Digital Updates – January

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.

Facebook updated its privacy policy in preparation for the California Consumer Privacy Act (CCPA) to go into effect on January 1, 2020. Specifically, Facebook asserts itself as a Service Provider and that it does not share information other than for that specific Business Purpose as permitted by the statute. The policy also states that the publisher will remain solely liable for the publisher’s compliance with CCPA. The Alliance is concerned that, among other things, Facebook does not make clear they will not sell the personal information received from news publishers. If this policy stands, publishers have limited recourse, as they must do business with Facebook. The Alliance seeks to gain clarification by highlighting these concerns to Facebook as the law is now in effect and implementing regulations are expected to be released by the California AG before its July 1, 2020 deadline for guidance. Read the letter here.