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On July 2, the bipartisan “EARN IT Act,” which is aimed at eliminating the sexual exploitation of children on the internet by imposing restrictions on big tech’s Section 230 immunity, unanimously passed the Senate Committee on the Judiciary. Committee Chairman Sen. Lindsey Graham (R-SC) said no social media company is doing enough to protect children, and they should have liability like everyone else in America. Before passing, the Committee accepted an amendment by Sen. Patrick Leahy (D-VT) that excludes encryption from being grounds for increased liability. The bill will now be presented on the Senate floor. Read the bill here.
California Attorney General Xavier Becerra’s enforcement of the California Consumer Privacy Act (CCPA) began on July 1, despite numerous requests for it to be postponed. The guiding regulations are not yet official, but the statute itself can be enforced. Meanwhile, Alastair Mactaggart, of Californians for Consumer Privacy, which advocated for the CCPA, is now proposing the California Privacy Rights Act (CPRA), a ballot initiative to expand CCPA. The CPRA would create a new enforcement agency and require more business disclosures, among other measures. Read more here.
On July 1, the United Kingdom’s Competition and Markets Authority (CMA) released its final market study report on online platforms and digital advertising. The study, launched in July 2019, focused on Google and Facebook’s dominance of the digital advertising marketplace. The findings and recommendations in the final report follow closely those identified in the CMA’s interim report published last December. The report’s findings highlight, among other things, the competitive advantage Google and Facebook enjoy due to their extensive access to user data; how the online platforms interpret data protection laws and regulations to benefit them; and concerns arising from vertical integration in the digital ad markets. In order to address the concerns identified in the report, the CMA recommends the establishment of a Digital Markets Unit with powers to develop, oversee, and enforce a code of conduct and to take other necessary actions, including data-related interventions. The report also raises the prospect of separation interventions to address vertical integration concerns. While the CMA refuses to launch a full market investigation into the digital ad markets, the report indicates that it is considering possible enforcement actions. The report also discusses the Digital Markets Taskforce, designed to advise the government on digital competition issues, that CMA will be leading. Read the full report here.
On June 30, Facebook announced that original reporting with transparent authorship would be ranked higher in users’ News Feeds. Facebook hopes that by boosting original sources, it will give more traffic and revenue to trusted news publishers. Facebook will also demote any articles that do not list authors or lack transparency about the editorial staff. Facebook has provided a guide explaining how news publishers are ranked in the News Feed. Facebook hopes these changes will demote unverified sources and promote ethical journalism. Read more here.
On June 30, the New York Times announced its content will no longer appear on Apple News, starting July 6. The Times reports that it could not accomplish its goal of reader engagement and building subscribers while being part of Apple News. The announcement comes as scrutiny of big tech’s control of ad revenue and business models that negatively affect news publishers is growing. Read more here.
On June 25, Google published a blog with its plan to start a “licensing program to support the news industry.” The program is supposed to “help participating publishers monetize their content through an enhanced storytelling experience.” Google will start by allowing a small number of publishers in specific countries to participate in the program, with plans to expand. Read more here. Google has also made claims that they help news publishers build audiences and provide compensation to news publishers by driving traffic to their websites — a claim the Alliance debunks in its White Paper.
On June 17, Senator Josh Hawley (R-MO) proposed the “Limiting Section 230 Immunity to Good Samaritans Act,” requiring digital platforms to fulfill their duty of good faith to receive Section 230 immunity. The bill would allow users to sue tech companies for breaching a “contractual duty of good faith.” This good faith would require non-discriminatory enforcement of their terms of service and “filing to honor their promises.” The bill was co-sponsored by Senators Marco Rubio (R-FL), Mike Braun (R-IN), and Rom Cotton (R-AK). Read more here.
On June 17, the Department of Justice (DOJ) proposed changes to the Section 230 immunity that big tech currently enjoys. It includes requiring the platforms to more proactively address illicit content, as well as requiring consistency in removing objectionable material. This proposal would go through the Office of Management and Budget to be the official administrative position before requiring Congressional legislation. Read more here.
On June 16, Gallup and the Knight Foundation released a poll showing that eight out of every 10 Americans don’t trust big tech to moderate content on their platforms. Despite over 80 percent of respondents favoring the removal of false or misleading information about elections or health issues, they don’t trust the digital platforms or the government to decide what to remove. This comes as social media sites have increasingly come under fire for their internal fact-checking and content moderation. Read more here.
AdAge reports that certain marketers are blocking keywords that would put advertising content next to Black Lives Matter coverage. These keywords include “BLM,” “George Floyd” and “black people.” Jason Kint, CEO of Digital Content Next, said “advertisers are running away from” content related to Black Lives Matter. The cost per impression (CPM) is reportedly 57 percent lower on Black Lives Matter content than other content. With news publishers already struggling to monetize content, ad companies are now facing criticism for shying away from important issues. Read more here.
On June 9, Senators Marco Rubio (R-FL), Kelly Loeffler (R-GA), Kevin Cramer (R-ND), and Josh Hawley (R-MO) requested that the FCC “clearly define the framework under which technology firms, including social media companies, receive protections under Section 230.” The letter, addressed to FCC Chairman Ajit Pai, was in reference to President Trump’s May 28 Executive Order on Preventing Online Censorship and the FCC’s role in the clarification process. FCC Commissioner response to the executive order has been mixed. Democratic Commissioner Jessica Rosenworcel said the Executive Order would turn the FCC into the president’s “speech police,” while Republican Commissioner Brendan Carr applauded the effort to hold tech companies accountable. Section 230 was not on the agenda for the FCC’s monthly open meeting on June 9. Read more here.
On June 2, Public Knowledge’s Policy Counsel Meredith Rose testified that Section 512 has allowed online censorship to thrive. The Senate Committee on the Judiciary’s Subcommittee on Intellectual Property hosted a hearing titled “Is the DMCA’s Notice-and-Takedown System Working in the 21st Century?” discussing the complex issues facing copyright policy today. The Committee also heard testimony from Don Henley, a veteran in the music industry, who spoke about how content creators are being robbed of their intellectual property by the current notice-and-takedown regime. This hearing followed the U.S. Copyright Office issuing a study of proposed changes to Section 512, after finding it was “tilted askew” of Congress’ original purpose. Watch the hearing here.
Twitter recently rejected an ad campaign by the Free State Foundation opposing net neutrality and calling for the internet not to be regulated as a public utility. The FCC has long since finished its net neutrality rulemaking, revoking most of the Obama-era regulations. Twitter has been supportive of net neutrality, and the Free State Foundation alleges that is a reason for its refusal to promote the tweet, calling the proposed ad “political.” In its ad policy, Twitter states it will not promote a tweet that advocates “for or against” political content that includes any reference to “legislation, regulation, directive, or judicial outcome.” This comes after Twitter came under fire from President Trump for fact-checking and placing warnings on some of his tweets. Read more here.
On June 5, Facebook responded to the Australian Competition and Consumer Commission’s (ACCC) Mandatory News Media Bargaining Code proposal, saying the “competitive rivalry in the relationship between digital platforms and news publishers” is “healthy” as it is. This comes in the wake of news publishers struggling to monetize content and having to lay off workers, problems only exacerbated by the coronavirus. In its response, Facebook claimed that removing news content from its website would have an insignificant impact on Facebook’s revenues in Australia because “most users do not come to Facebook with the intention of viewing news.” Facebook believes its already-existing efforts to support journalism and the benefits publishers receive from sharing their content on the platform are sufficient compensation. Read more here.
On June 2, the Center for Democracy and Technology filed a complaint in the District Court for the District of Columbia claiming that President Trump’s recent executive order violates the First Amendment. The “Executive Order on Preventing Online Censorship” serves as directive to both the FCC and FTC to begin the process of limiting Section 230’s legal safeguards afforded to digital platforms. The order was signed after Twitter began issuing warnings alongside many of President Trump’s tweets. The complaint claims the Order attacks Twitter — a private company — and will chill constitutionally protected speech. In February, the Ninth Circuit held that the First Amendment does not apply to big tech, allowing them an unprecedented amount of editorial power with little accountability. Read more here.
On May 21, the U.S. Copyright Office released a report outlining issues with the current regulation scheme as applied to the digital context. While the report does not call for a complete overhaul of Section 512 of the Digital Millennium Copyright Act, it does suggest Congress address flagged issues because the “original intended balance has been tilted askew.” The technological advancements since the statute’s enactment in 1998 has created gaps in the legislation, and online copyright infringement poses significant issues that need to be addressed. The U.S. Copyright Office calls on Congress to “fine-tune” Section 512 to address the new copyright issues posed by the internet. Read more here.
On May 19, the Australian Competition & Consumer Commission (ACCC) published a concepts paper seeking comment on four possible solutions to the bargaining imbalance between big tech and news publishers. These suggestions followed the ACCC’s Digital Platforms Inquiry in June 2019, which recommended a code of conduct to address this bargaining power imbalance. The ACCC suggests collective bargaining or a collective boycott of Google and Facebook as a possible solution to the imbalance — both practices that would otherwise be punishable as anti-competitive. Other possible solutions include bilateral negotiations and collective licensing or fee arrangements. The comments on these suggested solutions are due June 5. Read more here.
On May 18, the Supreme Court denied to review Force v. Facebook, a recent case implicating Section 230, from the Second Circuit. In Force v. Facebook, the Second Circuit allows Facebook immunity from a suit for failing to remove a post by Hamas, saying they will grant immunity “unless the defendant directly and materially contributed to what made the content itself unlawful.” This comes at a time when some are suggesting a public health exemption to Section 230, as communities are seeing the disastrous impacts of inaccurate information spread through digital platforms. The Supreme Court has yet to hear a case on the troubling applications of Section 230 to digital platforms. Read more here.
On May 5, International Trade Secretary Liz Truss and United States Trade Representative Robert Lighthizer issued a joint statement that they would begin virtual trade negotiations. As both countries deal with the ramifications of COVID-19, the economic health of the UK and the US are a top priority. The parties concur that a Free Trade Agreement “is a priority for both countries” and both hope to “secure an ambitious agreement that significantly boosts trade and investment.” However, United States negotiating representatives must ensure that Section 230 immunities are not further exported at the request of the platforms in an attempt to enshrine their immunity globally while Congress is revisiting the rule’s existence. The countries have provided adequate resources for the negotiations to be completed at an accelerated pace. Being that the U.S. and UK already trade over $200 billion a year, making each the other’s biggest investor, there is significant motivation to reach an amicable and timely deal. The Alliance will continue to ensure that news publishers interests are heard. Read more here.
As Facebook is investigated by the Department of Justice, the FTC, and over 40 state prosecutors, it now claims it isn’t just competing with other social media sites, it’s competing with newspapers, television, and videogames. As the investigations continue and whispers of breaking up the company increase, Facebook’s lobbyists advocate for an expanded market size, likely in an attempt to make Facebook appear less dominant. But as local newspapers struggle to keep the lights on in the midst of COVID-19 crisis, Facebook’s profit has increased despite sharp ad declines. In 2019, Facebook made over $67 billion from digital ads, and their first-quarter revenue was up 18 percent for this year, making many worries deepen about the pandemic expanding big tech’s already pervasive power. Read more here.
Nearly two years ago, the EU enacted the General Data Protection Regulation (GDPR), which was the world’s strictest online privacy regulation. Since its enactment, Google has been the only company fined under the law, making many question its effectiveness. CEO of advertising company WPP said that GDPR empowered big tech companies rather than limited them, because the law gave them “the ability to collect and process the data,” as reported by the Wall Street Journal. Many believe this lack of enforcement is due to European governments not providing adequate resources to data protection agencies. In a survey of European privacy regulators, 70 percent of those surveyed reported having inadequate resources. Because of Europe’s lack of enforcement under the GDPR, it could undermine other efforts around the world to hold big tech accountable for privacy breaches. Read more here.
Since September 2019, Texas Attorney General, Ken Paxton, has led a group of attorneys general across the country in an investigation into Google for potential antitrust violations. Specifically, the attorneys general are scrutinizing Google’s level of control and anticompetitive behavior in the online advertising and search traffic markets. On April 22, 2020, AG Paxton spoke at an event held by the American Bar Association’s Antitrust Law Section. He reiterated his belief that federal, state, and local regulations of Big Tech companies are necessary to protect consumers. He also said that the COVID-19 pandemic has not slowed down the attorneys’ general investigation into Google. Read more here.
News Media Alliance Joins Others to Recommend Strong Copyright Protections in the U.S.-UK Trade Agreement
On April 28, the News Media Alliance joined a group of creative-industry organizations to publish comments on the proposed trade agreement between the United States and the United Kingdom. The comments outline the importance of the copyright-intensive industries to the economies of both countries and lays out the priorities of these communities for the negotiations. The priorities include keeping any potential copyright safe harbor provisions “short and high-level” without detailed obligations, ensuring that these provisions are not affected by other third-party liability provisions that are under review in both countries, and extending the copyright term in the United States to meet that in the United States. The letter also calls out for strong copyright enforcement and national treatment provisions, in addition to reiterating the willingness of the signatories to work constructively with both governments during the negotiations. Read the full comments here.
On April 23, the U.S. District Court for the District of Columbia upheld the settlement reached last July for sanctions brought by the FTC against Facebook for privacy violations that have spanned nearly eight years. Judge Timothy Kelly upheld the largest penalty ever won by the FTC, but the settlement also requires Facebook to take additional measures to protect users’ personal information. The opinion lists 11 different remedial steps Facebook must take, including “clearly disclosing” any time it shares personal information with third parties and obtaining express consent, ceasing “a host of” misrepresentations about its collection and use of users’ personal information, and creating a committee, independent of Facebook’s board of directors to oversee the implementation of the new privacy efforts. Read more here.
On April 23, 2020, several Google and Facebook representatives participated in an every-other-week video conference hosted by the Privacy Community Group (PCG) of the World Wide Web Consortium (W3C). This marks Google’s first appearance at a PCG conference as a member of the group. The discussion focused mainly on a proposal called “Registry of Businesses and Domain Name Ownership,” which would create an authority with whom businesses could register as trusted owners of user data, include which legal requirements they follow (e.g., GDPR, CPAA, etc.), and identify third-parties with whom the business has contracted. Browsers could consult this list before sharing an individual user’s cross-site browsing activity. Read more here.
On April 20, 2020, the Australian government directed the Australian Competition and Consumer Commission (ACCC) to develop a mandatory code governing the commercial relationship between digital platforms and media outlets. This code will address the sharing of data, ranking and display of news content, monetization and sharing of revenue generated from news, and dispute resolution mechanisms. ACCC will release a draft mandatory code by the end of July 2020. This decision follows findings of disparate bargaining power between digital platforms and media outlets in ACCC’s Digital Platforms Inquiry final report, the Australian government had instructed ACCC in December 2019 to facilitate negotiations between the two industries for the development of a voluntary code. These negotiations were expected to last until November 2020. Due to the media sector’s financial strain exacerbated by COVID-19 and ACCC’s belief that a voluntary agreement is unlikely, the Australian government instead enjoined ACCC’s development of a mandatory code. Australia’s Treasurer, Josh Frydenberg, stated the government’s belief that a mandatory code “is critical for the future viability of [the Australian] media sector and it’s all about competition and creating a level playing field.”
Traffic to news sites has spiked in recent weeks due to the COVID pandemic; however, news publishers have not seen a financial benefit. Overzealous blacklisting – based on unjustified fears that news stories don’t meet brand safety guidelines – has led to a decrease in digital ad revenues just when publishers are investing resources in meeting their communities’ needs.
Support for ad placement with news publishers has come from the ad industry association — the 4A’s released a report pointing out that “trusted news content is brand safe” and encouraged its members to support news. The Interactive Advertising Bureau (IAB), which focuses on online advertising, specifically called on its members to not block news, citing the public health benefits of supporting journalism. The Local Media Consortium and the Brand Safety Institute partnered to create a whitelist of local news sites for advertisers to include in their digital buys. And the advertising technology companies MediaMath and TRUSTX partnered with each other and data provider Peer 39 to ensure their clients understand how continuing to place their ads near brand suitable news can help them reach the right audiences while supporting the important work of journalism. The Alliance will continue to push for a solution to prevent the news industry from seeing continuing declines in ad revenue.
On April 19, the Wall Street Journal reported that OpenSlate, a brand safety company, refused to sign a contract with Google after being an approved partner since 2017. The contract would allegedly limit OpenSlate’s ability to report to clients when their ads play in YouTube videos with sensitive subject matter like “hate speech, adult content, children’s content, profanity, violence and illegal substances.” The contract would require OpenSlate to get prior approval from Google to share these metrics with its clients. One of Google’s brand-safety partners, DoubleVerify reported that it still delivers “unrestricted” reports to its clients. This news follows a universal ad decline amid the COVID-19 crisis, and tech companies scramble to continue monetizing content. Read more here.
As America works to meet the needs brought on by COVID-19, tech companies have coordinated with the government to find effective responses to the crisis. But people’s newfound appreciation and trust in big tech will likely be short lived. Statistics about regional differences in social distancing can be useful for public health experts and interesting to the general public today, but information like this can make users increasingly concerned about their privacy and big tech’s use of their data tomorrow. Similarly, the online platforms’ role in choosing what people see and vetting information can help distribute reliable information during a crisis but threatens the sustainability of and access to high-quality journalism at other times. As big tech enjoys a rare bout of positive press, Attorney General William Barr was quick to confirm that he plans to make a decision about the antitrust inquiries into the tech industry by early summer. Read more here.
On April 9, the French competition regulator, Autorité de la Concurrence, issued an interim decision requiring Google to pay for news content under the recently implemented European Union Copyright Directive. Article 15 of the Directive requires EU Member States to create a so-called Publishers’ Right that allows news publishers to protect their content online by preventing uncompensated use by online platforms. The competition regulator’s decision, finding that Google has likely engaged in anticompetitive behavior, came after a group of French publishers filed a complaint with the authority due to Google’s refusal to pay for news content following France’s transposition of the Publishers’ Right into national law last year. The decision requires Google to engage in good faith negotiations and reach a remuneration deal with French publishers within three months, among other conditions. The decision is an interim measure while the authority continues its investigation into the merits of the case. Read the decision here (in French).
On March 20, the News Media Alliance joined over 60 business groups, including the Motion Picture Association and the Association of National Advertisers, in asking the Attorney General of the State of California, Xavier Becerra, to postpone the enforcement of the California Consumer Privacy Act (CCPA). The CCPA was adopted in 2018 and provides residents of California with strong privacy protections. While the law came into effect in January 2020, the Attorney General is required to promulgate implementing regulations prior to the planned enforcement start date of July 1. The letter calls for the Attorney General to delay this deadline by six months due to the ongoing COVID-19 pandemic that places considerable stress on the businesses that must comply with the new law. According to reports, the Attorney General is currently planning on sticking to the original schedule. Read more here.
On March 17, the Washington Post reported that the government is in discussions with the tech industry regarding the use of user location data to aid in slowing the spread of COVID-19. The news follows earlier reports of the administration reportedly asking the big tech companies to assist governmental efforts to battle the virus. Any potential partnerships between the government and big tech would be sensitive as the tech industry has been under increased scrutiny for its handling of user privacy and as Congress has not agreed on a federal privacy legislation. On March 18, five Democratic Senators, including Robert Menendez (D-NJ), Sherrod Brown (D-OH), Richard Blumenthal (D-CT), Kamala Harris (D-CA), and Cory Booker (D-NJ), sent letters to Vice President Mike Pence and Google CEO Sundar Pichai asking whether user privacy considerations had been taken adequately into account when developing the Google-affiliated pilot screening website launched on Sunday. Read the letter here.
On March 17, Representative David Cicilline (D-RI), Chair of the House Antitrust Subcommittee, held a roundtable discussion with stakeholders in Rhode Island on competition in the digital marketplace. The event, hosted virtually due to the COVID-19 pandemic, was aimed at soliciting the views of local businesses, innovators, and thought leaders about the issue. Representatives of The Boston Globe and The Providence Journal participated in the roundtable, highlighting how the dominant platforms affect the news industry. They also expressed support for the Journalism Competition and Preservation Act that would grant news publishers a temporary safe harbor to come together and negotiate collectively with the platforms. Rep. Cicilline has been leading a congressional antitrust investigation into market power online, including whether the dominant platforms have engaged in anti-competitive conduct, that is expected to wrap up soon. The subcommittee has held five hearings and sent multiple requests of information to the tech platforms as part of the investigation. Read more about the subcommittee’s investigation here.
On March 16, Dr. Johnny Ryan of Brave Software, a California-based developer of a privacy-focused web browser, filed a complaint with the Irish Data Protection Commission regarding Google’s use of consumer data for undisclosed purposes across its business. The complaint argues that Google fails to adequately ring-fence the personal data it collects for its various services, instead allowing other parts of the company to use the data without making this clear to users. Such use would violate Article 5(1)b of the European Union’s General Data Protection Regulation (GDPR), which establishes a “purpose limitation” principle. Specifically, GDPR allows user data to be collected for “specified, explicit and legitimate” purposes but forbids the use of such data “in a manner that is incompatible with those purposes.” The complaint follows Dr. Ryan’s attempts to find out how Google uses his personal data. Properly enforced, GDPR would allow users to limit how Google uses their personal data, in addition to increasing competition in the digital marketplace. Read more about the complaint here.
On March 13, the U.S. Copyright Office shared a summary of its pandemic plan with Members of Congress, noting that the Office aims to continue providing essential services during the ongoing COVID-19 pandemic. These services include administering the registration and recordation systems, handling mandatory deposits, and conducting regulatory activities. According to the summary, many Copyright Office staff members will work remotely, although some will remain on-site, and the registration examination of digital applications will continue as normal. Paper applications and physical deposits may experience delays. Additionally, the remote working arrangements should not have any effect on the Copyright Office modernization efforts.
Data Privacy Bill Fails in Washington; New York Legislators Consider a Comprehensive Bill Requiring Opt-In
On March 12, Washington State Senator Reuven Carlyle issued a statement indicating that the state House and Senate had failed to reach a compromise on a proposed consumer privacy bill, the Washington Privacy Act. The Act would have created broad consumer data protections similar to those established by the California Consumer Privacy Act (CCPA) and the EU’s General Data Protection Regulation (GDPR). The Washington House and Senate disagreed about whether the Act should include a private right of action. The bill’s failure marks the second time that the bill has failed to pass the legislature. Meanwhile, New York State is considering a data privacy bill, A8526/S5642, which would go beyond CCPA and GDPR by requiring affirmative opt-in consent, creating a private right of action, and establishing a fiduciary duty of care, loyalty, and confidentiality that would require businesses to put consumers’ privacy rights ahead of their own interests. Read more about the Washington Privacy Act’s failure here.
On February 26, the Ninth Circuit effectively held that any challenges to a digital platform’s censorship or ad-blocking on First Amendment grounds will fail. In a unanimous opinion, the court found that YouTube is not a public forum or government actor. PragerU argued that the expansive reach of the internet and selective censorship qualified YouTube as a moderator of an effective town square, subject to First Amendment scrutiny. The court rejected this argument to find that online platforms do not require First Amendment protections, claiming that the new digital age has not changed legal principles. Read more here.
On February 24, House Antitrust Subcommittee Chairman David Cicilline (D-RI) told reporters he will propose a bill to limit Section 230 immunity for digital platforms that knowingly publish false political ads. Cicilline aims for the bill to address the “emergency problem” of false political ads. His staff is still deciding whether to remove Section 230 immunity for all political ads or just false political ads. Cicilline said that big tech companies profiting from “demonstrably false advertising” will directly affect whether citizens will have truthful information when deciding who to vote for. He has been a critic of Section 230, demanding action from Congress if the FTC fails to act. Cicilline plans to introduce the bill in a month. Read more here.
On February 21, The Wall Street Journal reported that Google is not surrendering emails, texts, and other documents for the state attorneys general investigation into possible anticompetitive practices. A Google spokesperson claims the company has complied with the investigation but raised concerns about the investigation being “irregular.” The spokesperson alleged that the investigation has included “unusual arrangements with advisers who work with our competitors and vocal complainants.” Texas Attorney General Ken Paxton remains suspicious of Google’s behavior, saying they are not acting “clean.” Read more here.
On February 19, the DOJ hosted a workshop featuring three panels about Section 230. Attorney General William Barr opened the event by expressing concern about Section 230, specifically digital platforms’ lack of cooperation with law enforcement. The panels discussed litigating Section 230, addressing illicit activity online, and alternatives to Section 230. The panelists included testimony from News Media Alliance’s President and CEO David Chavern, Patrick Carome who argued the Zeran case, and other experts in the field. Chavern stated that commercial decisions of the platforms algorithms that choose what content readers see and don’t see should carry with it responsibility for those decisions. The panelists divided over Section 230’s long and short term effects, with one side arguing for platform accountability and the other for self-regulation. Read more here.
On February 19, the News Media Alliance filed an amicus brief with the Supreme Court in support of Oracle in the Google v. Oracle case. The case concerns Google’s unauthorized copying of parts of Oracle’s code when developing applications for Android. The Supreme Court will hear the case in March and wants the parties to address two questions: whether the code is copyrightable, and whether Google’s use constituted fair use. The lower U.S. Court of Appeals for the Federal Circuit ruled in favor of Oracle on both of these questions, and the Supreme Court accepted Google’s appeal in November. The Alliance amicus brief focuses solely on the fair use question, challenging Google’s argument that its use of Oracle’s code was fair use under the current statutory standard. The brief contrasts Google’s actions in this case to their widespread and unauthorized use of news content without compensation for their own commercial purposes. Read the Alliance statement here and the full brief here.
Following the passage of the European Union’s Copyright Directive last year, Google is now in discussions with French news publishers on paying for their news content, according to news reports. Article 15 of the EU Copyright Directive created a so-called “Publishers’ Right” that gives news publishers the right to protect their content online. France became the first country to implement the Publishers’ Right in July, after which Google indicated that it would refuse to pay for news content in France and would simply display headlines in its search results unless publishers waived their rights. A competition claim was filed against Google for using its market dominance to evade the law, and a ruling is expected to come in March. According to the Financial Times, Google is now negotiating with select French publishers, including Le Monde and Figaro, about direct content payments. It is unclear what form the payments would take. Read more here.
On February 13, Senator Lindsey Graham’s (R-SC) draft bill, which would predicate interactive computer services’ Section 230 immunity on compliance with “best practices” in the proposed Act and impose liability for tech platforms that allow dissemination of child sexual abuse material (CSAM), circulated. The EARN IT Act of 2019 would establish a Commission that would seek to prevent the exploitation of children online by submitting recommended best practices to the attorney general (AG). The AG reviews and can modify the best practices before publishing them to the Federal Register, under Section 4(b) of the Act. Within one year of posting these best practices, interactive computer services are required under Section 4(c) to submit a written certification to the AG that they have reviewed and implemented the best practices. If the AG has any reason to believe the interactive computer service is not complying with best practices it can order an investigation, imposing significantly more scrutiny on the platforms previous blanket immunity under Section 230. Read more here.
On February 12, the UK’s Department for Digital, Culture, Media & Sport announced that it is “minded” to grant the Office of Communications (Ofcom) the power to regulate online platforms. The announcement was included in the Department’s initial response to the Online Harms White Paper released last April. The aim is to make the internet a safer place by protecting children and vulnerable people, in addition to increasing user trust in technology. According to the government’s announcement, Ofcom will be responsible for protecting internet users from harmful and illegal content, particularly terrorist and child abuse content. The regulations will only apply to companies that share user-generated content. Currently, Ofcom is responsible for regulating the broadcasting and telecoms industries. The Department will publish a full response to the White Paper later in the spring. Read more here.
On February 11, the Federal Trade Commission (FTC) announced that it will re-examine past acquisitions of small and nascent firms by big tech companies, including Google, Amazon, Facebook, Apple, Microsoft, and Alphabet. The Special Orders, issued under Section 6(b), require the identified companies to provide information on acquisition transactions that took place in the last decade. Section 6(b) allows the FTC to request information for studies that do not have a specific law enforcement purpose in order to evaluate the companies’ acquisition activities and to evaluate whether they are making anticompetitive acquisitions that fall below reporting thresholds. The announcement came following the conclusion of the hearings on Competition and Consumer Protection in the 21st Century, held between September 2018 and June 2019. The Commission approved the issuance of the Special Orders unanimously. Read more here.
On February 6, 2020, the House Steering Committee selected Rep. Jim Jordan (R-OH) to replace Rep. Doug Collins (R-GA) as ranking member of the House Judiciary Committee, as Collins steps down to run for Georgia’s Senate seat. Rep. Collins and House Antitrust Chairman David Cicilline (D-RI) remain lead sponsors for H.R. 2054, the Journalism Competition and Preservation Act. The legislation is still expected to go through regular order in the House this year, according to statements made by the Chairman, while the Senate version has gained co-sponsors and the Alliance supports regular order – a hearing and markup – in the Senate, as well. Lawmakers are aware of the urgency, and the importance of ensuring passage of this legislation.
On January 29, President Trump signed the newly negotiated United States-Mexico-Canada Agreement (USMCA) following the Senate’s adoption of the agreement on January 16 in an 89-10 vote and the House’s passage in December by a 385-41 vote. The agreement, replacing the North American Free Trade Agreement (NAFTA), was finalized between the three countries over a year ago but faced significant challenges due to concerns by the House Democrats who insisted on changes in some of the key provisions prior to passage. Despite last-minute efforts by Speaker Nancy Pelosi (D-CA), the final agreement still includes provisions similar to Section 230 of the Communications Decency Act that establishes broad liability immunities for online platforms for third-party content they publish. USMCA marks the first time such immunities are enshrined in a trade agreement. Before taking effect, USMCA must still be approved by the Canadian Parliament. Read more here.
On January 14, 2020, Google announced that it intends to phase out its support of third-party cookies within the next two years as part of its Privacy Sandbox initiative. These changes will take place within Google’s Chrome browser, which is the dominant browser at 69% global market share, and could significantly impact the subscription and advertising revenue of news publishers. This change follows indications from Google that it would continue taking privacy-related actions. For example, Google’s changes to the Chrome browser’s incognito mode in July 2019 were said to be intended to protect consumer privacy, but instead the changes to the browser facilitated paywall circumvention and did nothing more to protect users’ privacy than before the changes were made. Google has stated that it plans to work with publishers, advertisers, and other relevant stakeholders to determine how the new policies will be developed and implemented. The Alliance is engaged in good faith efforts with Google to ensure any new policies benefit news publishers and to learn how the policies will impact news publishers’ business.
The Alliance submitted comments on January 10, 2020, to the U.S. Patent and Trademark Office (USTPO) regarding their request for comments on the impact of artificial intelligence (AI) on the protection of intellectual property. The comments focused on USTPO’s question regarding the ingestion of large volumes of copyrighted material for AI training purposes, and whether such use constitutes fair use and is adequately addressed by existing statutory language and case law. The Alliance comments noted the existential threat to the news industry posed by the unlicensed use of news content for AI training purposes, and argued that while the current case law provides protections for news content against such use, stronger enforcement is needed. The comments also emphasized the importance of fair use analysis, including the market effect unauthorized copying has on news publishers. While the current legal framework, properly understood and enforced, should provide adequate protections for news content, legislative solutions may be useful if that is not the case. Read the full comments here.