Letting Newspapers Band Together To Demand Payments From Internet Companies Is Bad For The Internet And Bad For Journalism
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 theability to jointly negotiate business terms with major online platforms. Notably, it does nototherwise alter substantive law. However, no individual news publication currently has anylegal right (via copyright, or any other statute) to prohibit third parties from linking to theircontent. Nor does banding together to collectively negotiate give such a right. In otherwords, a cartel of news sites is exactly as powerless to prevent Facebook or Google fromlinking 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 itsstated legislative aims. As such, we are concerned that this bill could be interpreted bycourts to implicitly change the scope of copyright, expanding the exclusive rights that newspublications enjoy in their material beyond what any copyright owner has ever enjoyed. Tothe extent that this creates a new substantive right to demand that material not be linkedto, this is unwise; to the extent that it interferes with fair use rights, particularly of therights of users of platforms, it is unconstitutional and violative of our internationalobligations.
The ability of one website to connect (link") to other websites, without needing tonegotiate to do so, is a foundational component of modern internet infrastructure. Linkingis not, and has never been, an act within the scope of copyright. It is not within thestatutory or common-law ambit of copyright law, as merely linking to a piece of externalcontent is not a reproduction, display, performance, or distribution of that content. As suchrightsholders do not--and should not--have the ability under copyright law to prevent thirdparties from linking to their publicly available content. (Notably, the vast majority ofrightsholders do not want such a right, and those that do already have technical methodswhich 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.