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

Updated September 5, 2023

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 Meta 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 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 the 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 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 Facebook 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 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 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 content creators already have separate, existing rights to prohibit unauthorized access to their content today. They do not exercise this right because the platforms can function without access to any one given publisher, but 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.

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 has an intentionally inclusive set of criteria 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 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 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 those news properties to survive. It only benefits small and local publishers and the local communities that rely on their reporting. The bill 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 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: 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, comes anywhere close to that number of employees. To the contrary, 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. 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 would ensure that Big Tech pay 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 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 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. 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, if the Big Tech platforms reach enough deals on their own before the law takes effect on December 19, 2023, then parts or all of a platform could be exempted from the Canadian legislation. 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. In addition, the legislation has not yet become effective in Canada, so any conclusions are premature.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. Today in the U.S., platforms are not legally required to compensate publishers and threats to withhold information to readers is 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 also simply the right thing to do. For example, when the Covid-19 pandemic arrived in the US, news publishers dropped their paywalls so that all residents could access critical health and safety information.

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