What’s not often mentioned in these debates is the soft corruption going on. As we’ve described, soft corruption is not the blatant bribery/corruption that people normally think about, but it’s when anyone looking at a politician’s actions sees the obvious transactional nature of the process. With the link tax proposals, it’s in the fact that politicians really need local news media to endorse their campaigns to get re-elected. Put that together with the fact that the entire purpose of these laws is to take cash from one industry and forcibly hand it over to media orgs, and you can see why some politicians are so attracted to proposing them.
The latest one to try may be the silliest, and most nakedly corrupt. Rep. Buffy Wicks has spent the last few sessions in the California legislature dreaming up any kind of bills she can think of that will “punish big tech” because she likes to blame them for everything. You may recall last year she introduced a bill that would allow parents to sue social media if their kids were sad. I only wish I were kidding.
Now she’s back, excitedly pushing her version of an anti-open web link tax:
The California State Assembly will consider a bill this session that requires digital advertising monopolies like Google and Facebook to pay for content they siphon from local news outlets. The California Journalism Preservation Act (CJPA), AB 886, directs big tech companies to pay publishers a “journalism usage fee” each time they use local news content and sell advertising alongside it. In turn, the bill requires news publishers to invest 70% of the profits from the usage fee in journalism jobs.
The bill is authored by State Assemblymember Buffy Wicks (D-Oakland) and has garnered the support of the 800-member California News Publishers Association (CNPA) and the News/Media Alliance (NMA). Both organizations are advocates for quality journalism, free press and fair compensation for locally produced news.
So, to her credit, this one is at least a lot more straightforward and open about what a total scam it is. Rather than taking the path of recent laws in Australia, Canada, and even the US Congress, which all pretend that they’re just setting up a process for “bargaining” or “negotiation,” this one just comes right out and says it: “we’re taking money from one industry we hate, and giving it to another industry we like.”
I appreciate the honesty in blatant cronyism.
The bill text, which was only released three days after the press release (and most of the press coverage, so no one had to actually analyze how ridiculous the actual bill is). The whole thing is pretty straightforward: if you’re an “eligible digital journalism provider” you can invoice “covered platforms” for a “journalism usage fee.” Is it any wonder that a few organizations made up of news publishers happily endorsed this bill? It’s a bill that literally gives them free money for doing nothing.
Actually, it’s worse. It’s a bill that says the platforms that have been giving them free advertising and free traffic for decades… now have to pay them for continuing to give them free advertising and free traffic. What a deal!
This is, of course, incredibly, ridiculously, hilariously unconstitutional. Again, the First Amendment means something, Rep. Wicks. Didn’t they teach you that in “elected official school” somewhere? We have copyright law. We have a First Amendment. Linking to a news story is not “using” their journalism. It’s linking. You can link to whatever you want and you don’t have to pay a fee.
And you can’t just magically create a government mandated fee to post links. Because that’s the government suppressing speech by making you have to pay to speak. You’re allowed to quote headlines. You’re allowed to summarize the news. That’s speech. That’s protected by the First Amendment. You know, part of the Constitution you swore to uphold and protect?
I mean, it’s not like this hasn’t been tried before. Realistically, this is an attempt to bring back the “hot news” doctrine, trying to force some publishers to have to pay to republish a story someone else broke. And it’s been rejected by multiple courts, most recently in the 2nd Circuit, which notes that you don’t just get to force a company to pay because some new technology harms an old industry’s business model:
The adoption of new technology that injures or destroys present business models is commonplace. Whether fair or not, that cannot, without more, be prevented by application of the misappropriation tort. Indeed, because the Copyright Act itself provides a remedy for wrongful copying, such unfairness may be seen as supporting a finding that the Act preempts the tort.
Now, some might argue that Wicks’ bill is not a “misappropriation” tort, but it is by a different name. And the reference to copyright law here is key, because this is also an end run around copyright law — which has fair use which allows sites to repost links, headlines, and snippets. And federal copyright law also preempts any attempt by state laws to do an end-run around federal copyright law. Which is exactly what this bill attempts to do.
And, really, the similarities to the fight over “hot news” are striking. In that one, also, the claim by news publishers was that those copying stories were engaged in “free riding” on the hard work of journalists — the same thing you hear now about Google and Meta posting links to news. And, therefore, either the more aggressive aggregators had to be stopped, or they had to pay. And while there were some courts that allowed this, more recently courts have regularly frowned upon it as a fairly obvious attempt at restricting speech to favor one speaker over another.
When I call out the soft corruption here, I’m not saying that Wicks is doing this because helping news orgs will help her get endorsements. I’m sure she honestly believes this is a good idea. But what I’m noting is that the very fact that this is a blatantly unconstitutional bill, whose entire purpose is to funnel lots of money from one industry she dislikes, to another that happens to have a huge role in helping her get re-elected, sure looks to the public as corruption. And that makes the public trust the system less.
Even if done for good intentions, the public perception of such bills as a blatant hand out to an industry important to her campaign just feeds into the public’s distrust of politicians today. I mean, given this setup, what’s to stop any politician from declaring some other industry “critical to democracy” and forcing any disfavored (but more innovative, and successful) industry from randomly having to wire money to the struggling industry that failed to innovate? It’s the worst kind of government grift.