Danielle Coffey, Executive Vice President and General Counsel of the Alliance, stated: “As AI applications become more prevalent in our society, we need to establish clear principles that govern the responsible development and use of these new technologies and applications. We are proud to join this coalition of like-minded organizations and will continue to advocate diligently for regulations and law to protect creators with respect to AI in the same manner it does with respect to other technologies and industries.”

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The below Q&A is from an interview with News/Media Alliance Executive Vice President & General Counsel, Danielle Coffey, published in the February 2023 edition of Editor & Publisher Magazine. The original article is available here.

Q: In what ways have copyright laws and compliance become more complicated in the digital, social media age?

A: There are two sides to this question. First, digital transformation has led to a proliferation in the availability of news sources and content for journalists and publishers, as well as the number of middlemen that publishers have to deal with regularly. As a result, publishers must pay more attention to due diligence — ensuring that they understand the relationships between the original copyright owner and any platforms or middlemen they may use and that they have the necessary rights to any content they publish.

For example, many publishers have recently struggled with the legal uncertainty around using embedded content on Instagram without explicit authorization from the original poster. Related to this, the increased availability of photos and videos taken by amateurs during news events — especially fast-moving ones where time is of the essence — raises important questions on how to acquire the necessary licenses while remaining on top of the newsworthy situation. These conditions require publishers to pay particular attention to ensuring they comply with applicable copyright laws.

Second, the digital age has also made it more complicated for publishers to protect their content against unauthorized uses. These uses range from the overly-expansive use of news content by search and social media platforms, which the Alliance has advocated against at length, to the use of news content for AI training purposes, to the unlawful posting of full-text articles on services often based abroad, often within minutes of publication, threatening the original publishers’ ability to benefit from subscription and digital advertising revenues. These uses are often systematic, and the infringers are hard to detect and locate, making enforcing copyright laws difficult, time-consuming and expensive.

Q: How have U.S. copyright laws and protections been challenged in the courts in recent years? Are there particular cases that news publishers should be familiar with — or concerned about?

A: There have been a few cases in the last five years with implications for news publishers, with some of the most important being Fox News Network v. TVEyes (2018), Goldman v. Breitbart (2018), and Warhol v. Goldsmith (ongoing).

TVEyes concerned a service that copied broadcasts from over 1,400 TV and radio stations and allowed its subscribers to search, download, watch and share clips of these programs. The District Court had found that both the search function and the watch function were fair use. Fox appealed the decision as it related to the watch function, and the Circuit Court reversed, finding the fourth fair use factor — related to potential market harm — decisive. This was a key victory for rightsholders, with the Court correctly noting that the market effect on the copyright owner should be a major factor in fair use analysis and giving leverage to the argument that even the use of clips of protected content can hurt the copyright owner and should be subject to serious scrutiny.

Meanwhile, Goldman focused on publishers’ ability to embed third-party content from social media. Specifically, the defendants had embedded a tweet with the plaintiff’s photograph of Tom Brady without the original poster’s authorization. Rejecting the Ninth Circuit’s “server test,” the Second Circuit agreed with Goldman, finding that the embedding violated his exclusive rights despite the image being hosted on a third-party server. Similar questions have since arisen in other cases, often concerning Instagram — which recently introduced an option to opt-out of embedding following discussions with the News/Media Alliance — with one publisher settling a case brought by a photographer in New York and Instagram managing to squash a class-action lawsuit against itself related to its embedding function in California. This remains an important debate for publishers to follow.

Lastly, we’re also eagerly awaiting the Supreme Court’s decision on Warhol, which concerns Andy Warhol’s paintings of Prince, based on a portrait taken by photographer Lynn Goldsmith for Vanity Fair before Prince became famous. Following Prince’s death, Goldsmith discovered that Warhol had made a whole series of paintings based on the photo without her permission. The case raises important questions about what amounts to “transformative use” within fair use analysis. The Alliance submitted an amicus brief in support of neither party, outlining some of the delicate considerations the case raises, including how an overly broad definition of “transformative use” could threaten the copied work right. The Court heard oral arguments in the case this past October, with the decision due this spring.

Q: Copyright was at the heart of the news publisher v. Big Tech negotiations in Europe. Can you share a synopsis of those negotiations and where things stand in Europe? Also, help us wrap some context around what’s happened in Europe and what it may mean for news publishers here in the States.

A: The European Union’s adoption in 2019 of its Directive on Copyright in the Digital Single Market, including Article 15, which requires member states to create a so-called “Publishers’ Right,” was a landmark development. It acknowledged the inability of publishers to effectively protect their content online against unauthorized uses by online platforms and provided publishers with an independent right to do so. In France, the first country to implement Article 15 in national law, publishers soon encountered problems negotiating with Google. In 2019, soon after the law’s adoption, Google refused to pay publishers and indicated it would stop showing excerpts in search results unless a publisher waived its right to compensation. Following a challenge by French publishers, the French competition authority issued an interim ruling, finding that Google likely engaged in anticompetitive behavior and required Google to engage in negotiations. While Google engaged in negotiations and reached some deals after the decision, the French competition watchdog issued a €500 million fine against Google a year later for failing to comply with the orders on conducting such negotiations. Following this fine, Google proposed commitments in early 2022 to change its practices and to resolve the investigation into its anticompetitive practices. The competition authority accepted Google’s commitments in June, with Google expected to negotiate with a broader selection of publishers in good faith.

From the publishers’ viewpoint in the United States, Europe established a precedent that Australia improved upon. The Alliance has embraced a model similar to Australia based on competition law, where the anticompetitive conduct and power of the monopolies are more squarely addressed. The Journalism Competition and Preservation Act, considered by Congress during the last session, would have adopted a similar approach in the U.S. to the Australian model, while Canada, the UK, and India are also considering similar approaches. All of the approaches attempt to address the disparities in the digital ecosystem that allow dominant online platforms not only to set the rules of the game but to reap the vast majority of rewards. Publishers need more leverage to negotiate fairer terms and compensation that help preserve high-quality journalism for future generations.

Q: Is the News/Media Alliance engaged in lobbying Congress for any changes to copyright law or protections granted to news publishers?

A: In comments submitted with the Copyright Office, the Alliance recommended that Congress explore a sui generis, or quasi-property right, that would recognize an exchange of value outside of the fair use factors but within copyright law. We are also actively advocating for changes that would allow publishers to register dynamic web content, which is currently impossible. This would significantly affect the publishers’ ability to register and protect their content online effectively.

Q: Who, typically or ideally, should be concerned with or tasked with copyright compliance at the news publisher?

A: This depends a lot on the type and size of the publication, with no easy one-size-fits-all answer. Some large publishers may have whole teams responsible for ensuring compliance with various laws, including copyright, while smaller outlets may rely on an individual person, such as an image editor. The most important thing is that whoever is responsible for compliance takes their job seriously, has the time and resources to do so properly, and has the authority to affect publishing decisions.

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“This marks an important day in our history where a dominant monopoly is being charged for blatantly anticompetitive behavior in the digital advertising market. This behavior impacts consumers’ data, prices, and the quality of information they receive, while journalism struggles to provide valuable and critical content that informs and enriches communities across the country,” said News/Media Alliance Executive Vice President & General Counsel, Danielle Coffey.

For many years, the News/Media Alliance has sounded the alarm on this issue through testimony and written filings, including its white paper, “How Google Abuses Its Position as a Market Dominant Platform to Strong-Arm News Publishers and Hurt Journalism,” published in 2020 and revised in September 2022, which substantiates Google’s dominance in the marketplace, including member news publisher accounts of anticompetitive practices. Google’s take from publishers is up to 70 percent of every advertising dollar received. This has a significant impact on what news publishers and magazines receive for their content.

Coffey continued, “Along with this antitrust lawsuit, legislation like the Journalism Competition & Preservation Act (JCPA) is sorely needed to address these marketplace imbalances. The lawsuit draws a direct nexus between the anticompetitive practices and those who are harmed, notably the free press. We applaud the DOJ and various states that have filed this historic case during a time of critical importance to our industry and others impacted by these practices.”

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On September 13, Judge P. Kevin Castel released an opinion and order denying in part and granting in part Google’s motion to dismiss an antitrust lawsuit filed against it by 17 states and territories. The suit focuses on Google’s anticompetitive conduct in the digital advertising market. The decision denied the motion to dismiss with regards to the majority of the allegations, with Judge Castel only finding that the Attorneys General had failed to sufficiently plead the allegation that Google’s cooperation agreement with Meta was an unlawful restraint of trade. The states had, however, plausibly alleged that Google had used its market power to force publishers to license its publisher ad server, monopolized the market for publisher ad servers, ad exchanges, and ad-buying tools for small advertisers, and attempted to monopolize the market for ad buying tools for large advertisers, among other claims. With regards to some of the specific allegations, the court found plausible the allegations that Google’s use of dynamic allocation and enhanced dynamic allocation, dynamic revenue sharing, unified pricing policy, and redaction of auction data and limitations on publisher line items were all anticompetitive, while the State AGs had failed to sufficiently allege their challenges to exchange bidding or AMP. The court also found that the challenge against Google’s Privacy Sandbox is not ripe for adjudication. In evaluating motions to dismiss, courts accept non-conclusory allegations as true and determine whether they plausibly allege claims for relief. The case is one of multiple ongoing antitrust cases against Google and Facebook, many of which have been consolidated in the Southern District of New York. Read the full decision here.

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The Washington Post slogan, “Democracy Dies in Darkness,” originating from a Sixth Circuit Judge and then adopted by Post Watergate reporter Bob Woodward, encapsulates the need for accountability and quality journalism to maintain our freedom. Unfortunately, many people seek to punish accountability journalism. This “punishment” can sometimes take the form of costly and frivolous lawsuits called SLAPP (Strategic Lawsuits Against Public Participation) suits. State anti-SLAPP laws give defendants an early motion to dismiss meritless claims, but unfortunately, the laws vary significantly among states and there is no federal anti-SLAPP law. However, there is currently federal legislation under consideration that would help discourage these frivolous lawsuits.

SLAPP suits are lawsuits designed to punish speech that is protected by the First Amendment. For example, a local news outlet published a public official’s public, derogatory comments about a local resident, and the public official sued the news publisher for defamation. In that case, the newspaper was quoting exactly what the public official said—fully within their First Amendment rights—but since the public official found this unfavorable, he sued the paper. In this and other similar cases, without legislative action, many news publishers are forced to incur costly litigation expenses with no guarantee they will recover attorney’s fees when they win the case.

Looking at the state anti-SLAPP laws, some states have strong anti-SLAPP laws, while others have very narrow ones. For example, while the state of Washington’s anti-SLAPP law has a provision that guarantees reasonable attorney’s fees for defendants who successfully use the law, Maryland’s law has no such provision. Not only can this be very costly for innocent defendants, it creates a large incentive for plaintiffs to “forum shop,” picking a jurisdiction with laws that favor their side of the case in which to bring their lawsuit.

Even more, with no federal anti-SLAPP law, the applicability of state anti-SLAPP laws in federal court is chaos. For example, Texas’ anti-SLAPP law does not apply in the Fifth Circuit (of which Texas is a member), but it does apply in the Ninth Circuit. With 31 state anti-SLAPP laws and 13 circuits, inconsistent rulings and forum shopping have reached new heights.

SLAPP could be avoided if there were uniformity on the state and federal level, and the Uniform Law Commission (ULC) has sought to do just that. Through in-depth research studying various states’ laws, including those that have been struck down, the ULC carefully crafted a model anti-SLAPP law, the Uniform Public Expression Protection Act (UPEPA), which will effectively protect First Amendment actors such as journalists.

Unlike narrow anti-SLAPP laws, the UPEPA applies broadly in order to protect all First Amendment activity. The law applies not only to communication related to governmental proceedings, but also any exercise of the right of freedom of speech or of the press, the right to assemble or petition, and the right of association.

Additionally, if a defendant succeeds on their anti-SLAPP motion, UPEPA grants them costs, reasonable attorney’s fees, and reasonable litigation expenses related to the motion. But anti-SLAPP laws do not give defendants a free pass—they serve as an accountability mechanism and there’s no guarantee that a defendant will win on their anti-SLAPP motion. If the defendant loses the motion, the plaintiff can recover fees if the court finds that the motion was frivolous or filed solely with intent to delay the proceeding. In this way, there’s accountability for both parties.

Accountability and consistency are pivotal for preserving free speech and a free press. Without consistency, predatory plaintiffs will continue to forum shop and seek to punish First Amendment activity for personal gain. Local news publications, private citizens and First Amendment activity will suffer as they are forced to participate in time-consuming and costly lawsuits. By passing the UPEPA on the state and federal level, there would be consistency, accountability, and security in the safety of First Amendment protections—thus assuring more truth is brought into public light.

For a more in depth survey of state anti-SLAPP laws, see the recent study by the Institute for Free Speech.

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On February 16, the News Media Alliance sent a letter to Missouri Rep. Perkins about his recent introduction of HB 2624—the Uniform Public Expression Protection Act. UPEPA is the Uniform Law Commission’s anti-SLAPP law. An anti-SLAPP statute is designed to prevent a “SLAPP,” or a “strategic lawsuit against public participation.” These abusive lawsuits are designed to intimidate or harass individuals engaging in First Amendment activity. UPEPA gives defendants an early motion to dismiss frivolous suits in order to avoid costly litigation for exercising First Amendment rights. UPEPA also brings uniformity to the inconsistency often present in anti-SLAPP laws. Two other associations representing local and national news publishers signed onto the letter. The Alliance continues to work with the Uniform Law Commission and local entities to support strong anti-SLAPP laws and news publishers’ First Amendment rights. 

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This lawsuit has major implications for news publishers, particularly local news publishers that have been hit especially hard by the COVID-19 pandemic and its related economic impact. Google has leveraged its dominance to commandeer the majority of all digital ad revenue, profiting from sharing news publishers’ content, while failing to consistently compensate news publishers for use of that content.

According to the Alliance’s Declaration, Texas is the right place to decide this case, as it represents the more convenient location for calling potential witnesses, and offers the most expedient option, given California’s requirements to adhere to Google’s adhesive forum selection clauses, and Texas’ ability to hear cases more promptly. The wait for a case to be heard in Texas is just 18 months, versus 44.5 months, or nearly four years, in California.

Alliance President & CEO, David Chavern, stated, “Google’s flatly anticompetitive dominance of the digital advertising ecosystem has stripped news publishers of important advertising revenue, which is critical for them to be able to continue to provide the high-quality journalism Americans depend on. Moving the lawsuit from Texas to California will unnecessarily delay the lawsuit – Google knows this and will want to put it off; however, news publishers don’t have that kind of time. We need action now.”

News publisher ad revenues have plummeted dramatically over the last two decades; between 2005 and 2018, news organizations saw their ad revenue fall by 70 percent. During that same period, Google’s ad revenue increased from approximately $6 billion to $116 billion, and Google’s market capitalization increased from approximately $100 billion to $1 trillion.

A copy of the News Media Alliance Declaration can be found here.

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Quality local journalism has been directly damaged by Google’s anticompetitive conduct, and we look forward to the judicial authorities examining the full range of their behaviors and businesses.”

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The publication of the report comes ahead of the Senate Committee on Commerce, Science, and Transportation’s hearing on Wednesday, October 28 examining Section 230 of the Communications Decency Act, as well as the impact of big tech platforms on local news and consumer privacy.

Cantwell’s report explores both the history and current challenges facing news publishers. It highlights the ways in which Google and Facebook abuse their dominant positions as intermediaries between news publishers and their readers to prevent adequate monetization of quality news content. The report frequently cites the News Media Alliance’s White Paper, “How Google Abuses Its Position as a Market Dominant Platform to Strong-Arm News Publishers and Hurt Journalism,” published in June, for substantiated examples of such abuse.

News Media Alliance President & CEO, David Chavern, stated, “As Senator Cantwell’s report notes, local news is an essential part of the fabric that keeps our communities informed and connected. But right now, local news is in crisis. Two companies, Google and Facebook, effectively regulate news publishers by determining how (and whether) journalism is distributed and monetized. The tech giants have refused to return real value back to the creators of quality news and information, even though they pay to license music and many other forms of content. Meanwhile, these companies also benefit from special, broad liability protections under federal law. We applaud Senator Cantwell for her unwavering focus and support of local news, and we hope she will raise these during the hearing on Wednesday.”

Among other recommendations in her report, Cantwell supports the ability of news publishers to collectively negotiate for better terms with the tech platforms, which would be made possible through passage of S. 1700, the Journalism Competition and Preservation Act.

Witnesses at the October 28 hearing will include the CEOs of Google, Twitter and Facebook, and will offer the Committee an opportunity to examine legislative proposals to reform Section 230, which shields the online platforms from liability for the content they publish, exacerbating the existing power imbalances in the digital ecosystem and facilitating other online harms.

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Local news is in an immediate crisis. Congress should act in the lame duck to make a very simple – and ultimately pretty narrow – fix; pass the Journalism Competition & Preservation Act – a bipartisan piece of legislation supported by broad array of Congressional leaders, including Leader McConnell and the House Antitrust Chair Cicilline, along with very diverse group of news publishers. Support for the bill is deep and broad. I think publishers need a chance to fight for their lives right now, rather than wait years for a long antitrust fight to resolve itself.”

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