Re: Right to Link vs proposed Australian “link fee” legislation

Hi Tim and company -- Thanks for getting us all together on this thread!

I had not been following this so poked around the various government
proposals and just a few of the numerous comments from trade groups,
companies and others that have piled up here. It's clearly been hotly
debated by those involved. A couple of observations:

   1. The proposed draft legislation
   <https://www.accc.gov.au/system/files/Exposure%20Draft%20Bill%20-%20TREASURY%20LAWS%20AMENDENT%20%28NEWS%20MEDIA%20AND%20DIGITAL%20PLATFORMS%20MANDATORY%20BARGAINING%20CODE%29%20BILL%202020.pdf>
   seems to spend a lot of time the rules are all framed in terms of
   competition and market power, and specifically **avoid** copyright
   questions. They set up a pretty complex bargaining and compulsory
   arbitration process that would for new sources and digital platforms to
   agree on both the price for 'making available' (ie linking to) content AND
   the ranking/personalization algorithms that platforms use to present news
   content on digital platforms. For Internet policy history buffs, the
   Internet censorship provisions struck down by the US Supreme Court in 1997
   had the same 'making available' language. It was found to be particularly
   hostile to online free expression because web sites have no way of
   controlling who follows a link. Holding the site responsible for 'making
   available' a link was seen by the US Supreme Court as forcing a site to
   limit its speech in constitutionally unacceptable ways.
   2. The rules, whatever they are, appear to apply only to Google and
   Facebook, at least according to several commenters (though I couldn't
   verify that in my quick survey of the extensive proposals. There is
   the possibility of adding new covered companies later. Singling out
   particular companies, especially when none are from Australia, is likely a
   violation of free trade obligations.
   3. this has the politics of SOPA/PIPA: platforms versus content -- the
   Murdock orgs (News Corp, etc) are very involved. Notably, none of the
   digital rights NGOs normally present is such debates in Australia or around
   the world seem to have commented at all. That's a bit surprising to me.

This whole thing looks politically very complex to me. The best way I can
see having any impact is to have groups like EFF, CDT, Access Now, Web
Foundation etc with political depth to get involved. I do think that a
statement from the TAG could be helpful but would have most impact if
coordinated based on knowledge of the current political process.

Best to all

Danny


On Sun, Jan 17, 2021 at 1:43 PM Jonathan Zittrain <zittrain@law.harvard.edu>
wrote:

> Thanks for including me in this discussion thread. I think it's a sign of
> the evolving times that we didn't all just jump to saying that it shouldn't
> be a copyright infringement to link to something to the open web (of course
> it shouldn't!) and leave it at that. There's a serious problem in the
> ecosystem that's been identified, and some paths ahead with difficult
> parameters and trade-offs to try to deal with it.
>
> On Sunday, January 17, 2021, 5:23:07 AM, Mark Nottingham wrote:
> > Hey Tim!
>
> >> On 17 Jan 2021, at 6:14 am, Tim Bray <tbray@textuality.com> wrote:
> >>
> >> It’s obvious on the face of it that this is profoundly hostile to the
> way the Web is supposed to work.
>
> > I think that 'the way that the Web is supposed to work' isn't terribly
> interesting to competition regulators. That said, I agree that letting
> anyone link to anyone else is an important feature of the Web, and it
> helped to bootstrap and maintain the connectivity that it thrives upon. If
> this were taken as a precedent that anyone linking to anyone else should
> have to pay for the privilege, the Web would be a much poorer place.*
>
> > However, we can't ignore that the Web also favours creating massively
> centralised systems where network effects and other advantages (especially
> data) accrue to only a few. This is an attempt to counterbalance that
> effect in one market. It might be clumsy or even ill-conceived, but I don't
> think that the Web's architecture has primacy here.
>
> > If anything, I'd push back on grounds of an imbalance between the
> interests of news publishers and freedom of expression -- even taking into
> account the societal goals of a healthy news ecosystem. Invoking an
> obligation to bargain upon mere linking isn't reasonable, if it's just a
> link with (for example) the title of the page as the link text. Using more
> content or interaction with the link seems more reasonable as a basis of an
> obligation to me.
>
> > Failing that, maybe we should come up with technical solutions to the
> centralisation of identity, data and network effects currently on the Web,
> so that we can regulate them architecturally, rather than legally.
>
>
> >> Just in case it's not obvious, a few words on why this is happening.
> >>
> >> In a sane world, places like Google and Facebook would publish links to
> whatever out there on the Web, sell advertising beside those links, and
> then the linked-to parties would sell advertising on the destination
> resources, and everyone would be happy.  De facto, what's happening is that
> Google and Facebook are getting more or less all the money and the
> newspapers and so on are getting more or less none.  Thus the collapse in
> the publishing industry and, increasingly, more and more locations having
> no access to quality local journalism.  Thus the publishers are clutching
> at straws, this being one of them.
>
> > More or less, yes. I believe the view is that because the platforms have
> dominance not only in their own markets, but leverage into others (such as
> obtaining news content for purposes of driving that on-platform advertising
> you mention), and the news platforms are in such a disadvantageous
> position, the imbalance in bargaining power needs to be corrected,
> especially since a healthy news ecosystem is so important to democracy.
>
> > This isn't unique to news and digital platforms; the ACCC is doing much
> the same thing for an imbalance of bargaining power in the perishable
> agricultural goods market.
>
> > Cheers,
>
>
> > * This legislation is much more limited; it creates an obligation for
> designated digital platforms to enter into negotiation with registered news
> publishers upon request; the outcome of that negotiation might be payment,
> or not (subject to arbitration).
>
> > --
> > Mark Nottingham   https://www.mnot.net/
>
>
>
>

-- 
Daniel J. Weitzner, 3Com Founders Principal Research Scientist
MIT Computer Science and Artificial Intelligence Lab
Founding Director, MIT Internet Policy Research Initiative
<https://internetpolicy.mit.edu/daniel-weitzner/>

Massachusetts Institute of Technology
32 Vassar St, Cambridge MA USA
@djweitzner