Judge Thinks Linking To Copyrighted Material Should Be Illegal

An article at TechCrunch discusses a blog post from Richard Posner, a US Court of Appeals judge, about the struggling newspaper industry. Posner explains why he thinks the newspapers will continue to struggle, and then comes to a rather unusual conclusion: "Expanding copyright law to bar online access to copyrighted materials without the copyright holder's consent, or to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent, might be necessary to keep free riding on content financed by online newspapers from so impairing the incentive to create costly news-gathering operations that news services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion."

Comments

Posner

[Raindance]

While this seems like an opinion that runs counter to many tenants slashdotters hold dear, I think we should at least consider it. By any measure, Posner is one of the most impressive judges on the bench today-- and in my opinion, one of the only judges that really 'get' all the issues surrounding copyright and digital things in general.

I'm hardly alone-- Lessig has noted that there isn't a federal judge I respect more, both as a judge and person, and Posner was Obama's first choice when asked which sitting judge he would most like to argue before.

So you may disagree with this opinion-- I'm leaning that way too-- but it's worth fair consideration. Go and actually read his post before passing judgment. When he was guest blogging about copyright law at Lessig.org back in 2004, he noted, "I am distrustful of people who think they have confident answers to such questions." That goes for both sides in this debate.

Sort of a hack job by techcrunch actually.

Re:Posner

[gum2me]

I agree. The TechCrunch post is shrill and doesn't address the central issue that Posner presents: How do you maintain a free press when free-riders can inexpensively and quickly copy and redistribute your original content? He raises a valid point and the TechCrunch completely sidesteps it.

Re:Posner

[QuoteMstr]

Your two problems have intertwined solutions, actually. We'll start to see certain independent blogs gain credibility naturally. The process has already started: consider Nate Silver's blog, or James Kwak and Simon Johnson's, both of which are top-rate sources of analysis that match anything you'll find in the paper. I think the emergence of credibly blogging will occur naturally: the Internet flocks to quality.

That leaves the problem of foreign news, but I don't think it's much a problem. Credible blogs will appear worldwide. Consider how much news we've been able to read from Tehran lately. If you'd like news from Madrid, or Tokyo, or Londom, you can look up a reputable blogger there and read the primary source directly. These native blogs will replace, to large part, foreign correspondents. (This change will be made possibly by the fact that English has become a lingua franca, and it's easier for people from across the world to talk to each other than ever before.)

This model, of course, will lead to rampant astroturfing, disinformation campaigns, partisan hackery, medical quackery (I'm looking at you, Huffington Post), and so on, and I'll miss the Gray Lady, but I don't think it's the end of the world. The discerning reader will still be able to find reliable news, and for the rest, well, they're already reading The Sun or watching Fox News.

Re:Posner

[xigxag]

Regardless of his Lessig-credentials, the fact is that his point is poorly thought out, for at least three reasons.

1) Newspapers are voluntarily on the internet because they feel that an online presence is important to them. If, say, the New York Times doesn't like having aggregators leech off its content, it could easily shut down its website, end of story. Then its content would be available only in print. I wonder why the Times doesn't do that. Or, less sarcastically/rhetorically, if Posner has given thought as to why the Times doesn't do that. (And less extreme measures could be taken, such as making the site only available through the main page, making it subscription only, and so on. The issue is still the same, purely technological remedies can be taken, but in most cases they aren't, for the simple reason that no newspaper wants to be consigned to the dustbin of history, so to speak.)

2) How is this law supposed to affect those outside of the US? Is Posner's idea merely to cripple the US internet, or does he somehow think he can stop citizens in other nations from linking to US sites? Or maybe that's OK in his estimation, since US papers don't derive substantial revenue from foreign readers. In which case, we'll have a curious sort of situation where US web users will be linking to foreign papers to discuss them and vice-versa. Either way, this won't stop people from going to the internet for news, it will just slow things down a bit

3) One of the largest reasons newspapers are losing revenue is because they've lost the classified ad wars with Craigslist. That situation won't change by shutting down Google.

4) As long as we're throwing out absurd ideas willy-nilly, how about this? Make the sales of offline print advertising tax-free. That will have the effect of subsidizing the struggling newspaper industry without the government directly involving itself in the fourth estate.

He's wrong

[BadAnalogyGuy]

While it might be the death of "Big Media", it will be the birth of "lite media" which consists of the blogosphere, twitter, and Facebook. When the incentive to compile news is financial, we will only get news that is sensational and designed to be sticky. However, when that incentive is removed, we will be able to see a rapid advance in news gathering for its own sake. Such an evolution in news gathering is a huge breakthrough for the little guy who prior to this would never have had his voice heard.

Old Media is shaking in their boots at the thought of being overrun by so-called "unqualified bloggers". Take the recent election, for example. While many people tuned in to CNN and the NY Times for information, many more relied on Little Green Footballs, the Huffington Post, and the Daily Kos for up to the minute election data. As more little guys enter the market, we will finally see real competition. Since competition leads to improved product, we can only expect to see better news once the corporations like NY Times and CNN wither away.

Enforcement?

[GammaStream]

If a search engine is located in another country, how do you stop it linking to your copyright material? Fines that they won't pay? Extradition? Blocking their site?

Library card catalog

[peektwice]

I'm pretty sure that this also means the end of the Dewey Decimal system, since it links to copyrighted material.

Re:So this implies...

[Anonymous Coward]

It would be so hilarious if they made this a real law. Sites like Slashdot would not die... sites that sued for being linked to would die. See... if you are in the search engine then the search engine *has* a link to your material. That means if you copyright your work and post it and linking to copyrighted material is illegal *then* you work will be invisible. If you can't be found on a search engine then you don't exist on the internet.

People won't be able to email links to your stuff to each other since that would be illegal so effectively no one would be able to tell others about your work. It would mean the death of copyrighted material on line.

In other news they just passed a law in my state that all online sales to sites hosted in this state must pay sales tax. Guess what that will mean? No sites will be hosted in this state.

Re:Throwing out the baby to save the bath water

[dogbertsd]

I have to disagree slightly. I don't think persons who would pull the plug would do so to save their margins. They would pull the plug because they can't control the Internet, and this goads them. They have built a perception of their own power into which the Internet doesn't factor. In these cases complaints about lost profits are often a red herring--it's about power.

Re:So this implies...

[hairyfeet]

Actually I predict if this kind of asshattery is allowed that all the sites like Slashdot will simply be moved out of the USA to a place with more sane copyright laws. If they keep this shit up the USA is gonna be left all alone as some "insanity island" while everyone else gets with the program and moves to the 21st century.

Why do you think China is kicking our asses so hard? Yes, it is partially lax environmental laws there, but I would argue that it is also because they completely ignore American copyrights and patents and therefor have a more cutthroat business model where "he who makes the best widget wins" while we have a "patent and copyright the hell out of everything, then sit back and sue" model going and it sucks. Does anybody else think that if Linux or some other OS suddenly shot up to...say 15%+ market share that Apple and MSFT would bury them in lawsuits? Nope, me neither.

Our patents and copyrights have simply choked the life out of all innovation here. Trying to get anything done in the USA is like navigating a minefield, with the millions of patents and copyrights and patent trolls just waiting to pounce. I predict the USA will just be stuck more and more to the sidelines while the third world explodes with new ideas built upon American ideas but without a bunch of copyright and patent bullshit to slow them down. I am not saying we should abolish all patents and copyrights, I am saying we need to bring sanity back to the discussion. I would say patents should be a flat 25 years, copyrights 5-15 due to the ease of selling ideas thanks to the digital medium. Either way our copyrights and patents have gotten too ridiculous as the judge proves and will just serve to have more business avoid the USA like the clap.