Assembly Bill A7811

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7811
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               June 15, 2023
                                ___________
 
 Introduced by M. of A. KELLES -- read once and referred to the Committee
   on Consumer Affairs and Protection
 
 AN  ACT  to  amend  the  general business law, in relation to journalism
   usage fees
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section  1.  Article  21-A  of  the general business law is renumbered
 article 21-B and a new article 21-A is added to read as follows:
                               ARTICLE 21-A
                           JOURNALISM USAGE FEES
 SECTION 338. DEFINITIONS.
         338-A. JOURNALISM USAGE FEE PAYMENTS; NOTICE.
         338-B. JOURNALISM USAGE FEES; ARBITRATION.
   § 338. DEFINITIONS. THE FOLLOWING TERMS, WHENEVER USED OR REFERRED  TO
 IN THIS ARTICLE, SHALL HAVE THE FOLLOWING MEANINGS:
   1. "ACCESS" MEANS TO ACQUIRE, CRAWL, OR INDEX CONTENT.
   2.  "ADVERTISING  REVENUE" MEANS REVENUE GENERATED THROUGH THE SALE OF
 DIGITAL ADVERTISING IMPRESSIONS THAT ARE SERVED TO CUSTOMERS THROUGH  AN
 ONLINE  PLATFORM,  REGARDLESS  OF WHETHER SUCH IMPRESSIONS ARE SERVED ON
 INTERNET WEBSITES OR ACCESSED THROUGH ONLINE OR MOBILE APPLICATIONS, AND
 CONTAIN REFERENCES TO CONTENT FROM ELIGIBLE DIGITAL  JOURNALISM  PROVID-
 ERS.
   3.  A.  "COVERED  PLATFORM" MEANS AN ONLINE PLATFORM THAT AT ANY POINT
 DURING A TWELVE-MONTH PERIOD MEETS EITHER OF THE FOLLOWING CRITERIA:
   (I) THE ONLINE PLATFORM HAS AT LEAST FIFTY MILLION UNITED STATES-BASED
 MONTHLY ACTIVE USERS OR SUBSCRIBERS ON THE ONLINE PLATFORM.
   (II) THE ONLINE PLATFORM IS OWNED  OR  CONTROLLED  BY  A  PERSON  WITH
 EITHER OF THE FOLLOWING:
   (1)  UNITED STATES NET ANNUAL SALES OR A MARKET CAPITALIZATION GREATER
 THAN FIVE HUNDRED FIFTY BILLION DOLLARS, ADJUSTED ANNUALLY FOR INFLATION
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11191-01-3
 A. 7811                             2
              

 
 ON THE BASIS OF THE CONSUMER PRICE INDEX PUBLISHED BY THE UNITED  STATES
 BUREAU OF LABOR STATISTICS.
   (2)  AT  LEAST  FIFTY  BILLION  WORLDWIDE  MONTHLY ACTIVE USERS ON THE
 ONLINE PLATFORM.
   B. "COVERED PLATFORM" DOES NOT MEAN AN ORGANIZATION EXEMPT FROM FEDER-
 AL INCOME TAXATION PURSUANT TO SECTION 501(C)(3) OF THE INTERNAL REVENUE
 CODE OF 1986.
   4. "ELIGIBLE BROADCASTER" MEANS  AN  ENTITY  THAT  MEETS  ALL  OF  THE
 FOLLOWING CRITERIA:
   A.  THE ENTITY HOLDS OR OPERATES UNDER A LICENSE ISSUED BY THE FEDERAL
 COMMUNICATIONS COMMISSION UNDER SUBCHAPTER III (COMMENCING WITH  SECTION
 301) OF CHAPTER 5 OF TITLE 47 OF THE UNITED STATES CODE.
   B.  THE  ENTITY  ENGAGES  PROFESSIONALS  TO CREATE, EDIT, PRODUCE, AND
 DISTRIBUTE ORIGINAL CONTENT CONCERNING  LOCAL,  REGIONAL,  NATIONAL,  OR
 INTERNATIONAL  MATTERS  OF PUBLIC INTEREST THROUGH ACTIVITIES, INCLUDING
 CONDUCTING INTERVIEWS, OBSERVING CURRENT EVENTS, ANALYZING DOCUMENTS AND
 OTHER INFORMATION, AND  FACT  CHECKING  THROUGH  MULTIPLE  FIRSTHAND  OR
 SECONDHAND NEWS SOURCES.
   C. THE ENTITY UPDATES ITS CONTENT ON AT LEAST A WEEKLY BASIS.
   D. THE ENTITY USES AN EDITORIAL PROCESS FOR ERROR CORRECTION AND CLAR-
 IFICATION,  INCLUDING  A  TRANSPARENT  PROCESS  FOR  REPORTING ERRORS OR
 COMPLAINTS TO THE STATION.
   5. "ELIGIBLE DIGITAL JOURNALISM PROVIDER" MEANS AN ELIGIBLE  PUBLISHER
 OR ELIGIBLE BROADCASTER THAT DISCLOSES ITS OWNERSHIP TO THE PUBLIC.
   6.  "ELIGIBLE  PUBLISHER"  MEANS AN ENTITY THAT PUBLISHES A QUALIFYING
 PUBLICATION.
   7. "NOTIFYING ELIGIBLE DIGITAL JOURNALISM PROVIDER"  MEANS  AN  ENTITY
 THAT HAS PROVIDED NOTICE TO A COVERED PLATFORM PURSUANT TO SECTION THREE
 HUNDRED  THIRTY-EIGHT-A  OF  THIS ARTICLE THAT THE ENTITY IS AN ELIGIBLE
 DIGITAL JOURNALISM PROVIDER.
   8. "ONLINE PLATFORM" MEANS  AN  INTERNET  WEBSITE,  ONLINE  OR  MOBILE
 APPLICATION,  DIGITAL ASSISTANT, OR ONLINE SERVICE THAT DOES BOTH OF THE
 FOLLOWING:
   A. SERVES REFERENCES TO NEWS ARTICLES, WORKS OF JOURNALISM,  OR  OTHER
 CONTENT,  OR PORTIONS THEREOF, GENERATED, CREATED, PRODUCED, OR OWNED BY
 AN ELIGIBLE DIGITAL JOURNALISM PROVIDER.
   B. AGGREGATES, DISPLAYS, PROVIDES, DISTRIBUTES, OR  DIRECTS  USERS  TO
 CONTENT DESCRIBED IN PARAGRAPH A OF THIS SUBDIVISION.
   9.  "QUALIFYING  PUBLICATION"  MEANS  AN  INTERNET  WEBSITE, ONLINE OR
 MOBILE APPLICATION, OR OTHER DIGITAL  SERVICE  THAT  MEETS  ALL  OF  THE
 FOLLOWING CRITERIA:
   A.  THE  INTERNET  WEBSITE,  ONLINE  OR  MOBILE  APPLICATION, OR OTHER
 DIGITAL SERVICE DOES NOT  PRIMARILY  DISPLAY,  PROVIDE,  DISTRIBUTE,  OR
 OFFER  CONTENT  GENERATED,  CREATED,  PRODUCED,  OR OWNED BY AN ELIGIBLE
 BROADCASTER OR TELEVISION NETWORK.
   B. THE INTERNET  WEBSITE,  ONLINE  OR  MOBILE  APPLICATION,  OR  OTHER
 DIGITAL SERVICE PROVIDES INFORMATION TO AN AUDIENCE IN THE STATE.
   C.  THE  INTERNET  WEBSITE,  ONLINE  OR  MOBILE  APPLICATION, OR OTHER
 DIGITAL SERVICE PERFORMS A PUBLIC  INFORMATION  FUNCTION  COMPARABLE  TO
 THAT TRADITIONALLY SERVED BY NEWSPAPERS AND OTHER PERIODICAL NEWS PUBLI-
 CATIONS.
   D.  THE  INTERNET  WEBSITE,  ONLINE  OR  MOBILE  APPLICATION, OR OTHER
 DIGITAL SERVICE ENGAGES PROFESSIONALS  TO  CREATE,  EDIT,  PRODUCE,  AND
 DISTRIBUTE  ORIGINAL  CONTENT  CONCERNING  LOCAL, REGIONAL, NATIONAL, OR
 INTERNATIONAL MATTERS OF PUBLIC INTEREST THROUGH  ACTIVITIES,  INCLUDING
 CONDUCTING  INTERVIEWS, OBSERVING CURRENT EVENTS, OR ANALYZING DOCUMENTS
 A. 7811                             3
 
 AND OTHER INFORMATION, AND FACT CHECKING THROUGH MULTIPLE  FIRSTHAND  OR
 SECONDHAND NEWS SOURCES.
   E.  THE  INTERNET  WEBSITE,  ONLINE  OR  MOBILE  APPLICATION, OR OTHER
 DIGITAL SERVICE UPDATES ITS CONTENT ON AT LEAST A WEEKLY BASIS.
   F. THE INTERNET  WEBSITE,  ONLINE  OR  MOBILE  APPLICATION,  OR  OTHER
 DIGITAL  SERVICE HAS AN EDITORIAL PROCESS FOR ERROR CORRECTION AND CLAR-
 IFICATION, INCLUDING A  TRANSPARENT  PROCESS  FOR  REPORTING  ERRORS  OR
 COMPLAINTS TO THE PUBLICATION.
   G.  THE  INTERNET  WEBSITE,  ONLINE  OR  MOBILE  APPLICATION, OR OTHER
 DIGITAL SERVICE MEETS ANY OF THE FOLLOWING CRITERIA:
   (I) THE INTERNET WEBSITE,  ONLINE  OR  MOBILE  APPLICATION,  OR  OTHER
 DIGITAL SERVICE GENERATED AT LEAST ONE HUNDRED THOUSAND DOLLARS IN ANNU-
 AL REVENUE FROM ITS EDITORIAL CONTENT IN THE PREVIOUS CALENDAR YEAR.
   (II)  THE  INTERNET  WEBSITE,  ONLINE  OR MOBILE APPLICATION, OR OTHER
 DIGITAL SERVICE HAD AN INTERNATIONAL STANDARD SERIAL NUMBER ASSIGNED  TO
 AN AFFILIATED PERIODICAL BEFORE JANUARY FIRST, TWO THOUSAND TWENTY-FOUR.
   (III)  THE  INTERNET  WEBSITE,  ONLINE OR MOBILE APPLICATION, OR OTHER
 DIGITAL SERVICE IS OWNED OR CONTROLLED BY AN  ORGANIZATION  EXEMPT  FROM
 FEDERAL  INCOME  TAXATION  PURSUANT TO SECTION 501(C)(3) OF THE INTERNAL
 REVENUE CODE OF 1986.
   H. THE INTERNET  WEBSITE,  ONLINE  OR  MOBILE  APPLICATION,  OR  OTHER
 DIGITAL  SERVICE  HAS  AT  LEAST  TWENTY-FIVE  PERCENT  OF ITS EDITORIAL
 CONTENT  CONSISTING  OF  INFORMATION  ABOUT  TOPICS  OF  CURRENT  LOCAL,
 NATIONAL, OR INTERNATIONAL PUBLIC INTEREST.
   I.  THE  INTERNET  WEBSITE,  ONLINE  OR  MOBILE  APPLICATION, OR OTHER
 DIGITAL SERVICE IS NOT CONTROLLED, OR WHOLLY OR PARTIALLY OWNED  BY,  AN
 ENTITY THAT MEETS ANY OF THE FOLLOWING CRITERIA:
   (I)  THE  ENTITY IS A FOREIGN POWER OR AN AGENT OF A FOREIGN POWER, AS
 THOSE TERMS ARE DEFINED IN SECTION 1801 OF TITLE 50 OF THE UNITED STATES
 CODE.
   (II) THE ENTITY IS DESIGNATED  AS  A  FOREIGN  TERRORIST  ORGANIZATION
 PURSUANT TO SECTION 1189 OF TITLE 8 OF THE UNITED STATES CODE.
   (III)  THE  ENTITY  IS A TERRORIST ORGANIZATION, AS DEFINED IN SECTION
 1182 OF TITLE 8 OF THE UNITED STATES CODE.
   (IV) THE ENTITY IS DESIGNATED AS A SPECIALLY DESIGNATED GLOBAL TERROR-
 IST ORGANIZATION UNDER FEDERAL EXECUTIVE ORDER 13224.
   (V) THE ENTITY IS AN AFFILIATE OF AN ENTITY DESCRIBED IN  SUBPARAGRAPH
 (I), (II), (III) OR (IV) OF THIS PARAGRAPH.
   (VI)  THE  ENTITY  HAS  BEEN  CONVICTED OF VIOLATING, OR ATTEMPTING TO
 VIOLATE, SECTION 2331, 2332B, OR 2339A OF TITLE 18 OF THE UNITED  STATES
 CODE.
   § 338-A. JOURNALISM USAGE FEE PAYMENTS; NOTICE. 1. AN ELIGIBLE DIGITAL
 JOURNALISM PROVIDER THAT SUBMITS A NOTICE TO A COVERED PLATFORM PURSUANT
 TO  SUBDIVISION  TWO  OF THIS SECTION SHALL RECEIVE JOURNALISM USAGE FEE
 PAYMENTS FROM SUCH COVERED PLATFORM PURSUANT TO  SECTION  THREE  HUNDRED
 THIRTY-EIGHT-B  OF  THIS  ARTICLE  BEGINNING  NOT  MORE THAN THIRTY DAYS
 FOLLOWING THE SUBMISSION OF SUCH NOTICE.
   2. THE NOTICE DESCRIBED IN SUBDIVISION ONE OF THIS SECTION SHALL  MEET
 ALL OF THE FOLLOWING CRITERIA:
   A. THE NOTICE IDENTIFIES THE ELIGIBLE DIGITAL JOURNALISM PROVIDER.
   B. THE NOTICE CERTIFIES, NOT UNDER PENALTY OF PERJURY, THAT THE ELIGI-
 BLE DIGITAL JOURNALISM PROVIDER REASONABLY BELIEVES THAT IT IS EITHER AN
 ELIGIBLE BROADCASTER OR AN ELIGIBLE PUBLISHER.
   C.  THE  NOTICE  IDENTIFIES THE ROOT UNIFORM RESOURCE LOCATORS FOR THE
 INTERNET  WEBSITES  ASSOCIATED  WITH  THE  ELIGIBLE  DIGITAL  JOURNALISM
 PROVIDER'S DIGITAL CONTENT.
 A. 7811                             4
 
   §  338-B.  JOURNALISM  USAGE FEES; ARBITRATION. 1. THE PERCENTAGE OF A
 COVERED PLATFORM'S ADVERTISING REVENUE REMITTED  TO  NOTIFYING  ELIGIBLE
 DIGITAL  JOURNALISM  PROVIDERS  SHALL  BE  DETERMINED  PURSUANT  TO THIS
 SECTION.
   2.  ELIGIBLE  DIGITAL  JOURNALISM  PROVIDERS MAY INITIATE, PURSUANT TO
 RULE R-4 OF THE  AMERICAN  ARBITRATION  ASSOCIATION'S  COMMERCIAL  ARBI-
 TRATION  RULES  AND  MEDIATION  PROCEDURES,  A  FINAL  OFFER ARBITRATION
 AGAINST A COVERED PLATFORM FOR AN ARBITRATION  PANEL  TO  DETERMINE  THE
 PERCENTAGE OF THE COVERED PLATFORM'S ADVERTISING REVENUE REMITTED TO THE
 NOTIFYING ELIGIBLE DIGITAL JOURNALISM PROVIDER.
   3. THE ARBITRATION PROCEDURE AUTHORIZED BY THIS SECTION SHALL COMMENCE
 TEN  DAYS  AFTER  THE  RECEIPT  OF  THE NOTICE REQUIRED BY SECTION THREE
 HUNDRED THIRTY-EIGHT-A OF THIS ARTICLE.
   4. THE ARBITRATION PROCEDURE  AUTHORIZED  BY  THIS  SECTION  SHALL  BE
 DECIDED  BY  A PANEL OF THREE ARBITRATORS UNDER THE AMERICAN ARBITRATION
 ASSOCIATION'S COMMERCIAL ARBITRATION RULES AND MEDIATION PROCEDURES  AND
 THE  AMERICAN  ARBITRATION  ASSOCIATION-INTERNATIONAL CENTRE FOR DISPUTE
 RESOLUTION FINAL OFFER ARBITRATION SUPPLEMENTARY  RULES  EXCEPT  TO  THE
 EXTENT THEY CONFLICT WITH THIS SECTION.
   5.  THE  COST  OF  ADMINISTERING THE ARBITRATION PROCEEDING, INCLUDING
 ARBITRATOR COMPENSATION, EXPENSES, AND  ADMINISTRATIVE  FEES,  SHALL  BE
 SHARED  EQUALLY  BETWEEN  THE  COVERED PLATFORM AND THE ELIGIBLE DIGITAL
 JOURNALISM PROVIDER.
   6. THE ARBITRATORS SHALL BE APPOINTED IN ACCORDANCE WITH THE  AMERICAN
 ARBITRATION  ASSOCIATION'S  COMMERCIAL  ARBITRATION  RULES AND MEDIATION
 PROCEDURES.
   7. DURING A FINAL OFFER ARBITRATION PROCEEDING UNDER THIS SECTION  ALL
 OF THE FOLLOWING SHALL APPLY:
   A.  (I) ELIGIBLE DIGITAL JOURNALISM PROVIDERS AND COVERED PLATFORM MAY
 DEMAND THE PRODUCTION OF DOCUMENTS AND INFORMATION  THAT  ARE  NONPRIVI-
 LEGED,  REASONABLY  NECESSARY,  AND  REASONABLY ACCESSIBLE WITHOUT UNDUE
 EXPENSE.
   (II) DOCUMENTS AND INFORMATION DESCRIBED IN SUBPARAGRAPH (I)  OF  THIS
 PARAGRAPH  SHALL  BE EXCHANGED NOT LATER THAN THIRTY DAYS AFTER THE DATE
 THE DEMAND IS FILED.
   B. RULES REGARDING THE ADMISSIBILITY OF EVIDENCE APPLICABLE IN FEDERAL
 COURT SHALL APPLY.
   C. ELIGIBLE DIGITAL JOURNALISM PROVIDERS AND A COVERED PLATFORM  SHALL
 EACH  SUBMIT A FINAL OFFER PROPOSAL FOR THE REMUNERATION THAT THE ELIGI-
 BLE DIGITAL JOURNALISM PROVIDER SHOULD RECEIVE FROM THE COVERED PLATFORM
 FOR ACCESS TO THE CONTENT OF THE ELIGIBLE  DIGITAL  JOURNALISM  PROVIDER
 DURING  THE  PERIOD  UNDER  ARBITRATION  BASED  ON THE VALUE SUCH ACCESS
 PROVIDES TO THE PLATFORM, WHICH SHALL INCLUDE  BACKUP  MATERIALS  SUFFI-
 CIENT TO PERMIT THE OTHER PARTY TO REPLICATE THE PROFFERED VALUATION.
   D.  A  DISCUSSION  OR FINAL OFFER UNDER THIS SECTION SHALL NOT ADDRESS
 WHETHER OR HOW THE COVERED PLATFORM OR ANY ELIGIBLE  DIGITAL  JOURNALISM
 PROVIDER  DISPLAYS, RANKS, DISTRIBUTES, SUPPRESSES, PROMOTES, THROTTLES,
 LABELS, FILTERS, OR CURATES THE CONTENT OF THE ELIGIBLE DIGITAL JOURNAL-
 ISM PROVIDER OR ANY OTHER PERSON.
   E. (I) NOT LATER THAN SIXTY DAYS AFTER THE DATE  PROCEEDINGS  COMMENCE
 PURSUANT  TO  SUBDIVISION  THREE  OF THIS SECTION, THE ARBITRATION PANEL
 SHALL DETERMINE THE PERCENTAGE OF  THE  COVERED  PLATFORM'S  ADVERTISING
 REVENUE REMITTED TO NOTIFYING ELIGIBLE JOURNALISM PROVIDERS FROM A FINAL
 OFFER FROM ONE OF THE PARTIES WITHOUT MODIFICATION.
   (II)  IN  MAKING  A DETERMINATION UNDER SUBPARAGRAPH (I) OF THIS PARA-
 GRAPH, THE ARBITRATION PANEL SHALL DO ALL OF THE FOLLOWING:
 A. 7811                             5
 
   (1) REFRAIN FROM CONSIDERING ANY VALUE  CONFERRED  UPON  ANY  ELIGIBLE
 DIGITAL  JOURNALISM PROVIDER BY THE COVERED PLATFORM FOR DISTRIBUTING OR
 AGGREGATING ITS CONTENT AS AN OFFSET TO THE VALUE CREATED BY THAT ELIGI-
 BLE DIGITAL JOURNALISM PROVIDER.
   (2)  CONSIDER PAST INCREMENTAL REVENUE CONTRIBUTIONS AS A GUIDE TO THE
 FUTURE INCREMENTAL REVENUE CONTRIBUTION BY ANY ELIGIBLE DIGITAL JOURNAL-
 ISM PROVIDER.
   (3) CONSIDER THE PRICING, TERMS,  AND  CONDITIONS  OF  ANY  AVAILABLE,
 COMPARABLE  COMMERCIAL  AGREEMENTS  BETWEEN  PARTIES  GRANTING ACCESS TO
 DIGITAL CONTENT, INCLUDING PRICING, TERMS, AND  CONDITIONS  RELATING  TO
 PRICE,  DURATION, TERRITORY, AND THE VALUE OF DATA GENERATED DIRECTLY OR
 INDIRECTLY BY THE CONTENT ACCOUNTING FOR  ANY  MATERIAL  DISPARITIES  IN
 NEGOTIATING POWER BETWEEN THE PARTIES TO THOSE COMMERCIAL AGREEMENTS.
   (4)  ISSUE  A BINDING, REASONED DETERMINATION OF THE PERCENTAGE OF THE
 COVERED PLATFORM'S ADVERTISING REVENUE REMITTED  TO  NOTIFYING  ELIGIBLE
 DIGITAL JOURNALISM PROVIDERS.
   § 2. This act shall take effect immediately.