Thread by @M_F_Rose

Aaaaand we're off with the #SenateJudiciary #JCPA hearing!

A few things to keep in mind as we head into this:

1. Funding journalism is an incredibly complex problem, and it's not a new one. Journalism has *always* struggled with funding. This is a huge problem that needs to be addressed, but it's also not unique to the current moment.

2. Media consolidation is a HUGE part of the crisis of local journalism.

3. This is ultimately about asserting that news outlets should be able to control what third parties link to them. Self-help options exist; they claim those aren't enough. They want a copyright extension.

4. Be extremely wary of anyone who characterizes sharing summaries, snippets, or headlines as "weaponizing fair use." These uses are fair, and settled. Not only that, but we are bound by *international obligation* and SCOTUS precedent to preserve them.

A disclaimer: I'm largely here for the copyright stuff. Follow @lisahmacpherson for the broader discussion of antitrust & market issues (there are many!). But for a quick and dirty primer, here's our group letter outlining our problems with the bill: washingtonpost.com/politics/2022/…

@lisahmacpherson Or, if a blog is more your speed (or you're paywalled out), here's Lisa's blog from last year: publicknowledge.org/can-the-journa…

@lisahmacpherson Or to really drill down on all the copyright problems here, a blog from December (shout out YET AGAIN to the inimitable Lisa): publicknowledge.org/we-can-save-lo…

.@SenMikeLee correctly points out that #JCPA's benefits largely inure to the biggest publishers, including the NYT/WSJ/WaPo.

(This tweeting brought to you by @PhilzCoffee and a box of @girlscouts thin mints. Bring it on.)

Apparently linking to content is devaluing it, because (checks notes) readers don't click through sometimes

OK, so here's the thing--proponents of #JCPA argue that they can collectively negotiate for fair compensation. BUT...

With what leverage? If outlets say "pay us or else stop linking to our content," and Google/Facebook say "no"... then what? Outlets have no legal ability to stop third parties from linking to their content. This is the part everyone wants you to overlook.

So their plan is, to paraphrase a classic South Park episode:

Step 1. Form a collective bargaining unit.
Step 2. ????
Step 3. Profit!

There is, quite literally, *no way* for this framework to work without giving outlets some kind of new legal leverage to STOP third parties from linking to their content.

If you're wondering what that looks like, well, we've got a hint or two. copyright.gov/policy/publish…

Joel Oxley (witness for WTOP) does make one very good point that often gets lost. Good, quality news is paywalled; garbage is free.

There's a much, much broader discussion we need to have about ensuring access to high-quality, researched info. This ain't it.

Daniel Francis, @Harvard_Law: "I cannot think of anything that this country needs less, now or ever, than a national news media cartel." 🔥

@Harvard_Law Francis: "Platforms aren't linking and previewing for free because of buyer power; they're linking and previewing for free because that right, that freedom is theirs under our property law today."

"This wouldn't be a cartel that corrected buyer power, it would be a cartel to create new seller power." - This gets at the heart of it.

"The idea that we would put them under one roof to agree on rates, and terms, and business models, seems to me like a consumer's nightmare." Me too, Prof. Me too.

.@dangainor : Consolidation and news funding crises have been going on for decades. This isn't new to big tech. And #JCPA doesn't solve the problem.

(Accidentally broke the thread earlier)

https://twitter.com/M_F_Rose/status/1488977638454616072?s=20&t=zcjYDVKosOidn9PqdVHimQ

And there's the @nytimes / Wordle dig! Drink!

@nytimes Bertetto: we've never negotiated with Google et al over how much we should be paid. (Hint: because they have no legal mechanism to lock out Google et al from linking. Which they'd need. To do the thing they claim they want to do.)

Singer says that the problem is that outlets "can't summon the will" to shut down access.

They may lack the will, but they ALSO LACK THE MEANS. Even if they did all have the will, there is nothing they could do without a *new right.*

We're just going to keep dancing around this, aren't we? SMH

We're in for the world's longest game of hiding the ball, I see

Singer says they're not coordination rights against consumers, but that is wrong. A property right is always, always enforceable against the world. Rights to exclude are universal; you don't ever get a right just against Facebook, or just against Google.

Durbin says this about "stealing content" and "putting it on their own tech boards and such."

Bit of academic shade being thrown 👀

@dangainor: The value of newspapers as a venue for advertising "has been diluted even before the Internet." Cites 1970 Newspaper Preservation Act. This is not a new problem!

@dangainor Ope, there's the first chart of the hearing. It's a big one, and I'm relatively certain it's being held up with staffers behind it. #therealheroes

@dangainor (My mute button is getting a workout today, can't interrupt the flow)

@dangainor And @SenMikeLee passes the mic to @SenBlumenthal

@dangainor @SenMikeLee @SenBlumenthal .@SenBlumenthal argues that Big Tech is misusing information collected by journalists to "suffocate" the market. Friendly reminder folks that collecting information does not grant you ownership. That's not how intellectual property works. en.wikipedia.org/wiki/Feist_Pub….

@dangainor @SenMikeLee @SenBlumenthal I'm going to refrain from getting down the "Hot News Doctrine" rabbit hole, because we will, in fact, be here all day.

.@MarshaBlackburn name-checks Music Modernization Act and raises the possibility of implementing a similar consent decree here.

Francis points out that part of the consent decrees is question (ASCAP and BMI, for those following at home) is an oblication for them to license.

@MarshaBlackburn There's no suggestion right now that we should mandate that media outlets license their content when asked, so it's sort of orthogonal.

(Also, kudos to Francis for a very accurate description of music licensing, despite his disclaimer that he's not an expert.)

@MarshaBlackburn .@SenMikeLee : If this is supposed to help small and local publishers, why don't we just limit it to those publishers?

@MarshaBlackburn @SenMikeLee Gets a non-answer from Oxley. Lee continues to press--couldn't we reduce the potential harm created by a cartel by limiting the size of the cartel?

Francis: Generally yes. At a minimum, we should restrict the scope of the exemption to be targeted.

Francis correctly points out that we need more personnel and funding for antitrust agencies before we start giving them more mandates.

Oh no fair use nonsense ahoy

Singer says that platforms should always have to pay for "any value" gained by the availability of outlets' content. Which is nonsense, and totally obviates fair use.

Then he pivots to trying to rebut Francis on a pricing point he made earlier.

Academics.

Just this once, I'm glad for this extremely non-useful tangent. It cut off the incredibly non-useful (and factually inaccurate) fair use mischaracterization.

Of this entire hearing, only one person (Francis) has addressed the elephant in the room: that this would require a fundamental rewrite of our existing intellectual property regime. We've been witnessing a two hour game of hide-the-ball.

And that's a wrap. I cannot repeat this often or loudly enough: the unavoidable linchpin of the JCPA model is to grant outlets a right where none currently exists, namely an intellectual property right over linking.

If we want to have that debate, have it. Stop hiding the ball.

And now I'm off to pick up two kids from two daycares, a process that will be substantially less harrowing than following hearings all day.