Supporters continue to believe their own lies about Bill C-18. One supporter still doesn’t believe news links could be dropped from Google.
FAFO is the acronym otherwise known as F*** Around and Find Out. That has been playing out to great effect in the media sector in Canada where the large media companies pushed for Canada’s link tax law. It was a scheme built on the lie that platforms allowing news links means that they are “stealing” news content. Because the platforms are entirely built on news links, it only makes sense that copyright law and how the internet works in the real world should be flipped on its head and demand payments for the privilege of platforms hosting those news links.
The two targeted platforms are Facebook (owned by Meta) and Google which did simplify this debate to a degree. Experts, digital rights advocates, and smaller media outlets alike repeatedly laid out why the legislation would bring tremendous harm to the entire media sector. The platforms do not depend on news links by any stretch of the imagination and could very easily go on without them. If there is a demand for payments for the privilege of hosting news links, then the platforms would more likely drop news links altogether because such content means so little to them.
How the Heck We Got to This Insane Situation in the First place
In fact, this very thing was explained during the Senate hearings of this bill turned law. Meta explained that news links is highly replaceable. If news links disappeared, then other content can easily fit the bill for users. Google, meanwhile, explained that news content accounts for less than 2% of search queries. Because Google News doesn’t have advertising, it accounts for much less ad revenue on top of it all for them. The bottom line, despite the conspiracy theories from the lobbyists, platforms don’t even come close to depending on news links on their platforms.
For some senators supporting the legislation, however, these were all just lies. Armed with no evidence to the contrary, some concluded that all this is just what the platforms want lawmakers to believe. As a result, the bill ultimately passed and became law to the cheers of the lobbyists that effectively wrote the bill. Experts, advocates, and others knew, however, what really just happened. People who actually had a vague idea knew that the media just condemned themselves to financial death. News links were getting dropped from the platforms, traffic to the news outlets were going to dry up, and several news outlets were destined for bankruptcy as a result. For the supporters high on their own talking point supply, the deals were going to happen quickly just like Australia because “but Australia!”
Facebook, for their part, kept their word. On August 1st, the platform began dropping news links, proving that critics were right about pretty much everything all along. Lobbyists, however, insisted that this is just part of a political game. They insisted that this blocking wouldn’t last a week before they would come crawling back to them to make deals. Just you wait! Well, here we are nearly three months later and deals were never signed and news links have yet to return.
In the months since, supporters of the Online News Act had hoped that there would be rapid signs that Facebook was hurting badly because of their decision. That didn’t happen. Facebook’s traffic remained unchanged by the decision. This as news media interactivity on Facebook collapsed. Despite the denial, reality was coming back to the lobbyists with a vengeance. Desperation set in and the lobbyists tried rolling out successive boycotts against Meta for the decision. All three known boycotts ended in failure.
The damage caused by the Online News Act would only get more severe as time went on. Newspapers in three separate communities shut down as a result of these developments. This as Facebook continued to beat earnings expectations.
All this leaves Google. Earlier this month, Google said that their position has remained unchanged in all of this. Although they are willing to talk things over with the government, their current position is that the Online News Act remains unworkable and they will likely drop news links as well before the law comes into force. That happens on December 19th which is, well, not that far away now.
The evidence is overwhelming. The media f***ed around and they are in the process of finding out. You would think that lobbyists would finally get a hint and, at minimum, be working towards possibly delaying the implementation of the law to give themselves some breathing room. News Media Canada recently seemed to have finally gotten a hint as they called on the government to listen to Google and do what they can to meet what Google is calling for. Unfortunately, this seems to be an anomaly. CAB would later demand that more platforms be brought into the Act. The government is continuing to cheer on the Act, suggesting that the pedal continues to be pushed to the floor as the government continues to drive this car towards the cliff.
Howard Law’s Ridiculous Article
Another supporter, meanwhile, has apparently written a piece that really has to be read to be believed. Howard Law honestly believes that Google can’t drop news links because news links is just too darned important for Google’s business model. No, that is not a joke, he really did make remarks that were that stupid:
As for Google’s threats of a news throttle, it may come down to the wire: one gets the feeling from recent developments that December will see some deadline bargaining between the Canadian heritage minister, who is responsible for the act, and the Google C-suite.
At the moment, neither party is flinching.
Google can hardly impair its search product by withdrawing Canadian news, but may be agreeable if any Canadian deal doesn’t paint it into a corner in other jurisdictions, especially the United States Congress and its home state of California.
Yeah, sure we could look at all the mountains of evidence that says that the media sector is now in dire straits, but you know what? All that evidence mean nothing because Law has a really good feeling about this. Yeah, that’s the ticket! He’s got a good feeling about this. I mean, how are you going to believe, his honest opinion or your lying eyes???
What about what happened on Meta? Well, in his opinion that clearly overrides all other evidence out there, the platform is devolving into a cesspool of fake news:
Most people following Meta are convinced that Canadian news on Facebook isn’t coming back. We are therefore left with the blame game as to whether CEO Mark Zuckerberg or Prime Minister Justin Trudeau ought to be held responsible.
What’s less debatable is the fact that Facebook will no longer balance its distribution of misinformation in Canada with reliable news and therefore will devolve into a platform – if you will excuse the hackneyed phrase – for fake news.
Of course, we won’t talk about how the larger nonsense peddlers out there also wound up getting blocked in the process. What’s more, we won’t talk about how politicians and government offices can still post content on platforms unimpeded. Emergency alerts are still available. We can also ignore all the evidence that concludes that ordinary users largely won’t even notice the difference. I mean, who is out there simply scrolling their Facebook feed and only casually clicking on news links if it happens to pop up? The whole reason anyone uses Facebook isn’t just piddly little things like keeping in contact with friends and families! No, all anyone goes to Facebook for is news content. I mean, it is exactly why no one showed up for their boycott – er, on second thought, let’s not talk about that.
Law wasn’t done discrediting himself, though. He then linked to a Google filing, but rather than responding to its contents, Law simply accused Google of being “emotional”:
In Google’s response to the federal government’s draft regulations, published last month in the Canada Gazette, the sticking point is fixing a lump sum that Google would split among Canadian news outlets to earn its exemption from the regulatory scheme of formal negotiations and binding arbitration.
The Google filing is an emotional document, which is perhaps an odd thing to say. As you read through the 11-page submission, you can’t escape the feeling that Google executives are angered by the prospect of being regulated and deprived of their customary freedom to command a deal where terms are one-sided and bullet-proof.
What made the document “emotional”? Law didn’t really elaborate – probably because he was more concerned with painting a narrative rather than actually debating the issue on that front. For Law, it is much more important to paint a picture of Google being run by angry executives who are livid that they are suddenly being asked to abide by some form of minor regulation (there’s nothing minor about this) over top of this image that Google will finally have to start contributing to the news sector after parasitically bleeding the news sector dry of all of its content. Nothing about that is true, but that’s the sort of narrative Law is trying to get his audience to believe unquestionably without really providing evidence.
Linking to Third Party Content is Fair Dealing, Not Copyright Infringement
Law then proceeded to attack the document for being “ideological”. At least on that point, Law finally got around to providing reasons why he seems to think that:
It’s also an ideological document, so much so that you wonder if a rapprochement with the government is possible. According to Google, C-18 is irredeemable because the legislation’s keystone principle of payment for linked news content – challenging Big Tech’s countervailing principle of monetizing content without compensation in the name of public education – is bad public policy.
Whether Law realizes this or not, but that paragraph alone represents excellent evidence that supporters of the law are not only clueless about how the internet works, but also exhibit signs that they don’t even fully grasp what the Online News Act (or how the Copyright Act works for that matter) actually does.
So, for that, let’s briefly explain how things work in the real world. When a broadcast reporter uses a picture of another companies logo while reporting, do they have to compensate that company for the use of that image? No. When a student writes an essay and is asked to cite their sources, do they have to directly pay a fee to the authors of those sources just for the privilege of including it in their essay? No. When I link to a news article for the purposes of citing my sources, do I have to pay those sources? No. Why is that? Because Canada has this things called “Fair Dealing”.
Fair Dealing recognizes that there is a balancing act to be made between the rights of authors and freedom of expression. If I mention Facebook in a news article, I am free to do so without being required to compensate Facebook for my activity. By writing a news article (as I am doing now), if I use Facebook’s logo for a thumbnail as an illustration and talk about Facebook dropping news links, that activity falls well within the bounds of fair dealing as what I am doing is using it for the purposes of journalism and criticism.
Yes, there are limitations to this. For instance, if I wrote a review on a video game and included the contents of the entire full version of the video game directly on my website, then I am “making available” the whole game without authorization which is copyright infringement. I’ve fallen outside of the scope of fair dealing in that scenario.
What exactly is making available? Well, according to the Copyright Act, it’s basically re-publishing the whole work:
(1.1) For the purposes of this Act, communication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public.
To put it plainly, there is a very big difference between linking to content and making available whole works. This is where copyright law and the lobbyists diverge. For the lobbyists, there is no difference between linking to a work and republishing the whole work. Therefore, large platforms linking to material is compensible activity even though it plainly is not.
Further, even if there was no difference in copyright law between the two activities (and society would practically fall apart if that were the case), then news publishers could simply file a class action lawsuit against the platforms on the grounds of copyright infringement. The venue wouldn’t matter in that scenario because both Canada and the US have avenues for such a lawsuit in that insane scenario, negating any need to create a whole new freaking law in the first place.
Yet, every time supporters of the law (Like Law in this case) bring up the idea that platforms are reposting whole articles without compensation, they never really show how they do that. This is because the platforms don’t actually engage in that kind of activity. It is purely a campaign to slander the platforms. The comment “monetizing content without compensation” pretty much proves my point here. If that’s what platforms are doing, then it would be dead simple to post a screenshot of this activity. Surprising no one, even a simple screenshot was not provided to prove Laws point. Allowing third parties to link to their own content is not compensible activity and never was. To say otherwise is straight up ignorance on several fronts.
Asking to Display News Links for Free is a Reasonable Ask
Law would keep digging by adding this:
On that point, Google says the only remedy is to disqualify “making available” news from the scope of compensable news content in favour of “displaying” news.
What Google means by “displaying“ – news content posted in full or extensive reproduction, not just links or snippets – would exclude payment for 99.9 per cent of news linked on its platform. It’s hard to see that position as anything but imperious.
To get a sense of how remarkably stupid this comment is, it is not only an incredibly ignorant comment, but it completely undermines what Law is trying to say here. In the previous section, Law effectively made the argument that platforms like Google are copying and pasting whole articles without permission, yet, in the span of two paragraphs, effectively admits that this whole law surrounds linking. Why would an exception to excluding just displaying links mean that 99.9% of payments? Because that’s what Google actually does. News outlets submit their links to Google and Google, in turn, displays those links. This isn’t rocket science. It requires all of 10 seconds of searching on Google to discover this.
It’s not “imperious”, but extremely reasonable. If Google wants to enter into agreements to re-publish whole articles, then a licensing deal does make sense. Given that links are the building blocks for the open wide web in the first place, saying that linking is not compensible is basic common freaking sense. What’s more, as we demonstrated above, Google doesn’t depend on news links for its business model in the first place. If it came down to it, it would be easy to conclude that if linking to news sources suddenly costs money, the Google would stop linking to news sources. Nothing about that is surprising by any stretch of the imagination.
Faking Public Support
Law made an attempt to pretend that the public is fully supportive of the Online News Act:
If Google can’t get past the fact Parliament does not concur that “payments for news links” are unthinkable and that public opinion supported C-18 until Meta and Google blackmailed the Canadian public with news throttles, then it seems there is no reconciliation possible and Google will block Canadian news.
This paragraph shows that Law, like so many other supporters of the law, is lying his ass off here. Law linked to a Nanos Research poll which ended up being a push poll. What Law said was that a majority of Canadian’s support Bill C-18. What the poll actually said was that a “Majority of Canadians support encouraging Google and Facebook to negotiate with
Canadian news organizations for fair payment”. These are two totally different things.
Take me, for instance. If I was asked something like this, then I would say “yes”. Why? Because zero is “fair payment”. If the negotiations were voluntary, then it would be hard to oppose. The problem is that there’s nothing voluntary about these negotiations. The law essentially demands that platforms pay for news linking and that the “negotiations” are largely just for show. Even if the two sides agree to a particular payment, the CRTC can, in fact, override that and say that they feel that the news organization isn’t getting enough money for news links. It’s less “voluntary” and more dictatorial. The question itself grossly misunderstands the nature of the actual law itself.
So, why was the Nanos poll a push poll? Here’s a sample question that pretty much shows just how biased the questions were:
Q – As you may know, large foreign internet platforms like Google and Facebook are taking a large percentage of Canadian advertising dollars by
collecting users’ search and browsing activities and selling targeted advertising against that data. This includes searches and links to news
content. Do you support, somewhat support, somewhat oppose or oppose the following: [RANDOMIZE]
Google and Facebook paying nothing to Canadian news organizations for the value of their news content
The poll is trying to convince the reader that the platforms are stealing from you and asking you if you support them for their stealing. What’s more, it disingenuously claims that allowing news links means that platforms are stealing ad revenue. It’s basically comparing apples to rocket ships.
The poll also provided results of whether news organizations, Google, or Facebook works in the best interests of Canadians. Mysteriously, Nanos wasn’t exactly forthcoming with the question that they asked. The results of that ultimately didn’t matter because faith in any of those three are entirely independent of what’s going on with the link tax. Of course someone like me wouldn’t think Facebook have my best interests in mind, but I would think that for entirely different reasons. Things like privacy, the protection of my personal information, the fact that they are a publicly traded corporation, and other reasons. The idea that they are not paying for the privilege of news links doesn’t have any impact on what I think about them in particular.
While there have been push polls by media lobbyists, that doesn’t mean there wasn’t an honest effort to gauge public opinion in this debate. For instance, Angus Reid did their own poll and found that 48% of Canadians think that the Online News act should be rescinded. That tracks with the complete lack of public participation of the Meta user boycotts.
Going back to Law’s comments, though, there’s nothing true about how “Meta and Google blackmailed the Canadian public with news throttles”. Dropping news links isn’t blackmail in any sense of the word. If Law was so concerned that platforms are “stealing” from the news organizations, then he should be thrilled that the platforms are dropping news links. By dropping news links altogether, then the stealing simply cannot happen. Yet, he’s mad because, in Law’s mind, news organizations deserve money from platforms because “GIMME!!!”
Ultimately, the only “blackmailing” is from those pushing this law. The lobbyists pushing this law decided to blackmail Google and Facebook, incorrectly thinking that they can rope the platforms over a barrel under the completely inaccurate thinking that they depend exclusively on news links to Canadian sources for their success. The blackmail ultimately failed and now supporters of the law are screaming bloody murder because their scheme completely and predictably backfired. Though news organization executives might get angry about the situation after the world didn’t bend to their every whim, they’ll only have themselves to blame for this situation.
For the public, it’s largely business as usual post news links. They may notice the odd “link cannot be displayed” message, but they’ll just scroll past the warning message and carry on with the other activities on the platforms.
Google Wouldn’t Be Opposed to a Fund Model
Law then proceeded to attack the fund model which he, himself, said that he supported:
As to any alternatives to what Canada legislated, Google says there should be an independent news fund underwritten not just by Google, but by “a broader class of activity,” whatever that means.
I have no bone to pick with that: I advocated for it during the public consultation at the front end of the C-18 process in 2021. But that ship has sailed. Parliament chose to replicate Australia’s successful platform-to-publisher bargaining model instead of an independent fund.
You can assume that if the federal government had gone the route of levying cash from Google for a fund, the Californian web giant would have attacked the fund just as it now opposes a levy under our digital services tax.
The charge that Google would fight against any fund model to the same vigour as the news links is presumptuous and unlikely. The simple truth is that Google has a number of programs aimed at supporting journalism – programs that are very well used by journalism outlets no less. The only ask one could see from Google in that scenario is that any such fund model recognizes the value of current existing programs as well as the revenue sharing through its Adsense program (however little that actually comes out of that these days). At that point, such a debate would be extremely innocuous and boring, consisting of the news publishers saying “help us” and Google responding with, “Sure!”
While Law conveniently didn’t provide specifics of why he thinks this way, outside of his own gut feeling, Law did correctly say that this ship has sailed. Such a model isn’t happening any time soon. The Online News Act is the law of the land and the media companies are going to have to deal with the consequences of that.
Yes, Limiting the Scope to Online Print Publications is Reasonable and Sensible
Law’s piece then went on to say this:
Google is also demanding that only online “print publishers” qualify for compensation while excluding the online operations of television companies (reducing Google’s liability by two-thirds) because “it aligns scope with the Broadcasting Act,” whatever it means by that.
This is technically a reasonable ask. Video content is very different from an online “print” article. To say that a live broadcast should benefit from link taxes – especially when that broadcast has no presence online – is just common sense. What analytics is the likes of Google deriving when that content doesn’t exist on their platforms. Even when video clips are published online, the Online News Act was targeting text articles – things you read, not things you watch. Video content is outside the scope of the Online News Act.
Law then proceeds to intentionally make a quote seem confusing by only taking a part of a sentence that is without context. Specifically, the quote Law published was “it aligns scope with the Broadcasting Act”. The full quote is actually a lot more sensible:
We believe that the following amendments would help address the concerns listed above:
[…]
“News Content” (s. 2(1)): Limit to alphanumeric text of a journalistic nature, which aligns scope with the Broadcasting Act and focuses the regime on journalistic content
When you include the actual context of that partial sentence, it all actually makes a whole lot more sense. Funny how that works.
Google is referring to the text of the law, specifically Section 2(1). This is basically just the definitions section. One of those definitions says this:
news content means content — in any format, including an audio or audiovisual format — that reports on, investigates or explains current issues or events of public interest and includes such content that an Indigenous news outlet makes available by means of Indigenous storytelling. (contenu de nouvelles)
There might be other sections this refers to, but essentially, the bill tries to scope in news of any format. Whether it is text (which makes more sense) podcasts, video content, and other forms of content. Google is saying that it makes more sense to narrow the scope to just text content which would be a sensible thing to do.
Why bring up the Broadcasting Act? Well, the Broadcasting Act has a definitions section which includes the following:
program means sounds or visual images, or a combination of sounds and visual images, that are intended to inform, enlighten or entertain, but does not include visual images, whether or not combined with sounds, that consist predominantly of alphanumeric text; (émission)
In short, Google was doing their homework when putting together that submission. They wanted to be clear that news content outside of text should be excluded. Why this concept is so confusing to Law is really unclear as it is a pretty straight forward part of Google’s submission.
What Law did do is try (and failing) to frame this as Google simply trying to reduce it’s obligations – namely “reducing Google’s liability by two-thirds”. It’s a false premise. Take, for example, the idea that Google should, under the Online News Act, pay gas stations. Why should news links pay for gas stations? Who knows? Yet, if someone suggests that maybe we should maybe not include gas stations as people who receive funding from news links, the counterargument is that you are reducing Google’s liability and enabling them to be irresponsible. The logical response would be that no, that’s not why such a move should be done, it’s because it makes sense since it’s completely illogical to include gas stations in any of this.
No, Traditional American Broadcasting TV Isn’t Doing That Well
Law’s next argument was this:
Google executives may not fully appreciate that American local TV operates profitably under different copyright laws, while Canadian broadcast news is so unprofitable that it’s lost money for 11 consecutive years. So why would Parliament grant Google a free pass on monetizing the website content of Canadian broadcasters?
If American local TV operates profitably these days and everything is a bed of roses for them, that may be news to American local TV operators. Dish network, for instance, has been hit with multiple rounds of layoffs. Growing trends in cord cutting has meant that less than half of Americans still subscribe to traditional cable TV. In the last year, Comcast lost 12% of its subscriber base. Earlier this year, subscription rates have dropped to levels not seen since 1992.
In an effort to stem the bleeding across the broadcasting sector in the US, many of those television networks have been putting together streaming services to partly capture younger audiences. This has been met with touch and go results. Some might look at straight balance sheets and say that revenues on traditional broadcast TV is still fine, but a lot of that revolves around jacking up rates for subscribers to shore up losses in subscription rates. By one account, the cost of traditional cable TV has shot up 3 times the pace of inflation.
If anything, all this is reflecting a change in consumer habits. People aren’t just continuing on their cable TV ways like in decades past. Audiences are shifting and they are going online.
So, what does this have to do with link taxes? Nothing. This is an entirely different debate. Blaming Google for any perceived losses (because, again, Law didn’t cite his sources on this assumption) in broadcast TV is ludicrous. There’s no reasonable argument to be made that concludes with Google being entirely responsible for the changing viewing habits of different audiences. It’s nonsense. It equally makes no sense that Law is describing this as giving “Google a free pass”.
Yes, the Price of News Links Will Change – and It’s Likely Going Up
Law is correct when he mentions that the price of news links would change once any theoretical negotiations take place:
It doesn’t require brilliant insight to conclude this is all about price. The four-per-cent figure in the draft regulations will change if Google is willing to play ball in December.
While Law is correct in that the percentage will probably change, he isn’t correct in the way he thinks he is. If anything, the rate is likely to only increase from here. As we mentioned back in September, when the 4% figure came out, it was actually an increase from the previous estimate. Originally, it was actually a fixed $150 million. If anything, the government basically raised the floor to 4% of all revenues. Earlier this month, Unifor, being the dumbasses that they are, dialed things up and demanded 7% of all revenues.
Under the Online News Act, the CRTC can look over agreements that are struck under this law and deem them to be unfair to news publishers. In short, the CRTC can veto an already struck deal and demand that Google pay more to the publisher after. This is among many reasons why the skepticism that Google would ever agree to this. It represents uncapped liabilities that can sky rocket at any time. As of now, there is no ceiling for how much Google would be expected to pay, so ultimately, the sky is the limit.
Given the long history of the government accusing anyone criticizing their approach of pushing “misinformation” and just siding with their lobbyist friends all the time, it doesn’t take a brilliant mind to see where all this is destined to go if Google is crazy enough to “play ball in December”. Google really is less of a party that is negotiating in these deals, but rather, a spectator that is supposed to abide by any demand a large publishing corporation makes. If you think that is a reasonable environment for a business, then you have no business being, well, in business.
Australia and Canada are Two Very Different Situations
Law’s piece gets a little weird where he effectively argues with himself:
Of course, Google neglects to mention Australia where it now pays $120 million annually to stave off regulation under the New Media Bargaining Code (NMBC). That’s roughly proportional to the current $170-million price tag for a proposed exemption in Canada – which has a population of 40 million to Australia’s 26 million– under the draft regulations.
So, is Australia’s law the same as Canada. According to Law, it’s the same law:
Google’s deal with Australian news outlets is a clue to its dogged resistance in Canada, and not just on price. The Australian NMBC and Canada’s Bill C-18 are very similar.
In the next paragraph, Law then argues that the two laws are very different:
But a big difference is that in Australia the “exemption” is in fact “non-designation.” The finance minister is authorized to suspend the NMBC from applying to Facebook and Google, provided they make deals with news outlets.
But don’t worry, though they are actually two very different laws (and the way designation happens is an excellent way of showcasing the differences), they are totally the same law:
This goes to the heart of C-18’s public policy conundrum: it is effectively two pieces of legislation living in the body of one bill.
LOLWut? Indeed. It’s the same bill, sure it’s different in nature, but it’s totally the same thing! Why are you laughing?
The Laughable Conclusion
Law then wraps up his train wreck of an article with this:
We’ll see in December, but in the end it is about price – fixing a level of compensation that Google can live with if it’s scaled up in bigger markets such as the United States (although that prospect is years away).
If the price is right, then who knows? Maybe Facebook comes back.
Insert audience laughter here.
Getting Google to sign on to this is asking for a miracle. Lobbyists and supporters of the Online News Act were long saying that Facebook would simply cave and sign on to this within a week – something that obviously didn’t happen. We’ve said all along for those who were convinced that Facebook would cave and sign deals that this is asking for a massive miracle. It was unlikely Facebook was going to just sign the deals. Sure enough, they didn’t.
Here, we see the classic history repeating itself here. Facebook walked even though the lobbyists said they wouldn’t. Now, the supporters of the Online News Act is saying that there’s no way Google walks away from this. It’s a strong signal that the supporters of the Act didn’t learn the first time. Despite having it explained over and over and over again how the real world works, the Act’s supporters are just entrenched into their own world view that bears little resemblance to how the world works today. Facebook isn’t coming back unless the Act is rescinded, yet Law doesn’t seem to comprehend this. So, it looks like the only way people like Law are going to learn is through the process of finding out.
Drew Wilson on Twitter: @icecube85 and Facebook.
