With the introduction of link tax legislation on the state and federal levels in recent years, such as the Journalism Competition and Preservation Act (JCPA), Re:Create is sharing its  perspective on why this legislation should not return, and highlighting what its members and allies are saying in opposition. 

Originally introduced in 2021 and reintroduced in 2023, the JCPA was promoted as a measure to “support” local journalism but ultimately missed the mark. If enacted, the legislation would restrict public access to information and undermine democratic values while creating a government-mandated bailout for large media conglomerates, such as Gannett, Alden Global Capital, and Sinclair Broadcast Group, allowing them to further consolidate control over local newsrooms and strengthen their already dominant market positions.

Further, the JCPA  would:

• Impede access to news by incentivizing platforms to limit linking and summarizing.
• Exacerbate and incentivize misinformation and clickbait.
• Reward hedge funds and big media conglomerates that are destroying local journalism.
• Violate the First Amendment by forcing websites to publish specific content.
• Trample fair use and the public domain by creating quasi-property rights in links and summaries
• Accelerate big media’s consolidation of local news outlets.

What Re:Create and our members are saying:

Re:Create: “As currently written, the JCPA establishes a new, unconstitutional ‘access right’ to links and snippets online, allowing media companies (which is broadly defined so that almost any outlet, broadcast station or blog is included) to form cartels and force online services to pay and carry content. Moreover, the content required to be “carried” would remain under the control of the same dominant media companies, further reducing the diversity of news sources currently available to consumers and diminishing the plurality of voices in the media landscape.”

Public Knowledge: “The argument that the JCPA will create a stream of compensation from AI companies back into news presumes that the JCPA’s same-old language about ‘accessing, crawling, and indexing’ news content will cover its use to train large language models. This line of argument, which is clearly designed to capitalize on the buzz surrounding generative AI, represents a massive shift in intellectual property law – and a dangerous one for creative expression, an open internet, and access to news and media.”

CCIA: “The JCPA mandates that private companies must carry speech in direct violation of the First Amendment. This bill will also hinder the fight against misinformation by forcing digital services to publish and pay producers of dangerous content. Congress should not be interfering in the marketplace of ideas by taxing links and creating cartels.

“Objective journalism is essential in a democracy, however there is evidence that this bill will actually hurt the very local journalists it aims to protect.”

R Street: “The Journalism Competition and Preservation Act (JCPA), S. 673 and H.R. 1735, a bill that would grant news organizations a temporary safe harbor from antitrust laws, effectively licensing them to form a cartel to bargain against social media companies collectively. This cartel may target ‘online content distributors’ worth $550 billion and that have 1 billion monthly active users, which for the moment narrows its scope to Meta (Facebook and Instagram) and Google, including YouTube.”

EFF: “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.”

Disruptive Competition Project: “The JCPA’s constitutional concerns, infringement on content moderation practices, link-tax, potential for publisher collusion, antitrust exemptions that could distort the news market, and undermining of copyright law all demonstrate why it should not become law. While the intention behind the legislation is noble, it is important to address these flaws and consider alternative approaches that preserve the rights of websites and their users, promote competition, and support a vibrant and diverse news ecosystem.”