Posner’s dangerous thinking

Mike Masnick on techdirt points us to some dangerous and incomplete thinking from Judge Richard Posner on his blog. At the bottom, Posner writes:

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.

Good God. Posner is not just trying to mold the new world to old laws – which is issue enough – but is trying to change the law to protect the old world and its incumbents from the new world and its innovators. He is willing to throw out fair comment and free speech for them. That is dangerous.

Posner’s thinking is incomplete in a few ways. First, he is ignorant of the imperatives of the link economy. The links and discussion he wants to outlaw is precisely how content is distributed and value is added to it in the new media economy.

Second, as Masnick points out, Posner assumes that jouranlism as it was done is journalism as it should be done: that the goal is to protect newsrooms, unchanged. But there are tremendous savings to be had thanks to the link economy: do what you do best, link to the rest.

Note how The New York Times and The Guardian – not to mention the Huffington Post and Andrew Sullivan – covered the Iran crisis. They linked. Links made their journalism complete. So did readers. The Times has three editors for every writer but in the blog, there was no need – no opening – for them. There was no need for production or design. The new news organization can and will operate at a different scale from the old one, because it can and because it must. So what is Posner protecting besides the old budget and payroll. He’s not protecting journalism – or rather, he’s protecting it only from progress.

No, sir, the news industry – and the law – must be updated for this new world and so must your thinking.

: LATER: Here‘s Matt Welch at Reason.

  • There have a move in the UK to extend “cuttings licences” to cover “hyperlinks to articles” where those hyperlinks are distributed as part of commercial services.

    See: http://bit.ly/hyperlinklicence

    • Legal briefs and judge’s opinions are filled with “links” (i.e. citations) to other works. In many cases, those “links” are actually the primary value of the work produced, for pay, by those who write briefs. Lawyers provide “commercial services.” Will lawyers and judges have to pay royalties when they cite cases, journal articles, and other data? Would some links be free and others not? How can you tell if a link produced by one commercial enterprise (such as a lawyer’s office) is different from that produced by another? How can the technology used to produce the link impact whether it is subject to license when in fact the same link can be produced using other technologies that are not licensed?

      bob wyman

      • SmithWill

        The day attorneys pay referrals for citation of existing law is the day lollipops will fall freely from the skies. And, of course, there will be lots of lawyers suing people for “sucker injury.”

      • Andy Freeman

        >> Legal briefs and judge’s opinions are filled with “links” (i.e. citations) to other works. In many cases, those “links” are actually the primary value of the work produced, for pay, by those who write briefs.

        That’s not quite right. Figuring out what links to put where is (some of) the value produced by lawyers. The folks who are producing comparable works (documents with links to interesting things) are being compensated, so I don’t see what distinction is being made.

  • Sorry – my bad. “has been a move”

  • This doesn’t shock me at all. While copyright wasn’t meant to protect old business models, in the courts is oftentimes what happens.

    But I’m not always sure it’s for nefarious reasons. I think it may stem from an inability to understand how these technologies can work.

    One of my favorite stories from my days at Wired. I was covering the MP3.com trial (it’s My.Mp3.com streaming service). CEO Michael Robertson was explaining the service. Midway through, the judge (Rakoff) cut him off and asked him what a message board was.

    During the break, Robertson settled the case (for several hundred million dollars) because, as he told me, there was no chance they would understand a streaming jukebox if they couldn’t understand a message board.

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  • Torsten de Riese


    Your comment here misses the main point of the NLA licence. They have no intention of charging for links or even imposing a licensing structure for linking. The extended web licence only applies to paid-for aggregators such as Moreover, who are generating revenues by redistributing links to newspaper articles (and other content) as part of a subscription service. I think it is completely in legitimate to say that newspapers deserve a fair share.

    • Andy Freeman

      > The extended web licence only applies to paid-for aggregators such as Moreover, who are generating revenues by redistributing links to newspaper articles (and other content) as part of a subscription service.

      If I write a magazine article that cites a bunch of newspaper articles, are the newspapers owed money?

      A link is not content. A link is a way to get to content.

      If someone doesn’t click on a link, said someone doesn’t see the linked content. If someone clicks on a link, they’re taken to the newspaper’s site, where the newspaper can monetize to its heart’s content, keeping all of the revenue for itself. (Subject to whatever agreements it has made for content that it got from elsewhere.)

    • Torsten

      Following up on this one. I disagree in that the “eClipsWeb” licence applies to NLA members who circulate links to newspaper articles to their clients, and that is more than just the “aggregators” such as Moreover. My exact wording:

      “NLA managing director David Pugh today confirmed the introduction of the new licence extension governing weblinks.

      He told Press Gazette that the licence was intended to apply only to organisations circulating hyperlinks to newspaper articles commercially as part of a business model.

      There is no attempt to regulate use of hyperlinks where that is not as part of a chargeable service, such as by private individuals or as the results of queries by internet search engines such as Google News.

      He said licensing will also apply to recipients of paid media monitoring services, as is the case with existing NLA licences.”

      Was emailed to the NLA PR people and verified. I read that as meaning that the “link licence” would also apply to existing customers who were sending links rather than digital cuttings to existing clients.

      Indeed, the NLA Press Release says that this is so:

      “From September 2009, web aggregators that charge clients for their services will require a NLA licence and be charged from January 2010, The press cuttings agencies that either ‘scrape’ content themselves or buy in services from aggregators will also be licensed and charged. Client companies that receive & forward links from these commercial aggregators within their organisation will also require a licence.”

      Link: http://www.nla.co.uk/index.php?option=com_content&task=view&id=6&Itemid=7

      Hope that helps answer your query.


  • invitedmedia

    turn this around 180 degrees and the traditional media is phucked if they can’t/couldn’t link to or grab their reports on iran from “outside sources” on twitter/facebook/(add the next hot tool here)/etc.

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  • mike

    This might miss the point — but I thought that legislators changed the laws and judges apply them.

    While I completely agree that we need to update our laws to fit our linked world, I can’t really fault a judge for developing creative ways of applying old laws in new situations.

  • Occasionally I find myself wondering what would happen if these backward-looking folks got their way. They’d realize their mistake eventually, but too late to help.

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  • This “we OWN the news” hysteria by the newspaper industry is not new. They tried it in the early 30s against the blossoming radio industry via such efforts as the Biltmore Agreement and the Ventura Free Press campaign.

    It didn’t work then and it won’t work now, regardless of the law.

    Media at war By Gwenyth L. Jackaway

    Telecommunications, mass media, and democracy By Robert Waterman McChesney

  • Mike Manitoba

    RE: copyright

    I’m curious to hear your take on the Chris Anderson mess.

    • Andy Freeman

      New journalists, like old ones, plagarize.

      Both groups also reprint press releases and accept freebies.

      • Mike Manitoba

        “Plagiarism.” Ho ho. Such a quaint old-media concept. Information wants to be free. Adapt or perish, Freeman.

      • Andy Freeman

        Cute, but dishonest. In other words, vintage Manitoba.

        I’ve nothing against someone trying to profit from their work, whatever its form. I do point out that customers get a vote too. If they don’t want to pay what you want, your only option is to refuse to provide.

  • I agree with Jeff on this principle and am concerned about copyright abuse in many other areas, as well. (Think pharmaceuticals).

    There is one point not made here thus far: there’s absolutely nothing to keep a news organization from giving permission for aggregators to link. If much of the other guy’s content was sequestered behind copyright, those who played by the new rules would benefit even more, wouldn’t they?

  • Hey Jeff,

    Interesting. I hadn’t had a chance to read Judge Posner’s latest post until just now. I’m having lunch with him in Chicago on July 15th. Given that I’m very much on your side of the argument, this exact topic should make for interesting conversation! :-)

    I’ll let you know how it goes.

  • Ignore the talk of the “link economy” for a sec. Ignore arguments of new versus old media. Ignore all the political (i.e. irrelevant) aspects of this situation.

    This all comes down to a very simple legal principle: You can’t copyright an idea; only the formulation of that idea.

    Links are very simply references to other people’s formulations of ideas. They are not the form themselves. And commentary on those ideas, as well as brief snippets from articles, are and have been considered fair use for a very long time. If companies don’t want people to access their publications online, they should probably shut down their web sites. Jackasses!

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  • Denisjh

    The posting oddly fails to dispute a word Posner says.
    If no one pays for content, no one will make content.
    If people pay a fortune for content, lots of people will make content.
    There is no infotopia in which the AP will continue to hand out its content and free riders will be able to make money off of it without paying AP.
    Until someone explains to me who will invest their time and money into creating content when distributors refuse (in a high-minded way, of course) to pay for it, I’m on Posner’s side.
    Besides, he is waaaaaay smarter than the rest of us.

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