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."
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Mod parent WAY up! This could be devastating for information distribution. Look around on stories that link from here, Digg, Gizmodo, wherever, and see how many of them say "Copyright by blahblahblah". Imagine not being able to find that information except by checking all of those websites individually. Aggregation could be killed by this.
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.
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.
Except you forget that this sort of asshattery (love that word) will not persist due to the internet friendly US Supreme Court.
Linking is not a copyright violation because it does not contain any part the content. A brief summary is specifically allowed by US Copyright law.
So the end result is this Appeals Court Judge gets bitchslapped by Supreme Court at the first opportunity. But more to the point, since he has published his opinion in the open press before a case is even brought before him he will have to recuse himself from any such case, or get turfed by the lawyers involved.
So CALM DOWN. Before rushing to assume there is a more internet friendly country, at least propose one.
The entire EU is courting three stikes. Australia and Britain are attempting to engage in massive filtering. China already filters, Iran is trying its damnedest, as are most islamic majority countries.
Banning links to copyrighted material is plainly asinine. If I link to a news item from a news source (NYT, CRN, whomever) that supports its online presence through ad revenue, and if people follow my link and read the news item, I have helped generate traffic, and therefore revenue, for the news source. If the judge's idea is to help newspapers survive in the internet era, perhaps he should first understand internet economics a little better.
If you link straight to the article, they lose the ad revenue from the 180,000 pages you have to click through from their front page to any actual news!;)
It's not only vastly impractical, it turns the whole idea of the Internet on it's head. The whole idea of putting a file behind a publicly accessible URL is that you are making it public. All the rest, search engines, websites, aggregators everything else is just add-ons to make that act, and the act of typing the url into the address bar to get the file, more user-friendly. The act of putting something behind a URL without restricting access in any way, means you've made it public. That's the rule of the Internet. If you want to restrict access a bit more, you can use http-authentication or session based authentication, there's certainly no lack of options.
Now if you want to build a business model on the internet, I wish you all the luck in the world, we know it's possible, but you do have to follow the one rule. Nobody forced you to be on the internet, feel free to leave again if you don't like it.
Now, newspapers can legitimately gripe about people stealing their content, and semi-legitimately gripe about aggregators displaying it, but that has nothing to do with linking, and this guy doesn't know what he's talking about. The fact that he wants to ban paraphrasing others' content as well makes me wonder how the hell this guy came to be a judge.
That sounds like it would be the single biggest threat to free speech in the last fifty years if it were to go anywhere. Imagine what the media conglomerates would do with a law like that.
Banning links to copyrighted material is plainly asinine.
Banning links to copyrighted material would result in the legal destruction of the internet, at least in the US.
Under US copyright law, copyrights for all material are held by the author (with certain limited exceptions). The vast majority of works never have their copyrights registered, but registration is not necessary for copyright to apply. "Banning links to copyrighted material" is thus redundant, and can be shortened to simply "banning links."
Just to point out for those who don't know, Judge Posner [wikipedia.org] is probably the single most influential living jurist not on the Supreme Court (and will likely end up being more influential long-term than many on the Supreme Court; certainly more influential than Clarence Thomas). He teaches at one of the top six law schools in the country (Chicago), serves in one of the most important circuits in the country (Seventh, which includes Chicago--other important circuits are DC, 2d, and 9th), and is so ridiculously prolific. He's a pioneer of the currently en vogue jurisprudential theory of law and economics [wikipedia.org]. He frequently feeds clerks from his chambers to the Supreme Court as well
My point is that this man has tremendous influence in the US. He's not an intellectual lightweight. Unfortunately, I can't read what he wrote since the blog entry seems to be down now.
My point is that this man has tremendous influence in the US. He's not an intellectual lightweight. Unfortunately, I can't read what he wrote since the blog entry seems to be down now.
We already have that! The Google News bot will only link to the news page if it isn't in the robots.txt file. The problem is that Newspapers don't want Google news to link to specific pages, but the want the "normal" Google to link to their main page, and Google said they can't have both.
Hey, have you been sleeping under some rock? We don't RTFAs in this part of the internet. The editors only have to insert a few phony "links" in the story to www.foo.bar
"Slashdot effect" would have to be reinterpreted as "a bunch of people arguing about something without bothering to know the story" though, but around here we take pride in doing that.
Now I will have to ask you to get off my fucking lawn.
by Anonymous Coward
on Sunday June 28 2009, @12:55PM (#28505449)
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.
If anyone really cared, you could build this today. Just generate one-time use, random URL links in each page view. Now nothing can be linked to except for the home page.
If I go to a museum, and I point my finger at a painting, will that be illegal too? What if I post a blog entry saying there is a cool painting at museum X?
Hypertext links are just the beginning. We must close the analog hole! Every time someone chats with a friend about the day's news, a poor, helpless newspaper loses money. And God kills a kitten.
The death of the internet, period. Since, according to the Berne Convention and US law, EVERYTHING is copyrighted at the moment of creation, the logical conclusion is that it would ban hyperlinking to anything external to a site. Now more WWW - Thanks Tim, it was fun, hope everything goes well in prison.
I don't know what to be more embarrassed about - a well respected appeals court judge who is ignorant of the law about which he comments, or the judiciary lobbying for which laws Congress should make, not the laws that they did make. It's not a very bid step to "Well, if Congress doesn't do it, then I will."
Slashdotters really should go and read the original. What the judge recommends doing is to allow news papers to survive is to bar websites from reposting the full news story (paraphrased or not) found in the newspapers. So slashdot is safe, since it only provides a summary of the news story, and so is the internet, since only linking to news articles found in newspapers is discussed.
The judge apparently wrote: "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" (emphasis mine)
The linking that he discusses is to all copyrighted materials, not just to newspaper articles. Besides, don't you think the rest of the IP mafia will catch up quickly once such madness goes through? And paraphrasing is specifically mentioned as well....unless you mean another original, in which case I would invite you to post a link while it is still allowed.
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.
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 [becker-posner-blog.com] before passing judgment. When he was guest blogging about copyright law [lessig.org] 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.
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.
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.
Let's take Slashdot as an example and the notorious Slashdot Effect. One of the most sure ways to really drive a ton of traffic to a Web site is to link an article to Slashdot. Those Web sites almost always have advertisements. How are those news sites not benefitting from this situation, and what part of this is depriving anyone of their fundamental rights so that it would be appropriate for the government to intervene?
How is this a new problem? Anyone can currently 'link to or paraphrase' print material. If I say 'an article in The Economist contained a detailed report on the harm done by Fairtrade Products' in a print magazine then I am linking to (although not in a clickable form) and paraphrasing an article. Both of these are usually seen as fair use. It is completely legal currently for me to produce a newspaper that does no original research and just writes articles based on the investigative journalism of other publications.
A more important question is how you maintain a free press when you aren't allowed to paraphrase or link to articles from other news outlets.
How do you maintain a free press when free-riders can inexpensively and quickly copy and redistribute your original content?
What makes you think that a free press is incompatible with easy redistribution? Certainly the current newspaper model will need to adapt, but large, established newspapers are not synonymous with a free press.
In fact, when the Constitution was written, newspapers were more like today's blogs than today's papers: they were small, numerous, often partisan, and of varying quality. If the framers of the constitution thought the press at the time constituted a free press, then we should at least consider the idea that newspapers will need to change.
Whatever you are smoking, please share. This has NOTHING to do with the first amendment. The death of the Old Media business model is NOT a blow to the first amendment, it STRENGTHENS it, because broadcasted speech becomes less controlled and more democratic. When the cost of entry to the broadcast medium (the internet) is effectively zero, EVERYONE becomes a member of the press. The death of the Old Media business model is the best thing that could possibly happen for freedom of speech.
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 [fivethirtyeight.com], or James Kwak and Simon Johnson's [baselinescenario.com], 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.
"I am distrustful of people who think they have confident answers to such questions." That goes for both sides in this debate.
I have a confident answer: when in doubt, freedom should prevail. This especially applies to freedom of speech and of the press. The burden of proof is on anyone who thinks that freedom should not prevail. In other words, our fundamental inalienable rights are far more important than whether or not a newspaper goes out of business.
Let's soundly reject this concept, right now, that it is the role of government to determine who wins and who loses in the business world. Newspapers are struggling because they are old technology that is being replaced by a new technology. Even if that weren't the case, their perceived right to do business is absolutely nothing compared to our real rights.
Let's soundly reject this concept, right now, that it is the role of government to determine who wins and who loses in the business world.
No, but it is a role of the government to set and enforce the rules of play and the issue here is tweaking those rules. The conflict here is not between newspapers and online media but between those who gather the news and those who copy the news. The problem is not that "newspapers" are going out of business but that the news gathering is going out of business because news copying is eating into its profits to the point where it's not worth it.
I'm not certain linking to someone else's work is completely under the umbrella of speech
I am. I think we can agree that "you can find X by going to example.com and clicking the link called foo" is protected speech, yes? If you want to argue that deep-linking is no covered by free speech, then you must show that either:
A URL and the aforementioned sentence are dissimilar
The URL itself it protected speech, but its machine-readable form, the link, is not
I reject #1 above because any linguistic transformation of protected speech is still protected speech, and can think of no contrary precedent. I reject #2 because I think of no situation in which a machine-readable form of speech is treated differently from the same speech in a different, non-machine-readable fixed medium.
Now, some very powerful people have argued that sentence #2 should be true, but perceived (or even actual) economic harm is not a justification for abridgment of free speech. The traditionally-recognized exceptions to free speech [csulb.edu] are:
Defamation
Causing panic
Fighting words (an exception seldom used today)
Incitement to crime
Sedition
Obscenity
Establishment of religion
Deep linking is not exempted from being free speech by falling into any of the above categories. Therefore, it is protected speech.
There is no category called "likely to cause economic harm to a corporation with lobbyists".
Why should we consider it? It is a laughable. He is suggesting we change the laws in ways that severely limit individual freedom in a way that is completely impossible to enforce unless we completely change some core fundamental aspects of participation on the Internet. This man could be God for all I care.. If he says something stupid, it is stupid no matter what. We should consider his stupid opinion because he's a great man? That's an error in reasoning. (false authority fallacy)
Think about this.. He is trying to preserve an industry that is changing because of technology. Just because news as we know it is going through 'evolution pains' does not mean we should stick our stupid laws all over it. Leave our laws be. First Amendment is a pretty damn important law in this country..
There will ALWAYS be demand for news - and there will always be a demand for truth. By adding new laws that limit the ability to satisfy that demand better, we are actually regressing. Just because the news will change does not mean it will not be better. In fact, I would like to argue that most of our news is completely useless anyway. Let it be free. Let honest people report what they see.. and a group of similar opinions will allow people reading it to distinguish the truth. Right now, if Fox News wants to put their own screwed up twist, they can legally do that.. and they do it all the time! Screw them..
The newspapers screw the news also.. IMO, right now, there seems to be no good way to get the truth unless you read the news and the bloggers and the comments, and form an opinion of what really happened. So, if you cannot link to an article, how do you comment about it? How do you tell people what you're talking about? Maybe there should not be money in the news.. Let the market figure out how to handle the news.
And, further, fuck copyright. The laws make the copyright holders so card-stacked against the individual that people care less and less about it and the laws governing it.
His argument sounds reasonable on the economic side, because he's hardly the only one wondering what'll happen to investigative journalism. You can see it with planted stories, one online site reports something and it grows exponentially so hundreds of sites and blogs and whatnot paraphrase it and then you got google news pointing you to hundred rehashes of that article. If that's a deep story you've spent plenty money to unfold, it's really hard to recover your costs.
However, from a logical point I don't see it possible - should they then get an exclusive right to that news, like a patent? You really want Fox News to report something, but noone else can present the story with a different twist? What about other media following up on a case reporting 90% the same but with 10% additional content? This would be nothing but legal hell to figure out what news are "your" news and not. All this could do is create media cartels of people not suing each other over their respective news, which would be even worse than all the other alternatives.
So you don't have any justification for your position other than "he's cool"?
You are willing to cast your own opinion aside in favor of one that clearly goes against the intent and the letter of the law, just because you like him?
Okay so I read his post. He is making economic arguments over whether or not we have a right.
Since when are judges supposed to use economic arguments to decide whether or not we have a right?
That's part of the problem, I think. The law and economics movement prefers a sort of central-planning-via-law, in which we decide what kinds of outcomes we want, make some simplifying assumptions about rational actors, and then pass laws that will lead to those outcomes. But this completely ignores whether some of the laws might be right or wrong in themselves. In this case, Posner seems not to give much weight to free speech (and fair use) as inherently valuable protections for people living in a free society. He doesn't even discuss it as something to consider when balancing pros and cons of his proposed legislation.
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.
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.
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?
The United States is fully capable of shooting off its own leg to save a toenail. There are men with real power in the country who would happily pull the plug on the entire Internet tomorrow if it would save their margins on Marley & Me 2.
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.
I wanted to write that paper about the current affairs of the political system but I can't give you any sources since it's illegal to link to copyrited material...the new my dog ate my homework.
Newspapers want to have their cake and eat it too. They want the traffic that comes from Google linking to them, but they want sole access to the internet advertising revenues associated with their content.
Also, how does the judge propose helping the newspapers fend off online classified services like craigslist, which are the real threat to newspapers.
With this judgment, one of two things will happen:
1) Google stops linking to them entirely and their online business dries up. 2) All or most newspapers grant Google the right to link to and show excerpts of their stories.
Either way, the newspapers won't see a revival. Their only hope is to set up some kind of common online newspaper portal to take the place of Google news. Except, this time, there isn't the equivalent of Apple's iTunes to save them from their own stupidity.
Isn't the community consensus that every publicly accessible URL points to content that the community is free to link to and view at will?
That is: if you post a document on a web server, then you're granting the whole world the same rights to the material that you would be if you posted that material on a billboard sign next to the highway.
Why can't judges see that?
Why do some judges assume that the common understanding of a URL needs to change, rather than just having the newspapers stop supporting publicly accessible URLs to content they want protected???
The obvious effect of no linking to newspaper sites (or other original material) is that Google page ranking will fall through the floor for such sites. The news web sites might allow Googlebot to search the site and index the material, but there won't be other sites linking to the newspaper sites and Google won't be able to use the amount of linking to judge the importance of the sites. Any sites which grant permission for everyone to link to them will soar in page ranking. Many blogs are likely to have higher link-based rankings than newspaper sites. Yes, Google will rank through other means as well, but restrictive sites will lose the indexing ability of the rest of web authors.
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This sounds like a "new methods are making an old business model obsolete, so we should outlaw the new methods" type thing.
He is about to be deluged with requests by RIAA and MPAA members for him to write about their business model.
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Re:So this implies... (Score:5, Interesting)
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.
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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.
Except you forget that this sort of asshattery (love that word) will not persist due to the internet friendly US Supreme Court.
Linking is not a copyright violation because it does not contain any part the content. A brief summary is specifically allowed by US Copyright law.
So the end result is this Appeals Court Judge gets bitchslapped by Supreme Court at the first opportunity. But more to the point, since he has published his opinion in the open press before a case is even brought before him he will have to recuse himself from any such case, or get turfed by the lawyers involved.
So CALM DOWN. Before rushing to assume there is a more internet friendly country, at least propose one.
The entire EU is courting three stikes.
Australia and Britain are attempting to engage in massive filtering.
China already filters, Iran is trying its damnedest, as are most islamic majority countries.
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Re:So this implies... (Score:4, Interesting)
Then he's a cock-end, because his job is to fucking well interpret the law as it is.
And let's not forget how Posner, Bork et. al. castrated Anti-Trust law, ("hey, what's so bad about monopolies?"), which is, after all, statute law.
The guy is a third-rate intellect and a dangerous ideologue who should never have been let anywhwere near the bench.
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You know, I'm pretty sure that doesn't prevent him from also having opinions about possible changes to the law.
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It's not only vastly impractical, it turns the whole idea of the Internet on it's head. The whole idea of putting a file behind a publicly accessible URL is that you are making it public. All the rest, search engines, websites, aggregators everything else is just add-ons to make that act, and the act of typing the url into the address bar to get the file, more user-friendly. The act of putting something behind a URL without restricting access in any way, means you've made it public. That's the rule of the Internet. If you want to restrict access a bit more, you can use http-authentication or session based authentication, there's certainly no lack of options.
Now if you want to build a business model on the internet, I wish you all the luck in the world, we know it's possible, but you do have to follow the one rule. Nobody forced you to be on the internet, feel free to leave again if you don't like it.
Now, newspapers can legitimately gripe about people stealing their content, and semi-legitimately gripe about aggregators displaying it, but that has nothing to do with linking, and this guy doesn't know what he's talking about. The fact that he wants to ban paraphrasing others' content as well makes me wonder how the hell this guy came to be a judge.
That sounds like it would be the single biggest threat to free speech in the last fifty years if it were to go anywhere. Imagine what the media conglomerates would do with a law like that.
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Banning links to copyrighted material is plainly asinine.
Banning links to copyrighted material would result in the legal destruction of the internet, at least in the US.
Under US copyright law, copyrights for all material are held by the author (with certain limited exceptions). The vast majority of works never have their copyrights registered, but registration is not necessary for copyright to apply. "Banning links to copyrighted material" is thus redundant, and can be shortened to simply "banning links."
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Re:So this implies... (Score:5, Informative)
Just to point out for those who don't know, Judge Posner [wikipedia.org] is probably the single most influential living jurist not on the Supreme Court (and will likely end up being more influential long-term than many on the Supreme Court; certainly more influential than Clarence Thomas). He teaches at one of the top six law schools in the country (Chicago), serves in one of the most important circuits in the country (Seventh, which includes Chicago--other important circuits are DC, 2d, and 9th), and is so ridiculously prolific. He's a pioneer of the currently en vogue jurisprudential theory of law and economics [wikipedia.org]. He frequently feeds clerks from his chambers to the Supreme Court as well
My point is that this man has tremendous influence in the US. He's not an intellectual lightweight. Unfortunately, I can't read what he wrote since the blog entry seems to be down now.
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Now do you see the irony?
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Re:So this implies... (Score:5, Informative)
We already have that! The Google News bot will only link to the news page if it isn't in the robots.txt file. The problem is that Newspapers don't want Google news to link to specific pages, but the want the "normal" Google to link to their main page, and Google said they can't have both.
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Re:So this implies... (Score:5, Funny)
New at this, aren't we?
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Re:So this implies... (Score:5, Funny)
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Nah (Score:4, Funny)
Hey, have you been sleeping under some rock? We don't RTFAs in this part of the internet. The editors only have to insert a few phony "links" in the story to www.foo.bar
"Slashdot effect" would have to be reinterpreted as "a bunch of people arguing about something without bothering to know the story" though, but around here we take pride in doing that.
Now I will have to ask you to get off my fucking lawn.
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Re:So this implies... (Score:5, Interesting)
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.
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Re:So this implies... (Score:5, Insightful)
If anyone really cared, you could build this today. Just generate one-time use, random URL links in each page view. Now nothing can be linked to except for the home page.
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Re:So this implies... (Score:5, Insightful)
If I go to a museum, and I point my finger at a painting, will that be illegal too? What if I post a blog entry saying there is a cool painting at museum X?
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Re:So this implies... (Score:5, Funny)
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Re:So this implies... (Score:5, Insightful)
"...probably the death of Slashdot?"
The death of the internet, period. Since, according to the Berne Convention and US law, EVERYTHING is copyrighted at the moment of creation, the logical conclusion is that it would ban hyperlinking to anything external to a site. Now more WWW - Thanks Tim, it was fun, hope everything goes well in prison.
I don't know what to be more embarrassed about - a well respected appeals court judge who is ignorant of the law about which he comments, or the judiciary lobbying for which laws Congress should make, not the laws that they did make. It's not a very bid step to "Well, if Congress doesn't do it, then I will."
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Re:So this implies... (Score:5, Insightful)
Slashdotters really should go and read the original. What the judge recommends doing is to allow news papers to survive is to bar websites from reposting the full news story (paraphrased or not) found in the newspapers. So slashdot is safe, since it only provides a summary of the news story, and so is the internet, since only linking to news articles found in newspapers is discussed.
The judge apparently wrote: "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" (emphasis mine)
The linking that he discusses is to all copyrighted materials, not just to newspaper articles. Besides, don't you think the rest of the IP mafia will catch up quickly once such madness goes through? And paraphrasing is specifically mentioned as well. ...unless you mean another original, in which case I would invite you to post a link while it is still allowed.
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Posner (Score:5, Interesting)
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 [lessig.org], 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 [becker-posner-blog.com] before passing judgment. When he was guest blogging about copyright law [lessig.org] 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 (Score:5, Interesting)
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Re:Posner (Score:5, Insightful)
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.
Let's take Slashdot as an example and the notorious Slashdot Effect. One of the most sure ways to really drive a ton of traffic to a Web site is to link an article to Slashdot. Those Web sites almost always have advertisements. How are those news sites not benefitting from this situation, and what part of this is depriving anyone of their fundamental rights so that it would be appropriate for the government to intervene?
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Re:Posner (Score:5, Insightful)
How is this a new problem? Anyone can currently 'link to or paraphrase' print material. If I say 'an article in The Economist contained a detailed report on the harm done by Fairtrade Products' in a print magazine then I am linking to (although not in a clickable form) and paraphrasing an article. Both of these are usually seen as fair use. It is completely legal currently for me to produce a newspaper that does no original research and just writes articles based on the investigative journalism of other publications.
A more important question is how you maintain a free press when you aren't allowed to paraphrase or link to articles from other news outlets.
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Re:Posner (Score:4, Interesting)
What makes you think that a free press is incompatible with easy redistribution? Certainly the current newspaper model will need to adapt, but large, established newspapers are not synonymous with a free press.
In fact, when the Constitution was written, newspapers were more like today's blogs than today's papers: they were small, numerous, often partisan, and of varying quality. If the framers of the constitution thought the press at the time constituted a free press, then we should at least consider the idea that newspapers will need to change.
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Re:Posner (Chewbacca Defense) (Score:4, Insightful)
That doesn't make any sense. One has nothing to do with the other:
See? Different things.
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Re:Posner (Score:5, Insightful)
Whatever you are smoking, please share. This has NOTHING to do with the first amendment. The death of the Old Media business model is NOT a blow to the first amendment, it STRENGTHENS it, because broadcasted speech becomes less controlled and more democratic. When the cost of entry to the broadcast medium (the internet) is effectively zero, EVERYONE becomes a member of the press. The death of the Old Media business model is the best thing that could possibly happen for freedom of speech.
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Re:Posner (Score:5, Interesting)
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 [fivethirtyeight.com], or James Kwak and Simon Johnson's [baselinescenario.com], 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.
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Re:Posner (Score:5, Insightful)
I have a confident answer: when in doubt, freedom should prevail. This especially applies to freedom of speech and of the press. The burden of proof is on anyone who thinks that freedom should not prevail. In other words, our fundamental inalienable rights are far more important than whether or not a newspaper goes out of business.
Let's soundly reject this concept, right now, that it is the role of government to determine who wins and who loses in the business world. Newspapers are struggling because they are old technology that is being replaced by a new technology. Even if that weren't the case, their perceived right to do business is absolutely nothing compared to our real rights.
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Re:Posner (Score:4, Insightful)
No, but it is a role of the government to set and enforce the rules of play and the issue here is tweaking those rules. The conflict here is not between newspapers and online media but between those who gather the news and those who copy the news. The problem is not that "newspapers" are going out of business but that the news gathering is going out of business because news copying is eating into its profits to the point where it's not worth it.
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Re:Posner (Score:5, Insightful)
I am. I think we can agree that "you can find X by going to example.com and clicking the link called foo" is protected speech, yes? If you want to argue that deep-linking is no covered by free speech, then you must show that either:
I reject #1 above because any linguistic transformation of protected speech is still protected speech, and can think of no contrary precedent. I reject #2 because I think of no situation in which a machine-readable form of speech is treated differently from the same speech in a different, non-machine-readable fixed medium.
Now, some very powerful people have argued that sentence #2 should be true, but perceived (or even actual) economic harm is not a justification for abridgment of free speech. The traditionally-recognized exceptions to free speech [csulb.edu] are:
Deep linking is not exempted from being free speech by falling into any of the above categories. Therefore, it is protected speech.
There is no category called "likely to cause economic harm to a corporation with lobbyists".
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Re:Posner (Score:5, Insightful)
Why should we consider it? It is a laughable. He is suggesting we change the laws in ways that severely limit individual freedom in a way that is completely impossible to enforce unless we completely change some core fundamental aspects of participation on the Internet. This man could be God for all I care.. If he says something stupid, it is stupid no matter what. We should consider his stupid opinion because he's a great man? That's an error in reasoning. (false authority fallacy)
Think about this.. He is trying to preserve an industry that is changing because of technology. Just because news as we know it is going through 'evolution pains' does not mean we should stick our stupid laws all over it. Leave our laws be. First Amendment is a pretty damn important law in this country..
There will ALWAYS be demand for news - and there will always be a demand for truth. By adding new laws that limit the ability to satisfy that demand better, we are actually regressing. Just because the news will change does not mean it will not be better. In fact, I would like to argue that most of our news is completely useless anyway. Let it be free. Let honest people report what they see.. and a group of similar opinions will allow people reading it to distinguish the truth. Right now, if Fox News wants to put their own screwed up twist, they can legally do that.. and they do it all the time! Screw them..
The newspapers screw the news also.. IMO, right now, there seems to be no good way to get the truth unless you read the news and the bloggers and the comments, and form an opinion of what really happened. So, if you cannot link to an article, how do you comment about it? How do you tell people what you're talking about? Maybe there should not be money in the news.. Let the market figure out how to handle the news.
And, further, fuck copyright. The laws make the copyright holders so card-stacked against the individual that people care less and less about it and the laws governing it.
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Re:Posner (Score:4, Interesting)
His argument sounds reasonable on the economic side, because he's hardly the only one wondering what'll happen to investigative journalism. You can see it with planted stories, one online site reports something and it grows exponentially so hundreds of sites and blogs and whatnot paraphrase it and then you got google news pointing you to hundred rehashes of that article. If that's a deep story you've spent plenty money to unfold, it's really hard to recover your costs.
However, from a logical point I don't see it possible - should they then get an exclusive right to that news, like a patent? You really want Fox News to report something, but noone else can present the story with a different twist? What about other media following up on a case reporting 90% the same but with 10% additional content? This would be nothing but legal hell to figure out what news are "your" news and not. All this could do is create media cartels of people not suing each other over their respective news, which would be even worse than all the other alternatives.
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Why, Just Because! (Score:5, Insightful)
So you don't have any justification for your position other than "he's cool"?
You are willing to cast your own opinion aside in favor of one that clearly goes against the intent and the letter of the law, just because you like him?
Okay so I read his post. He is making economic arguments over whether or not we have a right.
Since when are judges supposed to use economic arguments to decide whether or not we have a right?
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Re:Why, Just Because! (Score:4, Insightful)
That's part of the problem, I think. The law and economics movement prefers a sort of central-planning-via-law, in which we decide what kinds of outcomes we want, make some simplifying assumptions about rational actors, and then pass laws that will lead to those outcomes. But this completely ignores whether some of the laws might be right or wrong in themselves. In this case, Posner seems not to give much weight to free speech (and fair use) as inherently valuable protections for people living in a free society. He doesn't even discuss it as something to consider when balancing pros and cons of his proposed legislation.
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Re:Posner (Score:5, Interesting)
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.
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He's wrong (Score:5, Interesting)
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? (Score:4, Interesting)
Throwing out the baby to save the bath water (Score:5, Insightful)
The United States is fully capable of shooting off its own leg to save a toenail. There are men with real power in the country who would happily pull the plug on the entire Internet tomorrow if it would save their margins on Marley & Me 2.
Re:Throwing out the baby to save the bath water (Score:4, Interesting)
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.
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No more bibiliographies (Score:3, Funny)
Won't change anything (Score:5, Insightful)
Newspapers want to have their cake and eat it too. They want the traffic that comes from Google linking to them, but they want sole access to the internet advertising revenues associated with their content.
Also, how does the judge propose helping the newspapers fend off online classified services like craigslist, which are the real threat to newspapers.
With this judgment, one of two things will happen:
1) Google stops linking to them entirely and their online business dries up.
2) All or most newspapers grant Google the right to link to and show excerpts of their stories.
Either way, the newspapers won't see a revival. Their only hope is to set up some kind of common online newspaper portal to take the place of Google news. Except, this time, there isn't the equivalent of Apple's iTunes to save them from their own stupidity.
Interpretation (Score:5, Insightful)
Isn't the community consensus that every publicly accessible URL points to content that the community is free to link to and view at will?
That is: if you post a document on a web server, then you're granting the whole world the same rights to the material that you would be if you posted that material on a billboard sign next to the highway.
Why can't judges see that?
Why do some judges assume that the common understanding of a URL needs to change, rather than just having the newspapers stop supporting publicly accessible URLs to content they want protected???
Obligatory link to copyrighted content (Score:5, Funny)
Library card catalog (Score:5, Interesting)
Unsearchable news (Score:4, Insightful)