{"id":36499,"date":"2024-01-09T18:28:44","date_gmt":"2024-01-09T18:28:44","guid":{"rendered":"https:\/\/publicknowledge.org\/?p=36499"},"modified":"2025-01-14T20:39:38","modified_gmt":"2025-01-14T20:39:38","slug":"the-top-reasons-the-jcpa-wont-save-local-news-including-from-ai","status":"publish","type":"post","link":"https:\/\/publicknowledge.org\/the-top-reasons-the-jcpa-wont-save-local-news-including-from-ai\/","title":{"rendered":"The Top Reasons the JCPA Won\u2019t Save Local News \u2014 Including from AI"},"content":{"rendered":"\n

This week the Senate Judiciary Subcommittee on Privacy, Technology & the Law is holding a hearing, \u201cOversight of AI: The Future of Journalism.\u201d As we noted in a letter we wrote to the committee, we applaud the focus on the critically important intersection of artificial intelligence (AI) and journalism in the latest hearing of their AI oversight series. However, based on the list of witnesses we\u2019ve seen so far<\/a>, the hearing may also focus in part on the Journalism Competition & Preservation Act (JCPA). The JCPA creates an exemption to antitrust law to allow news organizations to band together into \u201cjoint negotiating entities\u201d to negotiate for payment from dominant technology companies.\u00a0<\/p>\n\n\n\n

We\u2019ve written about the JCPA a lot, often in partnership with other civil society organizations that share our concerns (it\u2019s all linked here<\/a>). But instead of addressing these concerns or reconsidering the bill, its sponsors and lobbyists continue to put forward the same misleading arguments about it – and now have a new one that leverages the explosion of focus on generative AI. Here\u2019s a recap of those arguments and why they\u2019re not true \u2013 and as a result, why the JCPA won\u2019t actually help local news. <\/p>\n\n\n\n

\u201cThe JCPA will create compensation for publishers from technology companies pursuing generative artificial intelligence.\u201d<\/strong><\/p>\n\n\n\n

This is the new argument from the JCPA\u2019s sponsors<\/a> and lobbyists<\/a> that began to appear after ChatGPT and other generative artificial intelligence models exploded onto the scene last fall. The argument that the JCPA will create a stream of compensation from AI companies back into news presumes that the JCPA\u2019s same-old language about \u201caccessing, crawling, and indexing\u201d news content will cover its use to train large language models. This line of argument, which is clearly designed to capitalize on the buzz surrounding generative AI, represents a massive shift in intellectual property law \u2013 and a dangerous one for creative expression, an open internet, and access to news and media. (Read more about these risks in regard to both the JCPA<\/a> and generative AI training<\/a>.)

And guess who\u2019s behind the new argument that the JCPA will somehow create compensation for impoverished news publishers? The largest news organizations on the planet. The Associated Press<\/a> (which has negotiated the equivalent of \u201cfavored nation\u201d status with Open AI), News Corp<\/a> (which has switched over to AI<\/a> to write local news stories in Australia and promised more \u201ccost savings<\/a>\u201d through broader use of it in the future), and The New York Times<\/a> have all already pursued their own voluntary agreements for payment from AI firms. (Though recently The New York Times\u2019 stalled discussions with OpenAI and Microsoft resulted in a lawsuit.) It\u2019s clear that any kind of payment stream from AI firms to news will \u2013 like every other part of the JCPA \u2013 benefit the biggest media conglomerates. Their argument that JCPA will \u201csave journalism from AI\u201d creates the impetus for them to cut private deals while seeming to demonstrate concern for small, local, and independent publishers. As news commentators have said in this context, it\u2019s almost inevitable that \u201cthe rich will get richer<\/a>\u201d and \u201cthe big dogs<\/a> will come out on top again.\u201d<\/p>\n\n\n\n

\u201cAustralia passed a bill like the JCPA, and the internet didn\u2019t break.\u201d<\/strong><\/p>\n\n\n\n

This argument is based on proponents\u2019 claim that the JCPA is \u201cmodeled\u201d on a bill that generated millions in payments from platforms to publishers in Australia. But the JCPA in no way really resembles the Australian law. <\/em>The law being referred to is the Australian Mandatory Bargaining Code, which does include an arbitration provision designed to allow the government to force agreements between platforms and publishers. But that is where any similarity ends: due to a last-minute revision that resulted from negotiation with Google and Facebook, digital platforms could avoid being \u201cdesignated\u201d under the Australian code \u2013 and so, avoid being subject to forced arbitration \u2013 if they make a \u201csignificant contribution\u201d to the sustainability of the Australian news industry. Facebook and Google promptly used the loophole they helped create and cut private commercial deals with large news publishers \u2013 just as they have done in several other countries, and recently announced<\/a> they are starting to do in the United States. That means that not one dollar has been exchanged between platforms and publishers in Australia as a result of a mandatory arbitration process like the one called for in the JCPA.<\/em> In fact, the Australian Treasury acknowledges<\/a> in its own assessment of the first year of the code that every agreement was reached \u201coutside the code.\u201d The Australian law has also been criticized<\/a> for the concentration of payouts to the largest news organizations, \u201dmassive information asymmetry\u201d in negotiations between platforms and publishers, and its total lack of transparency on how funds are being used. The last of these was only recently addressed with a recommendation by the Australian Treasury, which the government accepted, to issue reports on the agreements. <\/p>\n\n\n\n

The JCPA was designed to close the Australian loophole by making certain platforms automatically subject to the law. We can look to Canada for a forecast of how that might work out \u2013 and it\u2019s not good. Canada has been lauded for the passage of its Online News Act, which made platforms automatically subject to the law, too. But due to Meta\u2019s wholesale blocking of news content in Canada and Google\u2019s pledge to do the same (the results of which have been described<\/a> as \u201ccatastrophic\u201d for small publishers), the actual regulations to implement the Canadian law vary significantly from the original intent. In Google\u2019s case, they call for the creation of a \u201cfund\u201d with a $100 million financial threshold that can be met via their existing commercial agreements – and that is well less than half of the original estimates<\/a>. The regulations leave it to the government to allocate the funds to qualifying news organizations. All this means that neither the Australian nor the Canadian law are productive comparisons to the JCPA. <\/p>\n\n\n\n

\u201cJournalists are in favor of the JCPA.\u201d <\/strong><\/p>\n\n\n\n

The NewsGuild-CWA is the largest union of journalists and media workers in the United States. But the largest union of journalists and media workers does not support the JCPA as written.<\/em> In their communication<\/a> last winter (referring to the Senate version), and news reports<\/a> late last year, they continue their push for changes to the JCPA that would \u201cprotect journalists from predatory corporate owners in the highly consolidated news sector\u201d and \u201c[make] sure the JCPA helps support and grow more local journalism jobs across the United States.\u201d Organizations representing local independent online news organizations, like LION Publishers, actively oppose<\/a> the bill. So do organizations representing the Black Press<\/a>. Sponsors of the JCPA point to support from The Authors Guild as evidence that \u201cjournalists support the JCPA.\u201d But the Guild is a professional organization, not a trade or labor organization, and it advises writers in their roles as book authors.<\/em> It\u2019s more accurate to say that some journalists\u2019 employers<\/em>, including financially-motivated news conglomerates that have conducted mass layoffs and denied their journalists their own collective bargaining rights, support the JCPA. <\/p>\n\n\n\n

\u201cThe JCPA creates \u2018fair compensation\u2019 and a \u2018level playing field\u2019 between Big Tech and publishers.\u201d<\/strong><\/p>\n\n\n\n

There are a few issues with this argument. First, the whole idea of \u201ccompensation\u201d for linking<\/em><\/strong> to content on the internet is at odds with the entire basis of the World Wide Web and an open internet, not to mention decades of copyright law. (We covered this in a previous blog post.<\/a>) Requiring payment for linking \u2013 something that could be extended well beyond news organizations by precedent due to the JCPA \u2013 would represent a radical change. And it\u2019s one the Copyright Office has rejected<\/a>. That is why so many digital rights organizations oppose the JCPA<\/a>. <\/p>\n\n\n\n

It doesn\u2019t create a level playing field, either. As our friends in Canada have recently learned the hard way, news organizations benefit from the referrals by the largest platforms. Links are a major source of traffic. But the JCPA explicitly prohibits arbitrators from considering any benefit news organizations derive from links on the platforms. Also, in so-called baseball-style arbitration, arbitrators choose from two offers without modification. In this case, the offers \u2013 one from publishers and one from the platform \u2013 are likely to be very far apart and based on wildly different estimates of the value of news to platforms (we talked about this here<\/a> and again here<\/a>). <\/p>\n\n\n\n

Lastly, this whole argument is related to the notion that the JCPA serves to \u201crein in\u201d Big Tech, a notion that helps explain its bipartisan support. The only problem is that it\u2019s not true: the JCPA does nothing to \u201crein in Big Tech,” because antitrust exemptions are fundamentally designed to match might with might. <\/em>The JCPA explicitly allows some of the biggest media organizations in the country to jointly negotiate with the largest technology companies, something that would normally be against the law. It essentially sets up a negotiating table for Big Tech and Big Ink<\/a>. <\/p>\n\n\n\n

Other approaches hold far more promise for reducing the dominant power of the technology platforms and opening up healthier innovation and competition in the news business. These include new competition reforms<\/a> like the American Innovation and Choice Online Act (AICOA), Open Apps Market Act (OAMA), and AMERICA Act; data privacy protections to undercut the surveillance business model of the dominant platforms; and a dedicated digital regulator<\/a> with the expertise and agility to keep up with innovation in the technology sector while reining in its excesses. <\/p>\n\n\n\n

\u201cThe JCPA is designed to benefit small and local publishers exclusively.\u201d<\/strong><\/p>\n\n\n\n

This explicit and bizarre claim<\/a> from the News Media Alliance seems to be predicated on the requirement in the JCPA that publishers<\/em> with more than 1500 employees are not eligible to join a negotiating entity. But the publisher employee cap excludes only three elite east coast newspaper publishers in the United States from joining negotiating entities, and it doesn\u2019t apply to broadcasters at all. <\/em>So Sinclair Broadcasting Group, with approximately 13,000 employees and $2.59 billion in profit in the first quarter of 2022 alone, can participate<\/a> in a negotiating entity. <\/p>\n\n\n\n

Another reason the claim is bizarre: the JCPA as currently written doesn\u2019t allow news organizations that have been in business for less than a year to enter a negotiating entity, and it also excludes news organizations that earn less than $100,000 per year. In other words, it is designed to disadvantage<\/em> the smallest publishers. <\/p>\n\n\n\n

\u201cOnly Big Tech lobbyists and their allies oppose the JCPA.\u201d <\/strong><\/p>\n\n\n\n

Predictably, some of the trade associations that represent technology platforms do advocate against the JCPA. But as has been noted (for example, here<\/a>) a wide range of groups that are normally at odds over tech policy (and many other issues) have also joined forces to oppose the bill. <\/em>This includes civil society groups like the ACLU<\/a> and Free Press<\/a>, a broad range of constitutional and copyright scholars, and as noted above, local, independent and minority-owned news organizations. Public Knowledge advocates for national data protections, more rigorous antitrust enforcement and competition policy, and more transparency and accountability in content moderation, which often puts us in opposition to the dominant tech companies. In other words, it\u2019s possible to be both a critic of the JCPA and a critic of Big Tech.<\/em> In this context, it\u2019s also fair to note that some people in Congress that sponsor or support the JCPA accept funds from news lobbyists, including the News Media Alliance. <\/p>\n\n\n\n

A Partial List of Problems with the JCPA<\/strong><\/p>\n\n\n\n

In this post we\u2019ve addressed some of the arguments that continue to be made for the JCPA despite broad-based opposition to the bill. But we have other concerns about the JCPA. These include provisions in the bill that discourage or outright prevent platforms from using content moderation to support their community standards or terms of service. That means users will see more harmful disinformation, extreme content, and hate speech online. We also object to the idea that the JCPA doesn\u2019t require that funds gained through negotiation or arbitration will be spent on journalism. And the JCPA will increase publishers\u2019 reliance on dominant platforms (ask citizens of Canada how this feels). We urge Congress not to move forward with the JCPA and we encourage everyone to contact Congress<\/a> to protect both an open internet and local journalism by opposing the JCPA.<\/p>\n","protected":false},"excerpt":{"rendered":"

We\u2019ve written about the JCPA a lot, often in partnership with other civil society organizations that share our concerns. But instead of addressing these concerns or reconsidering the bill, its sponsors and lobbyists continue to put forward the same misleading arguments about it – and now have a new one that leverages the explosion of focus on generative AI.<\/p>\n","protected":false},"author":189,"featured_media":35158,"parent":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[5],"tags":[11,29],"class_list":["post-36499","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-insights","tag-content-moderation","tag-trustworthy-ai"],"acf":[],"yoast_head":"\nThe Top Reasons the JCPA Won\u2019t Save Local News \u2014 Including from AI - Public Knowledge<\/title>\n<meta name=\"description\" content=\"Instead of addressing concerns about the JCPA, its sponsors continue to put forward the same misleading arguments about it - and now have a new one focused on AI.\" \/>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/publicknowledge.org\/the-top-reasons-the-jcpa-wont-save-local-news-including-from-ai\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Top Reasons the JCPA Won\u2019t Save Local News \u2014 Including from AI\" \/>\n<meta property=\"og:description\" content=\"Instead of addressing concerns about the JCPA, its sponsors continue to put forward the same misleading arguments about it - 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