US Link Tax, JCPA, Pulled and is Now Probably Dead

The JCPA, America’s version of the link tax, has been pulled after an amendment by Ted Cruz. Some now consider the bill dead.

Last month, we reported on Facebook’s decision to inform US publishers it wasn’t going to pay for linking anymore. The move was seen as a return to the original stance by Facebook refusing to pay for linking. The implications are, of course, huge because that decision could theoretically spread to how the platform operates in other countries. While the mess made by Facebook’s decision to go along with paying for linking will take much longer to clean up, this wound up being a step in the right direction.

Of course, there is also the Journalism Competition and Preservation Act (JCPA or S. 673) that could theoretically upend that decision in the US. While the legislation seemed like it was gradually moving through the regulatory process, the bill apparently ran into a major problem: Ted Cruz. During a markup, Cruz apparently successfully pushed to add an amendment about content moderation. From Yahoo! News:

The bill under consideration at Thursday’s Senate Judiciary Committee markup was the product of months of negotiations, and had already been altered significantly from its initial introduction last year. But a flurry of amendments were still offered Thursday — including one from Sen. Ted Cruz (R-Tex.) that would keep antitrust restrictions in place for news organizations if they are negotiating with tech platforms about how or whether to moderate certain types of content.

“What is preeminent to me is whether this bill is going to increase or decrease censorship,” Cruz said, nodding to the long-held notion among conservatives that tech platforms unfairly limit the reach of right-wing content online.

“If you’re negotiating, you ought to be negotiating on the ostensible harm this bill is directed at, which is the inability to get revenues from your content,” Cruz said. “You should not be negotiating on content moderation and how you are going to censor substantive content.”

What link taxes and the made up conspiracy of anti-conservative bias on social media is anyone’s guess. Apparently, though, Cruz insisted that this be part of this bill regardless of relevance. In response, Amy Klobuchar pulled the legislation altogether. Mike Masnick of Techdirt noted that it wasn’t even clear what the amendment would do, but noted that the legislation is now effectively dead:

Either way, somehow, Ted Cruz, who ranted nonsensically for way too long about “big tech censorship”, got his own amendment to the bill approved by the committee. And… once that happened, Klobuchar insisted that it ruined the bill and basically took her ball and went home, refusing to allow the bill to go for a vote. Of course, it’s unclear how Cruz’s amendment actually does anything here, because he’s (yet again) confused about how the 1st Amendment works, and how it’s the 1st Amendment that allows websites to moderate as they wish.

His Amendment appears like it’s trying to somehow… stop content moderation? Maybe? It’s not clear. Here is the text of his amendment:

LIMITATION REGARDING CONTENT MODERATION POLICIES, PRACTICES, AND PROCEDURES. — The exemption from the application of the antitrust laws under this section shall not apply with respect to an eligible digital journalism provider, joint negotiation entity, or covered platform if, on or after the date on which the applicable negotiations under section 3 commence, the eligible digital journalism provider, joint negotiation entity, or covered platform, respectively, engages in any discussion of the content moderation policies, practices, or procedures of the eligible digital journalism provider, joint negotiation entity, or covered platform, respectively, with any eligible digital journalism provider, joint negotiation entity, or covered platform.

I mean, what? I think what it’s trying to say is that none of the negotiation can be contingent on the content moderation practices of the others at the table. But… huh? I guess Cruz’s fear is that Google will come to a negotiation with, who knows, Breitbart, and say “part of this negotiation is that you have to clean up your comments.” And Cruz doesn’t want that.

It’s also just kind of weird that things went down this way. Most of these markup hearings are theater, with everyone more or less knowing what’s coming. Klobuchar seemed legitimately surprised about Cruz’s amendment, and that it passed.

Anyway, for now the JCPA seems dead. Though for stupid, stupid reasons.

So, this represents two ways the push for an American link tax has now stalled. For one, Facebook has said it is no longer paying for linking. For another, the legislation being pushed has now been pulled and is currently presumed dead. As a result, the odds that the negative repercussions of the link taxes will be avoided have improved dramatically. Indeed, that is good news for the US.

Drew Wilson on Twitter: @icecube85 and Facebook.

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