Can Anti-Trust Law Save Newspapers?

Author:Robinson, Eric P.

Federal and state anti-trust laws date from the late 19th and early 20th centuries, way before the emergence of the modern internet-fueled economy. But increasingly these old laws and concepts are being seen as the means of limiting the influence of the dominant internet platforms, and perhaps of helping the print media, particularly newspapers, remain viable.

Since their inception, anti-trust statutes have been used against a variety of unsavory business practices, including companies' agreements to divide markets; bid rigging; collusion to fix prices; and a company keeping out competitors to maintain a monopoly. In the early years after their enactment, federal anti-trust laws were used against railroad consolidations and oil conglomerates.

Two of the most prominent anti-trust cases have been against AT&T, which resulted in the fragmentation of the telephone industry (which has since largely reconsolidated while the industry underwent a fundamental transformation), and Microsoft, in which the company agreed to limit integration of its Internet Explorer browser into its dominant Windows computer operating system so that competing browsers could not be used.

Now, members of Congress and federal regulators are contemplating applying anti-trust laws to limit the influence of the dominant internet platforms: Google, Apple, Facebook, and Amazon, known collectively by the acronym "GAFA."

But there are two very different approaches being considered.

One approach would loosen application of anti-trust laws to allow competitors such as newspapers to work together.

The rationale is that the GAFA aggregators often use headlines and lead grafs from news organizations, with links to the source articles, without any payment to the news source. While the law is uncertain on this point, this use has generally been defended as fair use of the news organizations' copyrighted material. Also, the aggregators argue that it drives visitors to the news organizations' web sites, which increases their audience and exposure to their ads. But critics say that most users do not click through to the original article, allowing aggregators to use news organizations' content for free and to keep the resulting ad revenue.

The News Media Alliance released a study estimating that Google's revenue from news content in 2018 was $4.7 billion, although the study's methodology and conclusions have been criticized. Congressman David Cicilline of Rhode Island, chairman of the...

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