Myth vs. Fact: The Journalism Competition and Preservation Act (JCPA)

Local journalism, necessary for maintaining an informed and active citizenry, is under threat. By not paying small and local publishers for access to their quality reporting, Big Tech has created news deserts, driving many outlets out of business. And as the tech platforms release new generative AI technology that is trained on news publishers’ content, 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 Facebook make money every time someone uses their services, and design the browsing experience to keep users within their walled gardens for as long as possible in order to maximize the monetization of their attention. Sixty-five 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 severely penalizes Big Tech platforms if they do not negotiate in good faith. By design, the JCPA does not allow large newspapers groups to disproportionately benefit through representation, governance, and allocation of funding.

MYTH #3: The JCPA is designed to line the pocket of news executives and will not actually invest in journalists or quality reporting.

  • FACT: The advertising dollars that news content attracts on the platforms is lining the pockets of Big Tech execs today investing only in algorithms designed to capture and hold users. The JCPA is designed to incentivize and reward publishers who are investing in journalists and newsroom personnel. It 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 it’s not on news.

MYTH #4: The JCPA addresses Big Tech by creating a Big Media Cartel.

  • FACT: The current access price paid to news publishers is below competitive levels, as a result of Big Tech’s monopsony power. The JCPA allows news publishers to countervail that monopsony 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 Facebook and Google. The JCPA will charge for links.

  • FACT: The JCPA addresses competition, not copyright, issues. The U.S. Copyright Office 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 DMCA. To further clarify the matter, language was added to the bill making it unequivocally clear that nothing in the JCPA alters copyright law.

MYTH #6: The JCPA would establish a link tax in the United States that will break the internet.

  • FACT: The internet is not designed to allow any company to unlawfully profit off the work of others. Linking is and will remain voluntary and free to platforms and consumers. The only payment required under the JCPA is when the dominant platforms access (or crawl) news publishers’ articles. News content creators already have separate, existing rights to prohibit unauthorized access to their content today. They do not do that because the platforms can live without access to any one given publisher, but publishers cannot independently live without access to Big Tech’s billions of users. Payments in Australia and Europe have resulted in no changes to the internet or links.

MYTH #7: Big media companies would be able to strike deals with Facebook, Google, 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 has an intentionally inclusive criterion for organizations that count as news content creators, which can undeniably include podcasters, YouTubers, Substackers, and other independent media. The bill also explicitly prohibits excluding 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 with no tax dollars involved or any government involvement after the law is passed. In addition, qualifying publishers must provide full transparency on the annual funds they receive and how it is spent to support news – a transparency absent in how Big Tech uses the money access to news content generates on their sites now. 

MYTH #9: The JCPA would primarily benefit Wall Street and hedge funds, not local papers or their readers.

  • FACT: The existing system now benefits vulture capitalists feeding on vulnerable news properties. The JCPA will instead enable those news properties to survive. It only benefits small and local publishers and the local communities that benefit from their reporting. The bill text ensures voting, governance, and allocation does not disproportionately favor larger newspaper groups. The bill is supported by thousands of small and local papers across the country and the political spectrum because it levels the playing field with Big Tech and would materially help publishers by ensuring they receive fair market value and can 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: The 1,500 employee requirement will not lead to job cuts because no newspaper in America, with the exception of The New York Times, The Washington Post and The Wall Street Journal, even comes close to that. In fact, the opposite will happen as it did in Australia where newsrooms in some cases doubled because of the infusion of cash.

MYTH #11: The JCPA would discriminate against conservative news outlets.

  • FACT: The JCPA is content-neutral. It 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 ensures that Big Tech pays for news content aggregated from small and local publishers who work hard to gather the facts and report the news to their local communities.

MYTH #13: The JCPA language around anti-retaliation prevents the platforms from deindexing or de-ranking content of publishers or broadcasters as punishment if they assert their right to be paid. Some claim this is akin to must-carry, a term used to infer that the content cannot be removed.

  • FACT: Nothing in the bill requires carriage/display. And nothing in the bill prevents a platform from implementing its terms of service. The language referenced in the bill on page 28 denies platforms the ability to retaliate – as the platforms have done in France and Australia – 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 content is deindexed or de-ranked, but is not retaliatory for asserting rights under the bill, 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, the platform should not crawl it and make money off of it in the first place (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. The nominal cost of organizing the world’s information.

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