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06/23/2009

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My brother, future lawyer, likes Richard Posner. I think he's nuts -- but mostly because he advocates that we outlaw hyperlinks and give newspapers special copyright protections over, well -- facts.Today, my brother, future lawyer, points me to his tho... [Read More]

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Back in February I had a little rant about business models in the news industry. A couple of things have prompted me to come back to this story. I want to be more positive and less ranty this time. First, let’s get the something out of the way. B... [Read More]

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Anonymous

Newspapers solve a problem which now can be solved by the internet: distrution and content generation. Distribution can be done through a wire for relatively no cost, while content generation can be done by anyone.

Thus, saving the newspaper industry (=a problem solver for a problem which has become non-existant) is ludicrous. Why want anyone save analogue picture camera's while digital camera's are much better at solving the problem of making a picture?

Off course, Big Corp bosses at newspapers see their market plunge because of the internet. And they will do anything to defend their market, as any established business does. Here in The Netherlands, an internet tax was proposed by one of the most powerfull lobyists. The next day, this proposal was shot down in a blink by the secretary of media. This story illustrates how far off the current Big Corp. bosses are in line with reality. Furthermore, it shows that Big Corp. bosses are desperate in trying anything to keep their revenue stream.

But since the problem the newspaper industry solves, effectively is become non-existant by the internet, the newspaper industry will die. Inevitably.

-Ruudjah

Anonymous

I am a creative artist and I'm a strong advocate of copyright protection. In fact I have recently turned to the courts for relief so this isn't a casual subject for me.

That being said, your advocating for new laws that would bar linking to a story is flawed.

Today any newspaper can prevent this in a hot minute. All they need to do is lock down their website and not allow ANYONE to view their content without being a subscriber.

Of course there is a downside to this: Google and other search engines would no longer 'see' the content and therefore the newspaper would become an invisible entity on the world wide web and that would be the inevitable consequence of such a law.

Linking to a site is not infringement - it is actually another signpost pointing people to that content and that is a very different situation of someone copying said content and posting it on their site. When someone clicks a link they LEAVE the originating site and literally go to the source - they are now ON THAT NEWSPAPERS website reading the article and the advertisements. This is a very positive force for the newspaper because they are being exposed to eyeballs that may never see that newspaper because they live in a different city or state.
Newspapers have some fundamental problems that are not caused by people linking to their websites. One major problem is that most newspapers just don't 'get' the web. They treat their website as if it were printed paper ignoring all the rich media that is available to the web browser.
I read that it costs the New York Times Company over $700 per subscriber to print and deliver the paper for one year. An Amazon Kindle is less that 1/2 that cost. Imagine: The NY Times could give every subscriber a Kindle and slash their costs in half and that's just the first year.
I am a newspaper subscriber and read a daily paper. I like holding them, folding them, tearing out articles or advertisements (and coupons), but I've also come to the realization that when I read my paper in the morning, aside from local news and obits, I've already read most of the articles ONLINE the night before.
I work out of my home, but if I had to commute by train, I ask myself, what would be easier: Reading a paper or a Kindle (or other electronic device)?
Newspapers must solve these issues in order to survive and search engines, blogs, or twitter posts linking to their content isn't hurting them, if anything it's keeping them on life-support.

Jay Groccia
Principal Photographer, OnSite Studios‚Ñ¢
Founder, OnlinePropertyShowcase‚Ñ¢

Anonymous

If papers don't want people linking to their stories they can keep them in print and off the internet.

Ideas like this are irresponsible; coming from a Judge it's even more dangerous and shows just how out of touch you are. It may be time to step down if the technology has surpassed your understanding.

Anonymous

Judge Posner, I know you're supposed to be one of the great legal minds of the century, so I'm loath to disagree with you. However, your idea of outlawing links to and paraphrasing of copyrighted material seems, well, silly. Hypertext links are probably the greatest invention of the Internet, and a fantastic way to enrich one's reading experience. If paper-based news disappears, it will be because of self-inflicted wounds, Craigslist, Google and Twitter, not hypertext links. We already have too many laws on the books outlawing too many innocent acts (witness RIAA's lawsuit for music sharing brought against a person who didn't even own a computer). By the way, I got to your blog through a link on TechCrunch (www.techcrunch.com), which had in turn been sent to my Kindle wirelessly. It is highly unlikely that I would have "heard" about your article any other way. I receive the San Francisco Chronicle and the New York Times l the same way, and I pay for them. I haven't stopped reading the news -- I've just changed the medium on which I read them. It's inevitable, and there's no point in trying to turn back the tide.

Grace Suarez
San Francisco CA

Anonymous

The major fixed costs of newspapers is not the salaries of journalists. Not even close. It's paper. Eliminate the cost of paper (and trucking and printing and marketing print subscriptions) and 3/4 of the cost of running a newspaper disappear. Online ad revenue, especially without the presence of the paper edition as competition, should suffice to keep most journalists employed --perhaps at lower salaries. Structural legacy issues stand in the way -- see my post at http://bit.ly/p4xcG for more details.

Anonymous

You sir are an idiot. If someone puts content online without restricting access to it and charging for it, they did it so anyone can read it. So what you are proposing then is akin to someone reading papers and not being allowed to tell anyone what they read, but refer others to read the paper and then they can perhaps discuss the news.

If a newspaper wants to charge for their content online, then they are welcome to do so. I doubt a majority will be paying to access the low quality of content and manufactured news these papers are trying to sell. What these dinosaurs with failing (or rather dying) business models (just like other media companies, like music and movie industry) have to realize is that rules of the game have changed, and individual people, bloggers and free thinkers around the world can offer just as much insight into world events as they happen as a paid reporter (often times even better actually).

Anonymous

Do you know what "paraphrase" means. Are you really suggesting we try and ban "paraphrasing" -

Gk. paraphrazein "to tell in other words"

I can't comment any further. Each and every paragraph in the post is chock full of absurdity.

Anonymous

I'd like to see you try to stop me from posting a link to a news article on facebook, or emailing that same link to a friend.

Anonymous

"Expanding copyright law to bar ... paraphrasing copyrighted materials without the copyright holder's consent"

Good luck to every High School, College, and any other Research paper creator out there. Enjoy calling the copyright holder for each and every source in your work.

The world can only hope this idea is never seriously entertained.

Anonymous

You really need to re-read your history of mass communications, and in particular, pay attention to the penny press era as ushered in by James Gorden Bennett. Bennett correctly identified that the news distribution model of the day precluded efficient communication to the masses. Instead, the era was predominated by costly newspapers that required an annual subscription (paid in advance, often at the cost of 1/20th to 1/6 the annual wages of a common laborer).

Bennett innovated the replacement to this monolithic model with the penny press -- newspapers sold by street boys for a penny. Foregoing the certainty of a predictable pre-paid subscription base, he accessed new distribution means and utilized the concept of micropayments and advertising-dominated revenues.

A similar challenge faces the media today, but it has forgotten which business it is in. Indeed, while the New York Times could purchase Kindles for its entire subscriber base and more than pay for the expense in just one year by scrapping its monolithic carbon-consuming newsprinting plant, it has lost track of what it is in business to do. Instead, like GM and Chrysler, it is a provider of predictable employment to overpaid journalism school graduates and paper-moving union employees (as well as a perpetuity investment trust fund for certain family members).

Should we destroy the distribution of information and erect inane and unnatural copyright schemes to protect these inefficiencies? While it appears to be the popular regressionary tendencies of the Obama-supporting crowd, it will only enhance the disparity between economic reality and magnify the coming shock that the planned economy types who cease to reverse the flow of rivers will bear.

Anonymous

"to bar linking to or paraphrasing copyrighted materials without the copyright holder's consent"

This is seriously crazy. I live in a country (not in the US, fortunately) where copyright is granted to every work automatically, including any web contents. Does that mean that all Americans are going to be barred from linking to any web page in my country? I doubt that anyone is going to ask for the right to link to a page, (presuming that each link to a page should require a separate permission).

Futhermore, are you going to bar all Americans from telling their friends that the newest issue of their favorite newspaper or journal has just arrived to the nearest library? Just to keep the "rights" of citizens balanced.

Anonymous

When such an patently absurd conclusion is reached from a given chain of logic, thoughtful, honest people back up and try to see which of their premises is wrong. Several of your premises are, so which one - or both - are you not.

Anonymous

Just because an industry is dying is not a reason to try & prop it up with extreme measures.

Blacksmiths, steam engines, and many other institutions were replaced due to newer technologies.

If there is value in their information, then they can make money from it. If the newspapers are reporting on details that are already on someone's blog, then there is little value add. Newspapers need to re-invent themselves in the on-line world, if they wish to survive.

There will always be investigative journalists, just not necessarily tied to print.

Anonymous

Hang links before they lead the whole of civilization into the flaming inferno.

Links are thieving evils, therefore, they must be denied their despicable connectivity.

--Agile Cyborg

Anonymous

Posner, you are an idot!

Anonymous

Remember: Most newspapers have NEVER really charged for content in the dead-tree world.

As a paperboy as a kid, some 30% of the gross subscriber revenue went to the kids like me delivering the paper (and, per hour, we were sub-minimum-wage), and the rest would barely cover the pounds-a-week of newsprint and printing costs.

Newspaper subscriptions pay for delivery.

Anonymous

So are the links to other web sites on this blog illegal?

I wonder if Judge Posner really understands the web.

Eric

Anonymous

I think INS v. AP, 248 U.S. 215 (1918), contains some nuggets of wisdom for us on this issue. Justices Holmes and Brandeis had a number of insightful things to say, but I think Brandeis's commentary on legislation to protect a property interest in news is more point:

"A Legislature, urged to enact a law by which one news agency or newspaper may prevent appropriation of the fruits of its labors by another, would consider such facts and possibilities and others which appropriate inquiry might disclose. Legislators might conclude that it was impossible to put an end to the obvious injustice involved in such appropriation of news, without opening the door to other evils, greater than that sought to be remedied. Or legislators dealing with the subject might conclude, that the right to news values should be protected to the extent of permitting recovery of damages for any unauthorized use, but that protection by injunction should be denied. . . . If a Legislature concluded to recognize property in published news to the extent of permitting recovery at law, it might, with a view to making the remedy more certain and adequate, provide a fixed measure of damages, as in the case of copyright infringement.

"Or again, a Legislature might conclude that it was unwise to recognize even so limited a property right in published news as that above indicated; but that a news agency should, on some conditions, be given full protection of its business; and to that end a remedy by injunction as well as one for damages should be granted, where news collected by it is gainfully used without permission. If a Legislature concluded that under certain circumstances news-gathering is a business affected with a public interest; it might declare that, in such cases, news should be protected against appropriation, only if the gatherer assumed the obligation of supplying it at resonable rates and without discrimination, to all papers which applied therefor. If legislators reached that conclusion, they would probably go further, and prescribe the conditions under which and the extent to which the protection should be afforded; and they might also provide the administrative machinery necessary for insuring to the public, the press, and the news agencies, full enjoyment of the rights so conferred."

I tend to agree with Brandeis's first comment, that it might be "impossible to put an end to the obvious injustice involved in such appropriation of news, without opening the door to other evils, greater than that sought to be remedied."

I think any discussion of legislation on how to best protect the newspaper industry must be coupled with a discussion of why the newspaper industry - as it currently stands - needs to be protected. Judge Posner's assertion - that the newspaper industry's decline means a reduction in the quality of reporting - is only clearly true with regard to newspaper reporting. An exploration of whether non-newspaper reporting, especially such reporting that may only be possible through the internet, might be of sufficient quality, however that might be defined, ought to be conducted before asserting that a change in the law is desirable.

Terry Stedman

Anonymous

You are currently linking to copyrighted content on your front page.

http://t.extreme-dm.com/?login=beckposn

Please remove that at once.

This comment is copyrighted to me as well. You're displaying it. Clearly you need to remove all comments from your blog.

I found your site using google. Clearly you need to put something in your robots.txt so no search engine links to you.

Your article on the Japanese retirement system links to copyrighted content. Clearly that needs to be removed.
http://www.becker-posner-blog.com/archives/2005/06/the_japanese_re.html

Your trackbacks link to copyrighted content, so clearly they need to be removed as well.

You should be able to see the problems inherent in your proposal.

Anonymous

Why is there any social obligation to protect the written content of print and online journalism?

The judge is acknowledging that the purpose of Copyright is not to foster creativity, but to protect otherwise unworkable business models with state-sanctioned monopolies. The "marketplace of ideas" goes on without monolithic record companies and publishers.

We are undergoing a paradigm-shift in the nature of information and entertainment-delivery. Historically, monopolists suffer during such shifts and governments make hopeless attempts to protect and to perpetuate old and obsolete markets. This does little more than postpone the inevitable, giving robber barons time to perfect methods for stealing from the general population in the new markets.

I submit that it is better for society to let the markets play out without your intervention. Let rights-holders fail if they cannot market their wares without your help. You have recognized that Copyright does not exist to foster creativity or to enhance the "marketplace of ideas." Stop pandering to the monopolists.

Anonymous

Posner, I'm an old fart like you. Apparently, that's where the similarity ends. To begin with, I still have functioning grey cells.

Nonetheless, I will try to explain: Hyperlinks are the web--they define it and distinguish it from every other medium. To put content on the web is to beg others to link to it. This is fundamental. Furthermore, to be useful, links need to be described; their existence must be justified. A link is an electronic citation and needs to contain enough material that the reader can make an intelligent decision to follow it or not.

The copyright "remedies" you seek are as unnecessary as they are thoughtless. Content owners already have the means to prevent any access they wish. They can keep their content off the web or restrict access to it using simple tools that are already available.

I'm afraid you've let your ignorance of the technology affect your judgement.

Anonymous

Wow.

I can't remember the last time I read something this dumb.

Anonymous

Excuse me, but maybe it's time for you to retire now? And the same goes for news sources you talk about.

So, first, the land of the free became the land of the oppressed, and now you want to tear down the land of opportunities too?

Anonymous

I, like you, am concerned about the future of the newspaper industry, but do feel that the decline comes from a failure to adapt to and control associated new technologies. This failure is however not a recent one - the writing has been on the wall for the whole industry for a decade now. Technologies such as Social Media is simply accelerating this decline.

I can see the news on Twitter far faster than even the TV can report it. Twitter is like sitting next to an old Reuters news teletype of years gone by. As you correctly point out this is free.

The London Times has had for many years a paid subscription. If you pay your subscription then you can see every article that appears in the print edition plus additional, on-line only materials. This is one model that could be adopted by other newspapers.

Advertisers are currently perplexed about the future of advertising, not just the association with the print industry. However providing links to any site should benefit that site, I celebrate as I gain readership on my web-site, and my new readers come from my ability to be found and be relevant on searches. People come back to my site for my opinion (I know because I get thank you notes everyday by Twitter and email).

Your proposal to "Expanding copyright law to bar online access to copyrighted materials without the copyright holder's consent" is in my humble opinion wrong. Everything I produce is Copyright material - copyright attaches the moment I hit the publish button. If I bared links to my site I would limit traffic, which would not be to my benefit. It is not a case of a website taking a "free ride on other sites", linking is what drives traffic on the web. Google ranks pages in part because of linkages.

What you are witnessing is the democratisation of news. People have come to understand that when they observe something of significance their opinion is as important as that of a news reporter, even more so if they witnessed the actual event and can update the world through Twitter or other Social Media. They become the REAL reporter. Reuters and the Associated Press can NEVER again become the only professional, non-governmental sources of news and opinion.

As a lawyer I do support copyright law very strongly, as a technologist I support an expansion of access to materials. As an author I support payment for effort made. The fact that material exists on the web does prohibit it from being provided as a cost. Perhaps the subscription model should be considered further for many content providers, including the traditional print media.

Peter B. Giblett. CITP, LLB
Editor - CIO Perspectives
http://cio-perspectives.com/

Anonymous

Mark Lemley, a Stanford Law professor, has written extensively on the free-rider issue as relates to copyright. In particular, his paper "Property, Intellectual Property, and Free Riding" (), specifically discusses how applying the traditional concept of property rights to "intellectual property" can actually be detrimental to society as a whole, because some of the assumptions used break down when applied to a non-rivalrous good.

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