Letting Newspapers Band Together To Demand Payments From Internet Companies Is Bad For The Internet And Bad For Journalism

from the bad-ideas dept

In the wake of Australia getting its ridiculous, anti-open internet link tax passed into law, the push to create similar such laws everywhere else has gone into overdrive. In the US, the main driver of this effort (which has been pushed by legacy newspaper giants) has been an antitrust exemption that would allow the newspapers to collude, in order to put up (what they think is) a joint effort to demand that Google and Facebook pay them for links. The supposed “antitrust” wing of the Democratic party, David Cicilline in the House and Amy Klobuchar in the Senate, have decided that this is a good idea and introduced the Journalism Competition and Preservation Act (JCPA) (here’s the House version). Leaving aside the oddity of thinking that the best way to deal with what you believe are dominant firms is to allow other firms to collude and avoid antitrust laws, the entire proposal is silly, and potentially destructive to the open internet.

Public Knowledge has put together a letter to Congress explaining why (our think tank, the Copia Institute, has signed onto the letter). In a separate blog post, Public Knowledge notes that while it as an organization has been largely supportive of Cicilline and Klobuchar’s antitrust efforts around the tech companies (something we at Techdirt are somewhat less convinced by), this bill is a complete disaster.

The key part is exactly what we highlighted was wrong with the Australian law. The idea that this is a competition issue and that newspapers need to be able to band together to have enough clout to negotiate a price for linking to their stories has a totally false underlying assumption, that there’s some underlying right to be paid for links. The whole nature of the open internet is that you don’t need permission or a license to link to someone else. But this bill seems to think that’s not true. And that’s a problem.

The JCPA would create an antitrust law exception to allow certain publishers the
ability to jointly negotiate business terms with major online platforms. Notably, it does not
otherwise alter substantive law. However, no individual news publication currently has any
legal right (via copyright, or any other statute) to prohibit third parties from linking to their
content. Nor does banding together to collectively negotiate give such a right. In other
words, a cartel of news sites is exactly as powerless to prevent Facebook or Google from
linking to its members? content as a small site would be negotiating on its own.

And that could lead some — perhaps even courts — to think that this bill actually alters copyright law to mean that you do need a license to link, and that would be horrific for the open internet.

This central disconnect means that the structure of the bill does not achieve its
stated legislative aims. As such, we are concerned that this bill could be interpreted by
courts to implicitly change the scope of copyright, expanding the exclusive rights that news
publications enjoy in their material beyond what any copyright owner has ever enjoyed. To
the extent that this creates a new substantive right to demand that material not be linked
to, this is unwise; to the extent that it interferes with fair use rights, particularly of the
rights of users of platforms, it is unconstitutional and violative of our international
obligations.

The ability of one website to connect (?link?) to other websites, without needing to
negotiate to do so, is a foundational component of modern internet infrastructure. Linking
is not, and has never been, an act within the scope of copyright. It is not within the
statutory or common-law ambit of copyright law, as merely linking to a piece of external
content is not a reproduction, display, performance, or distribution of that content. As such
rightsholders do not–and should not–have the ability under copyright law to prevent third
parties from linking to their publicly available content. (Notably, the vast majority of
rightsholders do not want such a right, and those that do already have technical methods
which allow them to do so.)

Once again, what we’re seeing with Klobuchar and Cicilline is that they’re so deeply infatuated with the idea that “big tech is bad” that they fail to bother to look at the details of their own proposals and what they would mean for the open internet.

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Comments on “Letting Newspapers Band Together To Demand Payments From Internet Companies Is Bad For The Internet And Bad For Journalism”

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45 Comments
Anonymoussays:

Hmmm. A logical extension of this is: we should be able to negotiate with businesses and governments for the privilege of showing (even/especially their own employees) our street/mailing address. This is the physical world analog. And of course it wouldn’t matter is we freely gave them the information, we could expect to be paid anytime that information was seen by anyone.

What a great revenue stream (for example, simply receiving a bill in the mail could yield income).

/s

DannyBsays:

Dear Newspapers

Dear Newspapers

While I greatly appreciate your efforts to get your just and deserved revenue by charging other internet web sites for linking to your news articles, I feel there is another source of revenue you are overlooking. You are leaving money on the table.

You should also be charging all ISPs and internet backbone providers that carry any traffic between your news site and someone who reads your advert… er, um, I mean reads your articles.

Those ISPs and internet backbones are making money from people reading your news articles. They should have to pay their fair share to carry your copyrighted articles to end user’s eyeballs.

Please give this matter all the consideration it is due.

Sincerely,

That One Guysays:

Oh look, exactly what everyone expected

Imagine that, platforms fold in one country and agree to start paying for links and other countries are lining up to demand the same, whoever could have seen that other than anyone and everyone?

The truly messed up thing is that I imagine that this is another ‘oh noes, please don’t throw us into that briar patch’ situation where the politicians involved may think they are sticking it to Google an Facebook but in reality they’re playing right into their hands, because while a widespread link tax may be disastrous for the internet in general it’s going to be amazing for larger platforms who will be able to shrug off the costs as they watch their competition driven under.

As an aside it’s interesting watching the hypocrisy that tech-hatred can bring about, where the same people decrying ‘monopolies’ by particular companies are perfectly fine creating anti-trust exemptions for other companies.

Anonymoussays:

Linking is not, and has never been, an act within the scope of copyright. It is not within the statutory or common-law ambit of copyright law

Statutory, no; but common law? In Universal City Studios, Inc. v. Reimerdes, the judge wrote: "To the extent that defendants have linked to sites that automatically commence the process of downloading DeCSS upon a user being transferred by defendants’ hyperlink there, there can be no serious question. Defendants are engaged in the functional equivalent of transferring DeCSS code to the user themselves." This was affirmed on appeal, and to my knowledge was never overturned.

Notably, the vast majority of rightsholders do not want such a right

In terms of copyright, the vast majority of rightsholders never wanted copyright at all. But it’s automatic, and few people take the time to disclaim copyright on, for example, every email they write.

Zanesays:

Chicken and egg

I get the logic, I”m not necessarily against the likes of Google paying for content. Google make vast amounts of profits, and it seems wrong that some of that advertising revenue isn’t given to those who create the actual content in the first place. Google would be nothing if it didn’t have access to so much journalism. It’s a chicken and egg situation. A mere indexer of info shouldn’t really be making more profit than all the individuals creating the content.

How open is the internet is debatable, when in reality it is dominated by so few (Google, Facebook).

I can see the argument that some profits from the media giants are diverted to quality content. Although I wouldn’t list News Corp as quality, more like propaganda to sway elections and referendums for the odd billionaire. And that’s the issue, ensuring it somehow gets filtered to the little guy making truly unique journalistic content.

I guess I think there is an issue, and the status quo isn’t really any better than what other countries are proposing

Anonymoussays:

Re: Chicken and egg

Google would be nothing if it didn’t have access to so much journalism.

Google provides a valuable service to all content creators, whether they are commercial enterprises, or an individuals web site. A searchable index is valuable in its own right. Also, the newspapers find the indexing to be valuable, as they will not use robots.txt to stop Google indexing their content. The newspapers want Google to pay them for the valuable service that Google provides them, as they refuse to stop the indexing, which is easy for them to do.

Rockysays:

Re: Chicken and egg

I get the logic, I”m not necessarily against the likes of Google paying for content. Google make vast amounts of profits, and it seems wrong that some of that advertising revenue isn’t given to those who create the actual content in the first place. Google would be nothing if it didn’t have access to so much journalism. It’s a chicken and egg situation. A mere indexer of info shouldn’t really be making more profit than all the individuals creating the content.

There are a couple of problems with your reasoning. For example, news.google.com doesn’t run ANY ads, at all. Now, the ads that Google places elsewhere is bought and paid for, which is how Google is making money. Arguing that since Google makes a ton of money off this and thus should pay for referring links to other sites is kind of ass backwards. It would be like asking someone who have ads in a phonebook to pay companies money because potential customers found the number in it.

Another problem is that you think the indexer makes more money than the one making the content, but what if we compare any revenue Google makes from one site versus the revenue the site has, what’s bigger? I doubt Google makes more money on a commercial site than what the site does.

Finally, any site that Google redirects traffic to benefits from it just like how Google benefits from it. Without Google, who are we going to blame then when a site suddenly have even less revenue due to less traffic?

The question comes down to: Is a site better off with or without Google? If it’s better off with Google, why should Google pay for that?

Here’s another thought, think of the history of news-media online and how they ended up in this situation. First, news-sites sprang up as a complement to print or broadcast, all free for all to read/watch. Then the online presence grew hand in hand with how the internet grew, and the sites where still free. After that we came to the break even (or whatever we can call it), where an online-presence became as important as print/broadcast due to a shift in how people started consuming media and this impacted the amount of subscriptions since the sites where free online. And now we started to see the first paywalls being erected, but those paywalls could never actually replace the old subscription model completely which leads us to the current situation. We now have the situation where news-media can’t get the same revenue they had with the old subscription model, even when applied to their news-site. They essentially did it to themselves by not realizing early that they should monetize their content online, even if they now have a larger audience.

That One Guysays:

Re: Chicken and egg

Both sides benefit from the relationship but all you need to see to know which side benefits more is watch what happened in the past when Google responded to such demands by delisting the ‘valuable content’ in question. If a transfer of money much occur then if anything the ones being listed should be paying Google, not the other way around.

PaulTsays:

Re: Chicken and egg

"Google make vast amounts of profits"

So do AT&T for supplying the connections that allow people to access Google and the newspaper websites. So?

"Google would be nothing if it didn’t have access to so much journalism."

Google is way more than search, and online content is way more than "professional" journalism.

"A mere indexer of info shouldn’t really be making more profit than all the individuals creating the content."

I’d look at what Google actually does some day, because they do one hell of a lot more than that.

"How open is the internet is debatable, when in reality it is dominated by so few"

It’s way more open than any other platform currently available to you. Also, the dominance by those platforms doesn’t change the openness. You can create your won domain any time you want without restriction, and you can communicate on almost any platform on the internet, no matter where on the planet they’re located, once on there – albeit subject to some national laws in certain regimes and the will of the site owner.

Scary Devil Monasterysays:

Re: Chicken and egg

"I get the logic, I”m not necessarily against the likes of Google paying for content. Google make vast amounts of profits, and it seems wrong that some of that advertising revenue isn’t given to those who create the actual content in the first place."

This is what really makes me despair. People keep saying "isn’t it right to force the rich guy to pay for the poor guy" while missing the point; That what this law says is that the one who makes a library index needs to pay the authors of the books listed. That the mapmaker needs to subsidize every business displayed on their map.

The "logic" you speak of is the one which states that giving information of where to find an item means you need to pay the seller of the item. The one doing the advertising needs to pay the one advertised about.

Where in this bizarro world of yours is that state of affairs somehow "better" than the status quo where it turns out that reality does not magically allow for an easy way to safeguard copies of information?

PaulTsays:

Re: Re: Chicken and egg

The basic fallacy is – "newspapers used to make a lot of money, now they don’t. In that time, Google went from being a small concern to a major operation. Therefore, the money Google is making has been taken from the newspapers and they need to be forced to give it back".

Such a conclusion is completely faulty, requires ignoring huge fundamental changes in the marketplace in that period of time, and pretends that Google’s core business is directly dependant on newspapers. You have to ignore the complete evaporation of the old newspaper advertising model due to things that Google had no hand in (for example, dating and classified ads moving to dating sites and eBay/Craigslist), and absolve newspapers of all responsibility for failing to adapt to their customers’ demand for online rather than physical print media.

It might be nice for newspapers to bill themselves as David in the fight against Goliath, but reality doesn’t support it.

ECAsays:

WTH

Lets see.
99% of newspapers is the sharing of Non-local news.
So what ISNT colluding?

Google isnt a News service. There is NO COMPETITION.

If Newspapers Only produced What They knew, which is generally local Only, papers would be about 3 pages long and still cost you a $1.
What does a newspaper Provide? LOCAL INFO. not much else is national or international.

Dear Google. Quit being nice, Turn off all links to newspapers, around the world.
Lets see what happens next. Besides saving you TONS of money.

Anonymoussays:

Re: Re:

First off, calling it a "link tax" is a misnomer when the proposed law in the U.S. and the passed law in Australia are both about enabling negotiations.

Second, I don’t actually agree with the Bargaining Code that’s laid out in Australia and this law being proposed in the U.S.. I’m much more in support of the kind of subsidization from the government that Public Knowledge discusses in its articles about an Internet Superfund and adding support of local news to the infrastructure bill. Macpherson talks about what that Superfund would be like here:

In the longer term, a promising solution may help solve both issues: a revenue stream for reputable local journalism organizations, while countering disinformation. We can imagine a ?Superfund for the Internet,? modeled on the 1980 Superfund to clean up hazardous waste sites. It would compensate organizations that help detect, analyze, and counter disinformation on the internet (such as local journalism outlets, fact-checking organizations, and startup initiatives) through fees from the dominant digital platforms that enable distribution of disinformation. That could be a bridge to more long-term, structural solutions.

I’m also in favor of the type of endowments or funding that Emily Bell discussed on the Techdirt Podcast a good while back. I’m also in favor of the 21st Century Federal Writers’ Project Act, which Macpherson discussed:

Days before, directly inspired by the 1935 Federal Writers? Project of the New Deal Era, Representatives Ted W. Lieu and Teresa Leger Fernandez introduced legislation, the 21st Century Federal Writers? Project Act, that would create a new grant program administered by the Department of Labor to hire America?s unemployed and underemployed journalists and writers. It will also create a nationally administered and searchable repository that archives the stories of America?s struggle through the pandemic.

I’m also in support of the kinds of taxes and regulations that FreePress wishes for Congress to impart on Big Tech:

?A tax on the massively profitable online-advertising sector is a much better legislative approach than facilitating the transfer of money from Mark Zuckerberg to Rupert Murdoch. The advertising tax that Free Press Action has proposed would force the largest online advertisers ? in an industry that?s dominated by Facebook and Google ? to pay billions to help clean up the mess they?ve made of our civic discourse. The funds generated would be used to support the types of initiatives that put journalists back to work and benefit the civic health of our communities."

We need robust solutions to keep local journalism and local newspapers alive and to revive them, and the free market or decentralized systems involving climate-killing cryptocurrency/NFTs, which Mike seems to be in support of experimenting with, aren’t going to help to accomplish that goal. Plenty of countries in Europe get along just fine by using taxes to pay journalists to write the news, but Mike seems more keen on looking to outlandish tech-based solutions to problems that those other countries have managed to solve without tech.

That One Guysays:

Re: Re: Re:

First off, calling it a "link tax" is a misnomer when the proposed law in the U.S. and the passed law in Australia are both about enabling negotiations.

Sure, and when the local Don’s man tells you he’s concerned about property fires he’s just passing on a friendly bit of advice. It’s not a ‘negotiation’ when one side is calling the shots and the other side isn’t allowed to refuse.

As for the ‘lets tax the tech companies’ arguments those are definitely worth a chuckle. ‘Let’s charge the tech companies for letting people lie and mislead on their platforms, something which is absolutely legal, and give that money to the news stations, they never lie and/or mislead people!’

I do wonder, if making a mess of civic discourse is grounds to be fined how many politicians, companies and tv stations will also be on the hook, or is it only a problem when certain companies enable it?

Anonymoussays:

Re: Re: Re: Re:

Using money collected by the government to fund news and journalism is something that plenty of other democratic countries have decided to do. I haven?t seen the various nations of Europe that use taxpayer dollars or fees to fund news descend into chaotic hellscapes. It almost seems like countries other than the U.S. have realized that certain things like journalism and healthcare aren?t compatible with the free market and fund them directly, while America is stuck decades behind.

What are your thoughts on FreePress? idea to tax targeted advertising to pay for journalism? Do you have any opinions on the 21st Century Federal Writers? Project Act? Would you prefer those methods instead of the Superfund that Macpherson brought up?

That One Guysays:

Re: Re: Re: Re: Re:

Using money collected by the government to fund news and journalism is something that plenty of other democratic countries have decided to do.

And are those taxes taken from specific companies and industries, ones that might perhaps compete with the recipients of the taxes? It would be one thing if the government wanted to subsidize journalism from a general fund(not to mention problematic as that strikes me as something that would be really easy to weaponize politically), quite another to fund that ‘subsidy’ via taxing the competitors of said journalists and punishing the companies in question via hypocritical and bad faith taxes.

What are your thoughts on FreePress? idea to tax targeted advertising to pay for journalism? Do you have any opinions on the 21st Century Federal Writers? Project Act? Would you prefer those methods instead of the Superfund that Macpherson brought up?

No for the reason listed above, depends on how they plan to fund it though given what you surrounded that idea with I don’t have high hopes and that’s like asking if I’d rather lose an arm or a leg respectively.

Anonymoussays:

Re: Re: Re: Re: Re: Re:

I see it less as ?hypocritical? and ?bad faith? ?punishing? of competitors and more like, to make an analogy, if we taxed fossil fuel companies for their oil & gas operations and all the externalities that that produces, and using that money to fund renewable energy initiatives and tax credits that go to people who buy electric cars, or how we tax gas to pay for roads.

Khym Chanursays:

Re: Re: Re: Re: Re: Re: Re:

Then shouldn’t such a tax be distributed amongst Internet companies in general, including ISPs and the makers of smart phones, rather than just companies which

[operate] a website or other online service that displays, distributes, or directs users to news articles, works of journalism, or other content on the internet that is generated by third-party news content creators [and] has not fewer than 1,000,000,000 monthly active users, in the aggregate, of all of its websites or online services worldwide.

That One Guysays:

Re: Re: Re: Re: Re: Re: Re:

It’s hypocritical and in bad faith because as I noted above if ‘making a mess of civic discourse’ or however someone cares to phrase it is a fine-worthy crime then a lot of people/groups, including some of the same ones who stand to benefit from such a tax should and would be on the hook as well, and yet that doesn’t seem to be the case.

Now if those pushing for such penalties are willing to levy the same fines against politicians, news companies and other companies that might have ‘muddied the waters’ a bit then I might be more inclined to believe that this is being done in good faith with the public’s wellbeing in mind, but as it is the arguments positively reek of a mix of PR stunt(‘look at us sticking it to the tech companies!’) and parasitism as one group of companies sees the success of others and demands that the latter subsidize them because they are owed success.

Anonymoussays:

Re: Re: Re: Re: Re: Re: Re: Re:

I don?t know about you, but I like democracy and local journalism. If proposals like FreePress?, Public Knowledge?s Superfund idea, or the 21st Century Federal Writers? Project go through, I won?t be complaining about ?parasitism? or ?owed success?. I?ll be glad that subsidies could go toward underserved areas that will actually have the opportunity to get quality local journalism, which is a necessary component for democracies to function.

Like I said: Journalism of the likes that we need for a healthy democracy is, much like health care, not compatible with the incentives of the free market. Other democratic countries learned this lesson quite a while ago, but the U.S. seems content to live in the past.

That One Guysays:

Re: Re: Re: Re: Re: Re: Re: Re: Re:

Ignoring the bad faith and hypocrisy angles to focus entirely on the ends justify the means, always a great(and telling) argument, but hey, if all you care about is the result I look forward to your support for taxing the ever loving hell out of politicians and national news stations to fund your subsidies, since both of those have polluted civic discourse and compete with local news respectively and as such deserve to pay as a result.

I’m sure Murdoch and others will be happy to start financing local news through taxation aimed specifically at them(among others), after all a thriving democracy depends upon it and it’s only fair that they fund local journalistic efforts, and if that creates a more competitive and expansive news field all the better.

Boba Fatsays:

(sorry, hit Enter accidentally or something)

I was trying to say that this idea isn’t new.

Many years ago there was a business model which collected things that other people said and republished them for profit without payment or attribution. It was called "newspapers".

What Google does here is just giving a taste, and pointing to the people who said it. I can totally see how that’s unfair.

PaulTsays:

Re: (sorry, hit Enter accidentally or something)

"Many years ago there was a business model which collected things that other people said and republished them for profit without payment or attribution. It was called "newspapers"."

Not quite. The newspaper business model was to sell as many papers as possible for a cheap cover price (or even free!) that didn’t quite cover their printing costs. Then, armed with the knowledge that multiple people were likely to read each copy, they then sold commercial advertising, classified notices, personal ads, and so on at prices that made them a nice chunk of profit, bolstered by limited competition in their local market. Sometimes this paid for actual journalism to increase sales, but not always.

Then, the internet came along and slowly killed off most of those features – people could read even local stories in more places, they go to dating sites for their personals, eBat and Craigslist for their classified, and so on. All of this coincided with the rise of Google’s popularity, so they’ve decided that Google are to blame them and that they need to give them free money for their failure to adapt.

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