The ongoing, multinational debate about so-called “collective bargaining” requirements between dominant digital platforms and news publishers can be downright dizzying. It goes like this:
Publishers: “You are stealing from us by linking to our content without paying!”
Platforms: “Fine. We won’t link to your content.”
Publishers: “No! You have to link to our content!”
This debate occurred in Spain (where it went on for eight years); again in France; is being threatened in Canada; may arise in Australia; and is now on our shores, in California. Last week, in anticipation of a June state Senate vote on the California Journalism Preservation Act – which requires payment of a “journalism usage fee” to news publishers – Google announced it was removing links to California news sites for a small percentage of California users. In response, the News/Media Alliance, the primary lobbying group for the bill, sent letters to the U.S. Department of Justice, the Federal Trade Commission, and the California State Attorney General, arguing that Google “could be” violating a whole bunch of laws at both the federal and state levels by not linking to their content.
The California Journalism Preservation Act, or CJPA, is a twist on the federal Journalism Competition & Preservation Act, about which Public Knowledge has written a lot. What the two bills have in common is that they both would force dominant digital platforms to pay for linking to news (i.e., “you are stealing from us”). You know, links, those things that make the whole darn internet run and allow you, and friends and family and students and news reporters and small businesses and social services agencies and activists and governments, to freely – literally, for the most part, freely – find and share information. That includes news publishers, who post their stories on their social media pages; optimize their content so it ranks highly on search engines; and already have tools like robots.txt to keep their content from being accessed and indexed by platforms if they don’t want it to be. But they don’t use these tools, by and large, because the traffic from those links is just too valuable to lose. When the platforms themselves choose not to link to news content (“fine, we won’t link to your content”), news lobbyists threaten legal action (“you have to link to our content”).
Isn’t that confusing?
The premise the News/Media Alliance is pushing – despite years of contrary jurisprudence – is that unpaid links to news ought to be a violation of copyright law. We and many others – like, for example, the U.S. Copyright Office – disagree that expanding copyright is the solution for the crisis in local news. We’ve written a lot about alternative solutions, too.
Not all news publishers are making this case. While the News/Media Alliance is lobbying on behalf of its Big Media members for laws that force payment from platforms, a wide range of small and diverse publishers are lobbying against them. Local independent news publishers, Black newspapers, Jewish community news publishers in California, and many others agree that these laws will primarily advantage hedge fund owners, national news outlets, and clickbait purveyors, and do nothing to nurture the most promising community-focused sources of news.
We have other concerns with the JCPA and the CJPA (again, see here) but one is paramount: The introduction of a requirement to pay for linking to information on the Open Internet is contrary to the notion of equitable access to knowledge. News organizations that purport to be in the information business should know better.