Updated August 27, 2024
Local journalism is necessary for maintaining an informed and active citizenry. But it is currently under threat. Big Tech, by not paying small and local publishers for access to their quality reporting, has created news deserts, driving many outlets out of business. Making matters even worse, the tech platforms are ramping up their generative AI technology, using news publishers’ content – often scraped from their websites without permission or compensation – to train their AI systems. Publishers must be compensated for the use of that content.
The Journalism Competition and Preservation Act (JCPA) would allow small and local news publishers to collectively negotiate with Big Tech for fair compensation for access to the journalistic content that generates revenue on those platforms.
The following addresses some of the misconceptions about the JCPA made by Big Tech and their allies.
MYTH #1:
Google and other online services are doing a service to publishers by directing traffic to their sites and don’t actually benefit themselves from sharing news content.
- FACT: The value exchange in the relationship between Big Tech and news publishers is unfairly imbalanced and has been for years, ever since the flow of internet traffic concentrated through two platforms. Google and Meta, which make money every time someone uses their services, design the browsing experience to keep users within their walled gardens as long as possible, maximizing the monetization of their attention.Sixty-four percent of users don’t leave Google. When users do click through, the tech platforms take an ad tech tax for themselves of up to 70 percent of the ad dollars. The big tech companies have large financial incentives to keep using news content for free while receiving ad dollars and data from increased traffic.
MYTH #2: The JCPA would simply empower bigger media companies to make their own sweetheart deals with tech giants and leave independent publishers behind—thereby exacerbating the Big Tech issue even more.
- FACT: The JCPA is designed to benefit small and local publishers exclusively. It specifically excludes the large national publishers. It also severely penalizes Big Tech platforms if they do not negotiate in good faith. In addition, the JCPA does not allow large newspapers groups to disproportionately benefit through representation, governance, or allocation of funding.
MYTH #3: The JCPA will just line the pockets of news executives and will not actually invest in journalists or quality reporting.
- FACT: On the contrary! The advertising dollars that news content attracts on the platforms are lining the pockets of Big Tech execs, whose priority is not journalism, but investing in algorithms designed to capture and hold users.The JCPA is designed to incentivize and reward publishers that are investing in journalists and newsroom personnel. The JCPA ensures publishers invest proceeds in journalists and adhere to enforceable compliance and disclosure requirements. Currently, Big Tech has no compliance or disclosure requirements for how they spend the money news content generates on their sites, but we know they’re not spending it on gathering, investigating, and reporting the news.
MYTH #4: The JCPA would create a Big Media Cartel.
- FACT: The current access price paid to news publishers is below competitive levels, as a result of Big Tech’s monopoly power. The JCPA allows news publishers to countervail Big Tech’s monopoly power, raising prices back towards competitive levels and expanding newspaper output—the exact opposite effect of a cartel.
MYTH #5: Inadequate copyright protections prevent payment for content distributed by online news aggregators like Meta and Google. The JCPA will charge for links.
- FACT: The JCPA addresses competition, not copyright, issues. The U.S. Copyright Office (USCO) found that news content enjoys copyright protection, but the issue in this bill is bargaining power. The USCO explicitly identified the JCPA as a “non-copyright measure” for supporting journalism being considered in Congress. The USCO also recognized that news publishers can withhold access to content for payment today under the Digital Millennium Copyright Act (DMCA). The fundamental need for the JCPA is because Big Tech’s monopoly power makes it infeasible for small and local publishers to exercise their copyright to withhold access to their content. To further clarify the matter, the bill text makes it unequivocally clear that nothing in the JCPA alters copyright law.
MYTH #6: The JCPA would establish a link tax in the U.S. that will break the internet.
- FACT: The internet is designed to prevent any company from unlawfully profiting off the work of others. Linking is and will remain voluntary and free to platforms and consumers. The only payment required under the JCPA would be triggered when a dominant platform accesses (or crawls) a news publisher’s articles.News publishers already have the ability to prohibit unauthorized access to their content. They do not exercise this right because while the platforms can function without access to any one given publisher, publishers cannot independently survive without access to Big Tech’s billions of users.Payments from Big Tech to publishers in Australia and Europe have not created undesirable changes to internet user experience or links, proving that laws like the JCPA, when implemented, do not break the internet.
MYTH #7: Big media companies would be able to strike deals with Meta, Google, X (formerly Twitter), and other tech giants that could prioritize their content to the detriment of podcasters, YouTubers, Substack authors, and other forms of independent media.
- FACT: The JCPA is intentionally inclusive of independent media organizations and individual news content creators, such as podcasters, YouTubers, and Substackers. The bill also explicitly prohibits the exclusion of publishers or broadcasters based on political alignment. A function-based (rather than content-based) definition allows all types of outlets to qualify.
MYTH #8: The JCPA uses taxpayer dollars to enable a closed-door negotiation between Big Tech and media.
- FACT: The JCPA fixes a marketplace imbalance without the use of taxpayer dollars involved or government involvement. In addition, qualifying publishers must provide full transparency into the annual funds they receive and how they are spent to support news – transparency that is currently missing from the way Big Tech uses the money generated on their sites from news content.
MYTH #9: The JCPA would primarily benefit Wall Street and hedge funds, not local papers or their readers.
- FACT: Without the JCPA, the current system benefits vulture capitalists feeding on vulnerable news properties. The JCPA would help these news properties to survive. The JCPA only benefits small and local publishers and the local communities that rely on their reporting. The JCPA ensures voting, governance, and allocation do not disproportionately favor larger newspaper groups.The JCPA is supported by thousands of small and local papers across the country and the political spectrum because it would level the playing field with Big Tech and materially help publishers by ensuring they receive fair market value for their news content and would be able to invest in their core capability: journalism.
Myth #10: The JCPA would lead to job losses because it requires eligible news publishers to have fewer than 1,500 employees.
- FACT: While the bill leaves out large publishers with over 1,500 employees, no newspaper comes anywhere close to employing that many people, with the exceptions of The New York Times, The Washington Post and The Wall Street Journal. Therefore, except for the three largest newspapers, which are already excluded from the bill, all other news publishers meet the 1,500-employee requirement.In addition, when a similar law passed in Australia, some newsrooms doubled because of the infusion of cash.
MYTH #11: The JCPA would discriminate against conservative news outlets.
- FACT: The JCPA is content-neutral and is inclusive of conservative publications, such as Breitbart, The Daily Caller, Newsmax, and The Washington Times. The JCPA contains a nondiscrimination provision and a right to inclusion (“most favored nation” provision) designed to preserve diverse points of view, including conservative ones, by providing a necessary check on Big Tech.
MYTH #12: The JCPA would violate the First Amendment rights of readers because they can no longer post links and excerpts from social media.
- FACT: The JCPA does not violate the First Amendment, nor would it require individual users to pay for anything, nor would it block their posts. The JCPA would ensure that Big Tech platforms pay for news content aggregated from small and local publishers who are the ones working hard to gather the facts and report the news to their local communities.
MYTH #13:The JCPA forces the platforms to carry content from all news publishers, leaving them no choice in the content they carry on their platforms.
- FACT: Nothing in the bill requires the Big Tech platforms to carry news content. And, nothing in the bill prevents a platform from implementing its terms of service. The language referenced in the bill in Section 6b denies a platform the ability to retaliate – as platforms have done in France, Australia, and now Canada – against digital journalism providers in the limited case where it does so to punish the publisher or broadcaster for participating in a joint negotiation. If the platform deindexes or de-ranks content, but it is not retaliatory for asserting rights under the bill, then the platform faces no risk.
MYTH #14: The JCPA will require the platforms to pay for and display content from extremist groups or that spread harmful misinformation.
- FACT: Nothing in the bill requires display. If a platform is crawling a publisher’s or broadcaster’s content, it must pay for the content it crawls. If it does not want to pay for news content it finds distasteful, then the platform should not crawl that content – and make money off of it – in the first place (e.g., through AI and other uses that take place regardless of whether content is actually displayed). This is the essence of the access fee: payment for the ability to crawl news content and determine later what they will display. This is the nominal cost of organizing the world’s information.
MYTH #15: If the JCPA passes, the U.S. will see a similar situation to Canada, where Meta is blocking news from Facebook in retaliation to the Online News Act, a bill resembling the JCPA that requires the Big Tech platforms to compensate news publishers fairly for use of their content.
- FACT: In Canada, platforms that reach arrangements on their own can be exempted from the Canadian legislation, which is just what Google did, agreeing to pay C$100 million to compensate Canadian news outlets for its use of their journalism. This still accomplishes the intended objective of the legislation by getting most news publishers paid by the platforms for use of their content; it just does so without having to resort to arbitration.The tech platforms can always opt not to carry news; however, it is in their interest to do so, as without news, their platforms are less valuable and desirable to their users, who are looking for high-quality, reliable and accurate news and information.The tech platforms should feel a responsibility to their users to make news available on their platforms and incur the cost and benefit of doing so.
In light of the billions of dollars in revenue the tech platforms generate, they should pay fair market value for the benefit they receive from news content. Otherwise, this would constitute an unjustified wealth transfer to the tech platforms.
In the U.S., platforms are not legally required to compensate publishers. Threats to withhold information from readers are not the answer. Dominant platforms that citizens rely on for information should also not be able to withhold critical information during emergencies, such as the Canadian wildfires.
News publishers understand the duty to provide news in emergency situations and have foregone much-needed revenue during crises because, in life-or-death situations, it is their duty, and simply the right thing to do. For example, when the Covid-19 pandemic arrived in the U.S., news publishers dropped their paywalls so that all residents could access critical health and safety information.
