{"id":38380,"date":"2025-10-06T19:10:59","date_gmt":"2025-10-06T19:10:59","guid":{"rendered":"https:\/\/publicknowledge.org\/?p=38380"},"modified":"2025-10-06T19:13:29","modified_gmt":"2025-10-06T19:13:29","slug":"is-the-jcpa-coming-back-why-we-still-oppose-the-journalism-competition-preservation-act","status":"publish","type":"post","link":"https:\/\/publicknowledge.org\/is-the-jcpa-coming-back-why-we-still-oppose-the-journalism-competition-preservation-act\/","title":{"rendered":"Is the JCPA Coming Back?\u00a0Why We Still Oppose the Journalism Competition & Preservation Act"},"content":{"rendered":"\n

This week, <\/span>it\u2019s been reported<\/span><\/a>, news media lobbyists are heading back to the Hill to make their case for what they describe as \u201clegislation to protect and support quality journalism.\u201d In recent years, this effort has largely centered on the <\/span>Journalism Competition & Preservation Act<\/span><\/a> (JCPA), a bill that would create an exemption to antitrust law, which normally prohibits industry collusion on pricing and other business terms. It would allow certain news organizations to band together into \u201cjoint negotiating entities\u201d to negotiate for payment from dominant digital platforms for \u201caccessing\u201d (i.e., crawling, indexing, and\/or displaying snippets or thumbnails of) their content. In each of the past two years, lobbyists have tried to get the JCPA included in a year-end, must-pass defense spending bill. While we don\u2019t have any evidence that the JCPA will find its way into such legislation this year, we thought this might be an apt moment to post a refresher list of the reasons we oppose this legislation. (We\u2019re not alone: a wide range of groups that are normally at odds over tech policy and many other issues have <\/span>joined forces<\/span><\/a> over and over again to oppose this bill.) Our impressions here are based on the last iteration of bill text we saw in 2024.\u00a0<\/span><\/p><\/span><\/p>\n\n\n\n

The <\/span>last time<\/span><\/a> news lobbyists headed to the Hill to push for the JCPA, it was partly in response to the failure of two California state bills designed to extract monopoly rents gained by Google and Meta for allocation to publishers. The bills were both based on the reasoning that the dominant platforms have used their monopoly positions to steal traffic and advertising revenue from publishers. In the end, California Gov. Gavin Newsom shelved both bills, and instead announced a \u201cNews Transformation Fund\u201d to be voluntarily co-funded by Google and the state. The fund\u2019s design favored print and digital outlets, small outlets, under-served markets, and the retention (if not hiring) of journalists. Lobbyists for the JCPA claimed the failure of the California bills proved the need for federal legislation, and that if publishers were empowered to negotiate collectively (without breaking antitrust laws), they would have more leverage with the platforms.\u00a0<\/span><\/p><\/span><\/p>\n\n\n\n

Another factor in play at that time was the liability decision in the Google search case. The judge decided that Google violated antitrust law in its conduct in the search market and leveraged its power in the search market to dominate the search text advertising market. This was positioned by news industry lobbyists as proof that Google is a monopolist with an illegal business model and therefore, owes publishers recompense. While we agree that Google is a monopolist, it does not follow that publishers are free to extract rents for links.\u00a0<\/span><\/p><\/span><\/p>\n\n\n\n

What\u2019s New?<\/span><\/p><\/span><\/h1>\n\n\n\n

There have been some new developments since then that may trigger new advocacy for the JCPA. First, publishers were just handed what <\/span>we agree<\/span><\/a> is a crushing disappointment of a judicial decision regarding the remedies in the Google search case. The judge missed many opportunities to implement meaningful structural and behavioral remedies to Google\u2019s monopolistic practices. Most relevant to the JCPA, he declined to adopt either of the Department of Justice\u2019s recommended remedies that would have benefited publishers: prohibiting agreements that give Google exclusive access to publisher content, or allowing publishers to opt out of being crawled by AI. Despite our agreement that the judge\u2019s decision in the search case was a whiff, we do not feel the JCPA is a good solution to the challenges to publishers brought about by AI.<\/span><\/p><\/span><\/p>\n\n\n\n

The second development: the first two judicial decisions in lawsuits by publishers against AI firms both affirmed that under current law, AI training is highly transformative and a fair use of copyrighted content (at least in the situations analyzed in the cases). In other words, AI firms do not infringe on publishers\u2019 rights when they use copyrighted news content to train their models. This is not the outcome publishers wanted, and it may lend tailwind to the idea, <\/span>first framed<\/span><\/a> in early 2024, that the JCPA will create a stream of compensation from AI companies back into news because the bill\u2019s language about \u201caccessing, crawling, and indexing\u201d news content covers its use to train large language models. We disagree with this argument, but there may be an appetite for it in Congress. There have already been <\/span>sympathetic hearings<\/span><\/a> and more to the point, three Senate bills introduced calling for transparency, at a minimum, and restrictions, at a maximum, regarding the use of copyrighted content to train large language models. Early in September, Sen. Josh Hawley (R-MO) also <\/span>argued<\/span><\/a> there should be property rights assigned to certain types of data, and legal liability for companies that use it to train their models. News publishers may also point to the <\/span>settlement in Anthropic\u2019s class action<\/span><\/a> copyright lawsuit with authors whose books were allegedly pirated for use in Anthropic’s training data. It implies that \u201caccess\u201d to content for AI training warrants compensation.\u00a0<\/span><\/p><\/span><\/p>\n\n\n\n

Here, updated for the AI age, is a list of the reasons we oppose the JCPA.\u00a0<\/span><\/p><\/span><\/p>\n\n\n\n

The JCPA upends copyright law, and not for the better.<\/span><\/p><\/span><\/p>\n\n\n\n

As we\u2019ve noted before<\/span><\/a>, the JCPA as drafted could be interpreted by courts to implicitly expand the exclusive rights that news publications enjoy in their material, beyond what any copyright owner has ever enjoyed. (For publishers, this is the point.) This would represent a major shift in copyright law (not to mention the nature of the internet, which is fundamentally built on the user freely linking to content). If interpreted by courts in that way, the JCPA could prevent internet users from linking to or sharing news articles on digital platforms and websites without some sort of payment. The bill itself also allows <\/span>publishers<\/span> to deny the platforms access to their content, which may restrict users from posting links to news stories. This would further limit the public\u2019s access to information online. If applied to the use of copyrighted content for training of AI models, the JCPA upends fair use, the legal doctrine that allows limited use of copyrighted works without permission. Ironically, journalists <\/span>themselves<\/span> depend on fair use for criticism and commentary, news gathering and reporting, republishing source material, illustration, historical reference, and documenting claims.\u00a0<\/span><\/p><\/span><\/p>\n\n\n\n

In fact, the JCPA is based on a premise the U.S. Copyright Office rejected.\u00a0<\/span><\/p><\/span><\/h1>\n\n\n\n

Back in 2021, when publishers\u2019 frustrations with technology firms were still focused mostly on search and social media platforms, a few members of Congress sent a letter to the U.S. Copyright Office asking for \u201ca study to evaluate the effectiveness of current copyright protections for publishers in the United States\u201d. It was a sign of consistent Congressional support for the needs of news publishers, in particular, to confront technological disruption. The letter pointed as precedent to a European Union directive establishing \u201cancillary copyright\u201d protections for press publishers. In June of 2022, still six months before the explosive introduction of ChatGPT,\u00a0 the Copyright Office issued its report, \u201c<\/span>Copyright Protections for Press Publishers<\/span><\/a>.\u201d It concluded that the publishing industry already benefits from significant protections under existing law and does not require any new copyright protections. Public Knowledge provided <\/span>public comments<\/span><\/a> for the preparation of that report and <\/span>supported<\/span><\/a> its conclusions. We <\/span>noted then<\/span><\/a>, as we do now, that restricting linking and sharing of information through changes to copyright law, like the European Union has done, undermines the open nature of information on digital platforms and invariably favors and entrenches the largest players. A <\/span>subsequent Copyright Office report<\/span><\/a> specifically addressing AI and copyright affirmed that existing copyright law \u2013 including the fair use doctrine \u2013 can be applied to address the new questions brought about by generative artificial intelligence.<\/span><\/p><\/span><\/p>\n\n\n\n

The JCPA discourages content moderation, even if it\u2019s consistent with platforms\u2019 terms of service.\u00a0<\/span><\/p><\/span><\/h1>\n\n\n\n

Platforms\u2019 content moderation policies and processes have evolved a great deal since the last Congressional consideration of the JCPA. And so has, apparently, <\/span>the Republican party\u2019s view<\/a><\/span> on the desirability of platforms moderating political or \u201chate\u201d speech. But one thing remains true: an amendment to the JCPA made in late 2022 discourages or outright prevents platforms from using content moderation to support their community standards or terms of service. The amendment nullifies the antitrust immunity offered to journalism providers if the case could be made that any of their discussions with platforms were about content moderation, or that platforms discriminated among publishers based on \u201cviewpoint.\u201d Platforms will play it even safer to avoid being accused of \u201cviewpoint discrimination\u201d by erring on the side of moderating <\/span>less <\/span>content. That means users will see more harmful false information, extreme content, and hate speech online.\u00a0<\/span><\/p><\/span><\/p>\n\n\n\n

Without changes, the JCPA doesn\u2019t do enough for journalists.\u00a0<\/span><\/p><\/span><\/h1>\n\n\n\n

Last thing we knew, there were discussions about changing the language of the JCPA to include a requirement that 70% of proceeds from negotiations or arbitration go to newsrooms, and that there is transparency on how <\/span>all <\/span>proceeds are spent. If those changes are made, the bill may earn the support of the NewsGuild, the dominant union of journalists and media workers in the United States. (Both of these provisions would be derived from the [failed] Californian version of the bill, which earned the support of NewsGuild units in California.) The NewsGuild\u2019s support may be less influential in the bill\u2019s passage than it was before Republicans had the majority in the Senate and the House. That said, we still feel that any kind of negotiation between platforms and publishers will primarily benefit the biggest media conglomerates, many of which are owned by financially-motivated hedge funds. Which brings us to\u2026<\/span><\/p><\/span><\/p>\n\n\n\n

The JCPA primarily benefits the largest publishers.\u00a0<\/span><\/p><\/span><\/h1>\n\n\n\n

Lobbyists for the JCPA have pointed to a requirement in the bill that publishers with more than 1500 employees are not eligible to join a negotiating entity as proof that it benefits small publishers. But as we pointed out in a <\/span>previous post<\/span><\/a>, 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. So Sinclair Broadcasting Group, with approximately 13,000 employees and $2.59 billion in profit in the first quarter of 2022 alone, can participate in a negotiating entity. The JCPA as we saw it last also doesn\u2019t allow news organizations that have been in business for less than a year to enter a negotiating entity, and it excludes news organizations that earn less than $100,000 per year. In other words, it is designed to <\/span>disadvantage<\/span> the smallest publishers. That\u2019s why organizations representing local independent online news organizations, like LION Publishers, have traditionally <\/span>opposed<\/span><\/a> the bill. So have organizations <\/span>representing<\/span><\/a> the Black Press.\u00a0<\/span><\/p><\/span><\/p>\n\n\n\n

The JCPA increases publishers\u2019 reliance on dominant platforms.<\/span><\/p><\/span><\/h1>\n\n\n\n

At Public Knowledge we have <\/span>consistently written<\/span><\/a> about the need to center news policy on the information needs of communities \u2013 not on protecting legacy news models. When corporate interests, whether those of tech or media companies, begin to erect walls, levy tolls, or make backroom bargains, it will be the public that loses. In that sense, the JCPA overlooks important lessons we\u2019ve learned from similar legislative actions in Australia and Canada.\u00a0<\/span><\/p><\/span><\/p>\n\n\n\n

In late 2024, a Joint Select Committee on Social Media and Australian Society <\/span>issued a report noting<\/span><\/a> that their News Media Bargaining Code, the model for the JCPA, was based on fundamentally incorrect assumptions about the value of news to dominant platforms. Meta had signaled their intention not to renew commercial agreements with publishers in Australia, and threatened to break news links in Australia if they are \u201cdesignated\u201d and therefore forced to forge agreements with publishers under the Code. Australian regulators backed away from the Code. Similarly, upon passage of Canada\u2019s Online News Act, Meta blocked news links in Canada. About a year in, <\/span>online traffic, engagement, and revenue plummeted<\/span><\/a> for publishers \u2013 and <\/span>no one seems to have noticed<\/span><\/a> the absence of news online in Canada.\u00a0<\/span><\/p><\/span><\/p>\n\n\n\n

The JCPA is inconsistent with the new administration\u2019s plan for AI.<\/span><\/p><\/span><\/h1>\n\n\n\n

While we have <\/span>considerable concerns with the Trump administration\u2019s AI action plan<\/span><\/a>, we do agree with its implicit support for fair use and for allowing courts to decide on the use of copyrighted content in model training based on the distinctive facts in each case. We also appreciated the <\/span>President\u2019s own remarks<\/span><\/a> about the need to protect the rights to read and learn. The JCPA is incompatible with these aspects of the administration\u2019s plan for AI development.<\/span><\/p><\/span><\/p>\n\n\n\n

It would also be hypocritical if Republicans supported the JCPA given the Trump administration\u2019s strong comments, <\/span>especially via the FTC<\/span><\/a>, about how dominant platforms \u201ccensor through market power\u201d and \u201celites collude,\u201d including through their trade associations, to decide who will be heard. We find <\/span>this line of thought off-base<\/span><\/a>. Regardless, the JCPA would<\/span> increase <\/span>platforms\u2019 influence over online publishers and grant news organizations the cover to collude to set the pricing, terms, and conditions under which platforms have access to speech.\u00a0<\/span><\/p><\/span><\/p>\n\n\n\n

There are better options available to legislators to protect publishers from the impacts of AI.\u00a0<\/span><\/p><\/span><\/h1>\n\n\n\n

We are genuinely sympathetic to publishers\u2019 concerns about the impact of AI on their business models, and have other solutions to offer. First, as we have said before, we cannot rely solely on judges to forge antitrust solutions to mitigate the monopolistic practices of Big Tech and their impact on publishers. Congress must pass legislation that breaks up the consolidated, abusive power of online platforms to pick winners and losers in the race for online visibility. Congress must also pass legislation that mandates transparency and prohibits self-preferencing. Examples of existing proposals to address this include the Advertising Middlemen Endangering Rigorous Internet Competition Accountability Act (<\/span>AMERICA Act<\/span><\/a>) and the American Innovation and Choice Online Act (<\/span>AICOA<\/span><\/a>). Another option is to put into law one of the remedies the DOJ framed in the Google search case: requiring that dominant firms like Google, Apple and Microsoft sever their AI crawlers from their search crawlers. This would support statutorily enforcing a set of self-identification standards via a unique identifier for a bot crawling content.\u00a0<\/span><\/p><\/span><\/p>\n\n\n\n

In addition, we have recently framed a set of middle-ground solutions for discussion that are designed to preserve the benefits of the fair use doctrine for creativity and free expression while still preserving incentives for publishers to produce timely content. These include extended collective licensing, self-identification standards for bots and crawlers, and text and data mining exceptions for public interest uses. For more about these solutions, see \u201c<\/span>Is There a Middle Ground in the Tug of War Between News Publishers and AI Firms? Part 1: Framing the Problem<\/span><\/a>\u201d and\u00a0 <\/span>“Is There a Middle Ground in the Tug of War Between News Publishers and AI Firms? Part 2: Framing Solutions<\/span><\/a>.\u201d<\/span><\/p><\/span>
For all of Public Knowledge\u2019s resources about the JCPA, see our <\/span>resources page<\/span><\/a>.<\/span><\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

It\u2019s been reported that news media lobbyists are heading to the Hill to make their case for protective legislation, which may include the Journalism Competition & Preservation Act. Just in case, we\u2019re providing this refresher list of the reasons we oppose this legislation.<\/p>\n","protected":false},"author":189,"featured_media":36798,"parent":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[5],"tags":[14,29],"class_list":["post-38380","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-insights","tag-platform-regulation","tag-trustworthy-ai"],"acf":[],"yoast_head":"\nIs the JCPA Coming Back?\u00a0Why We Still Oppose the Journalism Competition & Preservation Act - Public Knowledge<\/title>\n<meta name=\"description\" content=\"Public Knowledge promotes freedom of expression, an open internet, and access to affordable communications tools and creative works. 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