The death of the Journalism Competition and Preservation Act – but might other new legislation emerge?

In recent years, major media organizations have been lobbying Congress to enact legislation, the “Journalism Competition and Preservation Act,” requiring search engine providers to engage in a form of collective bargaining about the tax they would pay to media publishers for the privilege of providing links to their news articles, backed up by mandatory interest arbitration in which the thumb would be placed on the scales by simply assuming that the search engine companies could not refuse to provide links and would be required to pay something. The contention of the “News Media Alliance”  has been that the search engines take value (access to news reporting that is expensive to produce) and provide nothing in return.

I have never been persuaded by the arguments for this bill, so I have long argued against it (and Public Citizen has never taken a position). Yes, news is expensive to produce (especially quality news), and the pervasiveness of online advertising has destroyed a major source of the media’s former revenue stream. Moreover, journalism is a social good that is vital to our democracy, at the local level as well as nationally, and it needs to be supported somehow (I put my money where my mouth is – our own family gets two newspapers in the dead tree edition every morning, and we subscribe to other publications).

But it always seemed to me that search engines provide value to the media – traffic to media websites,. Beyond that I am troubled by the First Amendment implications of creating a modern version of the tort of “hot news misappropriation,” not to speak of the “compelled speech” implications of requiring search engine companies to provide links and payments  to speakers whose content they might abhor.  (The proposed statute would make it illegal for search engines to deny links to any entity represented in the collective bargaining process).

And it is easy to see through the news media’s economic argument. Such simple devices as robots.txt, “noindex,” and password protection could wall off any news media web page from search engines. But no media companies were doing that, because they WANT the traffic delivered by search engines. So it has always been clear that the media recognized the value of being seen by search engines.

The Ugly Truth

And now they admit it.

Now that the media feel threatened by new AI Search tools, which would deliver whole paragraphs in answer to search engine queries, the media industry’s lies about the economics of their relationship with search engines have been revealed.

The New York Times carries a story this morning, “Publishers Gird for Threat from A.I.” that includes these revealing admissions.

“Content publishers have an uneven but largely reciprocal relationship with search engines. The search sites benefit from having trusted sources of information in the results, and the publishers benefit from the traffic to their sites that the search engines generate.

“Search traffic from Google accounts for half of overall visits, or more, to many sites, said Brian Morrissey, who writes The Rebooting, a media business newsletter.

‘Search has been the mainstay of the publishing business on the internet,’ he said.”

And then there is this

“Kyle Sutton, director of search and product at the newspaper publisher Gannett, said the relationship had, until now, been mutually beneficial.
‘While all search results are taking from our data and, from our perspective, crawling our content, aggregating our content, there is the return there of them driving traffic to our site,’ Mr. Sutton said. ‘So I think that relationship is kind of first and foremost what we want to see maintained.’”

It would worth looking to past hearings on the JCPA to see whether Sutton (or anybody else from Gannett) has testified under oath in contradiction to these startling admissions.

Legislation for the Future

The Times story indicates that  the longtime sponsors of the JCPA plan to reintroduces that bill this week, but why? The news media now admit that they like the status quo; the JCPA would disrupt it. Of course, members of Congress love their media endorsements, so their willingness to truckle to local media should not be underestimated. But it makes sense to put a hold on the JCPA and think about a different kind of legislation.  (UPDATE:  The bill has just been reintroduced)

Unlike search snippets, the delivery of entire paragraphs implicates copyright, without any need to create a new cause of action. And either an economic or a statutory compromise may be needed to avoid years of litigation over whether the replication of entire paragraphs of copyrighted text qualifies as fair use. Those considerations can only be resolved after years of high-stakes litigation and damages awards, as lower courts decide cases, legal tests develop, circuits disagree, and the Supreme Court weighs in, perhaps more than once.

Search engine operators and media groupings may want to enter into negotiations about the forms of payment that are required when entire paragraphs are being copied. A statute embodying such standards might take the form of compulsory licensing and some system of assessing appropriate payments for use, not just to the news media but to other sources of substantial online content.

The standards that are set by such discussions could well influence the fair use analysis as applied to non-participants, comparable to the models that the “Best Practices” initiatives  pioneered by Peter Jaszi and his colleagues in American University’s Program on Information Justice and Intellectual Property  have set in several areas of the law.  The compensation systems set by such negotiations might also establish a market standard for lost license fees to be awarded in copyright litigation.

Leave a Reply

Your email address will not be published. Required fields are marked *