EFF Pushes Back Against America’s Version of Link Taxes

US lawmakers are pushing a link tax law which goes by the name of the Journalism Competition and Preservation Act. The EFF pushed back.

Here at Freezenet, we’ve been extensively covering the Canadian link tax legislation. It’s known as Bill C-18. Essentially, the government is compelling large platforms like Google and Facebook to pay for the privilege of linking to news sources. The concept is largely modelled after the disastrous Australian link tax model. Australia’s link tax, as everyone knows, saw large platforms pay for linking. The problem is that the money just went into the waiting hands of Rupert Murdoch with smaller journalism outlets getting completely shut out of the process.

While the fight over link taxes in Canada might seem like an unrelated world away from American’s, this debate is actually very likely much closer then they might think. For those who do not know, there is currently legislation going through the Federal government known as the Journalism Competition and Preservation Act. Coincidentally, this is something we mentioned back in April while debunking false and misleading claims being made by the Canadian media at the time.

The Electronic Frontier Foundation (EFF) has published a response to the legislation, warning of the dangers of the legislation. Reading through the criticisms, it all felt like de-ja-vu. A lot of the same talking points used to defend the legislation was similarly getting knocked down. The arguments against the legislation sound very similar to what we’ve seen up here in Canada. Apart from some of the nuances thanks to differences between what’s going on in Canada and how things work from the US, it really feels like an identical debate. A sample of the EFF post:

In response to the very real pressures that online news outlets are facing, Congress continues to believe the very flawed Journalism Competition and Preservation Act (JCPA) is a magic solution. It is not. In fact, it is actively dangerous. And there’s a better solution available.

The way the JCPA is supposed to work is by giving an antitrust exemption to news sites, allowing them to negotiate as a bloc with sites like Google and Facebook, with the goal of getting paid every time those sites link to news articles. There are a few major, fundamental problems with that premise. For one, creating a new cartel to deal with existing monopolists is not competition, it’s the opposite. For another, creating an implicit right to control linking in any context won’t preserve journalism, it will let it rot away. Finally, the focus on getting paid for links makes even less sense when the problem, historically, has been the domination of the digital ad market by a few huge players. The Competition and Transparency in Digital Advertising Act actually targets that specific problem much more effectively than the JCPA.

Competition? Not Really.

As mentioned above, competition doesn’t flourish when a group—even one of smaller newsrooms—are allowed to form a cartel. It just means that both sides of this fight are now huge. Proposed changes to the bill will limit the organizations that could get compensation under this scheme to publications with 1,500 employees or fewer. But that won’t preserve competition, because the loss of local and independent news has already happened. Many smaller publications are now owned or backed by large corporations and venture capital funds. And the industry is consolidating at a rapid rate.

The large corporations and investment vehicles that dominate online journalism took advantage of the mess created by Facebook and Google’s ad domination. And the JCPA would allow them to reap the rewards of buying up, laying off, and click-baiting these newsrooms. That’s infuriating.
Preservation? Also Not Really.

It’s equally untenable to restrict who can link to publicly available pages on the web. That implies a sort of property right in links, an ownership of how information is shared. That has grave consequences for the entire internet, which depends on the ability to link to information sources from far and wide. Linking isn’t copyright infringement, at least under current law. But the JCPA risks creating a new quasi-copyright law for linking, or even leading the courts to extend copyright law to cover some forms of linking.

Even if it applies only to Facebook and Google, the JCPA would act as a link tax. Link taxes have never worked whenever they have been tried in places like Australia and the European Union. And in those cases, there wasn’t a First Amendment to consider. The JCPA is also reported to prevent companies from simply refusing to link to certain outlets to avoid paying, which encroaches on those companies’ free speech rights to refuse certain content. Just as the law can’t require newspapers to include every viewpoint on a topic, it can’t require a news aggregator or search tool to link to sources it chooses not to feature.

It’s almost scary how similar the Canadian debate is to the American one. In fact, if you were to follow the Bill C-18 debate in Canada like we have, you would already be prepared for most of the shenanigans that is either already happening in the US or is about to happen. Canada has a major problem of news outlets already being part of large conglomerates and a bill that is destined only to benefit the larger players. Similarly, the legislation threatens to exacerbate the competition problems while backers claim otherwise. You really go on and on about how similar the debates are between the two countries. Different lawmakers, different systems, different countries, exact same debate.

Hopefully, such a bill in the US never passes. From the sounds of things, there are a number of other complexities going on in the US such as other bills aimed at more effectively tackling some of the problems associated with the larger platforms. We don’t know about the odds of this legislation’s passage, but what we do know is that if this bill passes, then smaller online news players are going to be in a world of pain. What’s more is that it is only going to add to the political pressure in other countries to pass similar laws. Essentially, the ever famous “policy laundering” (as seemingly coined by Cory Doctorow) would take hold.

It’s utter insanity to even contemplate demanding payment for referencing something on the Internet. This sort of concept simply doesn’t exist in any other discipline and it completely upends the basic concept of copyright to do so in the process. It’s ridiculous that this sort of thinking is taken seriously, let alone the threat of laws being passed to enforce such thinking. It really makes your head shake at just how we got into such a position of backwards thinking in the first place.

Drew Wilson on Twitter: @icecube85 and Facebook.

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