Digital Updates – May


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U.S. Copyright Office Calls for Reform of Section 512


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

Australian Competition & Consumer Commission Releases News Media Bargaining Code


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.

Supreme Court Denies Cert in Latest Section 230 Case


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.

U.S. and UK Begin Post-BREXIT Trade Negotiations


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.

Facebook Attempts to Expand Their Market to Appear Competitive Amidst Rising Profits


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.


News Media Alliance Applauds House Antitrust Report on the Big Tech Platforms - Read more