The JCPA is scheduled for markup this week in the Senate Judiciary Committee, but its primary supporters are the Big Media corporations that it will ultimately benefit. Free speech advocates, bipartisan consumer advocates, archivists, startups and copyright law experts all urge the Senate to reject the JCPA.
PRESS PUBLISHERS HAVE EXISTING PROTECTIONS
U.S. Copyright Office: “Press publishers have significant protections under U.S. copyright law…Facts and ideas are not protectable by copyright.”
THE JCPA HURTS LOCAL JOURNALISTS AND ONLY BENEFITS MEDIA CORPORATIONS
Dan Gainor, Free Speech America: “Allowing a few of the largest and most powerful media companies to act as proxies for others only ensures that big firms will secure deals that benefit them. We all want trustworthy local journalism that helps inform the public, as well as holds powerful people accountable. Except that’s not how corporate media have handled local journalism in the past. Local outlets were treated as cash cows. Big corporations milked them and slaughtered their remains. This law would only serve to support huge existing corporate media instead of independent media. Corporate news organizations don’t need our help.”
Dr. Benjamin F. Chavis, Jr, NNPA: “Many African American and other BIPOC news outlets are independently owned. Furthermore, these news outlets have developed and grown their audiences because mainstream media publications excluded the perspectives of minority voices. The Black Press built our own news outlets to support our own voices. As a result, this legislation would only further reinforce harmful racial exclusion trends, rather than actually help smaller local publications like those in the NNPA. Similarly, recent amendments to the bill requiring non-discrimination would require platforms to carry and pay for hate speech and objectionable content that could be harmful to BIPOC communities.”
Senator Mike Lee (UT): “The last thing I think we should do is to try to solve this or any other competition problem by saying that it’s okay to just accept a cartel that it’s okay to make changes to the laws to encourage the formation and allow the formation and thereby encourage the formation of a cartel as many publishers are requesting and make no mistake, that’s that is what this is. That that is what this call is for. And that is what the JCPA would do.”
Mike Rispoli, Free Press Action: “The bill…doesn’t address the needs of thousands of communities across the United States that lack local and responsive sources of news and information — communities that have been failed by the same companies pushing hardest for this legislation…Media conglomerates are still raking in billions and don’t need a bailout, and the deceptive and racist content peddled by the likes of Fox News and Sinclair Broadcast Group isn’t worth saving. Vulture hedge funds like Alden Global Capital won’t use this windfall to help local journalists or support the kinds of reporting that prioritizes truth-telling, equity and accountability.”
Jon Schleuss, The NewsGuild-CW: “The local news problem is a local jobs problem. Too many hedge funds and private equity owners have hollowed out local newsrooms in favor of shareholders and Wall Street banks.”
Joshua Lamel, Re:Create: “The JCPA does nothing to protect newsrooms from vulture funds like Alden. Instead, it would help line their pockets further by guaranteeing both coverage and payments from internet platforms who will be forced to link to Alden’s content. Given Alden’s track record, they will pocket this windfall and do nothing to invest in local journalism. A hedge fund worth over a billion gets richer while local journalism in Alden communities gets no help. And given the newfound windfalls created by the JCPA, Alden and other venture funds will have even more reason to buy local papers only to destroy them.”
Senator Tom Cotton (AR): “Giving big media special legal privileges to collude with big tech would make censorship far worse. The media cartel bill is deeply flawed and should be defeated.”
Breitbart: “The JCPA’s advocates, which include the largest and most liberal media companies in the world, know they need ten Republican Senators to pass any bill. So they have pitched the legislation to conservatives as a blow against Big Tech, even though it would deepen collusion between Big Tech and the corporate media, which has relentlessly pushed for censorship over the past five years.”
Sanjay Jolly & Tim Karr, Common Dreams: “At its core, the JCPA isn’t about sustaining a vibrant free press or protecting democracy or ensuring that ordinary people have access to vital information about their communities. Instead, it’s about big corporations getting Congress to help them shake down even bigger corporations so they can get a few extra bucks for their shareholders.”
Steve Macek & Andy Lee Roth, Truthout: ”Instead of ‘preserving’ journalism, as the bill’s name suggests, the legislation will primarily benefit large corporate news conglomerates, such as Sinclair, which is the largest TV station owner in the U.S., and union-busting news chains such as Alden Global Capital, owner of the Chicago Tribune. JCPA will do little, if anything, to preserve or promote public-interest journalism. As one critical report on the legislation noted, “in a strategic sleight of hand, the large news-media companies want us to conflate the public importance of local journalism with their own bottom lines.”
Matt Schruers, CCIA: “While objective journalism is critical to informing voters, inserting federal regulators into private sector business negotiations, mandating carriage of what the government thinks is ‘news,’ and promoting cartels is an irresponsible way to encourage an independent and robust news media.”
Tom Herbert, Americans for Tax Reform: “The JCPA creates an antitrust exemption to allow print, broadcast, or digital news companies to form a legal cartel in negotiations with online platforms that host their content. This media cartel would then negotiate the terms in which digital platforms are allowed to distribute content. If passed, this would allow liberal legacy media outlets to box conservative and independent outlets out of the cartels.”
THE JCPA OVERHAULS HOW LINKING WORKS ON THE INTERNET
Public Knowledge: “Even in the absence of direct language to this effect in the JCPA, a court seeking to give the statute meaningful effect could easily read the text as implicitly granting news publishers such exclusive rights. The ‘reading-in’ of such a right could stymie the ability of users to share news articles online without some sort of payment, which in turn would limit the availability of credible information online. The outcome – limiting access to news and information – would be the opposite of the goal to ensure a healthy free press.”
Engine: “While the JCPA wouldn’t explicitly create a new exclusive right to links in the same manner as ancillary copyright would, its creation of a regime to enable negotiation implies that links are excludable in ways they currently are not. That could, as some observers have noted, lead news organizations to limit linking by ‘“withhold[ing]” content until or unless they obtain the compensation they seek.’ If they wanted to pursue it, smaller organizations, like tech enabled media startups, are likely to have less power to do this successfully. And media startups that rely on linking to content as part of their business model would face barriers to success if large organizations are able to withhold or prohibit that linking.”
Blake Reid, University of Colorado: “The difficult reality is that there is little lawful basis upon which to structure a negotiation between publishers and platforms. The JCPA attempts to avoid this reality by compelling the platforms to continue directly accessing the publishers’ articles even when access has been revoked…This too-clever-by-half approach effectively tries to lever publishers’ narrow ability to prevent direct access to their articles into a right to govern the use of the articles by effectively funneling all potential uses by the platforms through direct access.”
Josh Withrow, R Street Institute: “This is because, in allowing news organizations to ‘collectively withhold content from’ online platforms, the bills seems to assume that there is a sort of property ownership over linked content. This flies in the face of the basic ethos of the internet, which depends on the ability to link to content freely. Content creators can of course require users to pay and/or subscribe in order to actually read an article or watch a video, but what the JCPA could allow— intentionally or not—is a de facto link tax.”
Jennie Rose Halperin and Juliya Ziskina, Internet Archive: “American policymakers should not export bad ideas from foreign countries at the expense of publishers’ and libraries’ ability to provide high-quality news and information to American readers.They should instead carefully consider how legislation like the JCPA could open up a new loophole that allows news publishers to stop links to their materials which will only restrict access to information. For libraries and other public institutions dedicated to knowledge and education, this issue is of grave concern to our patrons, to the public, and to the continued free flow of information.”
Information Technology & Innovation Foundation: “Online platforms help drive traffic to news sites and foster a competitive media industry. Publishers can choose not to use these platforms, but most do because it helps bring in new readers and more revenue. Rather than subsidizing failing business models, policymakers should be encouraging the news industry to take advantage of the latest digital technologies and online advertising so they can thrive in the Internet economy.”
CATO Institute: “As we concluded before, the JCPA would deliver a one sided carve out from antitrust law – and only to a specific industry. It forces platforms to engage in negotiations in “good faith,” subject to final and binding arbitration if no deal can be reached, while banning the platforms from simply delisting forms of content. This will open up a legal minefield, but the impulse is clear: to force payments to journalists from tech companies. As such, this bill is incompatible with free markets and voluntary, mutually beneficial negotiation.”
Jeffrey Westling, American Action Forum: “By allowing eligible publishers and broadcasters to form these joint negotiation entities, the legislation could cause, not prevent, harm to consumers and journalists, alike. First, the JCPA would allow firms to evade the rules that govern competition and anticompetitive conduct, instead of adapting to changing technology and consumer preferences. What’s more, the legislation would limit how services can deliver and tailor content for users, likely infringing upon platforms’ First Amendment rights.”
THE JCPA INCENTIVIZES MISINFORMATION
Adam Kovacevich, Chamber of Progress: “Not only does the bill mandate that Google, Meta, and Apple make direct payments to right-wing outlets for their news articles, it ties the platforms hands against moderating extreme content from those services — by banning platform ‘retaliation’ against news sites. JCPA 1.0 was always a boon to right-wing news outlets — and version 2.0 goes even further by guaranteeing those outlets links and revenue”
Evan Greer, Fight for the Future: “JCPA may also have disastrous unintended consequences for the spread of disinformation, hate, and discrimination against marginalized communities online. There are provisions in this bill that would essentially force big tech to display content that meets certain government-defined criteria. It contains what amounts to a blueprint for bad actors to get around content moderation and strongarm major social media platforms like Facebook to not only amplify lies—but to pay for those lies.”
Mike Masnick, Techdirt: “And here’s the best part: the misinfo providers out there can now effectively force their way into Google News by forming one of these joint negotiating entities…Everything — and I do mean everything — about this bill is ridiculous. It’s a bizarre attempt to do an end-run around antitrust law, copyright law, and common carrier law… to force Google, Apple, Amazon, and Microsoft to pay for linking and sending traffic to digital publishers who are too incompetent to figure out how to properly monetize incoming traffic.”
THE JCPA VIOLATES THE FIRST AMENDMENT
Project DisCo: “The government cannot force a private actor to carry others’ speech. Just as the government cannot force a person or business to say a thing, it cannot force them to subsidize something else saying that thing. The JCPA bans regulated platforms from removing links to publishers demanding to be paid for the traffic they receive…Platforms are therefore forced to display user-posted content from publishers, but upon doing so, must pay that publisher. As currently drafted, this scheme is hopelessly unconstitutional. It forces private actors to publish others’ speech, and to subsidize that speech. Both actions are independent First Amendment landmines, which the JCPA stomps on with vigor.”
Katharine Trendacosta and Mitch Stoltz, Electronic Frontier Foundation: “And without a likely unconstitutional ‘must carry’ provision, news aggregators and search engines will simply refuse to link to news outlets that demand payment, meaning that some of the most reliable sources of news and information will become far less accessible to the public…That affects everyone who shares articles online. It even affects journalists in smaller newsrooms, who base their reporting on the earlier reporting of others and link back to those stories. That’s good journalistic practice. It lets readers see where information is coming from and trace a story back to its inception. It’s the internet equivalent of a footnote. If it suddenly becomes fraught to link, readers lose valuable information and context.”
Jennifer Huddleston, NetChoice: “The latest changes to the Journalism and Competition Preservation Act have not addressed the bill’s underlying issues. By shielding U.S. newspapers from antitrust laws and incentivizing them to collude, the bill still gives government power to dictate what is and is not legitimate news and diminishes the competitive media landscape. The bill ignores the fact that Americans have more information about local issues, and frankly national and global issues, than ever before and more choices about where to obtain that information because of the internet.”
Carl Szabo, NetChoice: “It’s unfortunate but unsurprising to see California copying failed proposals from the federal government and enacting them in their own state. Further, the bill would “harm free speech online by creating a special class of government-preferred media.”
Taxpayers Protection Alliance: “Ignoring the obvious First Amendment problems of the government favoring some speech over others, what the JCPA markup hearing laid bare (and why it ultimately failed), is that the political outcomes both parties are trying to achieve when it comes to big tech and speech are lightyears apart.”