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July 8, 2022
Supreme Court Limits Agency’s Statutory Authority
On June 30, the Supreme Court issued its decision in West Virginia v. Environmental Protection Agency (EPA). Writing for a 6-3 majority, Chief Justice Roberts held that the Clean Air Act did not give the EPA authority to enact the Clean Power Plan, which would reduce the percentage of coal and natural gas power plants and increase the use of renewable energy. This shift from coal and natural gas to renewable energy was the largest, recent effort to address climate change and would require plant operators to build or invest in new or existing renewable energy sources, with some changes required by 2030. The opinion marks the first articulation by the court of the Major Questions Doctrine. “Under that doctrine… a clear statement is necessary for a court to conclude that Congress intended to delegate authority ‘of this breadth to regulate a fundamental sector of the economy.’” The Court held, in this case, that the authority the EPA was claiming through the Clean Power Plan was too broad after considering the statute granting them authority to regulate certain pollutants from existing sources in the Clean Air Act. Justice Gorsuch joined the majority but wrote a separate concurrence to discuss how the major questions doctrine is also essential to maintain the separation of powers required by the Constitution. Justices Kagan, Breyer, and Sotomayor dissent, saying the Court “strips the [EPA] of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time.’” The dissenting justices explain that Congress gives broad delegation purposefully: “so an agency can respond, appropriately and commensurately, to new and big problems.” Some commentators have suggested that the opinion invites more litigation challenging agency authority.
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July 7, 2022
Copyright Office Releases Its Report on Ancillary Copyrights for News Publishers
On June 30, the U.S. Copyright Office published its long-awaited report on Copyright Protections for Press Publishers. The report, requested by a bipartisan group of Senators led by Senator Thom Tillis (R-NC), surveys existing protections for online news content and evaluates whether there is a need for new ancillary copyright protections for news publishers, similar to those adopted by the European Union in 2019. Article 15 of the EU’s Directive on Copyright in the Digital Single Market requires member states to create new protections for news publishers to protect their content online in order to harmonize laws across the Union. The Copyright Office’s report does not recommend creating similar protections in the United States as the U.S. copyright law already provides considerable protections to news content. The report states that various commenters noted that the problem is mainly related to the lack of bargaining power against the dominant online platforms, hindering publishers’ ability to enforce their copyrights. The report highlights the Journalism Competition and Preservation Act as a potential competition-based solution but, as questions of competition law and policy are outside the Copyright Office’s remit, the report declines to take a stance on these issues. The report also notes that the Office is considering how to best address the inability of news publishers to register dynamic web content. Read the full report here.
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June 22, 2022
Alliance Files an Amicus Brief with the Supreme Court in Warhol v. Goldsmith
On June 17, the News Media Alliance, together with the Authors Guild and others, submitted an amicus brief with the Supreme Court in the case of Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith. The case concerns a photograph of the singer/songwriter Prince, taken by Goldsmith in 1981, that was later used by Warhol to create a series of unauthorized artworks. Goldsmith found out about the works following Prince’s death in 2016. The Andy Warhol Foundation subsequently filed a suit for declaratory judgment that the works were not infringing, while Goldsmith filed a counterclaim for infringement. Earlier, the U.S. Court of Appeals for the Second Circuit found for Goldsmith, holding that Warhol’s works were not fair use. The Warhol Foundation appealed to the Supreme Court, which granted certiorari with regards to the “transformative use” test under the first fair use factor. In its brief, filed in support of neither party, the Alliance notes the delicate balance between authors’ right to create derivative works and the fair use doctrine, noting that publishers often rely on both. Arguing that the Second Circuit analyzed the issue largely correctly, the brief discusses how an overly broad definition of “transformative” could threaten the derivative work right and notes the importance of considering how much the secondary work’s value derives from the entertainment or aesthetic value of the original work in certain cases. The brief also emphasizes the importance of analyzing all fair use factors together, instead of overly relying on part of one factor. Read the Alliance’s amicus brief here.
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June 16, 2022
House Energy and Commerce Committee Discuss Draft Data Privacy Legislation
On June 14th, 2022, the U.S. House of Representatives Energy and Commerce Subcommittee on Consumer Protection and Commerce hosted a hearing to discuss draft data privacy legislation, the American Data Privacy and Protection Act (ADPPA). Members and witnesses agreed that a national data privacy law is needed, and must include further online protections for minors, which the ADPPA would provide. Concerns were raised on both sides over preemption exemptions, the legislation’s inclusion of a private right of action, as well as arguments for and against using the actual versus constructive knowledge standard. The Alliance continues to support congressional efforts on federal privacy legislation and shared a letter to this effect following the hearing. Read more.
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May 31, 2022
UK CMA Launches an Investigation into Google’s Ad Tech Services
On May 26, the United Kingdom’s Competition and Markets Authority announced they were launching an investigation into Google’s advertising technology practices to determine if the company was engaging in anticompetitive behavior. The investigation focuses on three parts of the ad tech chain: demand-side platforms, ad exchanges, and publisher ad servers. Google operates the largest service in each of the three parts of the ad tech stack. According to the CMA, the investigation will examine whether Google tried to limit the interoperability of its ad exchange with third-party publisher ad servers, imposed restrictive contractual requirements, or used its DSPs and publisher ad server to illegally favor its own ad exchange services. The investigation follows a previously announced investigation into Google and Meta’s “Jedi Blue” agreement, related to header bidding services, and the CMA’s market study into online platforms and digital advertising. Read more about the latest investigation here.
May 16, 2022
Drone Journalists Invited to FAA Listening Session
The Federal Aviation Administration (FAA) is hosting a virtual public listening session on June 22 from 5:30 – 7:30 pm EDT to receive comments on the Unmanned Aircraft Systems (UAS) Beyond Visual Line of Sight (BVLOS) Aviation Rulemaking Committee (ARC) recommendations report. The Committee was formed to provide the FAA with recommendations for performance-based regulatory requirements to normalize operations that occur outside of positive air traffic control. This is an opportunity to voice perspective when it comes to addressing some of the complex challenges within our nation’s airspace. If you are interested in attending the listening session, please review the Notice, which provides guidance on how to participate. The agency is also accepting written comments until June 29, 2022, via email. The News Media Alliance will continue to monitor and provide updates on this issue.
April 26, 2022
European Union Reaches an Agreement on the Digital Services Act
On April 23, the European Union reached an agreement on the Digital Services Act (DSA), setting out content moderation and other obligations for online services in order to provide for a safer online environment. The European Commission originally proposed the Digital Services Act in 2020, followed by intense negotiations between the Commission, the Council of the European Union, and the European Parliament. While the final text of the agreement is still unclear, it is reported to include a ban on targeted advertising aimed at minors and based on sensitive information, in addition to limits on the use of so-called dark patterns. Other provisions include measures aimed at reducing the dissemination of illegal content, goods, and services, tackling online harms, and increasing algorithmic transparency. The obligations are proportionate to size, with very large platforms and services subject to stronger requirements. Services with more than 45 million monthly active users in the Union will be classified as “very large online platforms” or “very large online search engines.” Violators can face fines of up to six percent of their global turnover. The agreement must be finalized before being formally approved by the Parliament and the Council, with the obligations becoming applicable 15 months following the Act’s publication in the Official Journal of the European Union. Read more about the DSA here.
April 19, 2022
The Alliance Joins a Letter to Congratulate USPTO Director Vidal on Her Confirmation
On April 18, the Digital Creators Coalition sent a letter, co-signed by the News Media Alliance, congratulating Kathi Vidal for her confirmation as the Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office. The letter emphasizes the Director and USPTO’s role in championing American creativity and building strong copyright protection systems overseas. While mainly responsible for patent and trademark policy, USPTO also participates in the negotiation and monitoring of copyright-related provisions in international treaties, technical assistance and training on copyright matters, and the monitoring of domestic copyright policy. Prior to her confirmation, Director Vidal worked for Winston & Strawn LLP as a Managing Partner, having previously worked for Fish & Richardson P.C. and clerked for Judge Alvin Anthony Schall on the U.S. Court of Appeals for the Federal Circuit. Director Vidal worked in electrical engineering before attending law school. Read more about Director Vidal here and the DCC letter here.
April 6, 2022
German Publishers Sue Microsoft for Compensation under the Copyright Directive
On April 1, Corint Media announced it was suing Microsoft for payments under the rights created by Article 15 of the European Union’s Directive on Copyright in the Digital Single Market. The Directive, adopted in 2019, requires EU member states to provide in their national legislation for a so-called publishers’ right, which allows news publishers to better protect their content online against uncompensated misuse by large online platforms by requesting adequate compensation for the use of their content. Corint Media is a German collective management organization (CMO) representing over 500 beneficiaries. According to news reports, Corint had requested €20 million from Microsoft for the use of its beneficiaries’ content, while Microsoft offered €700,000. Corint Media previously rejected an offer by Google to pay €3.2 million under the German law implementing the Directive, requesting €420 million instead. Google is currently being investigated by the German competition watchdog for suspected market-abusive behavior. Read more about the case against Microsoft here.
March 28, 2022
Supreme Court Grants Petition to Hear Andy Warhol Fair Use Case
On March 28, the Supreme Court of the United States agreed to hear a copyright dispute concerning Andy Warhol’s paintings of Prince, based on a portrait taken by photographer Lynn Goldsmith before Prince became famous. Goldsmith found out in 2016, following Prince’s death, that Warhol had made a series of paintings based on a photo she had originally licensed for Vanity Fair in the 1980s. Subsequently, the Andy Warhol Foundation for Visual Arts initiated a lawsuit seeking a judgment that the paintings were not infringing or that they were fair use, while Goldsmith countersued, arguing copyright infringement. In 2019, a district court found for the Foundation on fair use grounds, a decision that was later reversed by the U.S. Court of Appeals for the Second Circuit. In its cert petition, the Foundation argued that the circuit court’s decision amounted to a sea-change in copyright law, in addition to creating uncertainty for visual artists. The Supreme Court is expected to hear the case during their fall term. Read more here.
March 25, 2022
European Union Reaches a Compromise Agreement on the Digital Markets Act
On March 24, the European Union reached a compromise deal on its long-awaited Digital Markets Act (DMA) proposal, aimed to prevent dominant online platforms from abusing their market power. The compromise follows extensive negotiations between the Council of the European Union, the European Parliament, and the European Commission, which originally proposed the regulation in December 2020. The final deal, which the Council and the Parliament will still have to formally agree to, prohibits gatekeeper platforms from combining and reusing consumer data across services, self-preferencing their own products and services, imposing unfair conditions on business users, or requiring app developers to use certain services in order to be listed in app stores, along with other obligations. The final Act also requires platforms to share more data and tools with advertisers and publishers. According to reports, last minute changes to the text also included a requirement for platforms to provide fair, reasonable, and non-discriminatory (FRAND) conditions of access to business users, including news publishers, when it comes to search engines and social media sites, in addition to providing dispute settlement mechanisms for disagreements.The rules apply to platforms with an annual turnover of at least €7.5 billion within the EU or a market valuation of €75 billion that have at least 45 million monthly end users and 10,000 business users in the Union and that operate a core platform service in at least three member states. The Act also establishes fines of up to 10 percent of total worldwide turnover for violations, with repeated violators being fined more. Once the regulation has been formally approved, it will be published in the EU Official Journal. It will then enter into force 20 days later with the rules becoming applicable six months after that. Read more about the Digital Markets Act here.
March 18, 2022
UK Government Introduces Online Safety Bill
On March 17, the UK’s Department for Digital, Culture, Media & Sport published its long-awaited Online Safety Bill, aimed at holding online platforms more responsible for the content they host. The bill, originally published in draft form last year, tackles a variety of online harms, including cyber-bullying and material promoting self-harm, and requires online platforms to address both illegal and “legal but harmful” content. The platforms are also required to protect journalism and democratic political debate, and news content is exempted from the bill’s scope. The UK’s Office of Communications can fine any company up to ten percent of its annual turnover for failures to comply with the law, in addition to which executives failing to cooperate with Ofcom’s information requests can face prosecution and jail time within two months of the bill’s effective date. The Parliament is expected to start considering the bill later this year. Read more about the bill here.
March 15, 2022
EU and the UK Launch Parallel Investigations into Jedi Blue
On March 11, the European Commission and the UK’s Competition and Markets Authority (CMA) launched parallel probes into an agreement between Meta and Google regarding online advertising services. The 2018 agreement, codenamed “Jedi Blue,” provided for the participation of Meta’s Audience Network in Google’s Open Bidding program. According to a lawsuit filed by the state of Texas against Google, Jedi Blue provided Facebook with preferential rates and other benefits in return for Facebook not building a competing system or using header bidding. Header bidding allows news publishers to offer their ad inventory to multiple buyers at the same time. The competition authorities are concerned that Jedi Blue may be a part of efforts to prevent other services from competing with Google, thereby harming competitors, consumers, and publishers. The CMA’s investigation also examines Google’s practices with regards to header bidding more widely to see whether it abused its dominant position to suppress competition. The two investigations are independent but are expected to cooperate closely. Read more about the CMA’s investigation here and the EU’s investigation here.
March 3, 2022
The Alliance Signs Onto a Letter Opposing New Taxes on Digital and Print Ads
February 22, 2022
Maryland Court Grants AAP’s Request for Preliminary Injunction in E-Book Licensing Case
On February 16, a federal judge granted the Association of American Publishers’ request for a preliminary injunction in the case concerning Maryland’s recently enacted electronic book licensing law. The law, adopted in May 2021, requires publishers of “electronic literary products” to offer licenses to public libraries on “reasonable terms.” The term “electronic literary products” encompasses most digital text documents, while “publisher” is defined broadly to include newspapers. AAP’s lawsuit argues, among other claims, that the law is preempted by the federal Copyright Act, which establishes the copyright owners’ exclusive rights to control their works. In her opinion, judge Deborah L. Boardman of the U.S. District Court for the District of Maryland granted the preliminary injunction, stating that the law “likely stands as an obstacle to the accomplishment of the purposes and objectives of the Copyright Act.” Judge Boardman noted that the law would require publishers to either refrain completely from offering e-books and audiobooks to the public or to offer licenses to public libraries, both of which would interfere with their exclusive right to distribute. While recognizing the importance of libraries to the public, the opinion notes that “striking the balance between the critical functions of libraries and the importance of preserving the exclusive rights of copyright holders, however, is squarely in the province of Congress and not this Court or a state legislature.” Following the order, the state is enjoined from enforcing the law for the time being. Read the AAP’s statement on the decision here and the court opinion here.
European Publishers Council Files a Complaint against Google with the European Commission
On February 11, the European Publishers Council filed an antitrust complaint with the European Commission against Google with regards to its anticompetitive practices in the ad tech sector. In their complaint, EPC is requesting the Commission to impose remedies that would restore effective competition in the ad tech value chain in order to protect publishers, advertisers, and consumers. Following aggressive acquisitions in the 2000s, Google has achieved a dominant position in the ad tech value chain, often representing both the buyer and seller in the same transaction in addition to operating the auction house and selling its own ad inventory. The complaint argues, among other claims, that Google is using its dominant position to self-preference its own services at the expense of others in the digital ad marketplace. The complaint follows similar investigations in France, the UK, Australia, and the United States. The Commission has another ongoing investigation into Google’s ad tech services and the new complaint is expected to be integrated with the investigation. Read more about the complaint here.
February 14, 2022
News Media Alliance Files Comments on Google’s Proposed Commitments in France
On January 31, the News Media Alliance submitted comments with the French competition authority, Autorité de la concurrence, regarding Google’s proposed commitments to settle the Autorité’s investigation into Google’s suspected abuse of dominant position in relation to its negotiations with news publishers under the European Union’s Copyright Directive. Article 15 of the Directive, adopted in 2019, created an ancillary copyright for news publishers to receive compensation for the use of their content by online platforms and France was the first EU member state to implement it in national law. The Autorité started its investigation following complaints from the French publishers regarding Google’s negotiating practices. The watchdog then issued a €500 million fine against the company last year. In December, Google proposed commitments to address these concerns, including a proposed arbitration to resolve disputes between the company and the publishers. The Autorité requested public comments on the commitments in order to evaluate whether to accept them. The Alliance comments expressed support for the French and European publishers and noted the importance of an Australian-style baseball arbitration instead of standard arbitration rules as well as the availability of adequate information exchange to allow publishers to properly evaluate compensation offers. Read the Alliance comments available in English and French, and more about the Google commitments here.
February 4, 2022
US Senate Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights Hosts Hearingon the Journalism Competition and Preservation Act
On February 2nd the United States Senate Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights hosted a hearing on the Journalism Competition and Preservation Act (S. 637 / H.R. 1375). Senators and witnesses discussed the bill’s ability to level the playing field in negotiations between media and big tech companies, while some explained fear of antitrust exemptions. Participants laid emphasis on the value of local journalism and coverage but clashed on if this bill would truly benefit small and local media versus large organizations. Read more.
January 10, 2022
NY Governor Hochul Vetoes Bill Requiring Copyright Owners to License Content to State Libraries
On December 29, New York Governor Kathy Hochul vetoed a bill that would have required electronic book publishers to issue licenses to state libraries on “reasonable terms.” The bill – opposed by various industry groups, including the Association of American Publishers (AAP) and the News Media Alliance – defined the terms “electronic book” and “publisher” broadly while leaving the term “reasonable terms” vague. In the message accompanying the veto, Governor Hochul noted that the bill is pre-empted by federal copyright law. The bill resembled a recently adopted Maryland law that explicitly includes newspapers in its definition of a “publisher.” AAP has filed a lawsuit against the Maryland law, arguing, among other issues, that it is preempted by the Copyright Act, which gives copyright owners the exclusive right to decide whether and on what terms to make their works available. The Alliance commends Governor Hochul for her decision and continues to work together with other industry stakeholders to ensure that creators’ federal protections are protected in other states. Read more about the issue here.
January 6, 2022
The Alliance Proposes Additional Recommendations for the Copyright Office to Protect High-Quality Journalism
On January 5, the News Media Alliance filed additional comments with the U.S. Copyright Office with regards to their Publishers’ Protections Study. The comments responded to arguments made by other parties in the initial round of comments and during the Office’s public roundtable, in addition to building on the Alliance’s initial commentsand making additional recommendations for the Office’s consideration. The initial comments were due in November 2021, while the roundtable took place on December 9, 2021. The Alliance’s additional comments reiterated the urgency for action and urged the Office to analyze how the existing protections and exclusive rights available to American publishers relate to those available to European publishers under the EU Directive on Copyright in the Digital Single Market, and if the existing exceptions, limitations, and defenses are being read and applied too broadly. The comments also rebutted various arguments made by other commenters, including that the use of news content by online aggregators is fair use or not infringing in the first place. The comments also noted that the balance between news publishers and the platforms is askew, posing an existential risk for high-quality journalism. In order to further improve the sustainability of high-quality journalism, the comments included four additional recommendations for the Office to consider: amending the Copyright Office’s policies and documents regarding the copyrightability of “words and short phrases”, clarifying the law around substantial takings and systematic use of news content, studying the need for sui generis protections for news publishers, and studying the need for further guidance or congressional action with regards to the use of news content for artificial intelligence applications. The Copyright Office is conducting the study following a request by Senator Thom Tillis (R-NC) and other Senators and is expected to issue a report later this year. Read the Alliance’s full additional comments here.
December 10, 2021
Copyright Office Holds a Roundtable on Publishers’ Protections
On December 9, the U.S. Copyright Office held a roundtable regarding its Study on Ancillary Copyright Protections for Publishers. The roundtable consisted of three panels, focusing on the main topics highlighted in the Office’s original Notice of Inquiry. The Alliance was represented in all three panels, in addition to attendance by Professor Jane Ginsburg and economist Hal Singer who supported the Alliance’s positions. The Alliance highlighted the current state of the news media industry in the United States and the detrimental effect news aggregators and online platforms have on news publishers, in addition to emphasizing the need for action. In particular, the Alliance noted the need for the Copyright Office to change its policy statements on words and short phrases, to develop a way for publishers to register dynamic web content, and for the Congress to pass the Journalism Competition and Preservation Act. Some other participants, including those representing the big tech companies, argued that the issue is not of copyright but competition law and therefore not within the Copyright Office’s purview. The Copyright Office initiated the study following a request from Congress, with the aim of completing it by May 2022. The Office is accepting additional written comments from stakeholders until January 5. Read the Alliance’s initial comments here and more about the study here.
November 10, 2021
Alliance Files Comments with the California Privacy Protection Agency Regarding CRPA
On November 8, the News Media Alliance filed comments with the California Privacy Protection Agency (CPPA) regarding the agency’s proposed rulemaking under the California Privacy Rights Act of 2020 (CRPA). The comments, submitted together with the California Newspaper Publishers Association, follow the adoption of the CRPA by California voters in November 2020 and highlight the important role digital advertising plays in supporting high-quality journalism and the Alliance’s support for giving consumers more transparency and control over the collection, use, and sharing of their personal information. Arguing that any regulations adopted should be clear, consistent, practical for publishers of all sizes, the comments also call for aligning the rules with other privacy laws around the world. Among other specific recommendations, the Alliance believes businesses should have 45 days from the date a request to know or to delete is verified to accept or deny the request and that the rules around the right to delete, to correct, and to know should be consistent with existing regulations under the California Consumer Privacy Act (CCPA), including regarding the deidentification and aggregation of data. The comments also request that the regulations should not mandate the use of Global Privacy Control or any other specific opt-out preference signal. The CPRA becomes effective on January 1, 2023. Read the Alliance’s full comments here.
General Court of the European Union Upholds the Commission’s $2.8 Billion Fine Against Google
On November 10, the General Court of the European Union released its long-awaited decision in the Google shopping case, “largely dismissing” Google’s appeal and upholding the European Commission’s $2.8 billion fine against the online platform. The court’s decision follows the Commission’s finding in 2017 that Google favors its own price-comparison shopping service at the expense of smaller competitors. It was the first of the Commission’s three investigations and fines against Google in recent years. The court’s decision states that the Commission correctly found that Google’s practices harmed competition, in addition to ruling out any objective justifications for Google’s conduct and noting that the fine was appropriate considering the serious nature and intentionality of the violation. The General Court’s decisions can be appealed to the Court of Justice on points of law, although Google has not yet decided whether to do so, according tonews reports. Read more about the court’s decision here and the full decision here.
November 2, 2021
Big Tech Tries to Bargain On Its Own Terms, News Publishers Left With Less
October 26, 2021
October 25, 2021
CFPB Orders Tech Firms to Hand Over Information on Digital Payment Systems
On October 21, the Consumer Financial Protection Bureau ordered various big tech companies operating digital payment systems – including Facebook, Apple, Amazon, Google, PayPal, and Square – to provide information on how they handle data regarding user payments. The agency indicated that it plans to use the data to evaluate whether existing consumer protections are adequate. The types of data requested by the CFPB include information on data harvesting and monetization, access restrictions and user choice, as well as other consumer protections such as compliance under the Electronic Fund Transfer Act. The series of orders is the first major move by the agency since the confirmation of its new director, Rohit Chopra. Read the agency’s full statement here.
October 19, 2021
Judge Orders the Unsealing of Information in State AG Case Against Google; Details Google’s Anti-Competitive Actions
On October 15, Judge P. Kevin Castel of the U.S. District Court for the Southern District of New York ordered the release of a partially unsealed version of the State Attorneys General complaint against Google. The second amended complaint, filed by the state AGs in early September, included redacted parts related to Google’s advertising business, Google’s deal with Facebook, and certain names and email addresses. These redactions were done according to Google’s confidentiality designations. The court found that while some of the redactions were appropriate, many were not. In September, the Alliance joined an amicus brief by the Reporters Committee for Freedom of the Press urging the court to unseal the information contained in the complaint. According to the court, certain details about the engineering of Google’s “predictive modeling” process as well as the names and emails of individual employees were appropriately redacted. The unsealed complaint, released on October 22, included disconcerting details about Google’s anticompetitive conduct. In addition to charging more than twice as much as its rivals in ad deals, the complaint argues that Google engages in strategies to “lock in” publishers and help Google’s ad-buying services win more than 80 percent of auctions. The complaint also details Google’s alleged efforts to undermine publisher header bidding as well as the company’s deal with Facebook, codenamed “Jedi Blue.” The suit led by Texas focuses on Google’s anticompetitive behavior in the ad tech ecosystem. Read more about the revelations here and the case in general here.
October 18, 2021
Federal, State Agencies File an Amicus Brief Opposing a Sweeping Interpretation of Section 230
On October 14, the Consumer Financial Protection Bureau (CFPB), Federal Trade Commission (FTC), and North Carolina Department of Justice filed a joint amicus brief with the U.S. Court of Appeals for the Fourth Circuit in the case of Henderson v. The Source for Public Data, L.P. The case concerns a background check company which allegedly violated the Fair Credit Reporting Act (FCRA) by including inaccurate criminal information in background check reports compiled from public sources. In response, the defendant argued that it was an “interactive computer service” and since the information was gathered from public sources, it was immune from all liability under the FCRA due to Section 230 of the Communications Decency Act. Section 230 provides online platforms with broad immunities for third-party content they publish. The District Court found for the defendant and the case is currently on appeal with the Fourth Circuit. The amicus brief supports the plaintiffs, arguing that the court’s decision “misconstrues Section 230 by extending immunity to claims that do not seek to treat the defendant as the publisher or speaker of any third-party information.” In a statement, FTC Chair Lina M. Khan and CFPB Director Rohit Chopra expressed concerns over efforts undermine fair competition by circumventing consumer and banking laws by using Section 230. Read more here and the amicus brief here.
Senate Leaders to Introduce an Antitrust Bill to Rein in Online Platforms
On October 14, a bipartisan group of Senators, led by Sens. Amy Klobuchar (D-MN), Chair of the Senate Antitrust Subcommittee, and Chuck Grassley (R-IA), Ranking Member of the Judiciary Committee, announced that they would be introducing the American Innovation and Choice Online Act next week to rein in the anticompetitive behavior of the dominant online platforms. The bill, similar to the bill introduced in the House by Reps. David Cicilline (D-RI) and Ken Buck (R-CO) and marked up by the House Judiciary Committee in June, aims to prevent the online platforms from self-preferencing their own products and services while discriminating against others in the digital ecosystem. The bill would prohibit platforms from abusing their gatekeeper status “in a manner that would material harm competition on the platform,” in addition to prohibiting other specific harmful behaviors, and providing antitrust enforcers strong tools to combat violations. In addition to Senators Klobuchar and Grassley, the bill’s original co-sponsors will include Sens. Dick Durbin (D-IL), Lindsey Graham (R-SC), Richard Blumenthal (D-CT), John Kennedy (R-LA), Cory Booker (D-NJ), Cynthia Lummis (R-WY), Mazie Hirono (D-HI), Mark Warner (D-VA), and Josh Hawley (R-MO). Read more about the bill here.
Copyright Office Publishers an Ancillary Copyright Study NOI
On October 12, the United States Copyright Office published a Notice of Inquiry regarding its long-awaited study on ancillary copyright protections for publishers. The study will focus on the effectiveness of existing protections for news content online, including under the Copyright Act, as well as whether the United States should create additional protections for news content and what the scope of any such new protections should be. It follows a request from Senator Thom Tillis (R-NC) in response to international developments in the European Union and Australia. The European Union adopted an ancillary copyright for news publishers in 2019, allowing news publishers to better protect their content online and negotiate for payments with the online platforms, while Australia introduced its media bargaining code earlier this year. The notice sets out multiple questions of particular interest to the Office and requests comments from interested stakeholders by November 26. The Office is also planning to conduct a public roundtable on December 9, with the requests to participate due by November 12. Read more about the study here.
October 15, 2021
Alliance joins letter supporting journalists’ access
On October 11, the Reporters Committee for Freedom of the Press (RCFP) sent a letter to the Mayor and City Attorney of Medford Oregon, demanding they drop charges against journalist April Ehrlich. While local police officers were disbanding a homeless encampment on public land, a police officer arrested Ms. Ehrlich after she wouldn’t stay in a designated media area. The designated media area was so far away from the encampment that Ms. Ehrlich couldn’t properly report on it. The Alliance joined RCFP’s brief supporting Ms. Ehrlich’s right to report on matters of public concern and demanding that any charges against her be dropped. “The City has an affirmative obligation to afford opportunities to document police operations even when access to the land is otherwise restricted… And a constitutionally adequate opportunity to observe the work entails both sight and sound access for reporters working in different media.” On October 21, the city attorneys responded to the letter, declining to comment on a defendant in an ongoing criminal case.
October 14, 2021
California passes tax exemption for newspapers
AB 1506—a California Bill that would extend a tax emption for newspapers until 2025—passed both houses of the California legislature. The Bill has been sent to Governor Newsom to sign. The Bill has certain reporting requirements for those claiming the exemption, like providing specific information about their workforce every year. Passing AB 1506 is a great step towards protecting the future of print journalism and preserving quality reporting.
October 11, 2021
California Law gives journalists better access to police records
October 7, 2021
Alliance joins in Amicus Brief Advocating for Access to Police Misconduct Investigation
On September 24, The Alliance joined the Reporter’s Committee for Freedom of the Press in an amicus brief seeking records from the Seattle Police Department. The Seattle Police Department is investigating six police officers for their potential involvement in the January 6th Capitol riot. The officers, whose identities are currently concealed, moved to seal the records because there is no legitimate public interest in the investigation unless the allegations are substantiated. The brief argues that the records “will enable the news media to meaningfully report on the results of the OPA’s investigation, thus allowing the public to evaluate the effectiveness of the investigatory process, the evidence collected, and the reasoning behind the OPA’s conclusions.” The Alliance continues to advocate for journalists’ access to public records in order to foster government accountability and transparency.
September 20, 2021
Alliance Joins Letter Advocating for Afghan Refugees P-2 Status
On September 20, the Alliance signed onto a letter with other US news organizations urging President Biden, Secretary Blinken, and Secretary Mayorkas to expedite processing P-2 applications for Afghan evacuees. This process is crucial for Afghan families and individuals to find work and rebuild their lives. The letter explains that the P-2 program is best suited for Afghan refugees—not the asylum claim and filing process that the State Department told the New York Times they would begin using for Afghans currently in the United States. The government should clarify the application process, support the ongoing evacuation process, and prioritize the safety and long term stability of Afghan evacuees.
August 26, 2021
Russia Further Restricts Free Press
On August 20, Russia labeled two more news agencies as “foreign agents.” This requires them to label all stories and social media posts as foreign agent and subjects them to increased audits. It is speculated that Russia’s recent crackdown on the free press is an effort to restrict and control the news ahead of parliamentary elections next month. Read more.
Taliban Continues Oppressing Press
As the Taliban has taken over Afghanistan, citizens have faced increasing danger amid the chaos. Journalists have been particularly at risk. The Taliban has removed two female journalists from their positions at a broadcasting station and beaten at least two other journalists. In an interview with the International Center for Journalists, Afghan journalist Sami Mahdi said the Taliban has not changed, only gotten better at PR and technology as he faces the stifling of expression. U.N. human rights chief Michelle Bachelet is to report back to the U.N. about the Taliban’s actions in the September-October session. Read more.
August 18, 2021
DOJ Formally Adopts Policy to Protect Press
On July 19, the Department of Justice (DOJ) announced that it formally adopted a new policy restricting the use of a compulsory process to obtain information from or records of journalists acting within the scope of their work. Attorney General Merrick Garland expressed that he wants these changes to be durable and directed the Deputy Attorney General to begin the process necessary to codify the policy into DOJ regulations. Read more.
Taliban Allows Media, if they Promote Taliban’s Values
On August 17, the Taliban hosted a press conference addressing citizens’ concerns. In addressing the role of the media, they said the media is important and they welcome the media to critique their work. However, they emphasized that the media should not go against Islamic values, should not promote bad values, and should work only for the unity of Afghanistan. They also said they are committed to the rights of women, but only so far as Sharia rules allow.
August 16, 2021
Afghan Journalists in Danger, Need Short and Long Term Solutions
On August 16, freelancers, stringers, and other comparable arrangements were added to the “employee” definition to qualify for Priority-2 U.S. Refugee Admission from Afghanistan, following a letter from over 20 news organizations, including the Alliance. This expansion is a pivotal response to the chaos in Afghanistan, as the Taliban takes over Kabul and specifically targets journalists with particular aggression towards female journalists. The safety of these journalists, as well as their ability to operate without danger in neighboring countries is the immediate concern. As for a long term solution, the Special Immigrant Visas should contain a specific media carveout in order to protect foreign journalists and allow them to relocate to the United States. While the timing and costs of these solutions remain at issue, ensuring the safety of the many endangered journalists is the predominant priority. Read more.
Nicaraguan Police Arrest Journalist
On August 14, Nicaraguan officials arrested the manager of La Presna—a newspaper that was critical of the Nicaraguan government, calling the president a “dictator” among other criticisms. This arrest came after the police raided La Presna’s office and charged its directors with fraud. This isn’t the first time the newspaper has faced backlash, as the government had impounded its ink and paper, forcing it to only publish digitally. The Police claimed these arrests were only related to claims of fraud and money laundering. Read more.
August 11, 2021
NSA Launches Internal Investigation into Claims it Monitored the Press
On August 10, the NSA’s internal watchdog said it will investigate allegations that they were targeting and improperly surveilling a member of the press. Tucker Carlson accused the NSA of spying on him after he was allegedly contacted by a whistleblower, in an effort to force him off the air. The NSA denied those allegations, but still launched an internal investigation to ensure no found play. Read more.
Members of the News/Media Alliance staff have contributed to this post.
