[Plura-list] UK publishers suing Google for $17.4b over rigged ad markets

Thu Jun 6 12:41:29 EDT 2024

Read today's issue online at: https://pluralistic.net/2024/06/06/stolen-money-not-content/

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This weekend (June 7–9), I'm in Amherst, New York to keynote the 25th Annual Media Ecology Association Convention and accept the Neil Postman Award for Career Achievement in Public Intellectual Activity:

https://media-ecology.org/convention

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Today's links

* UK publishers suing Google for $17.4b over rigged ad markets: Because tech steals publishers' money, not their content.

* Hey look at this: Delights to delectate.

* This day in history: 2004, 2009, 2014, 2019, 2023

* Upcoming appearances: Where to find me.

* Recent appearances: Where I've been.

* Latest books: You keep readin' em, I'll keep writin' 'em.

* Upcoming books: Like I said, I'll keep writin' 'em.

* Colophon: All the rest.

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🧲 UK publishers suing Google for $17.4b over rigged ad markets

Look, no one wants to kick Big Tech to the curb more than I do, but, also: it's *good* that Google indexes the news so people can find it, and it's *good* that Facebook provides forums where people can talk about the news.

It's not news if you can't find it. It's not news if you can't talk about it. We don't call information you can't find or discuss "news" - we call it "secrets."

And yet, the most popular - and widely deployed - anti-Big Tech tactic promulgated by the news industry and supported by many of my fellow trustbusters is premised on making Big Tech pay to index the news and/or provide a forum to discuss news articles. These "news bargaining codes" (or, less charitably, "link taxes") have been mooted or introduced in the EU, France, Spain, Australia, and Canada. There are proposals to introduce these in the US (through the JCPA) and in California (the CJPA).

These US bills are probably dead on arrival, for reasons that can be easily understood by the Canadian experience with them. After Canada introduced Bill C-18 - its own news bargaining code - Meta did exactly what it had done in many other places where this had been tried: blocked all news from Facebook, Instagram, Threads, and other Meta properties.

This has been a disaster for the news industry and a disaster for Canadians' ability to discuss the news. Oh, it makes Meta look like assholes, too, but Meta is the poster child for "too big to care" and is palpably indifferent to the PR costs of this boycott.

Frustrated lawmakers are now trying to figure out what to do next. The most common proposal is to *order* Meta to carry the news. Canadians should be worried about this, because the next government will almost certainly be helmed by the far-right conspiratorialist culture warrior Pierre Poilievre, who will doubtless use this power to order Facebook to platform "news sites" to give prominence to Canada's rotten bushel of crypto-fascist (and openly fascist) "news" sites.

Americans should worry about this too. A Donald Trump 2028 presidency combined with a must-carry rule for news would see Trump's cabinet appointees deciding what is (and is not) news, and ordering large social media platforms to cram the Daily Caller (or, you know, the Daily Stormer) into our eyeballs.

But there's another, more fundamental reason that must-carry is incompatible with the American system: the First Amendment. The government simply *can't* issue a blanket legal order to platforms requiring them to carry certain speech. They can strongly encourage it. A court can order limited compelled speech (say, a retraction following a finding of libel). Under emergency conditions, the government might be able to compel the transmission of urgent messages. But there's just no *way* the First Amendment can be squared with a blanket, ongoing order issued by the government to communications platforms requiring them to reproduce, and make available, everything published by some collection of their favorite news outlets.

This might also be illegal in Canada, but it's harder to be definitive. The Canadian Charter of Rights and Freedoms was enshrined in 1982, and Canada's Supreme Court is still figuring out what it means. Section Two of the Charter enshrines a free expression right, but it's worded in less absolute terms than the First Amendment, and that's deliberate. During the debate over the wording of the Charter, Canadian scholars and policymakers specifically invoked problems with First Amendment absolutism and tried to chart a middle course between strong protections for free expression and problems with the First Amendment's brook-no-exceptions language.

So *maybe* Canada's Supreme Court would find a must-carry order to Meta to be a violation of the Charter, but it's hard to say for sure. The Charter is both young and ambiguous, so it's harder to be definitive about what it would say about this hypothetical. But when it comes to the US and the First Amendment, that's *categorically* untrue. The US Constitution is *centuries* older than the Canadian Charter, and the First Amendment is *extremely* definitive, and there are *reams* of precedent interpreting it. The JPCA and CJPA are totally incompatible with the US Constitution. Passing them isn't as silly as passing a law declaring that Pi equals three or that water isn't wet, but it's in the neighborhood.

But all that isn't to say that the news industry shouldn't be attacking Big Tech. Far from it. Big Tech compulsively steals from the news!

But what Big Tech steals from the news isn't *content*.

It's *money.*

Big Tech steals money from the news. Take social media: when a news outlet invests in building a subscriber base on a social media platform, they're giving that platform a stick to beat them with. The more subscribers you have on social media, the more you'll be willing to pay to reach those subscribers, and the more incentive there is for the platform to suppress the reach of your articles unless you pay to "boost" your content.

This is plainly fraudulent. When I sign up to follow a news outlet on a social media site, I'm telling the platform to show me the things the news outlet publishes. When the platform uses that subscription as the basis for a blackmail plot, holding my desire to read the news to ransom, they are breaking their implied promise to me to show me the things I asked to see:

https://www.eff.org/deeplinks/2023/06/save-news-we-need-end-end-web

This is stealing money from the news. It's the definition of an "unfair method of competition." Article 5 of the Federal Trade Commission Act gives the FTC the power to step in and ban this practice, and they should:

https://pluralistic.net/2023/01/10/the-courage-to-govern/#whos-in-charge

Big Tech also steals money from the news via the App Tax: the 30% rake that the mobile OS duopoly (Apple/Google) requires for every in-app purchase (Apple/Google also have policies that punish app vendors who take you to the web to make payments without paying the App Tax). 30% out of every subscriber dollar sent via an app is highway robbery! By contrast, the hyperconcentrated, price-gouging payment processing cartel charges 2-5% - about a *tenth* of the Big Tech tax. This is Big Tech stealing money from the news:

https://www.eff.org/deeplinks/2023/06/save-news-we-must-open-app-stores

Finally, Big Tech steals money by monopolizing the ad market. The Google-Meta ad duopoly takes 51% out of every ad-dollar spent. The historic share going to advertising "intermediaries" is 10-15%. In other words, Google/Meta cornered the market on ads and then *tripled* the bite they were taking out of publishers' advertising revenue. They even have an illegal, collusive arrangement to rig this market, codenamed "Jedi Blue":

https://en.wikipedia.org/wiki/Jedi_Blue

There's two ways to unrig the ad market, and we should do both of them.

First, we should trustbust both Google and Meta and force them to sell off parts of their advertising businesses. Currently, both Google and Meta operate a "full stack" of ad services. They have an arm that represents advertisers buying space for ads. Another arm represents publishers selling space to advertisers. A third arm operates the marketplace where these sales take place. All three  arms collect fees. On top of that: Google/Meta are both publishers *and* advertisers, competing with their own customers!

This is as if you were in court for a divorce and you discovered that the same lawyer representing your soon-to-be ex was also representing you...*while* serving as the judge...*and trying to match with you both on Tinder*. It shouldn't surprise you if at the end of that divorce, the court ruled that the family home should go to *the lawyer*.

So yeah, we should break up ad-tech:

https://www.eff.org/deeplinks/2023/05/save-news-we-must-shatter-ad-tech

*Also*: we should ban surveillance advertising. Surveillance advertising gives ad-tech companies a permanent advantage over publishers. Ad-tech will *always* know more about readers' behavior than publishers do, because Big Tech engages in continuous, highly invasive surveillance of every internet user in the world. Surveillance ads perform a *little* better than "content-based ads" (ads sold based on the content of a web-page, not the behavior of the person looking at the page), but publishers will *always* know more about their content than ad-tech does. That means that even if content-based ads command a slightly lower price than surveillance ads, a *much*  larger share of that payment will go to publishers:

https://www.eff.org/deeplinks/2023/05/save-news-we-must-ban-surveillance-advertising

Banning surveillance advertising isn't just good business, it's good politics. The potential coalition for banning surveillance ads is *everyone who is harmed by commercial surveillance*. That's a coalition that's orders of magnitude larger than the pool of people who merely care about fairness in the ad/news industries. It's everyone who's worried about their grandparents being brainwashed on Facebook, or their teens becoming anorexic because of Instagram. It includes people angry about deepfake porn, *and* people angry about Black Lives Matter protesters' identities being handed to the cops by Google (see also: Jan 6 insurrectionists).

It also includes everyone who discovers that they're paying higher prices because a vendor is using surveillance data to determine how much they'll pay - like when McDonald's raises the price of your "meal deal" on your payday, based on the assumption that you will spend more when your bank account is at its highest monthly level:

https://pluralistic.net/2024/06/05/your-price-named/#privacy-first-again

Attacking Big Tech for stealing *money* is much smarter than pretending that the problem is Big Tech stealing content. We *want* Big Tech to make the news easy to find and discuss. We just want them to stop pocketing 30 cents out of every subscriber dollar and 51 cents out of ever ad dollar, and ransoming subscribers' social media subscriptions to extort publishers.

And there's *amazing* news on this front: a consortium of UK web-publishers called Ad Tech Collective Action has just triumphed in a high-stakes proceeding, and can now go ahead with a suit against Google, seeking damages of GBP13.6b ($17.4b) for the rigged ad-tech market:

https://www.reuters.com/technology/17-bln-uk-adtech-lawsuit-against-google-can-go-ahead-tribunal-rules-2024-06-05/

The ruling, from the Competition Appeal Tribunal, paves the way for a frontal assault on the thing Big Tech actually steals from publishers: *money*, not *content*.

This is exactly what publishing should be doing. Targeting the method by which tech steals from the news is a benefit to *all* kinds of news organizations, including the independent, journalist-owned publishers that are doing the best news work today. These independents do *not* have the same interests as corporate news, which is dominated by hedge funds and private equity raiders, who have spent decades buying up and hollowing out news outlets, and blaming the resulting decline in readership and profits on Craiglist.

You can read more about Big Finance's raid on the news in Margot Susca's *Hedged: How Private Investment Funds Helped Destroy American Newspapers and Undermine Democracy*:

https://www.press.uillinois.edu/books/?id=p087561

You can also watch/listen to Adam Conover's excellent interview with Susca:

https://www.youtube.com/watch?v=N21YfWy0-bA

Frankly, the looters and billionaires who bought and gutted our great papers are no more interested in the health of the news industry or democracy than Big Tech is. We should care about the *news* and the workers who produce the news, not the profits of the hedge-funds that own the news. An assault on Big Tech's monetary theft levels the playing field, making it easier for news workers and indies to compete directly with financialized news outlets and billionaire playthings, by letting indies keep more of every ad-dollar and more of every subscriber-dollar - and to reach their subscribers without paying ransom to social media.

Ending monetary theft - rather than licensing news search and discussion - is something that workers are far more interested in than their bosses. Any time you see workers and their bosses on the same side as a fight against Big Tech, you should look more closely. Bosses are *not* on their workers' side. If bosses get more money out of Big Tech, they will not share those gains with workers unless someone forces them to.

That's where antitrust comes in. Antitrust is designed to strike at *power*, and enforcers have broad authority to blunt the power of corporate juggernauts. Remember Article 5 of the FTC Act, the one that lets the FTC block "unfair methods of competition?" FTC Chair Lina Khan has proposed using it to regulate training AI, specifically to craft rules that address the labor and privacy issues with AI:

https://www.youtube.com/watch?v=3mh8Z5pcJpg

This is an approach that can put creative workers where they belong, in a coalition with other workers, rather than with their bosses. The copyright approach to curbing AI training is beloved of the same media companies that are eagerly screwing their workers. If we manage to make copyright - a transferrable right that a worker can be forced to turn over their employer - into the system that regulates AI training, it won't stop training. It'll just trigger every entertainment company changing their boilerplate contract so that creative workers have to sign over their AI rights or be shown the door:

https://pluralistic.net/2024/05/13/spooky-action-at-a-close-up/#invisible-hand

Then those same entertainment and news companies will train AI models and try to fire most of their workers and slash the pay of the remainder using those models' output. Using copyright to regulate AI training makes changes to who gets to benefit from workers' misery, shifting some of our stolen wages from AI companies to entertainment companies. But it won't stop them from ruining our lives.

By contrast, focusing on *actual labor rights* - say, through an FTCA 5 rulemaking - has the potential to protect those rights from *all* parties, and puts us on the same side as call-center workers, train drivers, radiologists and anyone else whose wages are being targeted by AI companies and their customers.

Policy fights are a recurring monkey's paw nightmare in which we try to do something to fight corruption and bullying, only to be outmaneuvered by corrupt bullies. Making good policy is no guarantee of a good outcome, but it sure helps - and good policy starts with targeting the thing you want to fix. If we're worried that news is being financially starved by Big Tech, then we should go after the *money*, not the links.

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🧲 Hey look at this

* The Rot-Com Bubble https://www.wheresyoured.at/rotcombubble/

* Sewing machine Nu-Yell JN-100/Singer IZEK https://bsky.app/profile/gelland.bsky.social/post/3ku2ckofcb224 (h/t Alexis)

* The Scissors, the Paste-Pot, and the Large Language Model https://ryancordell.org/research/scissors-paste-LLMs

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🧲 This day in history

#20yrsago Public Enemy’s history of copyright in hip hop https://web.archive.org/web/20040603153903/http://www.stayfreemagazine.org/archives/20/public_enemy.html

#20yrsago TheyWorkForYou: finest advocacy web-app in the world https://web.archive.org/web/20040701081005/http://www.theyworkforyou.com/

#15yrsago Health insurers invest billions in tobacco stocks https://web.archive.org/web/20090606102236/https://www.scientificamerican.com/blog/60-second-science/post.cfm?id=health-insurers-want-you-to-keep-sm-2009-06-03

#15yrsago Bullshit about newspapers’ future, dissected https://xark.typepad.com/my_weblog/2009/06/the-newspaper-suicide-pact.html

#15yrsago Bad Science versus the piracy scare story https://www.badscience.net/2009/06/home-taping-didnt-kill-music/

#10yrsago Why I’m sending 200 copies of Little Brother to a high-school in Pensacola, FL https://memex.craphound.com/2014/06/06/why-im-sending-200-copies-of-little-brother-to-a-high-school-in-pensacola-fl/

#10yrsago Long-term weight loss considered nearly impossible https://memex.craphound.com/2014/06/06/long-term-weight-loss-considered-nearly-impossible/

#10yrsago Handbook to figure out what’s in the public domain https://web.archive.org/web/20140612000434/https://www.law.berkeley.edu/17178.htm

#5yrsago People who document evidence of violent extremism are being shut down in Youtube’s crackdown on violent extremism https://memex.craphound.com/2019/06/06/people-who-document-evidence-of-violent-extremism-are-being-shut-down-in-youtubes-crackdown-on-violent-extremism/

#5yrsago Australia’s raids on journalists signal an authoritarian turning point https://theconversation.com/why-the-raids-on-australian-media-present-a-clear-threat-to-democracy-118334

#5yrsago A mysterious nonprofit made millions suing companies to put California cancer warnings on coffee https://arstechnica.com/science/2019/06/the-secretive-nonprofit-that-made-millions-suing-companies-over-cancer-warnings/

#1yrago A business model for bankrupting the oil companies https://pluralistic.net/2023/06/06/thats-where-the-money-is/#champerty

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🧲 Upcoming appearances

* Media Ecology Association keynote, Jun 6-9 (Amherst, NY)
https://media-ecology.org/convention

* Locus Awards keynote (Oakland), Jun 20
https://locusmag.com/2024-locus-awards-weekend/

* HOPE XV, Jul 14 (Queens, NY)
https://www.hope.net/talks.html

* American Association of Law Libraries keynote, (Chicago), Jul 21
https://www.aallnet.org/conference/agenda/keynote-speaker/

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🧲 Recent appearances

* Capitalist Realism vs. Science Fiction
https://www.youtube.com/watch?v=Zz-iHWzqGK0

* All Tech is Human
https://www.youtube.com/watch?v=yKThzsYGjEQ

* RISD Debates in AI keynote:
https://www.youtube.com/watch?v=IdSEcmplaDs

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🧲 Latest books

* The Bezzle: a sequel to "Red Team Blues," about prison-tech and other grifts, Tor Books (US), Head of Zeus (UK), February 2024 (the-bezzle.org). Signed, personalized copies at Dark Delicacies (https://www.darkdel.com/store/p3062/Available_Feb_20th%3A_The_Bezzle_HB.html#/).

* "The Lost Cause:" a solarpunk novel of hope in the climate emergency, Tor Books (US), Head of Zeus (UK), November 2023 (http://lost-cause.org). Signed, personalized copies at Dark Delicacies (https://www.darkdel.com/store/p3007/Pre-Order_Signed_Copies%3A_The_Lost_Cause_HB.html#/)

* "The Internet Con": A nonfiction book about interoperability and Big Tech (Verso) September 2023 (http://seizethemeansofcomputation.org). Signed copies at Book Soup (https://www.booksoup.com/book/9781804291245).

* "Red Team Blues": "A grabby, compulsive thriller that will leave you knowing more about how the world works than you did before." Tor Books http://redteamblues.com. Signed copies at Dark Delicacies (US): and Forbidden Planet (UK): https://forbiddenplanet.com/385004-red-team-blues-signed-edition-hardcover/.

* "Chokepoint Capitalism: How to Beat Big Tech, Tame Big Content, and Get Artists Paid, with Rebecca Giblin", on how to unrig the markets for creative labor, Beacon Press/Scribe 2022 https://chokepointcapitalism.com

* "Attack Surface": The third Little Brother novel, a standalone technothriller for adults. The *Washington Post* called it "a political cyberthriller, vigorous, bold and savvy about the limits of revolution and resistance." Order signed, personalized copies from Dark Delicacies https://www.darkdel.com/store/p1840/Available_Now%3A_Attack_Surface.html

* "How to Destroy Surveillance Capitalism": an anti-monopoly pamphlet analyzing the true harms of surveillance capitalism and proposing a solution. https://onezero.medium.com/how-to-destroy-surveillance-capitalism-8135e6744d59?sk=f6cd10e54e20a07d4c6d0f3ac011af6b) (signed copies: https://www.darkdel.com/store/p2024/Available_Now%3A__How_to_Destroy_Surveillance_Capitalism.html)

* "Little Brother/Homeland": A reissue omnibus edition with a new introduction by Edward Snowden: https://us.macmillan.com/books/9781250774583; personalized/signed copies here: https://www.darkdel.com/store/p1750/July%3A__Little_Brother_%26_Homeland.html

* "Poesy the Monster Slayer" a picture book about monsters, bedtime, gender, and kicking ass. Order here: https://us.macmillan.com/books/9781626723627. Get a personalized, signed copy here: https://www.darkdel.com/store/p2682/Corey_Doctorow%3A_Poesy_the_Monster_Slayer_HB.html#/.

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🧲 Upcoming books

* Picks and Shovels: a sequel to "Red Team Blues," about the heroic era of the PC, Tor Books, February 2025

* Unauthorized Bread: a middle-grades graphic novel adapted from my novella about refugees, toasters and DRM, FirstSecond, 2025

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🧲 Colophon

Today's top sources: Alistair Kelman.

Currently writing:

* Enshittification: a nonfiction book about platform decay. Today's progress: 815 words (6466 words total).

* A Little Brother short story about DIY insulin PLANNING

* Picks and Shovels, a Martin Hench noir thriller about the heroic era of the PC. FORTHCOMING TOR BOOKS JAN 2025

* Vigilant, Little Brother short story about remote invigilation. FORTHCOMING ON TOR.COM

* Spill, a Little Brother short story about pipeline protests. FORTHCOMING ON TOR.COM

Latest podcast:
  Against Lore https://archive.org/download/Cory_Doctorow_Podcast_469/Cory_Doctorow_Podcast_469_-_Against_Lore.mp3

This work - excluding any serialized fiction - is licensed under a Creative Commons Attribution 4.0 license. That means you can use it any way you like, including commercially, provided that you attribute it to me, Cory Doctorow, and include a link to pluralistic.net.

https://creativecommons.org/licenses/by/4.0/

Quotations and images are not included in this license; they are included either under a limitation or exception to copyright, or on the basis of a separate license. Please exercise caution.

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"*When life gives you SARS, you make sarsaparilla*" -Joey "Accordion Guy" DeVilla
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