Journalism Competition and Preservation Act of 2022

II Calendar No. 569 117TH CONGRESS 2D SESSION S. 673 To provide a temporary safe harbor for publishers of online content to collectively negotiate with dominant online platforms regarding the terms on which content may be distributed. IN THE SENATE OF THE UNITED STATES MARCH 10, 2021 Ms. KLOBUCHAR (for herself, Mr. KENNEDY, Mr. BOOKER, Mr. WHITE- HOUSE, Ms. LUMMIS, Mrs. FEINSTEIN, Ms. COLLINS, Mr. GRAHAM, Ms. HIRONO, Mr. CASSIDY, Mr. BLUMENTHAL, Mr. THUNE, Mr. DURBIN, and Mr. MANCHIN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary NOVEMBER 28, 2022 Reported by Mr. DURBIN, with an amendment [Strike out all after the enacting clause and insert the part printed in italic] A BILL To provide a temporary safe harbor for publishers of online content to collectively negotiate with dominant online platforms regarding the terms on which content may be distributed. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 23:55 Nov 28, 2022 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S673.RS S673 kjohnson on DSK79L0C42PROD with BILLS 2 •S 673 RS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Journalism Competi- 2 tion and Preservation Act of 2021’’. 3 SEC. 2. SAFE HARBOR FOR CERTAIN COLLECTIVE NEGO- 4 TIATIONS. 5 (a) DEFINITIONS.—In this section: 6 (1) ANTITRUST LAWS.—The term ‘‘antitrust 7 laws’’— 8 (A) has the meaning given the term in 9 subsection (a) of the first section of the Clayton 10 Act (15 U.S.C. 12); and 11 (B) includes— 12 (i) section 5 of the Federal Trade 13 Commission Act (15 U.S.C. 45) to the ex- 14 tent that section applies to unfair methods 15 of competition; and 16 (ii) any State law (including regula- 17 tions) that prohibits or penalizes the con- 18 duct described in, or is otherwise incon- 19 sistent with, subsection (b). 20 (2) NEWS CONTENT CREATOR.—The term 21 ‘‘news content creator’’ means— 22 (A) any print, broadcast, or digital news 23 organization that— 24 (i) has a dedicated professional edi- 25 torial staff that creates and distributes 26 VerDate Sep 11 2014 23:55 Nov 28, 2022 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6401 E:\BILLS\S673.RS S673 kjohnson on DSK79L0C42PROD with BILLS 3 •S 673 RS original news and related content con- 1 cerning local, national, or international 2 matters of public interest on at least a 3 weekly basis; and 4 (ii) is marketed through subscriptions, 5 advertising, or sponsorship; and 6 (B)(i) provides original news and related 7 content with the editorial content consisting of 8 not less than 25 percent current news and re- 9 lated content; or 10 (ii) broadcasts original news and related 11 content pursuant to a license granted by the 12 Federal Communications Commission under 13 title III of the Communications Act of 1934 (47 14 U.S.C. 301 et seq.). 15 (3) ONLINE CONTENT DISTRIBUTOR.—The 16 term ‘‘online content distributor’’ means any entity 17 that— 18 (A) operates a website or other online serv- 19 ice that displays, distributes, or directs users to 20 news articles, works of journalism, or other con- 21 tent on the internet that is generated by third- 22 party news content creators; and 23 VerDate Sep 11 2014 23:55 Nov 28, 2022 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6401 E:\BILLS\S673.RS S673 kjohnson on DSK79L0C42PROD with BILLS 4 •S 673 RS (B) has not fewer than 1,000,000,000 1 monthly active users, in the aggregate, of all of 2 its websites or online services worldwide. 3 (b) LIMITATION OF LIABILITY.—A news content cre- 4 ator may not be held liable under the antitrust laws for 5 engaging in negotiations with any other news content cre- 6 ator during the 4-year period beginning on the date of en- 7 actment of this Act to collectively withhold content from, 8 or negotiate with, an online content distributor regarding 9 the terms on which the news content of the news content 10 creator may be distributed by the online content dis- 11 tributor, if— 12 (1) the negotiations with the online content dis- 13 tributor— 14 (A) are not limited to price; 15 (B) are nondiscriminatory as to similarly 16 situated news content creators; 17 (C) directly relate to the quality, accuracy, 18 attribution or branding, and interoperability of 19 news; and 20 (D) pertain to terms that would be avail- 21 able to all news content creators; 22 (2) the coordination between the news content 23 creators is directly related to and reasonably nec- 24 essary for negotiations with an online content dis- 25 VerDate Sep 11 2014 23:55 Nov 28, 2022 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6401 E:\BILLS\S673.RS S673 kjohnson on DSK79L0C42PROD with BILLS 5 •S 673 RS tributor that are otherwise consistent with this Act; 1 and 2 (3) the negotiations do not involve any person 3 that is not a news content creator or an online con- 4 tent distributor. 5 (c) RULE OF CONSTRUCTION.—Except as provided in 6 this Act, this Act shall not be construed to modify, impair, 7 or supersede the operation of the antitrust laws. 8 SECTION 1. SHORT TITLE. 9 This Act may be cited as the ‘‘Journalism Competition 10 and Preservation Act of 2022’’. 11 SEC. 2. DEFINITIONS. 12 In this Act: 13 (1) ACCESS.—The term ‘‘access’’ means acquir- 14 ing, crawling, or indexing content. 15 (2) ANTITRUST LAWS.—The term ‘‘antitrust 16 laws’’— 17 (A) has the meaning given the term in sub- 18 section (a) of the first section of the Clayton Act 19 (15 U.S.C. 12); and 20 (B) includes— 21 (i) section 5 of the Federal Trade Com- 22 mission Act (15 U.S.C. 45) to the extent 23 that section applies to unfair methods of 24 competition; and 25 VerDate Sep 11 2014 23:55 Nov 28, 2022 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6203 E:\BILLS\S673.RS S673 kjohnson on DSK79L0C42PROD with BILLS 6 •S 673 RS (ii) any State law (including regula- 1 tions) that prohibits or penalizes the con- 2 duct described in, or is otherwise incon- 3 sistent with, sections 3 or 4. 4 (3) COVERED PLATFORM.—The term ‘‘covered 5 platform’’ means an online platform that at any 6 point during the 12 months preceding the formation 7 of a joint negotiation entity under section 3(a)(1)— 8 (A) has at least 50,000,000 United States- 9 based monthly active users or subscribers on the 10 online platform; 11 (B) is owned or controlled by a person 12 with— 13 (i) United States net annual sales or a 14 market capitalization greater than 15 $550,000,000,000, adjusted for inflation on 16 the basis of the Consumer Price Index; or 17 (ii) not fewer than 1,000,000,000 18 worldwide monthly active users on the on- 19 line platform; and 20 (C) is not an organization described in sec- 21 tion 501(c)(3) of the Internal Revenue Code of 22 1986. 23 (4) ELIGIBLE BROADCASTER.—The term ‘‘eligible 24 broadcaster’’ means a person that— 25 VerDate Sep 11 2014 23:55 Nov 28, 2022 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6203 E:\BILLS\S673.RS S673 kjohnson on DSK79L0C42PROD with BILLS 7 •S 673 RS (A) holds or operates under a license issued 1 by the Federal Communications Commission 2 under title III of the Communications Act of 3 1934 (47 U.S.C. 301 et seq.); 4 (B) engages professionals to create, edit, 5 produce, and distribute original content con- 6 cerning local, regional, national, or inter- 7 national matters of public interest through ac- 8 tivities including conducting interviews, observ- 9 ing current events, analyzing documents and 10 other information, and fact checking through 11 multiple firsthand or secondhand news sources; 12 (C) updates its content on at least a weekly 13 basis; 14 (D) uses an editorial process for error cor- 15 rection and clarification, including a trans- 16 parent process for reporting errors or complaints 17 to the station; and 18 (E) is not a television network. 19 (5) ELIGIBLE DIGITAL JOURNALISM PROVIDER.— 20 The term ‘‘eligible digital journalism provider’’ means 21 any eligible publisher or eligible broadcaster that dis- 22 closes its ownership to the public. 23 VerDate Sep 11 2014 23:55 Nov 28, 2022 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6203 E:\BILLS\S673.RS S673 kjohnson on DSK79L0C42PROD with BILLS 8 •S 673 RS (6) ELIGIBLE PUBLISHER.—The term ‘‘eligible 1 publisher’’ means any person that publishes 1 or more 2 qualifying publications. 3 (7) NETWORK STATION.—The term ‘‘network sta- 4 tion’’ means a television broadcast station, including 5 any translator station or terrestrial satellite station 6 that rebroadcasts all or substantially all of the pro- 7 gramming broadcast by a network station, that is 8 owned or operated by, or affiliated with, 1 or more 9 television networks. 10 (8) ONLINE PLATFORM.—The term ‘‘online plat- 11 form’’ means a website, online or mobile application, 12 operating system, digital assistant, or online service 13 that accesses news articles, works of journalism, or 14 other content, or portions thereof, generated, created, 15 produced, or owned by eligible digital journalism pro- 16 viders, and aggregates, displays, provides, distributes, 17 or directs users to such content. 18 (9) PERSON.—The term ‘‘person’’ includes an in- 19 dividual or entity existing under or authorized by the 20 laws of the United States, the laws of any of territory 21 of the United States, the laws of any State, the laws 22 of the District of Columbia, or the laws of any foreign 23 country. 24 VerDate Sep 11 2014 23:55 Nov 28, 2022 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6203 E:\BILLS\S673.RS S673 kjohnson on DSK79L0C42PROD with BILLS 9 •S 673 RS (10) PRICING, TERMS, AND CONDITIONS.—The 1 term ‘‘pricing, terms, and conditions’’ does not in- 2 clude any term or condition which relates to the use, 3 display, promotion, ranking, distribution, curation, 4 suppression, throttling, filtering, or labeling of the 5 content or viewpoint of any person. 6 (11) QUALIFYING PUBLICATION.—The term 7 ‘‘qualifying publication’’ means any website, mobile 8 application, or other digital service that— 9 (A) does not primarily display, provide, 10 distribute, or offer content generated, created, 11 produced, or owned by an eligible broadcaster or 12 television network; and 13 (B)(i) provides information to an audience 14 primarily in the United States; 15 (ii) performs a public-information function 16 comparable to that traditionally served by news- 17 papers and other periodical news publications; 18 (iii) engages professionals to create, edit, 19 produce, and distribute original content con- 20 cerning local, regional, national, or inter- 21 national matters of public interest through ac- 22 tivities, including conducting interviews, observ- 23 ing current events, or analyzing documents and 24 VerDate Sep 11 2014 23:55 Nov 28, 2022 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6203 E:\BILLS\S673.RS S673 kjohnson on DSK79L0C42PROD with BILLS 10 •S 673 RS other information, and fact checking through 1 multiple firsthand or secondhand news sources; 2 (iv) updates its content on at least a weekly 3 basis; 4 (v) has an editorial process for error correc- 5 tion and clarification, including a transparent 6 process for reporting errors or complaints to the 7 publication; 8 (vi)(I) generated at least $100,000 in an- 9 nual revenue from its editorial content in the 10 previous calendar year; 11 (II) has an International Standard Serial 12 Number assigned to an affiliated periodical be- 13 fore the date of enactment of this Act; or 14 (III) is owned or controlled by an exempt 15 organization described in section 501(c)(3) of the 16 Internal Revenue Code of 1986; 17 (vii) has not less than 25 percent of its edi- 18 torial content consisting of information about 19 topics of current local, national, or international 20 public interest; 21 (viii) employed not more than 1,500 exclu- 22 sive full-time employees during the 12-month pe- 23 riod prior to the date of enactment of this Act; 24 and 25 VerDate Sep 11 2014 23:55 Nov 28, 2022 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6203 E:\BILLS\S673.RS S673 kjohnson on DSK79L0C42PROD with BILLS 11 •S 673 RS (ix) is not controlled or wholly or partially 1 owned by an entity that is— 2 (I) a foreign power or an agent of a 3 foreign power, as those terms are defined in 4 section 101 of the Foreign Intelligence Sur- 5 veillance Act of 1978 (50 U.S.C. 1801); 6 (II)(aa) designated as a foreign ter- 7 rorist organization pursuant to section 8 219(a) of the Immigration and Nationality 9 Act (8 U.S.C. 1189(a)); 10 (bb) a terrorist organization, as de- 11 fined in section 212(a)(3)(B)(vi)(II) of the 12 Immigration and Nationality Act (8 U.S.C. 13 1182(a)(3)(B)(vi)(II)); 14 (cc) designated as a specially des- 15 ignated global terrorist organization under 16 Executive Order 13224 (50 U.S.C. 1701 17 note; relating to blocking property and pro- 18 hibiting transactions with persons who com- 19 mit, threaten to commit, or support ter- 20 rorism); or 21 (dd) an affiliate of an entity described 22 in item (aa), (bb), or (cc); or 23 (III) an entity that has been convicted 24 of violating, or attempting to violate, sec- 25 VerDate Sep 11 2014 23:55 Nov 28, 2022 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6203 E:\BILLS\S673.RS S673 kjohnson on DSK79L0C42PROD with BILLS 12 •S 673 RS tion 2331, 2332b, or 2339A of title 18, 1 United States Code. 2 (12) TELEVISION NETWORK.—The term ‘‘tele- 3 vision network’’— 4 (A) means any person that, on February 8, 5 1996, offered an interconnected program service 6 on a regular basis for 15 or more hours per week 7 to at least 25 affiliated television licensees in 10 8 or more States; and 9 (B) does not include any network station 10 that is owned or operated by, or affiliated with 11 a person described in subparagraph (A). 12 SEC. 3. FRAMEWORK FOR CERTAIN JOINT NEGOTIATIONS. 13 (a) NOTICE.— 14 (1) PROCESS TO FORM A JOINT NEGOTIATION EN- 15 TITY.— 16 (A) IN GENERAL.—An eligible digital jour- 17 nalism provider shall provide public notice to 18 announce the opportunity for other eligible dig- 19 ital journalism providers to join a joint negotia- 20 tion entity for the purpose of engaging in joint 21 negotiations with a covered platform under this 22 section, regarding the pricing, terms, and condi- 23 tions by which the covered platform may access 24 the content of the eligible digital journalism pro- 25 VerDate Sep 11 2014 23:55 Nov 28, 2022 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6203 E:\BILLS\S673.RS S673 kjohnson on DSK79L0C42PROD with BILLS 13 •S 673 RS viders that are members of the joint negotiation 1 entity. 2 (B) APPLICATION.—During the 60-day pe- 3 riod beginning on the date public notice is made 4 under subparagraph (A), any eligible digital 5 journalism provider may apply to join the joint [Text truncated for display. 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