Both Google and Meta have taken steps to start paying US publishers for aggregating their news content, but neither tech giant has yet found a perfect solution that would fairly compensate publishers and potentially help combat the mass shuttering of newsrooms across America. The Wall Street Journal reported that Facebook stopped its program paying US publishers in July, and more recently, media outlets haven’t been thrilled by terms of Google’s “News Showcase” program, either, and were mostly resisting partnership.

In the latter case, WSJ reported that some media outlets were holding out on joining the News Showcase for a very specific reason. They were waiting to see what happened with a new bill—the Journalism Competition and Preservation Act—which seemed like a better deal. If passed, the JCPA would force Google and Meta to pay US news publishers collectively bargaining for fair payment. However, now, Senator Ted Cruz (R-Texas) has introduced a new amendment to the JCPA which, the Chicago Tribune reports, was narrowly approved this week. And Cruz’s new stipulation may have effectively killed the previously bipartisan bill by diminishing Democratic support, thus crushing US publishers’ supposed dream deal.

What Cruz has suggested is an amendment to prohibit tech companies and news organizations from using the collective bargaining tool to collude on efforts to censor content. While the bill itself waives an antitrust agreement so that news organizations can collectively bargain with tech companies, Cruz says that this key antitrust exemption would not apply if during the negotiation process anyone “engages in any discussion of content moderation.”

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After an 11 to 10 vote, the Cruz amendment was approved.

The Chicago Tribune reported that one of the bill’s co-sponsors, Amy Klobuchar (D-Minn.), said the amendment divided Congress, and Democrats would have to walk away from the bill. She's concerned that the Cruz amendment would provide an escape route for Google or Meta to avoid joint negotiations by simply raising discussions around content moderation “at the first opportunity.”

Cruz seemed to suggest that preventing censorship risks was more critical than preventing platforms from shutting down joint negotiations.

“What happened today was a huge victory for the First Amendment and free speech,” Cruz said in a statement to Ars. “Sadly, it is also a case study in how much the Democrats love censorship. They would rather pull their bill entirely than advance it with my proposed protections for Americans from unfair online censorship.”

Klobuchar, Google, and Meta did not immediately provide Ars with comments.

Criticisms of the JCPA

Since the pandemic started, The New York Times recently reported that 360 newspapers have closed. Before that, newsroom financial instability was just as bad, NYT says, with newspapers shuttering at a rate of two weekly. Largely to blame: a decline in advertising revenue in small newsrooms. Meanwhile tech giants like Google and Meta continued sucking up billions in advertising dollars—generating the greatest chunk of their vast wealth and for the most part, not paying newsrooms for money made from aggregating content.

In an effort to help save local journalism from extinction, Klobuchar joined with Senator John Kennedy (R-La.) and Representatives David Cicilline (D-R.I.) and Ken Buck (R-N.Y.) to introduce the Journalism Competition and Preservation Act. The goal was to push ad dollars back to news organizations by forcing Google and Meta to pay publishers for aggregation.

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The Chicago Tribune reported that while some journalism organizations and free press advocates consider the bill a “lifeline,” others criticize the bill for “everything from the temporary antitrust exemption to undermining copyright law and fair use on the Internet.”

The Electronic Frontier Foundation, a nonprofit dedicated to defending civil liberties online, reported that the JCPA was not a “magic solution.” EFF opposes the JCPA in part because it mostly just creates more opportunities for more giants to get involved. Rather than helping small newsrooms, the law could encourage more large corporations to buy up more newspapers, lay off more staff, and replace even more news with click-bait.

On a larger scale, the notion of news publishers licensing links to tech companies “implies a sort of property right in links, an ownership of how information is shared,” EFF reported. “That has grave consequences for the entire Internet, which depends on the ability to link to information sources from far and wide. Linking isn’t copyright infringement, at least under current law. But the JCPA risks creating a new quasi-copyright law for linking, or even leading the courts to extend copyright law to cover some forms of linking.”

EFF did not immediately respond to Ars’ request for comment, but EFF experts have warned, “Creating an implicit right to control linking in any context won’t preserve journalism, it will let it rot away.”

Instead of focusing on enacting the JCPA, EFF reported that newsrooms could be better protected and made more profitable by promoting more digital ad competition by Congress passing the Competition and Transparency in Digital Advertising Act. Both bills are still being reviewed by committees.

While Congress debates the merits of propping up thousands of small US newsrooms through the JCPA and the Digital Advertising Act, Google’s News Showcase has yet to debut in the US. Most recently, some larger publishers did sign licensing deals, though. WSJ reported that Bloomberg and Reuters could make up to $3 million annually from multiyear deals, and WSJ parent News Corp projects future earnings of more than $100 million annually from multiyear deals with Google and other tech companies.