This week the Senate Judiciary Subcommittee on Privacy, Technology & the Law is holding a hearing, “Oversight of AI: The Future of Journalism.” As we noted in a letter we wrote to the committee, we applaud the focus on the critically important intersection of artificial intelligence (AI) and journalism in the latest hearing of their AI oversight series. However, based on the list of witnesses we’ve seen so far, the hearing may also focus in part on the Journalism Competition & Preservation Act (JCPA). The JCPA creates an exemption to antitrust law to allow news organizations to band together into “joint negotiating entities” to negotiate for payment from dominant technology companies.
We’ve written about the JCPA a lot, often in partnership with other civil society organizations that share our concerns (it’s all linked here). But instead of addressing these concerns or reconsidering the bill, its sponsors and lobbyists continue to put forward the same misleading arguments about it – and now have a new one that leverages the explosion of focus on generative AI. Here’s a recap of those arguments and why they’re not true – and as a result, why the JCPA won’t actually help local news.
“The JCPA will create compensation for publishers from technology companies pursuing generative artificial intelligence.”
This is the new argument from the JCPA’s sponsors and lobbyists that began to appear after ChatGPT and other generative artificial intelligence models exploded onto the scene last fall. The argument that the JCPA will create a stream of compensation from AI companies back into news presumes that the JCPA’s same-old language about “accessing, crawling, and indexing” news content will cover its use to train large language models. This line of argument, which is clearly designed to capitalize on the buzz surrounding generative AI, represents a massive shift in intellectual property law – and a dangerous one for creative expression, an open internet, and access to news and media. (Read more about these risks in regard to both the JCPA and generative AI training.)
And guess who’s behind the new argument that the JCPA will somehow create compensation for impoverished news publishers? The largest news organizations on the planet. The Associated Press (which has negotiated the equivalent of “favored nation” status with Open AI), News Corp (which has switched over to AI to write local news stories in Australia and promised more “cost savings” through broader use of it in the future), and The New York Times have all already pursued their own voluntary agreements for payment from AI firms. (Though recently The New York Times’ stalled discussions with OpenAI and Microsoft resulted in a lawsuit.) It’s clear that any kind of payment stream from AI firms to news will – like every other part of the JCPA – benefit the biggest media conglomerates. Their argument that JCPA will “save journalism from AI” creates the impetus for them to cut private deals while seeming to demonstrate concern for small, local, and independent publishers. As news commentators have said in this context, it’s almost inevitable that “the rich will get richer” and “the big dogs will come out on top again.”
“Australia passed a bill like the JCPA, and the internet didn’t break.”
This argument is based on proponents’ claim that the JCPA is “modeled” on a bill that generated millions in payments from platforms to publishers in Australia. But the JCPA in no way really resembles the Australian law. The law being referred to is the Australian Mandatory Bargaining Code, which does include an arbitration provision designed to allow the government to force agreements between platforms and publishers. But that is where any similarity ends: due to a last-minute revision that resulted from negotiation with Google and Facebook, digital platforms could avoid being “designated” under the Australian code – and so, avoid being subject to forced arbitration – if they make a “significant contribution” to the sustainability of the Australian news industry. Facebook and Google promptly used the loophole they helped create and cut private commercial deals with large news publishers – just as they have done in several other countries, and recently announced they are starting to do in the United States. That means that not one dollar has been exchanged between platforms and publishers in Australia as a result of a mandatory arbitration process like the one called for in the JCPA. In fact, the Australian Treasury acknowledges in its own assessment of the first year of the code that every agreement was reached “outside the code.” The Australian law has also been criticized for the concentration of payouts to the largest news organizations, ”massive information asymmetry” in negotiations between platforms and publishers, and its total lack of transparency on how funds are being used. The last of these was only recently addressed with a recommendation by the Australian Treasury, which the government accepted, to issue reports on the agreements.
The JCPA was designed to close the Australian loophole by making certain platforms automatically subject to the law. We can look to Canada for a forecast of how that might work out – and it’s not good. Canada has been lauded for the passage of its Online News Act, which made platforms automatically subject to the law, too. But due to Meta’s wholesale blocking of news content in Canada and Google’s pledge to do the same (the results of which have been described as “catastrophic” for small publishers), the actual regulations to implement the Canadian law vary significantly from the original intent. In Google’s case, they call for the creation of a “fund” with a $100 million financial threshold that can be met via their existing commercial agreements – and that is well less than half of the original estimates. The regulations leave it to the government to allocate the funds to qualifying news organizations. All this means that neither the Australian nor the Canadian law are productive comparisons to the JCPA.
“Journalists are in favor of the JCPA.”
The NewsGuild-CWA is the largest union of journalists and media workers in the United States. But the largest union of journalists and media workers does not support the JCPA as written. In their communication last winter (referring to the Senate version), and news reports late last year, they continue their push for changes to the JCPA that would “protect journalists from predatory corporate owners in the highly consolidated news sector” and “[make] sure the JCPA helps support and grow more local journalism jobs across the United States.” Organizations representing local independent online news organizations, like LION Publishers, actively oppose the bill. So do organizations representing the Black Press. Sponsors of the JCPA point to support from The Authors Guild as evidence that “journalists support the JCPA.” But the Guild is a professional organization, not a trade or labor organization, and it advises writers in their roles as book authors. It’s more accurate to say that some journalists’ employers, including financially-motivated news conglomerates that have conducted mass layoffs and denied their journalists their own collective bargaining rights, support the JCPA.
“The JCPA creates ‘fair compensation’ and a ‘level playing field’ between Big Tech and publishers.”
There are a few issues with this argument. First, the whole idea of “compensation” for linking to content on the internet is at odds with the entire basis of the World Wide Web and an open internet, not to mention decades of copyright law. (We covered this in a previous blog post.) Requiring payment for linking – something that could be extended well beyond news organizations by precedent due to the JCPA – would represent a radical change. And it’s one the Copyright Office has rejected. That is why so many digital rights organizations oppose the JCPA.
It doesn’t create a level playing field, either. As our friends in Canada have recently learned the hard way, news organizations benefit from the referrals by the largest platforms. Links are a major source of traffic. But the JCPA explicitly prohibits arbitrators from considering any benefit news organizations derive from links on the platforms. Also, in so-called baseball-style arbitration, arbitrators choose from two offers without modification. In this case, the offers – one from publishers and one from the platform – are likely to be very far apart and based on wildly different estimates of the value of news to platforms (we talked about this here and again here).
Lastly, this whole argument is related to the notion that the JCPA serves to “rein in” Big Tech, a notion that helps explain its bipartisan support. The only problem is that it’s not true: the JCPA does nothing to “rein in Big Tech,” because antitrust exemptions are fundamentally designed to match might with might. The JCPA explicitly allows some of the biggest media organizations in the country to jointly negotiate with the largest technology companies, something that would normally be against the law. It essentially sets up a negotiating table for Big Tech and Big Ink.
Other approaches hold far more promise for reducing the dominant power of the technology platforms and opening up healthier innovation and competition in the news business. These include new competition reforms like the American Innovation and Choice Online Act (AICOA), Open Apps Market Act (OAMA), and AMERICA Act; data privacy protections to undercut the surveillance business model of the dominant platforms; and a dedicated digital regulator with the expertise and agility to keep up with innovation in the technology sector while reining in its excesses.
“The JCPA is designed to benefit small and local publishers exclusively.”
This explicit and bizarre claim from the News Media Alliance seems to be predicated on the requirement in the JCPA that publishers with more than 1500 employees are not eligible to join a negotiating entity. But the publisher employee cap excludes only three elite east coast newspaper publishers in the United States from joining negotiating entities, and it doesn’t apply to broadcasters at all. So Sinclair Broadcasting Group, with approximately 13,000 employees and $2.59 billion in profit in the first quarter of 2022 alone, can participate in a negotiating entity.
Another reason the claim is bizarre: the JCPA as currently written doesn’t allow news organizations that have been in business for less than a year to enter a negotiating entity, and it also excludes news organizations that earn less than $100,000 per year. In other words, it is designed to disadvantage the smallest publishers.
“Only Big Tech lobbyists and their allies oppose the JCPA.”
Predictably, some of the trade associations that represent technology platforms do advocate against the JCPA. But as has been noted (for example, here) a wide range of groups that are normally at odds over tech policy (and many other issues) have also joined forces to oppose the bill. This includes civil society groups like the ACLU and Free Press, a broad range of constitutional and copyright scholars, and as noted above, local, independent and minority-owned news organizations. Public Knowledge advocates for national data protections, more rigorous antitrust enforcement and competition policy, and more transparency and accountability in content moderation, which often puts us in opposition to the dominant tech companies. In other words, it’s possible to be both a critic of the JCPA and a critic of Big Tech. In this context, it’s also fair to note that some people in Congress that sponsor or support the JCPA accept funds from news lobbyists, including the News Media Alliance.
A Partial List of Problems with the JCPA
In this post we’ve addressed some of the arguments that continue to be made for the JCPA despite broad-based opposition to the bill. But we have other concerns about the JCPA. These include provisions in the bill that discourage or outright prevent platforms from using content moderation to support their community standards or terms of service. That means users will see more harmful disinformation, extreme content, and hate speech online. We also object to the idea that the JCPA doesn’t require that funds gained through negotiation or arbitration will be spent on journalism. And the JCPA will increase publishers’ reliance on dominant platforms (ask citizens of Canada how this feels). We urge Congress not to move forward with the JCPA and we encourage everyone to contact Congress to protect both an open internet and local journalism by opposing the JCPA.