The Journalism Competition and Preservation Act Is Not What You Think It Is

Journalism is critical to keeping Americans informed. In fact, access to information was so important to the Founding Fathers that they enshrined free speech and a free press in the First Amendment. That’s why it’s so concerning to see some lawmakers support the Journalism Competition and Preservation Act (JCPA).

Despite the significant concerns raised about the initial version of the legislation, the latest draft being discussed in Congress does nothing to address them. In fact, the new draft makes things even worse. The bill violates fundamental First Amendment protections for free speech and a free press, while incentivizing the creation of extremist news sources. It also creates even more obstacles for consumer access to information and ultimately fails to benefit the local news outlets and journalists it is supposed to help. Despite these fatal flaws, the News Media Alliance and other organizations continue to push this as a “done deal.”

Incentivizing extremism, misinformation, while chilling investment in journalists. 

Instead of its purported goal of supporting local journalism, the legislation will force online services to carry and financially support a broad range of publications and broadcasters deemed to be “eligible” by the government. Any publication, no matter its quality or topic, can seemingly qualify – from extreme politics and celebrity gossip to fashion and food. Examples of news outlets that would fall under these arbitrary qualifications range from The Daily Caller, Info Wars and One America News Network to Mother Jones, Daily Kos and Huffington Post to TMZ and the National Enquirer.

In addition, by allowing any “eligible publisher” that establishes itself as a non-profit to qualify, the government is opening the door for patently false or extremist websites to receive payouts from platforms and be required by law to be accessible online. Misinformation and clickbait is already a problem, but the JCPA, if passed, will incentivize their creation while simultaneously requiring them to stay online.

At the same time, by capping the number of employees for a publisher to be eligible for payouts, the legislation incentivizes publishers to either lay off or avoid hiring new journalists and staff. Outlets close to 1,500 full-time employees are not likely to hire more journalists, and some over the limit may conduct layoffs to qualify. And when outlets do receive payouts from tech platforms, what requires them to funnel those funds back to journalists or journalist jobs? Nothing. At a time when hedge funds are gobbling up and gutting newsrooms, giving them more money will not help journalism in any way.

Creating an end run around copyright law, undermining creativity and innovation. 

Despite the claims of some supporters of JCPA, news content has a number of protections under existing copyright law to incentivize creativity and investment. However, there are also important limits to help facilitate access to information. 

Copyright experts have warned that the JCPA violates the constitutional underpinnings of copyright law, including by forcing online services to pay for links and snippets of news content even though they are purposely excluded from copyright law. It also undermines the fact that even if some content is protected by copyright, such uses are generally considered fair use. By upending these long-held principles of copyright law, the JCPA puts the entire ecosystem that depends on it at risk and would alter the fundamental nature of the open Internet. 

A recent Copyright Office study on potential “ancillary copyright” protections for press publishers noted these same concerns: “to the extent that any ancillary copyright protections would lack traditional copyright limitations and exceptions, they would raise significant policy and Constitutional concerns.” As a result, the Office concluded that news publishers already have “significant protections” under existing copyright law and recommended against “adopting additional copyright-like rights for press publishers”.

We hope the JCPA’s supporters in Congress will take seriously the concerns of experts, technologists and the public interest and recognize that this is not the right way to support journalism.