Wherein The Copia Institute Tells The Copyright Office That Link Taxes Are A Good Idea Only If You Want To Kill Off Journalism

from the world's-worst-ideas dept

It’s hard to believe that even after the huge disaster “link taxes” have been in Europe and Australia that people would push to have them in the United States, and yet here we are. This brewing bad idea has some foolish friends in Congress, who tasked the Copyright Office with doing a study on the viability of importing this nonsense into American law, and via our already over-encumbered copyright law. The Copia Institute filed a public comment as part of this study and provided testimony at a hearing in December. In both, we pointed out that a site like Techdirt is exactly the sort of small, independent media outlet such a scheme is supposed to help yet is instead exactly the sort of small, independent media outlet such a scheme most definitely would hurt.

While some of its advocates insist it is not actually a “link tax” being proposed, and instead something fancier-sounding (“ancillary copyright”), the inevitable result will be equally ruinous to the very journalistic interests this scheme is ostensibly supposed to advance by destroying the very thing they all ultimately depend on: the ability to connect to audiences. It will have this effect because the whole point of this scheme is to attack the platforms and services that currently have the nerve to help them make that connection by linking to these media sites. After all, the thinking apparently goes, how dare these platforms and services deliver media outlets this valuable audience attention without paying for the privilege of getting to do them this enormous favor?

The defects of this plan to essentially tax the platforms and services that provide media outlets with this critical benefit are significant. For example, it completely offends the goals and purpose of both copyright law and the First Amendment, which exist to help ensure that information and ideas can spread. It offends it by design, by deliberately creating a regulatory regime that punishes the platforms and services that facilitate this spread. It also offends the First Amendment more specifically in how it targets the expressive freedom of the platforms and services themselves to refer people to others? expression.

It is also completely at odds with its own professed goal. These platforms and services are giving media outlets everything they ever said they wanted: audience attention. Yet now these outlets would bite the hand that feeds, and for no good reason. Because even to the extent that this scheme is predicated on the idea of helping journalistic enterprises make more money, it will have the exact opposite effect. No media outlet makes money without an audience. You can?t profit from audience attention if there is no attention. And there won?t be any attention with schemes like this obstructing platforms and services from connecting media outlets and their expression to those audiences.

As we?ve seen in other countries, schemes like these have starved media outlets of their audience lifeblood by effectively unlinking them from the world. It has this effect in part because it deters the platforms and services that currently drive traffic to media outlets from being in the drive-traffic-to-media-outlets business anymore by making it way too expensive to do. Sure, with a scheme like this maybe some of the big platforms (Google News, Facebook) might suck it up and pay into the system (although, given what happened in Spain and Australia, when they each at various points refused to continue to do business there in the face of these sorts of schemes, perhaps they wouldn?t). But given all the gnashing and wailing, even at this hearing, that Google and Facebook have too much power, it would make sense to make sure that there could be other platforms and service competitors to Google and Facebook. The more the big ones are resented for driving traffic to other sites the more important it is that it be possible for other platforms and services to be able to exist to do it instead.

Yet that diversity in audience-facilitating services is exactly what compulsory licensing schemes like this one foreclose by inordinately exploding the cost of doing business for anyone who might want to build a platform or service capable of referring audiences to other sites. Those costs don?t just come from the money itself needed to pay into the licensing system but also the potentially massive compliance costs associated with not running afoul of such a scheme?s inevitably technical rules and also any defense costs involved with trying to avoid costly liability should someone accuse the service of not complying with those rules quite right. (As we wrote in our comment, the compulsory licensing system for music webcasters illustrates how hugely and deterrently expensive the costs of complying with a compulsory licensing systems like this proposed one can be.)

And deterring these platforms and services it isn?t going to do anything to make online journalism more profitable. For one thing, it in no way targets any of the reasons why it may not be profitable, to the extent that?s even the case. After all, if distant corporate owners would prefer to starve local newsrooms in favor of skimming off profits, that?s not a failure of copyright law that?s causing the decline of local news. It?s not even a failure of any particular journalistic profit model.

But to the extent that the news business is legitimately under strain, schemes like these don’t alleviate that strain because it was not the absence of this sort of ancillary right that caused any of the underlying problems in the first place. More likely culprits hurting the news business are things such as media consolidation, corporate governance models that emphasize quick profits over good journalism, advertising models that are offensive to user privacy, poor site design that doesn?t retain readers’ attention, and even paywalls and terrible site design that deliberately repel readership. It would make a lot more sense to correct these actual issues, or at least leave everyone free to innovate better monetization models if they are what?s needed for media outlets to flourish as the economically sustainable entities we want them to be. Instead a scheme like this just papers over the actual problems and by throwing more copyright at everything creates all sorts of chilling new ones that now everyone will have to cope with, no matter how contrary to their expressive or economic interests.

Because it WILL hurt them. It will suppress the reach of every media outlet’s expression, and with it also their ability to profit from that reach. And it will hurt them this way without delivering any economic return, probably not to anyone but especially not to the smaller, independent outlets. Compulsory licensing systems are often profoundly inequitable, directing most of the money to big incumbent players and very little to the smaller creatives in the “longtail” of the money distribution chart. (Again, see the webcasting compulsory license for an example of this dynamic.) Furthermore, to the extent that some larger media outlets may envision doing special licensing deals with the big platforms like Google and Facebook, which they think they?ll be able to strike in the extortive shadow of a scheme like this, it would still leave everyone else, especially the smaller, independent media outlets without that bargaining power, in even more trouble than they are already in now.

Especially when such a scheme will meanwhile make it impossible to monetize audience attention that platforms and services are no longer legally able to freely deliver to them, unless these platforms and services spend a ton of money to comply with this scheme or be willing to risk infringement liability. By chilling these platforms and services it will destroy the Internet ecosystem these media outlets depend on to get that audience attention in the first place. And as a result it will diminish the diversity of independent journalistic voices, who will inevitably fade into unvisited obscurity. You almost couldn?t invent a better system to destroy independent media if you tried.

And that is in large part because, as it became clear in the hearing, this proposed scheme ultimately has little to do with actually supporting the economics of journalism writ large. Instead what emerged from the hearing was a perverse sense of entitlement, where some news outlets were arguing that if any audience-facilitating service happened to make money from the exercise of directing audience traffic to them, then this was somehow money that they were entitled to. This scheme only makes sense as a policy designed to pick the pocket of any business that happens to provide any audience facilitating service and is clearly built on a sense of resentment that anyone else might ever in any way profit from linking to someone else’s expression, even when it still provides a symbiotic benefit to the media outlet behind the expression by helping it connect to its own audience. Not content to let this generous goose continue to lay all this economic opportunity on their doorstep, advocates of this scheme would rather use regulation like this to slaughter it in the misguided effort to grab up the imagined riches it greedily thinks such a scheme would magically reveal, irrespective how foolishly destructive such efforts would actually be to everyone.

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Comments on “Wherein The Copia Institute Tells The Copyright Office That Link Taxes Are A Good Idea Only If You Want To Kill Off Journalism”

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This comment has been deemed insightful by the community.
Rekrul says:

This may sound crazy, but I think one way to kill this would be for a sympathetic politician to propose a change that applies the link tax to ALL sites. After all, search engines present a snippet of text from whatever sites they index, so aren’t they all deserving of compensation?

My reasoning is this: If such a change were to be accepted, Google, Facebook and all the other big players would rally to kill such a plan, as being forced to pay every single site they link to, wouldn’t be feasible.

Make the idea as odious as possible and get big tech on your side to help stop it.

Anonymous Coward says:

Re: Re:

I don’t think this is the fight you want to leverage the likes of Google and Facebook on. If politicians could find a way to demand "Big Tech" pay up as much of their perceived affluence as possible, they would. If Google protests that plan, my guess is that the politicians and vested copyright interests just laugh at Google and scream "Nerd harder" like they always have.

You’d think that the publishers should have learned something from the debacles in Spain and Germany, but it turns out that all they needed was a little forum shopping. Unfortunate.

This comment has been deemed insightful by the community.
That Anonymous Coward (profile) says:

That in which one wonders about lead exposure in copyright maximalists.

They’ve seen this plan done, they have watched it fail.
They’ve seen this plan done again, they have watched it fail again.
They’ve seen this plan done yet again, they have watched it fail yet again.

They imagine that THIS TIME they will make it work, despite still working from the flawed basis for the reasoning for "needing" this tax.

Of the people screaming for this "tax" (read yet more corporate welfare) ask them exactly what will happen when the big mean big tech guys refuse to link to them any longer to avoid the costs.
Ask them how quickly they will fail with no traffic.
Ask them how much they had paid big tech for bringing them traffic before demeaning big tech pay them for giving them traffic.
Ask them why they have never considered using robots.txt, a simple tiny fix that would keep big evil tech from indexing them.

This isn’t an actual problem, except in the imaginations of some.
The only thing worse than imaginary problems, are the "solutions" offered up.

They could have and can still keep themselves being indexed, but they refuse to do so, instead pretending they are the poor poor victims of Big Tech sending them traffic that they can’t get on their own.

Before attempting to expand copyright yet again with more "rights" perhaps it is time we demand responsibility for the rights they already have & abuse on a daily basis.

Maybe get an actual report done by a group not beholden to the industry to has crippled every innovation in the nation because they imagine it might hurt their business model that hasn’t adapted since the ice age.
Discover there aren’t these huge losses as claimed & that allowing them to demand more and more actually makes the problem worse as they punish paying consumers because they care more about dollars they think they are losing.

If McDonalds operated as copyright holders did, the burgers would be tiny, in boxes where you have to pay to unlock each topping you might want, and sometimes it would just take your money & not unlock the toppings because stopping people using their own ketchup matters more than if you enjoy your burger. They’d be out of a business in a week, as they should be.
They shouldn’t be given rewards for making business decisions that literally are driving people to other burger places.

But then the office is beholden to the industry & could give a shit if the public every gets any benefit from copyright… corporate profits & control matter more than anything else… like citizen rights.

That One Guy (profile) says:

Re: 'You were wiling to pay them we're just asking for the same.'

They imagine that THIS TIME they will make it work, despite still working from the flawed basis for the reasoning for "needing" this tax.

Thanks to both Google and Facebook caving in Australia politicians and publishers have a solid reason to keep trying as both of those companies showed that while they may have been willing to leave markets in the past if you push hard enough they will fold and start paying out these days.

Scary Devil Monastery (profile) says:

Re: Re:

"That in which one wonders about lead exposure in copyright maximalists."

I wish that was the case, but no. This is deranged but not delusional. The analogy isn’t the victim of lead poisoning too addled to recognize common sense and recent memory. The analogy is that of a spoiled pre-teen whose entire life has been spent realizing that as long as he’s willing to scream, whine, cry, and shit on the floor in protest the grown-ups will always end up giving him that lollipop.

"Ask them why they have never considered using robots.txt, a simple tiny fix that would keep big evil tech from indexing them."

If you assume, from the start, that no one representing copyright has ever moved in anything other than pure and unadulterated grifting then many things become quite clear.

They have never considered existing technical solutions because in the end what they want is money for nothing and the advertising for free.

Daydream says:

You ever wonder if ‘hurting the media business’ is the entire point?
Let Google and other search engines delist news sites to avoid paying the tax, then coast on brand awareness while smaller rival companies sink. If it’s taking too long, use the lawyers to bully the search engines into listing their pages and paying the tax.
Wait until smaller news competitors are forced out of the market, then sit back, maybe ‘reach an arrangement’ to let search engines off the tax. Net result, competitors dismantled and additional market share seized.
I guess that would make it a sneaky online equivalent of Walmart selling at a loss until they drive local supermarkets out of business, huh?

Anonymous Coward says:

Re: Re:

Yes, I think that why the push. It may be a surprise to Cathy Gellis to see the push but I expect no less from the Cronyism Capitalism that is America. She’s out of touch and should take off her rose-coloured glasses and see the swamp that America government is and how powerful and evil the copyright cultists and their government cronies are. Not "foolish friends in Congress" but corrupt politicians are trying to make this happening. The Almighty Dollar rules in America, when will Americans ever wake up and realize this?

That One Guy (profile) says:

Re: Re:

That’s exactly what happened in Spain when they tried this stunt and Google was smart enough to say no. It hurt the bigger outlets but it devastated the smaller ones, so whether they get paid for free traffic sent their way or see their competitors scythed down there’s no reason for the larger publishers not to try to push this, as it’s a win-win either way.

Anonymous Coward says:

If link taxs come in it makes Facebook and Google stronger
they will make deals with big publishers meanwhile small local news outlets will find that they get few readers from small blogs or smaller startup media company’s as it will be simply be too costly and complex for a small media website to make deals with 100s of small news outlets thus is also an attack on free speech saying you have no right to link to a free online newspaper to make a point or explain a political issue in a local town city
But then we have seen big old media company’s make stupid mistakes before like trying to ban Vcrs and mp3 players. And music company’s sending dmca notices to music blogs who were promoting new singers rappers

The problem I see is there’s no Steve Jobs around to guide old news corporations or show them how to innovate in the online age as he did for the music industry until streaming
became popular so they ll probably just make things worse and drive readers away by thier copyright obsession
Of course blogs could move outside the USA and simply continue to link to any news website
Google showed the right path when it closed down google news in Spain when there was a link tax on news articles

This comment has been deemed insightful by the community.
That One Guy (profile) says:

'How dare you not pay us for the traffic you give us for free?!'

One need only look to the past to see these stunts as the naked cash grabs that they are, as for all the screaming about how services like Google and Facebook are ‘stealing content’ when that content is removed the same companies that were throwing fits lose their gorram minds and scramble to get their content re-listed as quick as possible, all the while crying about how mean Google/Facebook are to pull their ‘stolen’ content down rather than just pay for it.

Anonymous Coward says:

"For example, it completely offends the goals and purpose of both copyright law and the First Amendment, which exist to help ensure that information and ideas can spread."

If you are saying that a goal of copyright law is to ensure that information and ideas can spread, I call Bullshit! I don’t believe it’s a purpose or a goal of copyright law to help ensure that information and ideas can spread. It’s just supposed to promote the producing of said information and ideas in the first place if I understand the language in the Constitution. Promoting Innovation per se was the goal.

If it’s also about ensuring that ideas and information can spread then it should be about ensuring access to them as well otherwise what’s the point of spreading ideas or information if you do not allow access to them. If that was a purpose or goal of copyright law, why do we have this copyright regime of everything automatically locked up behind paywall for 70 years plus author lifetime, and all this censorship in name of Big Copyright happening in the social media and other online places, and this permission culture? If ensuring that information and ideas can spread was truly a goal of copyright law then why do we see Big Copyright attacking libraries? It’s more like to me that the copyright regime is about ensuring ideas and information can not spread in order to maximize business profits from ideas and information they allow to spread.

Assocating spreading ideas and information with copyright law irks me frankly. I consider the law as anathema to that.

nasch (profile) says:

Re: Re:

It’s more like to me that the copyright regime is about ensuring ideas and information can not spread in order to maximize business profits from ideas and information they allow to spread.

That depends on whether you’re talking about the purpose of copyright as outlined in the constitution, or the purpose(s) of the actual copyright legislation we are currently stuck with.

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tp (profile) says:

The proof that copyright maximalist practices are working

See this news article: https://torrentfreak.com/huge-pirate-iptv-crackdown-hits-network-supplying-500000-users-220127/

It directly confirms my earlier position that when pirate services are sued/raided, it’ll help existing legal services when customers of pirate services will need to move to legal services.

Anonymous Coward says:

Re: The proof that copyright maximalist practices are working

First, what does that story have to do with this story? I don’t see a reasonable connection between taking down a rebroadcasting system and taxing links.

Second, what in that story says anything about "copyright maximalist practices are working" or "when pirate services are sued/raided, it’ll help existing legal services"? Nothing in the story said that any of the subscribers moved to legal options. Are there even good legal options for what they were trying to get?

I could just as easily say that story tells us that authorities deny access to streaming tv to 500,000 people, and this is just limiting access to content for people that had no other way to get it.

Both your statement and mine are entirely unsupported by the content of the article you linked to. In reality it’s possible that nether are entirely true or entirely false, there might be some people that moved to a legal, or less illegal option (like accessing a paid plan over a VPN), and there might be some people that just gave up accessing this content or moved to another illegal option.

There is not proof of anything in the article, only reports of actions taken following an investigation, and some mostly meaningless industry quotes.

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tp (profile) says:

Re: Re: The proof that copyright maximalist practices are workin

I don’t see a reasonable connection between taking down a rebroadcasting system and taxing links.

Both of them have aspect of "some author was denied compensation" and "the system is trying to restore that compensation opportunity".

Basically pirated iptv channels are taking away compensation from the original programming by broadcasting the content without permission. The link tax has people who wrote tons of news articles, but then news cloning services took that content and ran with it, denying compensation from the original journalists.

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tp (profile) says:

Re: Re: Re:5 Cause you're like fuckin' high bro

Do you think Tero will copyright maximalist his life if he’s told that copyright will add another 70 years for him on top of his life?

Once you learn to pass your copyrighted works to a real publisher, as a reward they will pass along copyright maximalist principles. It’s a small book similar to mao’s blue book, containing all the communist propaganda you’ll ever need. Once you read it, you’ll learn what you have been lacking in the early years of your life. But first you need to create some copyrighted works that are worthy of publisher’s attention.

sumgai (profile) says:

Ya know….

It’s trivially easy for a page’s code to accept input from a viewer, via the textarea or other input commands. But it takes only one more line of code to determine that the input is a URL, and thus it should be treated as a link. (For reference, it’s <input type=URL…>) Obviously, that can be changed, in the background, to simple text (<input type=text….>) and the user will see the same thing on the screen. As eventually posted, the URL will not be an actual link. Anyone can copy/paste it into an address bar, and that’s a royal pain, but it’s not a link, thus no link tax is forthcoming.

It does take a few more lines of code to sift through a textarea and find any links, usually by filtering for www, http/https, specific-news-source.com, etc, but it can be done, and the results would be modified such that browsers don’t have anything to automatically call out as a link. Copy-pasta to the rescue, and no link-tax to be found here, either.

Truly devious coders can come up with other exotic ideas, I’m sure. I’ll not elaborate here, don’t wanna attract undue attention, you understand. 😉

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