Could a "protect journalism" Act lead to a link tax?


The idea of a link tax even in the US is in play, perhaps, and it can have an effect on operations like mine (even scaled down as they are now), so let's run through it.

Katherine Trendacosta and Mitch Stotlz write in the Electronic Frontier Foundation (EFF) Effector, 'The Journalism Competition and Preservation Act Will Produce Neither Competition Nor Preservation'. The bill at issue is Senate bill S.673 Journalism Competition and Preservation Act of 2021.

The bill, introduced Sen. Amy Klobuchar (D-MN) in Feb. 2022, would limit the power of the government (probably the FTA or SEC) to stop smaller press outlets from forming bargaining groups ('cartels') to bargain with Internet platforms (usually understood as social media companies or major search engines, but that is tricky) to charge them when their (ordinarily paywalled perhaps) articles are linked to by social media posts by users, or by returned search results. The presumption is that the social media platforms or engines like Google, Bing, or Yahoo! (there are still others, like DuckGoGo) pay for these out of their own ad revenue.

What could happen sometimes is that a news article behind a user or visitor paywall is linked in a social media platform that automatically embeds it (permission to 'expansively' embed can be controlled by the original publisher) to show headline and illustration, as well as provide hyperlink. In some cases, it appears that social media platforms seem to be paying larger publishers for permission to do this by article when the article is otherwise paywalled, and end users are unaware of the process. (Facebook provides reference on the reputation of the original publisher and sometimes fact-checking for the visitor, especially on claims that are controversial, as about elections.) Similarly, mobile news aggregation services like SmartNews (which does not accept user content) may be paying for the links (sometimes though I as a user find a paywall if I am not signed in that isn't supposed to happen.)

However, there could be an issue when independent bloggers or non-cartel small publishers link to other news stories. Some of this content is on free platforms run by Blogger or WordPress or several others; some of it is on hosted sites that the blogger or writer pays for.Conceivably down the road this could lead to situations where publishers want the hosts to pay link taxes? I wonder.

In fact, some hosts, in their AUP's, say customers need to have permission to link now, even though this is hardly ever enforced (and very little known in public). That may be an intent to avoid this sudden expense risk. (A lot of other issues today, like the sudden crackdown on abortion after SCOTUS, can provoke a perception that hosting amateurs has some unpredictable downstream risks.) My own practice is to tell the visitor parenthetically that a hyperlinked article is paywalled, which means the visitor may be responsible for signing up for a subscription to view it (and that is a reason we need 'paywall consolidation' services, indeed a startup' idea.) But back around 2000 there was a court case or two about hyperlinks, which essentially resulted in a ruling that said that hyperlinks are essentially like term paper footnotes. This doctrine (and the supposed 'server rule') came into question with image or video embeds in a case heard (but not yet settled as far as I know) with a case in New York State in early 2018. I have discussed this problem already at some length with a post on June 21. 2022.

Remember that early in the Internet history, some companies or sites feared that if people hyperlinked into them, they sould lose ad revenue from visitors not having to see more their own sites. That belief represents a desire to monopolize the attention of visitors, which is not healthy for the online world as a whole (it increases polarization). Some publishers may be trying to copyright 'facts' which they discovered with original journalism (almost mimicking the 1950s board game 'Star Reporter') but you can't copyright information per se.

You can, or course, have some common sense 'rules of the road. If YouTube or any other large platform offers embed code, that should be a presumptive sign to the user that it is �safe� to embed.�� Publishers can block embeds at source, and they can also block hyperlinks by throwing 403�s, but few of them actually do (does Fox News want to monopolize its audience?) One trick is to write a tweet to generate the hyperlink and link to the tweet, but that would probably become 'against the rules'. One occasionally sees established publications encouraging subscribers to 'give' articles to friends, which suggests they would rather do all the talking than compete with bloggers who can rewrite their stories.

Or a blogger, to give a reference, could just spell out the entire URL without a link, and let the visitor paste it into his own computer hyperlink line. Or would that somehow be 'copyright infringement'? I doubt the CCB would have an answer to that now.

Link taxes do exist in the EU under the Copyright directive and don't work very well. But in the EU there is a sentiment that individual bloggers should not compete with professional journalists and writers (who have to make a living at it) for attention. It's Taleb's 'skin in the game' problem.

The writers of this EFF article prefer the S.4258 ' Competition and Transparency in Digital Advertising Act', introduced by Mike Lee, R-UT, May 2022, more recently.

(Posted: Saturday, July 2, 2022 at 3 PM EDT by John W. Boushka)