Amy Klobuchar’s Link Tax Bill Put On Hold Because She Doesn’t Understand Her Own Bill And Ted Cruz Doesn’t Understand The 1st Amendment

Earlier today, there was a Senate Judiciary Committee markup on the JCPA - the Journalism Competition and Preservation Act - put forth by Senator Amy Klobuchar. Last week I wrote a long post about just how broken the bill is. It does almost everything it seeks to do badly, in ways that are genuinely dangerous. That post has the details, but in short: it tries to force big internet companies to pay news organizations for linking to them, which fundamentally changes how the internet works (you should never have to pay to link). While it pretends not to, it fundamentally messes with copyright law, because while it talks about licensing," it never explains what these sites need to actually license. That's because the reality is that they're trying to license links, news snippets, and headlines. All of those are fair use and require no license. Yet under this bill, they'll need to be licensed.

It also has a bunch of other problems, including the 1500 employee cap that will encourage vultures like Alden Capital to buy larger news orgs and fire people. There are weak pretend incentives to suggest that the owners of news orgs will take whatever money the can squeeze out of the companies and pay journalists, but seeing as how folks like Alden Capital have specialized in buying up news orgs to fire journalists and squeeze cash directly into their own bank accounts, that seems like the most likely outcome here.

There are also weird provisions saying that if news orgs officially join one of the joint negotiating entities" under the bill, the platforms are not allowed to retaliate against them by no longer indexing them. This is a kind of must carry" concept that (1) seems likely unconstitutional and (2) will be exploited by disinformation peddlers to keep internet companies from doing moderation.

There are more problems, but you can read the longer post to get the idea. Supporters of the bill basically hit back with But big tech bad, journalism good." But... that's not a response. Senator Klobuchar kept insisting that this is necessary to bring journalism orgs to the negotiating table with internet companies. But this is not how a negotiating table works. At a real negotiation, both sides are free to walk away if there's no deal to be had. And, indeed, there's no deal to be had here because news orgs are demanding payment for links (something they could just as easily block if they don't think they're valuable now that they're getting them without getting paid).

So, the negotiation" is that the internet providers are not just required to come to the table (and are forced to index and link to sites at the table), but then they are also forced to pay, no matter what. The main mechanism of the bill is that both sides have to submit a proposal for payment, and an arbitrator picks one proposal (they can't split the difference or anything). Supporters claim this will lead to more reasonable offers on both sides, but again, this is not a normal negotiation. This is a gun to the head you must pay for something that is fundamentally free."

It's all based on Rupert Murdoch's plan in Australia to shift wealth from companies that were successful in innovating (internet companies) to ones that had a century-long monopoly on local ads, convinced themselves that they never needed to change or innovate, and are now demanding free money for their own failures.

Anyway, I won't go through all of the nonsense that went on at the markup. You can watch it if you need higher blood pressure or something. It was definitely a strange bedfellows kind of thing where some of the worst people in the world were against the bill for reasons that don't actually make any sense. A lot of Republicans were mad about... content moderation. Because they're always mad about content moderation, even though the only content moderation aspect of this bill is that it might limit the ability of internet companies to moderate disinfo providers.

Either way, somehow, Ted Cruz, who ranted nonsensically for way too long about big tech censorship", got his own amendment to the bill approved by the committee. And... once that happened, Klobuchar insisted that it ruined the bill and basically took her ball and went home, refusing to allow the bill to go for a vote. Of course, it's unclear how Cruz's amendment actually does anything here, because he's (yet again) confused about how the 1st Amendment works, and how it's the 1st Amendment that allows websites to moderate as they wish.

His Amendment appears like it's trying to somehow... stop content moderation? Maybe? It's not clear. Here is the text of his amendment:

LIMITATION REGARDING CONTENT MODERATION POLICIES, PRACTICES, AND PROCEDURES. - The exemption from the application of the antitrust laws under this section shall not apply with respect to an eligible digital journalism provider, joint negotiation entity, or covered platform if, on or after the date on which the applicable negotiations under section 3 commence, the eligible digital journalism provider, joint negotiation entity, or covered platform, respectively, engages in any discussion of the content moderation policies, practices, or procedures of the eligible digital journalism provider, joint negotiation entity, or covered platform, respectively, with any eligible digital journalism provider, joint negotiation entity, or covered platform.

I mean, what? I think what it's trying to say is that none of the negotiation can be contingent on the content moderation practices of the others at the table. But... huh? I guess Cruz's fear is that Google will come to a negotiation with, who knows, Breitbart, and say part of this negotiation is that you have to clean up your comments." And Cruz doesn't want that.

But... that creates all sorts of 1st Amendment problems for a bill that already had 1st Amendment problems.

And it's not clear why Klobuchar thinks this kills the bill. Was she actually intending for this bill to have websites pressure each other over their content moderation decisions? Because that's also weird.

It's also just kind of weird that things went down this way. Most of these markup hearings are theater, with everyone more or less knowing what's coming. Klobuchar seemed legitimately surprised about Cruz's amendment, and that it passed.

Anyway, for now the JCPA seems dead. Though for stupid, stupid reasons.

On to the next bit of nonsense...