Here We Go Again: Another Round of Changes Haven’t Solved the Problems with the JCPA

The Journalism Competition & Preservation Act still does anything but.

Back in April, Public Knowledge discussed articles in the Wall Street Journal and Politico’s Morning Tech newsletter (paywalled content) that recounted a significant amendment to the Journalism Competition & Preservation Act (JCPA), a bill that proposes to create a four-year “safe harbor” from antitrust law, allowing news companies to band together to negotiate compensation terms for their news stories with the largest online platforms. (We articulated our concerns about the bill here, joined with other civil society organizations urging Congress to amend it here, and talked specifically about the impact of the bill on copyright law here.) The new language would introduce baseball-style arbitration (under which an arbitrator panel chooses one side’s final offer to settle the dispute); a new clause focused on ensuring outlets of all viewpoints are eligible to participate in negotiations; and a size limit intended to focus financial help on small and local outlets. It would also extend the span of the “safe harbor” from four to ten years. The changes did nothing to assuage our (and others’) most important concerns about the bill.

Well, we’re baaaaaaack. Last week, Bloomberg Government described another round of revisions, these intended to address concerns articulated by industry unions about the impact of the bill on actual news production. According to Bloomberg, one of the bill’s primary sponsors in the Senate, Senator Amy Klobuchar, has also confirmed the plan to schedule a markup on the bill. Spoiler alert: The changes described still don’t address the most important concerns we have about the bill. 

Based on what we’ve read and heard (which may not reflect the final next version of the bill), the new language would require that 65% of the funds that participating news outlets receive from an arbitration be determined based on the proportion of budget dollars that they spend on journalists (terms that will now be more clearly defined). It also requires transparency on what news providers receive from platforms annually and how that is spent on news production. (This is an overdue change for a bill designed to further an industry based on transparency and disclosure, but it’s unclear whether this pertains to individual newsrooms or to their parent companies.) And it may structure participation by news outlets at the parent or conglomerate level so large conglomerates with multiple outlets aren’t over-represented in negotiations. Bloomberg also reported that a new provision would prohibit “dark money organizations” like Russian state-controlled RT from qualifying for benefits. And the span of the safe harbor seems to have bounced around again, landing at eight years.

If true, these changes would move the bill in a positive direction relative to some of our concerns (including that large conglomerates will dominate the negotiations and that the funds will be used for financial transactions rather than news production). But again, they don’t address the fundamental challenges. For example, the changes that have been reported do nothing to address our concerns about the upending of copyright law and consumers’ access to information. And despite the “transparency” on how much is received and how funds are used to support the production of news, there does not appear to be any requirement that these funds be used to actually pay news staff. And at the same time the JCPA is making its way through Congress, the House and Senate Judiciary Committees are working on a tech accountability package designed to address the power dynamics brought about by the monopolistic nature of the digital platforms’ core products. The JCPA is at cross-purposes with that effort, as it increases the reliance of news organizations on the dominant tech platforms. As a proof point, Facebook’s strategic pivot from news and its impact on newsrooms was in the headlines all last week.  

If the changes aren’t enough to bring the industry’s primary union, the NewsGuild-Communications Workers of America, on board in public support of the bill, it won’t be surprising. They’ve highlighted a number of stories about the outrageous labor practices of many of the very same organizations that stand to benefit from this legislation. It’s pretty ironic: Wall Street media executives – some of whom are earning record bonuses while laying off workers – are touting the virtues of “collective bargaining” while doing everything in their power to blunt, buy out, and bust unions in their own organizations. We’re equally skeptical of a bill designed to force tech platforms to the bargaining table with news organizations while the owners of the news organizations are actively seeking to deny their own workers access to the bargaining table, or that may allow financial transactions like stock buybacks instead of compensation for journalists.

It’s frustrating to have to piece together rumors, tweets, text messages, and the occasional news report from highly motivated media organizations in order to understand what’s happening on a bill designed to ensure citizens have access to truthful information relevant to the democratic process. This might be a good place to repeat our request that Congress widen the circle of stakeholder consultation from news outlets to civil society groups. Public Knowledge is committed to advancing policy solutions both to rein in Big Tech and solve the crisis in local news. As we’ve said before, the free press is a pillar of our democratic infrastructure. We need to strengthen it more than ever. But among other concerns, the JCPA still serves primarily to benefit Wall Street interests and hedge funds – not journalists or citizens.