[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5190 Introduced in House (IH)]

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115th CONGRESS
  2d Session
                                H. R. 5190

To provide a temporary safe harbor for the publishers of online content 
to collectively negotiate with dominant online platforms regarding the 
            terms on which their content may be distributed.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 7, 2018

Mr. Cicilline introduced the following bill; which was referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
To provide a temporary safe harbor for the publishers of online content 
to collectively negotiate with dominant online platforms regarding the 
            terms on which their content may be distributed.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Journalism Competition and 
Preservation Act of 2018''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) A free and vibrant press is essential to the health of 
        our democracy.
            (2) Fair and competitive markets are integral to 
        maintaining a thriving press that can meet the demands of 
        consumers and an informed citizenry.
            (3) More and more Americans prefer to read news online. 
        While some readers may go directly to a publisher's website, 
        many more find news through the use of one or more online 
        platforms, such as search engines and social media websites.
            (4) Over the past decade, digital audiences for news 
        publications have increased by over 200 percent. Nevertheless, 
        over that same time period, digital news publishers' revenues 
        have fallen by nearly half.
            (5) In the absence of the robust enforcement of the 
        antitrust laws to ensure a free and open marketplace of ideas, 
        some dominant platforms serve as a de facto gateway to all 
        online content for many web users, wielding an enormous amount 
        of control over how readers find and interact with content 
        produced by the press.
            (6) Dominant platforms often are able to dictate the terms 
        on which a publisher's content may appear on their platform, 
        and some hold so much sway in the online ecosystem that they 
        can control whether their users are able to find a creator's 
        content at all.
            (7) An entity with the power to dictate the terms of 
        distribution of news has the power to dictate the content of 
        the news.
            (8) America benefits from, and depends upon, not only a 
        free marketplace for goods and services, but also a free 
        marketplace of ideas.
            (9) The antitrust laws were intended to and do provide both 
        economic and civic benefits.
            (10) A central purpose of the antitrust laws is to promote 
        and protect open markets, including those for the free and 
        diverse press.
            (11) While antitrust exemptions are generally disfavored, 
        should the application of the antitrust laws ever be applied in 
        a manner that conflicts with their stated purpose--such as 
        protecting the free and open marketplace of ideas online--it is 
        the duty and prerogative of the Congress to resolve the 
        conflict.

SEC. 3. SAFE HARBOR FOR CERTAIN COLLECTIVE NEGOTIATIONS.

    (a) Definitions.--For purposes of this section:
            (1) The term ``news content creator'' means--
                    (A) any print or digital news organization that--
                            (i) has a dedicated professional editorial 
                        staff that creates and distributes original 
                        news and related content concerning local, 
                        national, or international matters of public 
                        interest on at least a weekly basis; and
                            (ii) is commercially marketed through 
                        subscriptions, advertising, or sponsorship; and
                    (B) provides original news and related content, 
                with the editorial content consisting of not less than 
                25 percent current news and related content.
            (2) The term ``Online Content Distributor'' means any 
        entity that--
                    (A) operates a website or other online service that 
                displays, distributes, or directs users to news 
                articles, works of journalism, or other content on the 
                internet that is generated by third-party news content 
                creators; and
                    (B) has not fewer than 1,000,000,000 monthly active 
                users, in the aggregate, of all of its websites or 
                online services worldwide.
            (3) The term ``antitrust laws'' has the meaning given such 
        term in subsection (a) of the first section of the Clayton Act 
        (15 U.S.C. 12), and includes--
                    (A) section 5 of the Federal Trade Commission Act 
                (15 U.S.C. 45) to the extent that such section applies 
                to unfair methods of competition; and
                    (B) any State law, rule, or regulation that 
                prohibits or penalizes the conduct described in, or is 
                otherwise inconsistent with, subsection (b) of this 
                section.
            (4) The term ``negotiation period'' means the period of 
        time beginning on the date this Act goes into effect and ending 
        48 months later.
    (b) Limitation of Liability.--A news content creator shall not be 
held liable under the antitrust laws for engaging in negotiations with 
other news content creators during the negotiation period to 
collectively withhold content from, or negotiate with, an Online 
Content Distributor regarding the terms on which the news content 
creators' news content may be distributed by the Online Content 
Distributor, if--
            (1) the negotiations with the Online Content Distributor--
                    (A) are not limited to price and are 
                nondiscriminatory as to similarly situated news content 
                creators, and directly relate to the quality, accuracy, 
                attribution or branding, and interoperability of news; 
                and
                    (B) pertain to terms that would be available to all 
                news content creators;
            (2) the coordination among the news content creators is 
        directly related to and reasonably necessary for negotiations 
        with an Online Content Distributor that are otherwise 
        consistent with this Act; and
            (3) the negotiations do not involve any person that is not 
        a news content creator or an Online Content Distributor.
    (c) Rule of Construction.--Except as provided in this Act, this Act 
shall not be construed to modify, impair, or supersede the operation of 
the antitrust laws.
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