An Analysis of AB-886 – The California Journalism Preservation Act (CJPA)

We decided to take a look at the actual text of the CJPA and offer our thoughts on the direct text of the bill.

We here at Freezenet are no stranger to analyzing legislation and offering our thoughts on the text of various bills. We did it with the online Streaming Act and the Online News Act. Even then, those are far from the only bills we’ve done a thorough examination of.

The thing is, these are all Canadian bills. Truth be told, I’m generally quite comfortable with making these analysis that is challenging to create – even for Canadian’s. Analyzing legislation in another country is a bit outside of my comfort zone because I don’t exactly have the same level of legal context as someone who is naturally American. So, it would be more difficult to think of things like related caselaw simply because I’m not quite as immersed in American culture (even though Canadians get a lot of that in Canada).

Nevertheless, I decided to give an analysis a try because, who knows? Maybe I’ll learn something in the process. In doing this, though, I can honestly say that perfection simply isn’t going to happen. All I can do is try my best at understanding the text of the bill in question. I chose the California Journalism Preservation Act (CJPA) because it seemed like a natural bill to kick things off with this little venture into American law. After all, I’ve been closely following the Canadian version, so I can at least find parallels in the law.

Also, it should go without saying, but none of this constitutes actual legal advice. This is just written by someone who happens to know a fair bit about link tax laws in Canada reacting to the California version. Use my comments at your own risk.

So, without further ado, let’s take a step outside the old comfort zone and dig into the text of the CJPA.

Source Text of the Bill

So, naturally, we need the text of the bill in question. This can be found on the California Legislature website. So, this is the text we have decided to follow in offering our analysis. You can also follow along too if you like as we pour through this. We’ll just flag sections of interest and discuss what we read.

Section 2

So, right away, we see tho following in this bill:

SEC. 2. The Legislature finds and declares all of the following:
(a) A free and diverse fourth estate was critical in the founding of our democracy and continues to be the lifeblood for a functioning democracy.
(b) Every day, journalism plays an essential role in California and in local communities, and the ability of local news organizations to continue to provide the public with critical information about their communities and enabling publishers to receive fair market value for their content that is used by others will preserve and ensure the sustainability of local and diverse news outlets.
(c) Communities without newspapers lose touch with government, business, education, and neighbors. They operate without journalists working to keep them informed, uncover truth, expose corruption, and share common goals and experiences.

This is a very similar approach taking by lobbyists and the government of Canada. The preface is to lay out how important journalism is and why it would be such a devastating loss to see that journalism disappear. On the surface, this comes off as innocuous. Who exactly is questioning what the role is supposed to be for journalism in a democratic society? However, this tees up some of the more misleading claims about link taxes and why they are needed. The CJPA appears to be no exception to this which you can see in the very next item in that section:

(d) Over the past 10 years, newspaper advertising has decreased 66 percent, and newsroom staff have declined 44 percent.

There is a very pervasive lie about social media that the decline in journalism is either exclusively or almost entirely the fault of large platforms. At best, however, any evidence pointing to this tends to be circumstantial or downright misleading. Supporters of such laws tend to try to ignore other causes for the decline in media. This might include, for instance, the change in technology where coupons appear less frequently in newspapers (being replaced by rewards programs).

Another cause of the decline in journalism can easily be found at the feet of the conglomeration of media companies where ISPs, news rooms, and cable companies are under one corporate umbrella. At least in Canada, venture capital has been known to basically take over ownership of some media companies where they basically saddle media outlets with huge amounts of debt and pull out as much revenue as humanly possible from the news organization. As a result, investment is kept to the thinnest levels possible and, as a result, investment in that news room tends to suffer. Because of that, the product seen by the public tends to degrade in quality, giving the public less reason to tune in or buy those subscriptions. It’s a financial death spiral for the most part.

So, it’s for these and many many other reason that we see a decline in journalism. For supporters of link tax laws, the tendency I’ve seen is to ignore all of those causes and say that the platforms are solely or mostly responsible for the decline even though that is far from the truth.

Journalism Usage Fees

The first thing we see here that is of interest is this:

3273.60. For purposes of this title, the following definitions apply:
(a) “Access” means to acquire, to crawl, or to index content.

This sounds like something that may be important for later. I’ve learned by analyzing Canadian legislation that definitions, however boring they may be, can add a lot of context later on in a bill.

Things, however, start to get interesting with this:

(c) “Allocation share” means the percentage of a covered platform’s journalism usage fees that an eligible digital journalism provider is entitled to receive for a particular month computed by dividing the value derived pursuant to paragraph (1) by the value derived pursuant to paragraph (2). (2), less any applicable amount pursuant to paragraph (3).
(1) The total number of the covered platform’s internet web pages displayed or presented to California residents during the month that link to, display, or present the eligible digital journalism provider’s news articles, works of journalism, or other content, or portions thereof.
(2) The total number of the covered platform’s internet web pages displayed or presented to California residents during the month that link to, display, or present any eligible digital journalism provider’s news articles, works of journalism, or other content, or portions thereof.
(3) Any compensation received by an eligible digital journalism provider through commercial agreement prior to commencement of arbitration for access to content by the covered platform shall be deducted from its allocation accordingly.

There’s a bit to unpack here. First of all, if there was any doubt this was about linking, this section should plainly put that to rest. It is about news links and extracting revenue from that activity. By definition, this is a link tax, plain and simple. Unlike the Canadian law which relies on confusing language (ala “making available”), this law just comes right out and says that it is about linking.

With that out of the way, the provision is quite interesting in another way. Essentially, what it is saying is, in part, that if a deal was struck already, the expected fees could be deducted from what is expected to come out of such deals. As a result, the government is basically determining how much a deal should be worth, then if an existing deal doesn’t meet that threshold, then the platforms would be expected to pony up even more money.

This actually deviates a little from the Canadian version. In the Canadian link tax law, if a deal has already been struck prior to the law taking effect, then that’s sort of the end of it. After the deal is struck and after the Canadian law comes into force, then Canadian regulator, the CRTC, can then pour over the deals and arbitrarily decide whether or not they think it’s a fair deal or not and potentially order the two parties back to this so-called “negotiating table” and order the platforms to give more.

At the end of the day, though, it’s the exact same problem: the government here is saying that there should be a price on linking, they determine what that price should be, and then it’s up to the platforms to basically give that free money to journalism. How the respective bill gets there differs, but the effect is essentially the same.

Then, there is this section that follows:

(d) (1) “Covered platform” means an online platform that at any point during a 12-month period meets either both of the following criteria:
(A) The online platform has at least 50,000,000 United States-based monthly active users or subscribers on the online platform.
(B) The online platform is owned or controlled by a person with either of the following:
(i) United States net annual sales or a market capitalization greater than five hundred fifty billion dollars ($550,000,000,000), adjusted annually for inflation on the basis of the Consumer Price Index published by the United States Bureau of Labor Statistics.
(ii) At least 1,000,000,000 worldwide monthly active users on the online platform.

Obviously, this covers Facebook and Google. The usage would also cover Twitter which seems to hit that threshold. However, the revenue threshold would exempt X/Twitter as X/Twitter has nowhere near that amount of revenue. Over $1 billion? Maybe, but certainly not over $550 billion. This ultimately leaves Facebook and Google – the same two websites that is covered in Canada. What is interesting in this is that the Canadian approach is to measure market share. The US version uses both financial numbers and traffic to arrive at the same conclusion. Again, different methods, same results.

Where things get a little confusing is this:

(e) “Eligible broadcaster” means a person that meets all of the following criteria:
(1) The person holds or operates under a license issued by the Federal Communications Commission under Subchapter III (commencing with Section 301) of Chapter 5 of Title 47 of the United States Code.
(2) The person engages professionals to create, edit, produce, and distribute original content concerning local, regional, national, or international matters of public interest through activities, including conducting interviews, observing current events, analyzing documents and other information, or fact checking through multiple firsthand or secondhand news sources.
(3) The person updates its content on at least a weekly basis.
(4) The person uses an editorial process for error correction and clarification, including a transparent process for reporting errors or complaints to the station.
(f) “Eligible digital journalism provider” means an eligible publisher or eligible broadcaster that discloses its ownership to the public.
(g) “Eligible publisher” means a person that publishes a qualifying publication.

Section (e) here seems to a reasonably clean definition of a broadcaster. If you register with the FCC as a broadcaster, then you are qualified under this legislation. It’s at least cleaner than how the Canadian law defines eligibility as that uses some rather vague terminology that is left undefined (ala ‘not focused on a particular topic’ or ‘follows a code of conduct’).

Section (f) appears unclear at first, but it can either fall back on section (e) or the less clear section (g).

With that, a key phrase in section (g) is “qualifying publication”. What is that? The bill describes it thusly:

(k) “Qualifying publication” means an internet website, online or mobile application, or other digital service that meets all of the following criteria:
(1) The internet website, online or mobile application, or other digital service does not primarily display, provide, distribute, or offer content generated, created, produced, or owned by an eligible broadcaster.
(2) The internet website, online or mobile application, or other digital service provides information to an audience in the state.
(3) The internet website, online or mobile application, or other digital service performs a public information function comparable to that traditionally served by newspapers and other periodical news publications.
(4) The internet website, online or mobile application, or other digital service engages professionals to create, edit, produce, and distribute original content concerning local, regional, national, or international matters of public interest through activities, including conducting interviews, observing current events, analyzing documents and other information, or fact checking through multiple firsthand or secondhand news sources.
(5) The internet website, online or mobile application, or other digital service updates its content on at least a weekly basis.
(6) The internet website, online or mobile application, or other digital service has an editorial process for error correction and clarification, including a transparent process for reporting errors or complaints to the publication.
(7) The internet website, online or mobile application, or other digital service meets any of the following criteria:
(A) The internet website, online or mobile application, or other digital service generated at least one hundred thousand dollars ($100,000) in annual revenue from its editorial content in the previous calendar year.
(B) The internet website, online or mobile application, or other digital service had an International Standard Serial Number assigned to an affiliated periodical before January 1, 2024. submitting notice to a covered platform under Section 3273.61.
(C) The internet website, online or mobile application, or other digital service is owned or controlled by an organization exempt from federal income taxation pursuant to Section 501(c)(3) of the Internal Revenue Code of 1986.
(8) The internet website, online or mobile application, or other digital service has at least 25 percent of its editorial content consisting of information about topics of current local, regional, national, or international public interest.
(9) The internet website, online or mobile application, or other digital service is not controlled, or wholly or partially owned by, an entity that meets any of the following criteria:
(A) The entity is a foreign power or an agent of a foreign power, as those terms are defined in Section 1801 of Title 50 of the United States Code.
(B) The entity is designated as a foreign terrorist organization pursuant to Section 1189 of Title 8 of the United States Code.
(C) The entity is a terrorist organization, as defined in Section 1182 of Title 8 of the United States Code.
(D) The entity is designated as a specially designated global terrorist organization under federal Executive Order 13224.
(E) The entity is an affiliate of an entity described in subparagraph (A), (B), (C), or (D).
(F) The entity that has been convicted of violating, or attempting to violate, Section 2331, 2332b, or 2339A of Title 18 of the United States Code.

That’s… quite the block of text, but a useful way of looking at it is viewing this whole section through the lens of a checklist. The moment you don’t qualify for any of those provisions under (k), then you aren’t eligible.

So, take Freezenet, for instance. Freezenet obviously wouldn’t qualify since we don’t direct our news publication specifically to the people of California. Disregarding that, though, let’s run things down as if I was a Californian running a California based website in California, specifically directing news to California residents.

Is Freezenet primarily just reposting content produced by more “official” news websites? We may reference news articles elsewhere, but we primarily produce our own content. So, Freezenet is eligible under (k)(1).

Does Freezenet target information to people specifically in California? No, obviously, but let’s pretend that we do. Check mark for (k)(2)

Does Freezenet present material that is comparable to what you would see in a newspaper or a magazine? Yes. Check mark for (k)(3).

Does Freezenet talk to others? Yes, though we rarely get a response. Does Freezenet analyze documents? We’re doing this right now, so yes. Does Freezenet do fact checking? Absolutely. So, check mark for (k)(4).

Does Freezenet publish something at least on a weekly basis? Yes. Check mark for (k)(5).

Does Freezenet issue any corrections transparently? Yes. You can see it when we post an edit along the bottom of an article. This is extremely rare, though we do clarify when we realize some time after that we forgot to include a source. It’s a pretty robust system of trying to get things right the first time which is why you don’t see it that often. Either way, check mark for (k)(6).

Does Freezenet generate at least $100,000 annually? Nope, not by a long shot (Adsense revenue doesn’t pay worth a darn compared to what it did in the 2000’s). Under Section (k)(7)(A), we do not qualify, but in this section, it can be any one of three items under (k)(7). So, we’re not out yet.

Does Freezenet have an International Standard Serial Number? No. So, (k)(7)(B) suggests we are out. That leaves the third section.

Is Freezenet “an organization exempt from federal income taxation pursuant to Section 501(c)(3) of the Internal Revenue Code of 1986”? Nope (we wouldn’t be under the hypothetical scenario). So, thanks to section (k)(7), Freezenet would not hypothetically be an eligible news organization.

Just for kicks, though, let’s run through what’s left here.

Does Freezenet have at least 25% content that is of regional, national, or other levels of general public interest? I guess so? This is a little vague, of course. So, Freezenet would, I think, be qualified under (k)(8).

Is Freezenet not associated with or run by anything related to known terrorism or anyone that threatens the life of people? This site is definitely not associated with anything related to terrorism or threatening human life, so Freezenet is qualified under (k)(9).

If you run a news website in California, this is something you could do easily: walk through the different sections and find out if you are qualified or not. The text of the bill is definitely long-winded and I do recommend just skimming the repetitive part of each sentence, but it’s actually not that hard to do what I basically just did just to find out if you are qualified or not.

Now, the question is, why is finding out if you are qualified as an online news website so important? It could actually determine the fate of your website if this law goes through and Google and Meta carries out with what they did in Canada. In short, being not eligible under this law is actually a really good thing. This may sound counter-intuitive, but bear with me here.

When Facebook announced that it would be blocking news links in Canada, they did so with the clear intent of using the law as a sort of shopping list for what content to block. If a news site is eligible, it gets blocked. It is precisely why niche news sites like mine (and several tech news sites) remain up in Canada even though news websites are otherwise blocked from having links to them. Freezenet focused on a particular topic and, as a result, we survived the ensuing news link apocalypse – much to our massive relief.

If California goes through with this terrible law, then people in California get to experience the massive amounts of stress I went through up in Canada. It is not up to you to determine if you are an eligible news site or not. It is not up to the government or the courts. Instead, it is up to Meta and Google to make that determination. Once that determination is made, there’s no appealing this if you think you got unfairly rolled up into this. Yes, in case you were wondering, mistakes were made on the rollout, though those mistakes appear to have been rare in the Canadian experience.

However long it takes, though, the platforms will eventually make that determination. It is that whole “not knowing” aspect throughout that time that really really sucks. Sure, you might have a good idea of which side of the eligibility line you sit, but will Meta or Google agree with you? There’s no way of knowing for sure until it happens. For all you know, you may unexpectedly wake up one day and your online career is over. It is that air of uncertainty that really really sucks and you probably get a lot of time to go back and forth on what could happen. My advice in that scenario is to make backup plans in the event that you are wrong and you get your links blocked. Beyond that, all you can do is ride it out. Believe me, I speak from experience on this one.

3273.61

This is the first American bill I have ever examined, but I do definitely note that this bill is very definition heavy. At this point, the bill now goes into provisions. The bill kicks off with quite a bang with this:

(a) (1) On or before February 1, 2024, all eligible digital journalism providers that want to receive usage fee payments pursuant to this title shall submit notice to a covered platform pursuant to subdivision (b). Those eligible digital journalism providers that submit the notice shall receive journalism usage fee payments from covered platforms pursuant to Section 3273.63 beginning not more than 30 days following the end of the arbitration process described in Section 3273.64.

For me, this section got me raising my eyebrows. Specifically, the part about how bargaining can begin upon notice given to a platform, but fees must be paid out in 30 days or less. To my knowledge, this is not something that exists in the Canadian version of the link tax law. It’s just that platforms must start bargaining processes at a time that is essentially determined by the Canadian regulator, the CRTC (which is in 2025). In this case, an eligible news organization gives notice and fees must be given by the 30 day deadline.

This strikes me as a very tight deadline. A big problem here is that there isn’t really any established threshold for how much a news link is worth. There’s no public “fair market value” for sending money for hosting a link (and the concept is extremely absurd). The most that can be hoped for this kind of information is bumming that information off of Australia. The problem there is that the deals are all secret. The most you’re going to get is a general figure for how much the deals are worth and, even then, it’s not even a figure that’s all that reliable in the first place. It’s not like a bar of gold where you can just look up the value and determine how much that bar of gold is worth.

The fact that there are so many question marks over what is fair and what is not makes such negotiations problematic in and of itself. The fact that this is also supposed to be done in 30 days on top of it all really adds to Google and Meta’s motivation to drop news links here.

A bit of an oddball provision is this:

(d) Not later than 30 days after the deadline described in paragraph (1) of subdivision (a), or after receiving a notice pursuant to paragraph (2) of subdivision (a), the covered platform shall send a reply notice to the authorized representative identified in subdivision (b) to acknowledge receipt of the notice.

The wording in this is a little weird, but from what I got out of this, the platform has to acknowledge the receipt of the outlets notice within 30 days. This doesn’t appear to affect when the platform is supposed to fork over the cash, though. Really, you could have a situation that on the 29th day, a platform sends notice of the receipt of it and starts sending payments on the same day, though that would be strange to see in practice.

3273.62

Another interesting provision is this:

A covered platform that receives a notice pursuant to Section 3273.61 may, within 30 days of having received the notice, challenge both of the following:
(a) The sufficiency of the notice.
(b) The noticing party’s qualification as an eligible digital journalism provider.

This is extremely limiting on the platforms. The platforms can question whether or not the notice is sufficient or whether the news outlet is even eligible. What is noticeably absent is any ability to talk financials. So, if a news organization says that Google owes them a million dollars, Google is not allowed to question that. I don’t see how these defences are reasonably sufficient, here.

3273.63

This section is confusing, but is necessary for context later on:

(a) (1) For each month, quarter, a covered platform shall track and record, for each eligible digital journalism provider that submits a notice pursuant to Section 3273.61, the total number of the covered platform’s internet websites that link to, display, or present that eligible digital journalism provider’s news articles, works of journalism, or other content, or portions thereof, and that the covered platform has displayed or presented to California residents. residents, regardless of whether the content appears in a language other than English.
(2) For each month, a covered platform shall use the data collected pursuant to paragraph (1) to calculate the allocation share for each notifying eligible digital journalism provider.

This appears to be a mechanism to try and calculate how much money a platform is being demanded to fork over.

3273.64

This section details why the section above is important as it says, among other things, this:

(a) The percentage of the covered platform’s advertising revenue remitted to notifying eligible digital journalism providers shall be determined pursuant to this section. Those eligible digital journalism providers shall jointly participate in the final offer arbitration process described in this section with each covered platform to determine a single percentage of advertising revenue from which future monthly quarterly allocation shares will be allotted.

So, as far as I can determine, some random arbitration panel determines what percentage of ad revenue from the platform is supposed to be hived off and given to freeloading media outlets. The bargaining process (which will never happen, by the way) determines how much a given outlet receives out of that original pie of money. There’s still a lot of questions about specifics, but I think this is what these sections are trying to say.

A question I have in reading this is what’s to stop the panel from coming to an outrageous conclusion? I mean, let’s say Google looks at the financial situation of news links and determines that they make 1.5% of revenue tops from news links. In order to reasonably continue offering the service, they feel that 0.75% of global revenues would be reasonable compensation. Then, the panel turns around and says that, well, news is really important because we think it’s important. So, through a completely arbitrary process of pulling numbers out of thin air, they determine that 90% of all ad revenues should be remitted. What’s Google’s recourse in that situation? I really don’t know here.

What is a little odd is seeing that final offer arbitration is seemingly happening right away. At least from the Canadian perspective, if the two parties can’t come to a determination of what is “fair”, then it goes to final offer arbitration. Here, it sounds like the news organization notifies the platform, in 30 days, receives funding, then enters into final offer arbitration? It honestly feels like we’re skipping a step here. Subsequent sections seem to talk about the process of selecting three arbiters, timelines, and what news organizations can demand out of the platforms.

The section, however, gets even more fun with this:

(j) No fewer than 24 months after the end of an arbitration proceeding, any party to the proceeding may elect to reinitiate the arbitration process.

So, every two years, news publishers repeat this same song and dance under this system. They may end up continually demanding even more and platforms wouldn’t really have much say in the process. If a news outlet says they want to start this process all over again in two years, then the process starts all over again, full stop.

3273.65

From there, we get to what is arguably the most controversial part of the bill. This is the so-called “must-carry” provisions of the bill:

(a) A covered platform shall not retaliate against an eligible digital journalism provider for asserting its rights under this title by refusing to index content or changing the ranking, identification, modification, branding, or placement of the content of the eligible digital journalism provider on the covered platform.
(b) An eligible digital journalism provider that is retaliated against may bring a civil action against the covered platform.
(c) This section does not prohibit a covered platform from, and does not impose liability on a covered platform for, enforcing its terms of service against an eligible journalism provider.

Supporters of these insane laws will likely point to this provision and say that Google and Facebook wouldn’t be allowed to block news links because of this provision. There is a critical flaw with this thinking: it’s obviously unconstitutional, violating the first amendment or free speech rights in the US.

This is where caselaw is actually better in the US than in Canada and can hand the platforms a slam dunk case should this law move forward. In the US, compelled speech by the government is unconstitutional. What this law is saying is that if, for instance, Facebook, decides to drop news links in response to this bill, this law prohibits that action, saying that Facebook is compelled to retain that speech. Facebook is, of course, a private property who should be able to make reasonable determination of what does and does not happen within their own digital property.

In this case, California is attempting to supersede this and is ordering Facebook to carry certain kinds of content on their platform. It would be a bit like Florida passing a law saying that all book stores must sell and display in their front windows and all prominent display areas anything written by Republican’s whether the store owner wants to or not. Failure to do so would result in massive fines. That book store owner could easily challenge that law, claiming that this is compelled speech and, therefore, the law is unconstitutional.

It really doesn’t matter if the platform willingly blocks that content prior to this bill becoming law or is in direct response to this bill becoming law, it’s still compelled speech as ordered by the State of California thanks to this law.

If any of this sounds unexpected, well, the only thing that would be completely unexpected is if the courts say that compelled speech is completely fine under the US Constitution and that this law stands.

Once this provision is struck for being obviously unconstitutional, then platforms are easily free to just drop news links altogether and there would be no way for the news publishers to really respond other than maybe whine and complain like their Canadian counterparts.

If there is an an angle on this that completely contradicts this assessment, I’m personally not seeing it.

3273.66

The next section is something I found to be rather interesting:

(a) An (1) Except as provided in paragraph (2), an eligible digital journalism provider shall spend at least 70 percent of funds received pursuant to this title on news journalists and support staff employed by the eligible digital journalism provider.
(2) An eligible digital journalism provider with five or fewer employees shall spend at least 50 percent of funds received pursuant to this title on news journalists and support staff employed by the eligible digital journalism provider.

While it is an exercise in moving the deck chairs before the ship sinks, this provision is actually an improvement over the Online News Act in Canada. The Canadian link tax law contains no provision that says how much money is supposed to go to news production. It was essentially a blank check in the end. In fact, it isn’t even expected that the money would go to news operations in the first place. Throughout the legislative process in Canada, there were calls to at least establish where a portion of that money would go. Unfortunately, those calls were flatly ignored and media corporations got their blank check anyway – a check that totalled zero in the end.

So, credit where credit is due. This is actually an improvement over the Canadian version – even though it won’t ultimately matter in any practical sense.

Even then, this provision isn’t exactly perfect as the enforcement of this is pretty light handed:

(c) The eligible digital journalism provider’s plan to comply with subdivision (a) shall include a good-faith good faith estimate of the number of news journalists and support staff, if any, expected to be hired, details regarding proposed compensation adjustments, if any, and a disclosure if either hiring or compensation adjustments are not expected.

Yeah, just take the news organizations at their word. No big deal. I mean, corporations would never lie about anything, would they?

Concluding Thoughts

Though there is some minor improvements over the Canadian link tax, the end result is destined to be the same. The only thing that will be different is that there will invariably be a court challenge to have the “must-carry” obligations thrown out as compelled speech (which should be a slam dunk case for the platforms as far as I can tell). Even if it’s worded so as to deputize news organizations, remedies would likely have to revolve around losses and damages. Platforms are not actually obligated by law to host news links – and they shouldn’t be obligated for that matter as it is their own private digital property we are talking about.

Beyond that, though, the end result is going to be the same. News links are going to get blocked, news organizations are going to suffer further, and the smaller startups are going to invariably be the ones that suffer the most.

This bill does leave some loose ends as well. One example being the 30 day deadline after the sending of a notice from an eligible news organization for the platforms to fork over the cash. Yet, somewhere along the way, there is supposed to be an arbitration process to determine how much free money the platforms owe the news organizations for no actual good reason. It’s kind of like: “You owe me money!” “Er, how much do I owe you?” “I don’t know, but gimme!”

Another problem (which is not unique to California by any means) is determining a “fair” market value for linking. The real answer to that is that platforms owe others nothing for hosting their links, but what measure is going to be used to determine this? How does one work out a percentage of ad revenue that must be shelled out to the news organizations after? What if a news service has no presence online (I know, hard to imagine this being a case, but it does happen)? Does that still mean platforms owe them money despite the lack of presence?

There’s a lot playing fast and loose with the facts here and a lot of questions that are just left open that is invariably going to lead to confusion. It’s a pretty sloppy bill, ultimately.

Still, the outcome of blocked news links is going to invariably happen – and an unconstitutional must-carry provision isn’t going to change that. So, a lot of questions like these are going to wind up being a moot point, anyway.

At any rate, I hope you got some interesting perspectives on this analysis. It was definitely interesting going through this myself.

Drew Wilson on Twitter: @icecube85 and Facebook.

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