STATE OF NEW YORK ________________________________________________________________________ 7866 IN SENATE January 3, 2024 ___________ Introduced by Sen. MAY -- read twice and ordered printed, and when printed to be committed to the Committee on Consumer 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: 1 Section 1. Article 21-A of the general business law is renumbered 2 article 21-B and a new article 21-A is added to read as follows: 3 ARTICLE 21-A 4 JOURNALISM USAGE FEES 5 Section 338. Definitions. 6 338-a. Journalism usage fee payments; notice. 7 338-b. Journalism usage fees; arbitration. 8 § 338. Definitions. The following terms, whenever used or referred to 9 in this article, shall have the following meanings: 10 1. "Access" means to acquire, crawl, or index content. 11 2. "Advertising revenue" means revenue generated through the sale of 12 digital advertising impressions that are served to customers through an 13 online platform, regardless of whether such impressions are served on 14 internet websites or accessed through online or mobile applications, and 15 contain references to content from eligible digital journalism provid- 16 ers. 17 3. a. "Covered platform" means an online platform that at any point 18 during a twelve-month period meets either of the following criteria: 19 (i) The online platform has at least fifty million United States-based 20 monthly active users or subscribers on the online platform. 21 (ii) The online platform is owned or controlled by a person with 22 either of the following: 23 (1) United States net annual sales or a market capitalization greater 24 than five hundred fifty billion dollars, adjusted annually for inflation 25 on the basis of the consumer price index published by the United States 26 bureau of labor statistics. 27 (2) At least fifty billion worldwide monthly active users on the 28 online platform. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11191-01-3
S. 7866 2 1 b. "Covered platform" does not mean an organization exempt from feder- 2 al income taxation pursuant to Section 501(c)(3) of the Internal Revenue 3 Code of 1986. 4 4. "Eligible broadcaster" means an entity that meets all of the 5 following criteria: 6 a. The entity holds or operates under a license issued by the federal 7 communications commission under Subchapter III (commencing with Section 8 301) of Chapter 5 of Title 47 of the United States Code. 9 b. The entity engages professionals to create, edit, produce, and 10 distribute original content concerning local, regional, national, or 11 international matters of public interest through activities, including 12 conducting interviews, observing current events, analyzing documents and 13 other information, and fact checking through multiple firsthand or 14 secondhand news sources. 15 c. The entity updates its content on at least a weekly basis. 16 d. The entity uses an editorial process for error correction and clar- 17 ification, including a transparent process for reporting errors or 18 complaints to the station. 19 5. "Eligible digital journalism provider" means an eligible publisher 20 or eligible broadcaster that discloses its ownership to the public. 21 6. "Eligible publisher" means an entity that publishes a qualifying 22 publication. 23 7. "Notifying eligible digital journalism provider" means an entity 24 that has provided notice to a covered platform pursuant to section three 25 hundred thirty-eight-a of this article that the entity is an eligible 26 digital journalism provider. 27 8. "Online platform" means an internet website, online or mobile 28 application, digital assistant, or online service that does both of the 29 following: 30 a. Serves references to news articles, works of journalism, or other 31 content, or portions thereof, generated, created, produced, or owned by 32 an eligible digital journalism provider. 33 b. Aggregates, displays, provides, distributes, or directs users to 34 content described in paragraph a of this subdivision. 35 9. "Qualifying publication" means an internet website, online or 36 mobile application, or other digital service that meets all of the 37 following criteria: 38 a. The internet website, online or mobile application, or other 39 digital service does not primarily display, provide, distribute, or 40 offer content generated, created, produced, or owned by an eligible 41 broadcaster or television network. 42 b. The internet website, online or mobile application, or other 43 digital service provides information to an audience in the state. 44 c. The internet website, online or mobile application, or other 45 digital service performs a public information function comparable to 46 that traditionally served by newspapers and other periodical news publi- 47 cations. 48 d. The internet website, online or mobile application, or other 49 digital service engages professionals to create, edit, produce, and 50 distribute original content concerning local, regional, national, or 51 international matters of public interest through activities, including 52 conducting interviews, observing current events, or analyzing documents 53 and other information, and fact checking through multiple firsthand or 54 secondhand news sources. 55 e. The internet website, online or mobile application, or other 56 digital service updates its content on at least a weekly basis.
S. 7866 3 1 f. The internet website, online or mobile application, or other 2 digital service has an editorial process for error correction and clar- 3 ification, including a transparent process for reporting errors or 4 complaints to the publication. 5 g. The internet website, online or mobile application, or other 6 digital service meets any of the following criteria: 7 (i) The internet website, online or mobile application, or other 8 digital service generated at least one hundred thousand dollars in annu- 9 al revenue from its editorial content in the previous calendar year. 10 (ii) The internet website, online or mobile application, or other 11 digital service had an International Standard Serial Number assigned to 12 an affiliated periodical before January first, two thousand twenty-four. 13 (iii) The internet website, online or mobile application, or other 14 digital service is owned or controlled by an organization exempt from 15 federal income taxation pursuant to Section 501(c)(3) of the Internal 16 Revenue Code of 1986. 17 h. The internet website, online or mobile application, or other 18 digital service has at least twenty-five percent of its editorial 19 content consisting of information about topics of current local, 20 national, or international public interest. 21 i. The internet website, online or mobile application, or other 22 digital service is not controlled, or wholly or partially owned by, an 23 entity that meets any of the following criteria: 24 (i) The entity is a foreign power or an agent of a foreign power, as 25 those terms are defined in Section 1801 of Title 50 of the United States 26 Code. 27 (ii) The entity is designated as a foreign terrorist organization 28 pursuant to Section 1189 of Title 8 of the United States Code. 29 (iii) The entity is a terrorist organization, as defined in Section 30 1182 of Title 8 of the United States Code. 31 (iv) The entity is designated as a specially designated global terror- 32 ist organization under federal Executive Order 13224. 33 (v) The entity is an affiliate of an entity described in subparagraph 34 (i), (ii), (iii) or (iv) of this paragraph. 35 (vi) The entity has been convicted of violating, or attempting to 36 violate, Section 2331, 2332b, or 2339A of Title 18 of the United States 37 Code. 38 § 338-a. Journalism usage fee payments; notice. 1. An eligible digital 39 journalism provider that submits a notice to a covered platform pursuant 40 to subdivision two of this section shall receive journalism usage fee 41 payments from such covered platform pursuant to section three hundred 42 thirty-eight-b of this article beginning not more than thirty days 43 following the submission of such notice. 44 2. The notice described in subdivision one of this section shall meet 45 all of the following criteria: 46 a. The notice identifies the eligible digital journalism provider. 47 b. The notice certifies, not under penalty of perjury, that the eligi- 48 ble digital journalism provider reasonably believes that it is either an 49 eligible broadcaster or an eligible publisher. 50 c. The notice identifies the root uniform resource locators for the 51 internet websites associated with the eligible digital journalism 52 provider's digital content. 53 § 338-b. Journalism usage fees; arbitration. 1. The percentage of a 54 covered platform's advertising revenue remitted to notifying eligible 55 digital journalism providers shall be determined pursuant to this 56 section.
S. 7866 4 1 2. Eligible digital journalism providers may initiate, pursuant to 2 rule R-4 of the American Arbitration Association's Commercial Arbi- 3 tration Rules and Mediation Procedures, a final offer arbitration 4 against a covered platform for an arbitration panel to determine the 5 percentage of the covered platform's advertising revenue remitted to the 6 notifying eligible digital journalism provider. 7 3. The arbitration procedure authorized by this section shall commence 8 ten days after the receipt of the notice required by section three 9 hundred thirty-eight-a of this article. 10 4. The arbitration procedure authorized by this section shall be 11 decided by a panel of three arbitrators under the American Arbitration 12 Association's Commercial Arbitration Rules and Mediation Procedures and 13 the American Arbitration Association-International Centre for Dispute 14 Resolution Final Offer Arbitration Supplementary Rules except to the 15 extent they conflict with this section. 16 5. The cost of administering the arbitration proceeding, including 17 arbitrator compensation, expenses, and administrative fees, shall be 18 shared equally between the covered platform and the eligible digital 19 journalism provider. 20 6. The arbitrators shall be appointed in accordance with the American 21 Arbitration Association's Commercial Arbitration Rules and Mediation 22 Procedures. 23 7. During a final offer arbitration proceeding under this section all 24 of the following shall apply: 25 a. (i) Eligible digital journalism providers and covered platform may 26 demand the production of documents and information that are nonprivi- 27 leged, reasonably necessary, and reasonably accessible without undue 28 expense. 29 (ii) Documents and information described in subparagraph (i) of this 30 paragraph shall be exchanged not later than thirty days after the date 31 the demand is filed. 32 b. Rules regarding the admissibility of evidence applicable in federal 33 court shall apply. 34 c. Eligible digital journalism providers and a covered platform shall 35 each submit a final offer proposal for the remuneration that the eligi- 36 ble digital journalism provider should receive from the covered platform 37 for access to the content of the eligible digital journalism provider 38 during the period under arbitration based on the value such access 39 provides to the platform, which shall include backup materials suffi- 40 cient to permit the other party to replicate the proffered valuation. 41 d. A discussion or final offer under this section shall not address 42 whether or how the covered platform or any eligible digital journalism 43 provider displays, ranks, distributes, suppresses, promotes, throttles, 44 labels, filters, or curates the content of the eligible digital journal- 45 ism provider or any other person. 46 e. (i) Not later than sixty days after the date proceedings commence 47 pursuant to subdivision three of this section, the arbitration panel 48 shall determine the percentage of the covered platform's advertising 49 revenue remitted to notifying eligible journalism providers from a final 50 offer from one of the parties without modification. 51 (ii) In making a determination under subparagraph (i) of this para- 52 graph, the arbitration panel shall do all of the following: 53 (1) Refrain from considering any value conferred upon any eligible 54 digital journalism provider by the covered platform for distributing or 55 aggregating its content as an offset to the value created by that eligi- 56 ble digital journalism provider.
S. 7866 5 1 (2) Consider past incremental revenue contributions as a guide to the 2 future incremental revenue contribution by any eligible digital journal- 3 ism provider. 4 (3) Consider the pricing, terms, and conditions of any available, 5 comparable commercial agreements between parties granting access to 6 digital content, including pricing, terms, and conditions relating to 7 price, duration, territory, and the value of data generated directly or 8 indirectly by the content accounting for any material disparities in 9 negotiating power between the parties to those commercial agreements. 10 (4) Issue a binding, reasoned determination of the percentage of the 11 covered platform's advertising revenue remitted to notifying eligible 12 digital journalism providers. 13 § 2. This act shall take effect immediately.