Chances are the last thing you heard about the status of the Journalism Compensation and Preservation Act was that Sen. Ted Cruz (R-Texas) inserted an amendment into the bill that essentially blew it up, so lead sponsor Sen. Amy Klobuchar (D-Minn.) pulled the JCPA from the Senate Judiciary Committee’s consideration.
To recap, the JCPA would create a temporary exclusion of news publishers under a certain size from anti-trust laws so that the publishers can band together to negotiate with internet platforms (primarily Google and Facebook). As it currently stands, platforms use publishers’ content (like a news story, video clip or photo) to attract visitors to their own sites, which allows the platforms to generate ad revenue. However, the platforms don’t currently pay publishers for the use of publishers’ content, and in using that content, platforms receive ad revenue that may have otherwise gone to the publisher itself. JCPA would allow the publishers to collectively bargain to be paid for the content that platforms use. (Critics have likened this to creating a cartel, but it’s more like a union.)
Cruz’s amendment included a provision that said if anyone at the negotiating table mentioned content moderation (essentially, removing certain publications from platforms or giving them a less favorable ranking because of their content), then the anti-trust protections in JCPA would become null and void. Cruz touted this as a way to stop platforms from “censoring” conservative publishers; Klobuchar countered that it gave platforms an instant out — all platforms would have to do is say “content moderation” and negotiations would have to stop.
That was early September. In the weeks immediately following, Cruz, Klobuchar and one of the bill’s cosponsors, Sen. John Kennedy (R-La.) held private talks about meeting somewhere in the middle. The compromise is better, though still not ideal.
In the compromise version of JCPA, the publishers’ joint negotiation entity cannot deny entry to any eligible publisher because of the “views expressed” by the publisher. By the same token, the platform cannot discriminate against any publisher that is part of the joint negotiation entity.
In real world terms, if a digital news publishers that tends to peddle in conspiracy theories wants to be part of the collective bargaining group with other publisher, as long as the conspiracy-laden publisher meets the eligibility criteria, the group can’t say no. (Criteria include, in part: having fewer than 1,500 full-time employees, not being owned by a foreign power and has at least 25% of its editorial content consisting of “current local, national, or international public interest.”)
By the same token, once that publisher is part of the negotiation group, platforms cannot act discriminatorily towards it. In other words, if a website like InfoWars ends up in a negotiation group with the likes of The Dominion Post or the Charleston Gazette-Mail, Google and Facebook would have to treat all of them the same.
The compromise bill was enough to get JCPA out of the Senate Judiciary Committee though several committee members still have concerns (and so do we). At the very least, the Journalism Competition and Preservation Act can be considered by the full Senate, where it will likely go through more changes.
We hope senators won’t let the bill get bogged down in culture war fights and will instead remember JCPA’s primary purpose is to help small and medium-sized news publications stay afloat in an era when fact reporting can cost more money than it makes but misinformation is cheap and profitable.
