Where the Copia Institute tells the Copyright Office that link taxes are only a good idea if you want to kill journalism

from the-worst-ideas-in-the-world department

It’s hard to believe that even after the huge “linkage tax” disaster in Europe and Australia, people would push for them in the US, and yet here we are. This bad idea of ​​brewing has some insane friends in Congress, who have commissioned the Copyright Office to do a study on the viability of importing this nonsense into American law, and via our copyright law. copyright already overloaded. The Copia Institute filed a public comment as part of this study and testified at a hearing in December. In both cases, we pointed out that a site like Techdirt is exactly the kind of small independent media that such a program is supposed to help, but rather is the type of small independent media that such a program would make very definitely bad.

While some of its proponents insist that it is not actually a proposed “link tax”, but rather something fancier (“incidental copyright”), the inevitable result will be equally ruinous for the very journalistic interests this regime is supposed to advance. destroying the very thing they all ultimately depend on: the ability to connect with audiences. It will have that effect because the whole point of this scheme is to attack the platforms and services that currently have the nerve to help them make that connection by linking to those media sites. After all, it seems, how dare these platforms and services offer the media this precious audience attention without paying for the privilege of being able to do them this huge favour?

The flaws in this plan to essentially tax the platforms and services that provide the media with this essential benefit are significant. For example, it completely defeats the purposes and purpose of copyright law and the First Amendment, which exist to help ensure that information and ideas can spread. It offends it on purpose, deliberately creating a regulatory regime that punishes the platforms and services that facilitate this spread. It also offends the First Amendment more specifically in how it targets free speech platforms and services themselves to refer people to the speech of others.

It is also completely at odds with its own professed purpose. These platforms and services offer the media everything they have always said they want: public attention. Yet now these outlets would bite the hand that feeds, and for no good reason. Because even to the extent that this program is based on the idea of ​​helping journalistic businesses make more money, it will have the exact opposite effect. No media makes money without an audience. You can’t enjoy public attention if there isn’t attention. And there will be no attention with schemes like this preventing platforms and services from connecting media and their expression to these audiences.

As we have seen in other countries, schemes like these have starved the media of their lifeblood of audiences by effectively detaching them from the world. It has this effect in part because it deters platforms and services that currently drive media traffic from being in the media traffic business anymore by making it far too expensive to do. Of course, with a program like this, maybe some of the big platforms (Google News, Facebook) could suck it up and pay into the system (although, given what happened in Spain and Australia, when they each refused at various times to continue to do so there in the face of such schemes, perhaps they would not). But given all the squealing and whining, even in this hearing, that Google and Facebook have too much power, it would make sense to be sure that there might be other competing platforms and services of Google and Facebook. The more unhappy the big guys are with driving traffic to other sites, the more important it is that it’s possible that other platforms and services could exist to do that instead.

Yet this diversity of audience-facilitating services is exactly what compulsory licensing regimes like this prevent by skyrocketing the cost of doing business for anyone who wants to create a platform or service that can send audiences back. to other sites. These costs arise not only from the money itself needed to pay for the licensing system, but also from the potentially huge compliance costs associated with not breaking the inevitable technical rules of such a system, as well as all the defense costs of trying to avoid costly liability. someone is accusing the service of not complying with these rules absolutely right. (As we wrote in our commentary, the compulsory licensing system for web-based music streamers illustrates how extremely high and dissuasive the costs of compliance with a compulsory licensing system such as the one proposed can be. )

And deterring these platforms and services will do nothing to make online journalism more profitable. On the one hand, it does not target the reasons why it may not be profitable, insofar as it is even the case. After all, if distant business owners would rather starve local newsrooms in favor of skimming profits, it is not a failure of copyright law that is causing the decline of local news. It’s not even a failure of any particular journalistic profit model.

But to the extent that the news sector is rightfully under pressure, programs like these do not relieve that tension because it is not the absence of this kind of ancillary right that has caused one of the problems. first. The culprits most likely to harm the news industry are things like media consolidation, corporate governance models that emphasize quick profits over good journalism, advertisements that are offensive to user privacy, poor site design that doesn’t hold readers’ attention, and even paywalls and terrible site design that deliberately push readers away. It would make much more sense to fix these real problems, or at least leave everyone free to innovate better monetization models if they are what media needs to thrive as the economically sustainable entities we want. they are. Instead, a system like this only hides the real problems and, by throwing more copyrights on everything, creates all sorts of new frightening problems that everyone will have to deal with now, even if they are contrary to their expressive or economic interests.

Because it will hurt them. This will remove each medium’s reach of expression, and with it their ability to take advantage of that reach. And it will hurt them that way without bringing any economic return, probably not to anyone, but especially not to smaller independent outlets. Compulsory licensing systems are often deeply inequitable, directing most of the money to the big incumbents and very little to the smaller creators in the “long tail” of the money distribution table. (Again, see Compulsory Webcast License for an example of this dynamic.) strike in the shadow of a plan like this would still leave everyone, especially small independent media without this bargaining power, in even more problems than they already are now.

Especially when such a scheme will in the meantime make it impossible to monetize the audience attention that platforms and services are no longer legally able to freely provide to them, unless those platforms and services spend a ton of money on comply with this scheme or are willing to risk a liability violation. By chilling these platforms and services, it will destroy the internet ecosystem that these outlets depend on to get the attention of this audience in the first place. And as a result, it will diminish the diversity of independent journalistic voices, which will inevitably fade into obscurity without a visit. You almost couldn’t invent a better system for destroying independent media if you tried.

And that’s largely because, as became clear during the hearing, this proposed scheme ultimately has nothing to do with actually supporting the wider journalism economy. Instead, what emerged from the hearing was a perverse sense of entitlement, where some news outlets argued that if a hearing facilitation service made money directing traffic to it, then c It was sort of the money he was entitled to. . This system only makes sense as a policy designed to pickpocket any company that provides a hearing facilitation service and is clearly based on a sense of resentment that someone else could ever take advantage of. a connection to someone else’s expression, even while still providing a symbiotic benefit to the medium behind the expression by helping it connect to its own audience. Not content to let this generous goose continue to put all these economic opportunities on their doorstep, the supporters of this regime would rather use regulation like this to bring it down in the misguided effort to grab the imaginary riches they avidly believe that such a diet would magically reveal no matter how stupidly destructive those efforts would be for everyone.

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Filed Under: incidental copyright, copyright, copyright office, free speech, journalism, link tax, neighboring rights

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