Pedro CIFUENTes

Pedro CIFUENTes

22-08-2022

22:13

The billion dollar question with the JCPA has been how it would implement the antitrust exception bankshot without expanding copyright. The answer? Imposing a (fairly obfuscated) carriage obligation. 1/

More specifically, it's a ban on "retaliation" by Internet platforms that simply stop carrying news content in response to a demand for a joint negotiation over payment. 2/

The question: does this help the bill avoid the 1A issues that would have doomed a copyright expansion or a straight carriage mandate? 3/

My 🌶 take is that this is a fairly convoluted but maybe clever way of obscuring the 1A issues that will put the platforms in an atmospherically more defensive posture. 4/

Substantively, though, I'm not really sure how the elaborate layers of candy shell can get around at the bottom that publishers are demanding paid, mandatory carriage of news content. 5/

Demanding payment to disseminate what is ultimately factual information is a really hard row to hoe, 1A-wise, which is why folks essentially gave up on the © approach. 6/

A carriage demand, de-coupled from payment, might be another 1A matter, but would be useless to the news publishers. 7/

Stick 'em together? The only somewhat interesting jam this puts the platform in is that they have to choose a 1A objection—against having to carry, or against having to pay for facts—or make an awkward argument for both, which is a little bit of a hard needle to thread. 8/

That is, it's a little hard to argue that you have an expressive right to post facts and also an editorial right not to post those same facts that's different from the economic interest in not having to pay. 9/

But I don't think two 1A wrongs can make a right here. A convoluted coupling of a requirement to participate in negotiation for carriage and punishment for refusal to carry seems even worse, 1A-wise, than the narrowing of fair use. 10/

This is a long and complicated bill (including a load of antitrust provisions), so want to reread and react further, but the core conceit here seems pretty problematic on first blush. /fin

On a second scan through, I'm actually not so sure the drafters gave up on © completely. Of course, there's the savings clause that says the law doesn't modify copyright or trademark law... /PS1

But what's the negotiation over? The key term that appears throughout is "access to content" (and similar variations thereon). /PS2

One possibility is that we're talking about "access" to the content in a technological sense—that is, that the publishers are going to put up DRM schemes, try and block through robots.txt files, or something along those lines. /PS3

There, there's some enforceable protection for publishers to prevent unauthorized access to a publisher's site or service under the CFAA—but probably not to stop the dissemination of the underlying reporting or facts. /PS4

The mere access to reporting and facts is not a particularly valuable thing to gate access to independent of the reporting and facts themselves. /PS5

The other possibility is that "access" means in terms of the publisher's exclusive rights to the reporting itself under 17 U.S.C. § 106. /PS6

The problem is that those rights are extremely thin/limited by fair use, idea/expression, and related © doctrine. /PS7

So again, what's the negotiation supposed to be over? "Access" qua a copyright license to content for which has the platform has a strong fair use / 1A claim is likewise not very valuable... /PS8

...unless the bill is intending to expand the scope of copyright, which it specifically says it isn't doing. /PS9

So how are you supposed to fairly conduct a negotiation around a very flimsy / narrow set of "access" rights without expanding the scope of those rights? /PS10

The chicanery the bill tries to pull is (a) demanding that a platform participate in the negotiation no matter what, (b) barring the platform from "retaliating" by *not* carrying the content from a participant, and (c) allowing for damages against the platform if they do. /PS11

But when you back out from these trees and look at the forest, you effectively get *both* an access right *and* a requirement for the platform to violate it (and pay for the privilege). /PS12

Of course, this is all before you even get to the wisdom of creating an antitrust exception to allow joint bargaining over whatever the slippery "access" quasi-right being created/recognized/whatever here. /PS13

But I don't see any way to create or cognize a meaningful non-© "access" right, no matter how hard you insist not to be changing © law, that gets around the 1A limitations that would prevent you from doing this in ©. 🤷🏻‍♂️ /PS14 (fin for now)

Okay, I can't resist one more: it is very obvious that the development of this bill was focused on lots of clever antitrust carveout and joint negotiation and arbitration mechanics. But comparatively little thought went into articulating a cognizable object of negotiation. /PS15

The overarching problem with the mental model here is that it tries to impose a transactional structure around a mostly unprotectable (or thinly protectable) output of journalism (reporting and facts). /PS16

This is importantly and constitutionally different from finding a sustainable model to fund the very valuable *labor of journalists.* /PS17

It may be as a policy matter that we ought to facilitate wealth transfers from Internet platforms to journalists. But the Constitution makes it very hard to use the *news* as a vehicle for doing so. /PS18

This seems too clever by half. Linking can't be voluntary if "refusing to index content" of someone who demands you negotiate with them is actionable as retaliation.

This reminds me of the dynamics around the CASE Act and the in-vain efforts to square "voluntariness" with an opt-out and default judgements. This is trying to build a collective bargaining structure around a supposedly non-existent right.



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