The US Copyright is studying link taxes. The Copia institute has issued a response, urging its abandonment.
The link tax idea has been plaguing the free and open Internet for a few years now. Large multinational corporations that own large publishers have been pushing these ideas in an effort to basically freeload off of news aggregators and social media. The thing is, these corporations have deep pockets and are able to relentlessly lobby governments around the world to push through these laws. Currently, the idea is being pushed in countries like Canada, Indonesia, and France. Catastrophically, Australia has already instituted the link tax in their country.
The idea has been a disaster wherever it has been considered. A theme has generally emerged that when it gets set up, it only benefits the biggest players in the publishing world. Every other publisher ends up getting snubbed and ignored. What’s more is that smaller players also end up experiencing a significant squeeze that wasn’t there before. That’s just to name a few negative impacts. This isn’t even getting into the free speech implications or the implications this has on the Internet as a whole.
What some may not know is that this idea is being pushed in the US. Like other countries, large corporations in the US are pushing for America’s version of link taxes as well. The debate is like others around the world. The thing is, the link tax isn’t anywhere near as far as other countries as it is still in its preliminary stages. In part of that process, it seems that link taxes are in the process of getting rebranded to “ancillary copyright”. The ideas remain the same, of course, it’s just a fresh coat of paint probably to help keep the public in the dark about what is going on.
The US Copyright Office apparently solicited feedback on its proposal. The Copia Institute, which is part of Techdirt, issued a response to the consultation. From TechDirt:
Yet that diversity in audience-facilitating services is exactly what compulsory licensing schemes like this one foreclose by inordinately exploding the cost of doing business for anyone who might want to build a platform or service capable of referring audiences to other sites. Those costs don’t just come from the money itself needed to pay into the licensing system but also the potentially massive compliance costs associated with not running afoul of such a scheme’s inevitably technical rules and also any defense costs involved with trying to avoid costly liability should someone accuse the service of not complying with those rules quite right. (As we wrote in our comment, the compulsory licensing system for music webcasters illustrates how hugely and deterrently expensive the costs of complying with a compulsory licensing systems like this proposed one can be.)
And deterring these platforms and services it isn’t going to do anything to make online journalism more profitable. For one thing, it in no way targets any of the reasons why it may not be profitable, to the extent that’s even the case. After all, if distant corporate owners would prefer to starve local newsrooms in favor of skimming off profits, that’s not a failure of copyright law that’s causing the decline of local news. It’s not even a failure of any particular journalistic profit model.
But to the extent that the news business is legitimately under strain, schemes like these don’t alleviate that strain because it was not the absence of this sort of ancillary right that caused any of the underlying problems in the first place. More likely culprits hurting the news business are things such as media consolidation, corporate governance models that emphasize quick profits over good journalism, advertising models that are offensive to user privacy, poor site design that doesn’t retain readers’ attention, and even paywalls and terrible site design that deliberately repel readership. It would make a lot more sense to correct these actual issues, or at least leave everyone free to innovate better monetization models if they are what’s needed for media outlets to flourish as the economically sustainable entities we want them to be. Instead a scheme like this just papers over the actual problems and by throwing more copyright at everything creates all sorts of chilling new ones that now everyone will have to cope with, no matter how contrary to their expressive or economic interests.
Because it WILL hurt them. It will suppress the reach of every media outlet’s expression, and with it also their ability to profit from that reach. And it will hurt them this way without delivering any economic return, probably not to anyone but especially not to the smaller, independent outlets. Compulsory licensing systems are often profoundly inequitable, directing most of the money to big incumbent players and very little to the smaller creatives in the “longtail” of the money distribution chart. (Again, see the webcasting compulsory license for an example of this dynamic.) Furthermore, to the extent that some larger media outlets may envision doing special licensing deals with the big platforms like Google and Facebook, which they think they’ll be able to strike in the extortive shadow of a scheme like this, it would still leave everyone else, especially the smaller, independent media outlets without that bargaining power, in even more trouble than they are already in now.
They have published their full submission (PDF) which we’ll host here as well. So, if anyone wants to read the full submission, there is another way to do so now.
We’ve seen a lot of arguments for the link taxes. None of them have ever held water. For instance, some said that linking is the equivalent of stealing. Anyone who has any basic understanding of research knows that referring to content easily qualifies as Fair Use or Fair Dealing (depending on the country you happen to be in, the term does vary). What’s more is that a simple quote and thumbnail also falls under those same copyright exception. Link taxes are an attempt to completely upend this dynamic just for the sake of servicing a handful of large corporate interests. There’s no precedence in any of this and this would set an ugly precedence if it does.
What’s more is that smaller players inevitable are unable to really benefit from any of this. This is because, time and time again, the money simply gets directed to the likes of Rupert Murdoch and other larger players. The smaller players always end up being told to pound sand after.
Further, this has huge detrimental impacts on freedom of expression. So often, credibility hinges on what sources you use for your arguments. If there is a cost associated with citing sources, it becomes much more difficult to build that credibility in the first place. While some of these efforts are often directed at large aggregators, nothing is stopping this debate from moving over to smaller operations. If larger players are unable to fight something like this, what chance do the smaller players even have in the first place?
The detrimental impacts on innovation are also obvious. When the likes of Google and Facebook started up, there was no cost associated with linking to third party sources. If such rules are implemented, then other future platforms would struggle to pay the multi-million dollar tab for the privilege of linking to third party sources. As a result, this will further solidify their monopolistic powers in the first place. Because of this, anyone who is a critic of the power larger tech companies have built should be opposed to link taxes by default.
At the end of the day, link taxes (ancillary copyright or whatever the heck else you want to call it) is a radical alteration to how copyright law works. It envisions a world where fair dealing and fair use simply doesn’t exist. It furthers the agenda of monopolistic powers of one industry while cementing the monopolistic powers of another. Whats more is that a lot of people are going to get unnecessarily hurt because of this. The large players who only see dollar signs are going to continue to push this forward anywhere they can. The more countries that go full crazy and enact this law, the harder it will be to stop as well. It has been an international push by multinational corporations and it will take an international push to put a stop to this madness.
Drew Wilson on Twitter: @icecube85 and Facebook.
