Rupert Murdoch Spreads False Claim Biden FCC Nom Wants To 'Censor Conservatives.' NewsMax & OAN Immediately Prove Him Wrong.

from the gibberish-and-nonsense dept

We'd already noted how telecom and media giants are hard at work trying to scuttle the nomination of consumer advocate Gigi Sohn to the FCC. Sohn is broadly popular on both sides of the aisle in telecom and media circles, so companies like AT&T and News Corporation are working overtime to come up with talking points politicians can use to oppose her nomination. This week, that included prodding Lindsey Graham to frame Sohn (who has decades of telecom policy experience) as an unqualified radical extremist looking to censor conservatives:

Anybody who knows or has worked with Sohn (which is pretty much everyone in telecom policy circles, including myself) knows this is gibberish. Graham's rant was timed with the release of this clumsy missive by the Wall Street Journal editorial board that tries to claim Sohn wants to "censor conservatives." Their evidence of this? She supported holding Sinclair Broadcasting accountable after it lied to regulators to try and get its merger with Tribune Broadcasting approved:

"After Tribune Broadcasting abandoned its merger with the conservative-leaning Sinclair Broadcast Group in 2018, she declared, "Today is a good day for every American who believes that diversity of voices in the media is better for our democracy" and urged the FCC to "look at whether Sinclair is qualified to be a broadcast licensee at all."

The Journal oddly forgets to mention this important context, but Sinclair didn't just "abandon" that merger. It was blocked by the Trump FCC and then fined for using shell companies, relatives, and other shady side deals to try and pretend the Tribune merger wouldn't violate bipartisan media ownership rules. Sinclair's efforts were so legally dubious, even Trump FCC boss Ajit Pai was forced to oppose the deal. Sohn's big crime? Agreeing with Pai. This somehow gets twisted into Sohn "supporting Conservative censorship"; fairly reflective of the Journal's integrity and the quality of policy discourse in 2021.

One ironic bit that ruins AT&T's and News Corporation's lobbying efforts here: right-wing disinformation mills Newsmax and OAN (who both opposed the threat the Sinclair merger posed to smaller right wing disinformation mills) released statements in support of Sohn's nomination. Their primary justification? That she... supports conservative voices. From Newsmax commentator Bradley Blakeman:

"I know Gigi. I have worked with Gigi. And I have seen her fight for people's right to express themselves, even when she disagrees with them."

AT&T, News Corp., and Comcast very much don't want a consumer advocate at the FCC. They very much want to retain all the favors they nabbed during the Trump era, whether that is the death of net neutrality and broadband privacy rules, or the elimination of many media consolidation rules and neutered FCC consumer protection authority. Their problem is Sohn is both qualified and popular across the aisle, which is forcing them to dig a little too deeply into the nonsense bin to try and justify opposition to the nomination.

Filed Under: fcc, gigi sohn, lindsey graham, regulations, rupert murdoch

I Am Rupert Murdoch's Total Lack Of Shame: Now Demanding Intermediary Liability Protections For News Corp.

from the hypocrisy dept

Let's talk a bit about Rupert Murdoch. To his slight credit, in the early 2000s, he seemed to realize that the internet would be big for media. He also realized that he might be missing out. He went on an internet buying spree. It got to the point where Newsweek was praising Murdoch's "smart bets" on the internet. The cornerstone of Murdoch's digital empire was MySpace; a site that was once so dominant, the media insisted that no one could ever surpass it -- not even a dumpy little startup like Facebook.

We all know how that all turned out. Within a few years, people realized that nearly every one of Murdoch's internet ventures was a total and complete flop (often embarrassingly so).

Since then, it has seemed that Murdoch has been at war with the internet. The man who spent years using his various media properties to insist that we needed "less" government, and more "free market" wasted no opportunity to demand that the government step in and regulate, breakup, or tax the internet companies which out innovated Murdoch's News Corp. He's even been occasionally successful in getting governments to burden his competitors with ridiculous regulations.

Over the last few years, Murdoch and News Corp. have been one of the leading voices attacking Section 230. Murdoch seems consistently angry at anything deemed good for the internet. News Corp. has been lobbying against Section 230. Fox News' most popular host, Tucker Carlson, regularly (if consistently ignorantly) rails against Section 230. Trump's attacks on Section 230 in 2020 were completely consistent with Murdoch's views.

That's why we found it grimly ironic last week when an Australian court ruled that media companies could now be held liable for 3rd party comments on social media. This was an upside down version of Section 230 Down Under, that reached way beyond social media sites being liable. Instead, it made the news organizations that posted links on social media liable for the comments that came under them.

I joked that perhaps Murdoch would finally realize why Section 230 was important, and it did not take long for News Corp. to demand that the law be changed to protect... organizations like News Corp. from some 3rd party liability:

The ruling was "significant for anyone who maintains a public social media page by finding they can be liable for comments posted by others on that page even when they are unaware of those comments," News Corp Australia executive chairman Michael Miller said in a statement.

"This highlights the need for urgent legislative reform and I call on Australia's attorneys general to address this anomaly and bring Australian law into line with comparable western democracies," Miller added.

You don't say? You mean, it might be helpful if there were some sort of law? One that made it clear that intermediaries and media organizations should not be held liable for comments from random commenters? Someone should tell Tucker Carlson...

Filed Under: australia, intermediary liability, michael miller, rupert murdoch
Companies: news corp.

Rupert Murdoch Learns Why Intermediary Liability Protections Matter: Australia Says Media Orgs Can Be Sued Over Facebook Comments

from the it's-like-a-petry-dish-of-dumb-internet-policy dept

Ah, Australia. The country down under has always taken an upside down view on intermediary liability laws -- quite quick to blame an intermediary for 3rd party content. Two years ago we wrote about a problematic ruling in Australia based on the idea that media companies (not just social media companies) could be held liable for comments on Facebook about their stories. Any common sense thinking would immediately reveal how ridiculous this is: how can a media company be held liable for someone else's comments on someone else's website? Well, the judge noted, because they could hack Facebook and insert a filter to block comments on their stories with the 100 most common English words, as a form of pre-vetting every comment. I'm not kidding:

The judge wrote that each company had the power to effectively delay reader comments on Facebook and monitor if they were defamatory before "releasing" them to the audience.

This was based on evidence from social media expert Ryan Shelley, who testified that although you can't turn off comments on Facebook posts, you can deploy a "hack" to pre-moderate them.

Shelley's hack involves putting 100 of the most commonly used words in the English language ("a", "the", etc) on a Facebook filter list, causing any comment containing those words to be automatically hidden from the public.

That ruling was appealed and Australia's High Court has... incredibly (though not surprisingly, given the country's other rulings on intermediary liability) upheld the ruling. Indeed, it points to earlier ridiculous rulings to say that, in Australia, it doesn't matter if the publisher's intention was not to publish anything defamatory. Instead, it says that if you are tangentially connected to a defamatory publication, you're liable:

... a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher. All that is required is a voluntary act of participation in its communication.

This is, basically, the anti-230. It says if you have any role in publishing defamatory information, you can be treated as the publisher.

The media organizations involved in the lawsuit pointed out that there is an "innocent dissemination" defense (defence down under) for distributors (a form of distributor liability), but the court doesn't think that really exists, and literally mocks the decisions where it was found to exist.

The defence cannot be said to be rooted in principle. In Thompson v Australian Capital Television Pty Ltd[44], its origins were described as "muddied". The decision in Emmens v Pottle has been described as more pragmatic than principled[45]. Lord Esher appears to have been motivated by a concern that the common law would appear to be unjust and unreasonable if some such accommodation was not made by the courts. In Thompson[46], it was said that his Lordship "rationalised rather than explained the decision".

And thus the end result is liability for absolutely everyone.

The Court of Appeal was correct to hold that the acts of the appellants in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments.

A separate concurrence was even more ridiculous:

Each appellant became a publisher of each comment posted on its public Facebook page by a Facebook user as and when that comment was accessed in a comprehensible form by another Facebook user. Each appellant became a publisher at that time by reason of its intentional participation in the process by which the posted comment had become available to be accessed by the other Facebook user. In each case, the intentional participation in that process was sufficiently constituted by the appellant, having contracted with Facebook for the creation and ongoing provision of its public Facebook page, posting content on the page the effect of which was automatically to give Facebook users the option (in addition to "Like" or "Share") to "Comment" on the content by posting a comment which (if not "filtered" so as to be automatically "hidden" if it contained "moderated words") was automatically accessible in a comprehensible form by other Facebook users.

The whole thing just seems fundamentally ridiculous -- and a huge attack on speech. However, it's also a very clear lesson in why intermediary liability protections like Section 230 are so important. As Australian law professor David Rolph wrote in response to the ruling, there's a high likelihood that media organizations will end up shutting down their Facebook pages, and cutting off user comments because of this:

Today’s ruling may inspire many social media account managers to make greater use of these features and tightly restrict comments — or, where possible, switch them off completely.

In other words -- as we've said repeatedly over the years -- Section 230 protects free speech by making it possible for websites to host user comments in the first place. Without those protections, you get fewer places to speak. Unfortunately, this ruling fits with the trend we've seen elsewhere, such as the Defli decision in the European Court of Human Rights that held a publication liable for user comments.

Of course, the real irony here is that Rupert Murdoch still owns a ton of news organizations in Australia impacted by this decision. Indeed, the person who originally brought the lawsuit wants to sue a bunch of media companies for (allegedly) defamatory comments on Facebook... including the Murdoch-owned Sky News Australia.

And yet, over the last few years, Rupert Murdoch has been one of the most aggressive anti-Section 230 advocates around, and has had Fox News and the WSJ editorial page run all sorts of attacks on Section 230, and pushed for the government to undermine those protections. Yet now, down in his home country, he may face massive legal liability under the kind of regime he's pushing for in the US.

There have been so many debates about intermediary liability and Section 230, but now Australia is really turning into a petri dish example of what happens when you have the exact opposite views on intermediary liability.

Filed Under: australia, comments, defamation, free speech, intermediary liability, news organizations, rupert murdoch, social media

As Predicted, Smaller Media Outlets Are Getting Screwed By Australia's Link Tax

from the exactly-as-we-warned dept

Ever since the giant news organizations, led by Rupert Murdoch's News Corp., began pushing the ridiculous idea of forcing Google and Facebook (and often just Google and Facebook) to pay a "link tax," we've been pointing out that while this might be a windfall of free money for the news giants, small news organizations (like, um, us) would likely get totally screwed over. With Australia leading the charge of silliness and passing its link tax, we're discovering that our predictions were exactly correct.

The big Australian publishers, News Corp. and NINE, are making out like bandits, while the smaller publications? Not so much.

A long-term commercial deal between Facebook and Google and Guardian Australia is expected to be completed in a matter of days, adding to a raft of agreements struck between large tech companies and major media outlets since February. While companies like Nine Entertainment Co, News Corp Australia and Seven West Media are already implementing plans off the back of the deals, there is increasing concern among smaller companies that they still have not been remunerated fairly.

Of course, this isn't really surprising. In fact, the real worry should be that the administrative costs for the internet companies to have to figure out how to compensate smaller publishers is so unworthy of the hassle, that those smaller publications will just start to be excluded en masse from Google and Facebook, once again serving the interests of the largest publishers, and not actually helping the cause of journalism at all.

Filed Under: australia, link tax, rupert murdoch, wealth transfer
Companies: facebook, google, news corp.

Australian Official Admits That Of Course Murdoch Came Up With Link Tax, But Insists The Bill Is Not A Favor To News Corp.

from the did-he-just-say-that-out-loud? dept

Earlier this year, we wrote a lot about the ridiculous anti-open internet Australian link tax that is now being pushed elsewhere around the globe. Anyone paying attention to the details knew that it was extreme crony capitalism at work, with the government forcing one set of massive companies (namely, Facebook and Google) to pay another set of massive companies, led by Rupert Murdoch's News Corp and Nine. For all the talk of how big tech companies are "monopolies," if you look at Australia's news companies, it's considered among the most concentrated in the world, and has been quite profitable for the likes of Murodch.

And while defenders of the bill insist (incorrectly) that the bill is not a link tax, but is merely a "competition bill" to help those few giant newspaper companies "better negotiate" with the giant internet companies, that's bullshit for two reasons. First, it's a "negotiation" to pay for links, and no one should ever have to pay to link to some other site. That's just fundamentally against the concept of an open internet. Second, it's no real negotiation because if Facebook and Google fail to agree to a deal that satisfies the Aussie media bosses, the government can step in and force an agreement on them.

Lots of people -- including those in Australia -- noted that this all seemed like a scheme to make Rupert Murdoch richer. And now the Australian competition official, Rod Sims, who "oversaw drafting of the law" has flat out admitted that the whole thing was Murdoch's idea in the first place, though he insists it's "extremely strange" that anyone thinks it's a favor to Murdoch.

Australian Competition and Consumer Commission (ACCC) chair Rod Sims, who oversaw drafting of the law, acknowledged the negotiating system was proposed by the Rupert Murdoch-controlled publisher but said all major media operators in the country supported it.

I mean, yeah, of course they supported it. Because it's the government forcing other companies to give them free money in response to their own failures to innovate. Why wouldn't they support it?

It is true that Google and Facebook are bigger than News Corp., which is the point that Sims really really wants to focus on. But that doesn't even touch on whether or not it's appropriate to force one set of companies to pay for something that should be free (linking), to another set of companies that are still making a shit ton of money on their own.

"News Corp is 1% the size of Google. News Corp is one of four main media companies (in Australia). It's very likely not the one with the biggest reach. I just think this is a line put out by Google," Sims added.

"There were many people giving us ideas. News Corp was but one. This whole notion that this is about News Corp is extremely strange."

You literally just admitted that the idea came from News Corp! It wasn't "a line put out by Google." It was you, who just admitted what was obvious to anyone who's been paying attention to Murdoch for years. After all, Murdoch has been publishing op-eds (in his own company's publications, of course), demanding Facebook and Google pay him for years. It's not like he made it a secret.

Can you make an argument that Google and Facebook are too powerful? Sure, absolutely. But, can you then make the argument that these companies which found a way to build internet services billions of people like... should be forced to pay for Murdoch's brand of propaganda, despite there being no fundamental reason that he deserves any of that money? Not unless you want people to think you're in Murdoch's pocket.

Filed Under: australia, competition, link tax, news organizations, rod sims, rupert murdoch
Companies: facebook, google, news corp., nine

Hypocrisy: Rupert Murdoch Has Always Hated Antitrust; But Now He Wants It Used Against Internet Companies Who Out Innovated Him

from the the-cronyiest-of-capitalists dept

It's no secret that Rupert Murdoch is an extreme hypocrite. He spent decades railing against any kind of regulatory powers to hold back companies, but as soon as his own attempts to build an internet empire flopped dramatically, he's come around to being a major booster of regulatory crackdowns. Just only against the companies who out-innovated him. For years now he's been demanding that governments force the internet companies to pay him money -- a move that has been successful in his home country of Australia.

The latest is that Murdoch, who built his business empire by buying up competitors and doing everything possible to avoid antitrust authorities, is now a major force behind supporting antitrust efforts -- so long as they're aimed at the internet companies. When the Democrats released their 5 antitrust proposals last week, each one (perhaps somewhat surprisingly) had a Republican co-sponsor. That appears to have been thanks to Murdoch:

Fox Corp. and News Corp. lobbyists have been urging GOP members to support the bills this week, according to people familiar with the efforts, with two sources saying there could be as many as 3 to 4 GOP co-sponsors on each bill. Talks are ongoing....

Say what you want about Rupert Murdoch, but the idea that he's a free marketer and against regulations is nonsense. That was only true when the regulations involved his companies. Now that he's failed to innovate, he's spent the last decade demanding that governments punish the companies who actually competed better than he did. He's the cronyist of the crony capitalists.

Filed Under: antitrust, competition, congress, innovation, rupert murdoch
Companies: news corp.

The Best Summary Of Australia's News Link Tax / 'Bargaining Code'

from the the-loser,-as-always,-is-you dept

I've been somewhat amazed at the response to Facebook's decision in Australia to first block news links, in response to a dangerous new law, and then to cave in and cut deals with news organizations to pay for links. Most amazing to me is that otherwise reasonable people in Australia got very angry at me, insisting that I was misrepresenting the tax. They keep insisting it's not a tax, and that it's a "competition" response to "unfair bargaining power." Except, as I've discussed previously, there's nothing to bargain over when you should never have to pay for links. The links are free. There's no bargaining imbalance, because there's nothing to bargain over. And, it's clearly a tax if the only end result is that Google and Facebook have to fork over money because the government tells them to. That's... a tax.

Anyway, that's why I'm happy to see The Juice Media, an Australian outfit that is famous for making hilarious "Honest Government Ads", usually for the Australian government (but sometimes for elsewhere) has put out a new "ad" about the link tax in which they explain how it was a fight to take money from one set of giant rich companies, and give it to another set of giant rich companies, and not to do anything useful in between:

It's worth watching. It also highlights some of the other awful aspects of the "code" which will give news organizations more access to data, as well as advance notice of algorithmic changes that no one else gets -- allowing them to better hijack attention away from anyone else. The whole deal is dangerous and corrupt, and no one should be supporting it.

Filed Under: australia, bargaining code, honest government ads, link tax, rupert murdoch
Companies: facebook, google

Facebook Caves To Australia: Will Restore Links After Government Gives It More Time To Negotiate Paying For News Links

from the still-not-great dept

Facebook is restoring news links in Australia after the government agreed to amend the proposed link tax law. We'll explain the details down below, but at the very least, this shows part of the reason Facebook did what it did, when it did. The end result still sucks, and I wish Facebook had stood its ground here because this portends a significant closing off of the open internet.

Many of the people who were annoyed over my support of Facebook's decision last week to block all news links in Australia kept saying "but the law hasn't passed yet -- why would they do this now?" Except... that ignored the reality of the situation. Facebook had announced last summer that it would remove links to all news if the law wasn't changed. And the Australian Parliament mocked Facebook and refused to make any changes to the law -- which was set to pass this week.

So, Facebook showed that it was serious about what it said last September, and it did so days before the law was supposed to pass... and now the Australian government has agreed to make changes. So, Facebook did get something out of making the move last week. Unfortunately, they didn't get nearly enough, and the end result is a disaster for the open web, but good for Rupert Murdoch.

The law is still really bad. The only major difference is that Facebook gets a little more time to cut a deal with Murdoch and other Australian news org owners:

But on Monday, the Australian government added amendments to the proposed code. That included a two-month mediation period, giving the two sides more time to negotiate commercial deals that could help Facebook avoid having to work under the code’s provisions.

In exchange, Facebook agreed to restore news links and articles for Australian users “in the coming days,” according to a statement from Josh Frydenberg, Australia’s treasurer, and Paul Fletcher, the minister for communications, infrastructure, cities and the arts.

“Importantly, the amendments will strengthen the hand of regional and small publishers in obtaining appropriate remuneration for the use of their content by the digital platforms,” the statement added.

Campbell Brown, Facebook’s vice president of global news partnerships, said in a statement, “We’re restoring news on Facebook in Australia in the coming days. Going forward, the government has clarified we will retain the ability to decide if news appears on Facebook so that we won’t automatically be subject to a forced negotiation.”

I honestly don't know what this actually means for the future of the law, but it still looks like a mess. Having Facebook pay for any links to news articles should be a non-starter. It is fundamentally against the idea of an open web. People who keep insisting that this is not a "tax" or that it's somehow about "competition" are wrong and fundamentally misrepresenting what is happening here. Yes, Facebook and Google are big. Yes, if there were negotiating a deal they would have leverage. But -- and here's the important part -- there's nothing to negotiate over here, because there's no requirement anywhere to pay for links, because that's fundamentally stupid and against the idea of an open internet.

So, those who keep saying this is necessary because without it the media organizations in Australia "don't have bargaining power" against Google and Facebook are simply missing the point. I mean, those same media organizations do have bargaining power with a site like, let's say, Techdirt. I link to them sometimes. They're a hell of a lot bigger than me. So, does this mean that I should be able to go to the Australian Competition authority and demand they make News Corp pay me when I link to them? That makes no sense at all. There should never need to be any negotiation or any discussion about bargaining power over links because links are fundamentally free.

And, yet, the end result of this deal is that it sounds like Facebook is effectively caving and agreeing to pay for links. The "compromise" appears to be just that Facebook gets a few more months to negotiate what it will pay (and if those negotiations fail, Australian arbitrators will simply choose how much it pays). This remains a very bad and dangerous idea, that is going to lead to a big mess around the globe. Lots of other industries are going to start demanding payments for links as well, and it puts the fundamental nature of the open internet under attack.

Filed Under: australia, competition, link tax, links, negotiations, news, rupert murdoch
Companies: facebook, news corp.

The Bizarre Reaction To Facebook's Decision To Get Out Of The News Business In Australia

from the it's-quite-reasonable dept

None of this should have been a surprise. Back in September we wrote about Facebook publicly saying that if Australia went forward with its ridiculous attack on the open internet, and instituted a "news link tax" on Facebook and Google, that it would block news links on Facebook in Australia... and basically everyone ignored it. So, yesterday, when Facebook announced that it was no longer allowing news to be shared in Australia (and relatedly, no longer allowing the sharing of Australian news services on Facebook), it should not have been a surprise.

And yet... it seemed to make tons of people freak out for all the wrong reasons. Almost everyone started blaming and attacking Facebook. And, look, I get it, Facebook is a terrible, terrible company and deserves lots of blame for lots of bad things that it does. But this ain't it. There are a lot of examples of this, but because he's the top member of the House of Representatives working on antitrust issues, I'll specifically call out Rep. David Cicilline's response:

That says:

If it is not already clear, Facebook is not compatible with democracy.

Threatening to bring an entire country to its knees to agree to Facebook’s terms is the ultimate admission of monopoly power.

But that's completely nonsensical. We can argue about whether or not Facebook is "compatible with democracy" but the simple facts of the situation are that Australia -- pushed heavily by Rupert Murdoch -- has decided to put in place a plan to tax Google and Facebook for any links to news. The bill has all sorts of problems, but there are two huge ones that should concern basically anyone who supports a free and open internet.

First is the link tax. This is fundamentally against the principles of an open internet. The government saying that you can't link to a news site unless you pay a tax should be seen as inherently problematic for a long list of reasons. At a most basic level, it's demanding payment for traffic. There are two entire industries out there based entirely around trying to get more traffic from these companies: "search engine optimization" and "social media management." The reasons there are those industries is because everyone else in the world has figured out that having prominent links on search engines and social media is valuable in its own right and that it's up to the sites that get those links, and the corresponding traffic, to make use of it.

But here, a bunch of lazy newspaper execs who failed to adapt and to figure out better internet business models not only want the traffic, they also want to get paid for it.

This is like saying that not only should NBC have to run an advertisement for Techdirt, but it should have to pay me for it. If that seems totally nonsensical, that's because it is. The link tax makes no sense.

And, most importantly, as any economist will tell you, taxing something doesn't just bring in revenue, it decreases whatever you tax. This is why we have things like cigarette taxes and pollution taxes. It's a tool to get less of something. So, in this case, Australia is saying it wants to tax links to news on Facebook, and Facebook responds in the exact way any reasonable economist would predict: it says that's just not worth it and bans links. That's not incompatible with democracy. It's not bringing a country to its knees. The country said "this is how much news links cost" and Facebook said "oh, that's too expensive, so we'll stop."

Contrary to the idea that this is an "attack" on journalism or news in Australia, it's not. The news still exists in Australia. News companies still have websites. People can still visit those websites.

Indeed, the people who are saying that this move by Facebook is somehow an "attack" on news or an attack on Australian sovereignty seem to be admitting more than they'd really like: that they think Facebook must be a dominant source of news in the country.

I mean, if Facebook is really such a problem, shouldn't they all be celebrating? This is Facebook saying "okay, okay, we'll completely remove ourselves from the news business." Since everyone was complaining that Facebook was too much of a presence in the news business... isn't that... a victory?

And we haven't even gotten to the other problematic part of the law -- which is that it requires Facebook and Google to give newspapers heads up to algorithmic changes. This is completely disconnected from reality. Facebook and Google may make multiple algorithm changes every day, just to keep their services running. Having to tell newspapers (and them alone) about those changes with a few weeks notice is basically giving those news organizations the keys to the kingdom: it's telling them how to game the algorithms. If you think bogus clickbait is a problem now, just imagine what it's like when all of the Australian press get to know the secrets behind the algorithm, and get to prepare for any changes.

The whole story is absolutely ridiculous. And the most incredible thing is that no matter what Facebook did here it would have gotten yelled at. And the proof is not hard to find. Because just an hour or two before Facebook made this announcement, Google went the other way -- coming to an agreement to pay Rupert Murdoch for featuring Murdoch-owned news organizations content on Google. And people freaked out, complaining about Google helping fund Rupert Murdoch's disinformation empire. Except... that's the whole point of the law? So it's a bit bizarre that the same people are mad about both Facebook's decision to not give free money to Rupert and Google caving to do exactly that:

So... it's bad to pay Murdoch. And it's bad not to pay Murdoch. There is no consistency or principle behind all this other than people so focused on "Facebook and Google must be evil, so even when they do the exact opposite of each other, both are more evidence of evil."

This fight was not "Facebook v. Australia." Or "Facebook v. journalism" even though some ignorant or dishonest people are making it out to be the case. This was always "Rupert Murdoch v. the open web." We may not like Facebook in the role of the defender of the open web (and it's far from the best representative for the open web). But Facebook saying that it won't pay a link tax is a defense of the open web and against Rupert Murdoch. It's the right move, and whatever else you may think of Facebook, the company deserves credit for taking the right stand here.

Filed Under: australia, link tax, links, news, open internet, rupert murdoch
Companies: facebook, google, news corp.

Snippet Taxes Not Only Violate The Berne Convention, But Also Betray The Deepest Roots Of Newspaper Culture

from the won't-someone-think-of-the-poor-Rupert-Murdochs? dept

Last week Techdirt wrote about Australia's proposed News Media Bargaining Code. This is much worse than the already awful Article 15 of the EU Copyright Directive (formerly Article 11), which similarly proposes to force Internet companies to pay for the privilege of sending traffic to traditional news sites. A post on Infojustice has a good summary of the ways in which the Australians aim to do more harm to the online world than the Europeans:

1) The protection for press publications provided by [the EU's] DSM Article 15 does not apply to linking or the use of "very short extracts." The Code explicitly applies to linking and the use of extracts of any length. Accordingly, the Code applies to search engines and social media feeds, not just news aggregation services.

2) The Code forces Internet platforms to bargain collectively with news publishers or to be forced into rate setting through binding arbitration. DSM Article 15 does not require any similar rate-setting mechanism.

3) The Code imposes burdensome obligations on the platforms, some of which directly implicate free expression. For example, platforms would need to provide news businesses with ability to "turn off" comments on individual stories they post to digital platforms. DSM Article 15 imposes none of these obligations.

4) The Code prohibits the platforms from differentiating between an Australian news business and a foreign news business. This provision prevents platforms from exiting the market by taking care not to link to Australian news content. If the platform links to international news content, e.g., articles from the New York Times, it must also link to (and therefor pay for) Australian news content. DSM Article 15 does not contain a non-differentiation provision.

The same blog post points out that these elements are so bad they probably violate the Berne Convention -- the foundational text for modern copyright law. Article 10(1) of the Berne Convention provides that:

it shall be permissible to make quotations from a work which already has been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose, including quotations from newspaper articles and periodicals in the form of press summaries.

Although the Berne Convention doesn't have any mechanism for dealing with violations, Berne obligations are incorporated in the World Trade Organization's Agreement on Trade Related Intellectual Property Rights (TRIPS) and in the Australia-US Free Trade Agreement. Both of those offer dispute resolution that the US could use to challenge the Australian Code if and when it comes into effect. The proposed schemes to force Internet companies to pay even for quoting snippets of news not only violate the Berne Convention: they are also a betrayal of the deepest roots of newspaper culture. That emerges from a fascinating post by Jeff Jarvis, a professor at CUNY's Newmark J-school. He writes:

For about the first century, starting in 1605, newspapers were composed almost entirely of reports copied from mailed newsletters, called avvisi, which publishers promised not to change as they printed excerpts; the value was in the selecting, cutting, and pasting. Before them the avvisi copied each other by hand. These were the first news networks.

In the United States, the Post Office Act of 1792 allowed newspapers to exchange copies in the mail for free with the clear intent of helping them copy and publish each others’ news. In fact, newspapers employed "scissors editors" to compile columns of news from other papers.

In other words, these new snippet taxes are wrong at every level: practical, legal and cultural. And yet gullible lawmakers still want to pass them, apparently to protect defenseless publishers like Rupert Murdoch against the evil lords of the mighty Information Superhighway.

Follow me @glynmoody on Twitter, Diaspora, or Mastodon.

Filed Under: australia, berne convention, copyright, google news, history, journalism, link tax, news, rupert murdoch, snippet tax
Companies: facebook, google