often own the copyright in individual articles through the work-made-for-hire doctrine and may also own rights in accompanying photographs.

At the same time, copyright law also currently contains limits on the reach of its exclusionary power, sometimes for constitutional reasons and often for the benefit of the public, which a link tax scheme would conflict with, to the inevitable detriment of the public.

Copyright law does, however, permit certain unlicensed uses of news content, by news aggregators or others. Facts and ideas are not protectable by copyright. The merger doctrine allows the use of original expression where there are limited ways of expressing a particular fact or idea, and individual words, titles, and short phrases are generally not protectable. Even where an aggregator reuses protectable expression, the fair use doctrine may apply. As a result, press publishers’ ability to rely on copyright to prevent third-party aggregators from using their content depends on the specific circumstances, including the nature and amount of the content used.

To nevertheless constrain public use of links via the use of this ancillary, or copyright-like, scheme, would require advancing new legal theories that are “untested.” And thus the Copyright Office could not recommend the exercise.

Given all of these variables, the Copyright Office does not recommend adopting new copyright protections for press publishers. Any change to U.S. copyright law that would meaningfully improve press publishers’ ability to block or seek remuneration for news aggregators’ use of their works would necessarily avoid or narrow limitations on copyright that have critical policy and Constitutional dimensions.

It further noted that the record simply didn’t support the extreme regulatory approach of expanding copyright law to create this new monopoly power to forbid links. To the extent that the funding models for journalism stood to be improved, it was not copyright law, or something so much akin to it, that stood to appropriately improve them.

The Office recognizes that adequate funding for journalism may currently be at risk, and that there are implications for the press’s essential role in our system of government. But the challenges for press publishers do not appear to be copyright-specific. It has not been established that any shortcomings in copyright law pose an obstacle to incentivizing journalism or that new copyright-like protections would solve the problems that press publishers face.

Indeed, even the Copyright Office’s report referenced how self-defeating this sort of proposal seemed to be for journalism by making it harder for media outlets to connect with the audiences that are their lifeblood. (See, for instance, footnote 57 of the report.)

As we (and many others) have said many times, both on these pages and in comments for these regulatory studies, link tax proposals like those now pushed by the JCPA are no solution for journalism. Indeed, they will HURT journalism, especially the journalism by smaller media outlets who can no longer count on people being able to freely share links to their material, and thus no longer be able to count on having untaxed connections to audiences.

It is therefore an odd thing for any regulator to want, especially if they are genuinely sincere about making journalism a more economically viable endeavor, and not simply pushing laws like these in an effort to punish those who foster Internet use they simply don’t like.

Filed Under: amy klobuchar, copyright, copyright office, jcpa, journalism, news, ted cruz