Senator Klobuchar’s Latest Bad Idea: Letting Smaller Journalism Outlets Demand Payments For Links
from the this-is-a-bad,-bad-idea dept
Look, I’m a small journalism outfit. A very small one. So, in theory, a law that effectively lets me demand free cash from Google and Facebook should be a good thing for me. But, it would actually be a disaster. That’s why I spoke out against the idea last year when Senator Amy Klobuchar and Rep. David Cicilline first floated the Journalism Competition and Preservation Act (JCPA). Earlier this year, we had a guest post from Library Futures explaining why the JCPA would be lose-lose legislation. In short, it’s a link tax bill, similar to the one written in Australia to appease (and enrich) Rupert Murdoch. It basically says that publishers can band together, with an antitrust exemption, to demand fees from bigger, more successful internet companies.
And, of course, Klobuchar (as is her usual method of operation when pushing bills that fundamentally break the internet) has decided to move forward with it anyway. She recently introduced a new version of the JCPA, with the one major change being that it only applies to smaller news orgs — those with under 1,500 employees. This would leave out the Fox Newses of the world, along with the NY Times, Washington Post, etc. At best, you can say that Klobuchar realized the original bill was just about wealth transfers from big internet companies to big media companies, and carved them out of the deal.
Of course, that also seems like a weird way to set up this bill with potentially catastrophic consequences. We’re at a time when hedge funds — most notably Alden Capital — have been buying up newspapers and laying off tons of people while trying to squeeze cash out of the remaining husks. And, this bill basically says “buy up large newspapers and cut them to under 1,500 employees.” Indeed, remember, the head of Alden not that long ago was writing opeds saying that Google and Facebook should just pay him money. And here’s Amy Klobuchar saying “sure, you get free money just as long as you fire enough people first.“
That’s crazy. It’s so crazy that even the Newsguild, which has been supportive of this general concept, is like “hey wait a second, this is going to lead to journalists getting fired.”
On top of that, as soon as you get into declaring which organizations are “journalism” organizations, and which ones get this special benefit from the US government, you’ve entered dangerous 1st Amendment territory. We’ve had this issue in the past with other laws that try to carve out “covered” journalism entities. Part of the 1st Amendment is that the government cannot declare who is and who is not a journalist (otherwise it would be way too tempting to carve out journalists most critical of the government). Yet, this bill spends pages declaring who gets to be considered a journalism organization for the purposes of the law. That’s the first big problem.
But, the much bigger problem is that the bill is trying to break the internet and establish the ability to tax links.
The main function of the bill is to allow news orgs to team up, force internet companies that link to them into mandatory arbitration, and force them to pay the journalism organizations for linking to them. For linking to them. Literally for sending them traffic. The bill says that each side submits their proposal for how much the internet companies should pay the news companies, and then the arbitrator picks one side’s proposal.
But, again, let’s go back to what this is — what the internet companies are being forced to pay for. They are being forced to pay to send other websites traffic. This is ludicrous.
News orgs beg these sites for traffic. They hire SEO people to try to get more traffic. Now they’re also getting to FORCE the internet companies to PAY them for that traffic too?
Some of this may feel hidden within the bill, so let me walk you through the key parts. First, it defines a covered “online platform” as any website, mobile app, or internet services that aggregates or directs users to news articles. That is, any online tool that sends traffic to news sites.
ONLINE PLATFORM.—The term ‘‘online platform’’ means a website, online or mobile application, operating system, digital assistant, or online service that aggregates, displays, provides, distributes, or directs users to news articles, works of journalism, or other content, or portions thereof, generated, created, produced, or owned by eligible digital journalism providers.
To be subject to the mandatory arbitration, such an online platform has to have at least 50 million monthly active users and a market cap over $550 billion (hilariously, currently this would exclude Meta/Facebook, since its market cap has dropped a ton in the last few months and now sits well below $500 billion). So, at this point, it basically applies to Apple, Microsoft, Google, and Amazon properties.
Those are the companies that will be forced to pay up under this scheme. Then, it allows media orgs (which meet certain definitions included in the bill, including having fewer than 1,500 employees) to team up with one another to form a “joint negotiation entity.”
IN GENERAL.—An eligible digital journalism provider shall provide public notice to announce the opportunity for other eligible digital journalism providers to join a joint negotiation entity for the purpose of engaging in joint negotiations with a covered platform under this section, regarding the terms and conditions by which the covered platform may access the content of the eligible digital journalism providers that are members of the joint negotiation entity.
Okay, so now you’ve got a joint negotiation entity that can negotiate with the four companies listed above. But what the fuck are you negotiating for? The “terms and conditions by which the covered platform may access the content of the eligible digital journalism providers.” Access? What the hell does “access” mean under this law?
I mean, it’s not defined anywhere, because why define the most critical part of this bill? The answer is that the drafters know that it’s ridiculous to come out and say that what they really mean is you need to negotiate over how much these companies will pay to link to digital journalism outfits.
But, linking is a fundamental feature and right on the open internet. Setting up any sort of scheme where websites are being forced to pay to link is fundamentally against the nature of the open web. It sets us off down a very dangerous and very slippery slope.
Anyway, once you have this joint negotiation entity, you literally get to demand payment for links (euphemistically called “access”). And if Google or whoever is like “fuck you, it’s a link, we’re sending you traffic already, why should we pay you for already helping you out?” the joint negotiating entity can force the companies into arbitration where each side submits how much they should pay, and the arbitrator has to pick one side (and not anywhere in the middle).
Also, not agreeing to negotiate — again, to pay for something that no one should ever pay for — under this law is deemed as “not conducting negotiations in good faith.”
And how much are the companies supposed to pay for sending you free traffic? The “fair market value” based on “the investment of the digital publisher.” Really.
This whole thing is based on a fundamental lie that you need a license to link. But that’s just not true. Copyright does not cover links. There is no license to link. And yet the bill pretends there is one:
At any point after a notice is sent to the covered platform to initiate joint negotiations under subsection (a)(2), the eligible digital journalism providers that are members of the joint negotiation entity may jointly deny the covered platform access to content licensed or produced by such eligible digital journalism providers.
Deny access? What? That means… deny them the ability to send you traffic? I mean, look, if digital publications don’t want traffic from Google, they can just set that up technically on their site with robots.txt blocking indexing, and then sending any referral traffic from Google into a black hole. But, fundamentally, this bill is just confused about linking. You don’t need a license to link. You don’t need a license for snippets and the headline. That’s fair use.
The really funny thing about this bill is it refuses to admit it’s a copyright bill in disguise. Platforms have fair use rights to post a snippet of news content along with a link, and the link is just a fundamental way in which the internet works. One that this bill is attempting to break.
Also, that section above where, somewhat hilariously, digital publications can magically tell the big online platforms they are denying them “access,” the bill says that the platforms CANNOT JUST REFUSE TO LINK. I only wish I were joking.
No covered platform may retaliate against an eligible digital journalism provider for participating in a negotiation conducted under section 3, or an arbitration conducted under section 4, including by refusing to index content or changing the ranking, identification, modification, branding, or placement of the content of the eligible digital journalism provider on the covered platform.
Congrats, Senator Klobuchar, you’ve just created a must-carry provision for news aggregators. And here’s the best part: the misinfo providers out there can now effectively force their way into Google News by forming one of these joint negotiating entities, and then pointing to this section and saying “Google refuses to index my content.”
Who knew that Amy Klobuchar wanted to force disinfo peddlers into Google News?
Everything — and I do mean everything — about this bill is ridiculous. It’s a bizarre attempt to do an end-run around antitrust law, copyright law, and common carrier law… to force Google, Apple, Amazon, and Microsoft to pay for linking and sending traffic to digital publishers who are too incompetent to figure out how to properly monetize incoming traffic.
I can’t see how anyone thinks this is a good idea. And, again, I run one of the companies that in theory would “benefit” from this nonsense by getting free money.
I used to just think that Senator Klobuchar was ignorant about how the internet worked. But considering how frequently she releases absolutely ridiculous and dangerous bills about the internet, I’m beginning to realize that she is deliberately seeking to destroy it.