Judge Thinks Linking To Copyrighted Material Should Be Illegal 390
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."
So this implies... (Score:5, Insightful)
Re:So this implies... (Score:5, Insightful)
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.
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.
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.
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?
Re:Posner (Score:1, Insightful)
But this isn't really a "free press" issue. It's a "professional press" issue. The internet is allowing amateurs to compete, and if they weren't winning at least some of the time, the newspapers wouldn't feel so compelled to offer their reporting for free.
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???
So sad (Score:2, Insightful)
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.
Re:If I didn't respect Posner... (Score:3, Insightful)
I wouldn't pay attention to this. However, he is one of the greatest minds ever to have sat on the bench. Lawrence Lessig (who clerked for him) has said "There isn't a federal judge I respect more, both as a judge and person."
His scholarship is top notch and he contributes to many different areas of understanding outside of law, such as sociology, anthropology, and economics. He's a formidible intelligence.
He can be wrong but that doesn't mean we should quickly dismiss him.
All the intellect in the world won't overcome what you may call an institutional bias. For that you need wisdom. The most obvious difference is that intellect will increasingly complicate, while wisdom will show that all the complication derives from a few simple principles.
Being a prominent figure in a large institution impresses men. That's about as much as it has to do with "truth". It really doesn't take very much to understand why freedom is precious and should be values and protected. Simple, humble minds can easily grasp that. The intellect and complexity and scholarship is necessary in order to create justifications for why freedom should be taken away. The ultimate expression of this is sort of like a priesthood, where you should accept our edicts because as one of the uninitiated laity, you would not be capable of understanding our reasons. An effect like that is why you saw the name and this prevented you from going with your intuition and dismissing this as the maladaptive idea it really is.
Reference != content (Score:3, Insightful)
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.
Re:So sad (Score:3, Insightful)
The part that frightens me more is that this 'judge' thinks his opinion in what laws should be enacted is more important than anybody elses. It's almost like he thinks his job is to legislate from the bench.
Get in line, Your Honor. You can lobby your Senator to get said 'law' passed just like the rest of us.
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".
Re:Posner (Score:3, Insightful)
That you handle it this way is quite respectable and refreshing to see. No joke and no sarcasm at all when I say thank you.
I can approach that one from two angles. One, the offline equivalent to a Web link is "hey, I read this book by this author, you should really go to the bookstore and check it out." If the folks who want this were interested in consistency, they would want to make it illegal to recommend a book. They don't do that because know it would be absurd. Two, those copyright holders knew that hyperlinking is the very nature of the Web before they decided to put any information on it. They still decided to put information on it. Therefore, let them take responsibility for their decision. I don't see any part of this that requires the use of the police power of government.
I also completely reject this concept (mentioned in your prior post) that the government should be worrying about any sort of "creation of the most good." All I want the government to do is to fulfill their duties as enumerated in the U.S. Constitution, no more and no less. That "most good" or "greater good" concept is far more dangerous than most people appreciate. I'm sure Stalin felt that the Great Purge was "for the good of the land."
Bad choice of words (Score:3, Insightful)
In the quote, the only real "WTF" part is the mention of hyperlinks. It's unrelated to the concept being discussed, and it is obviously false that a hyperlink from site A to site B represents any cost (let alone unpaid) to site B. Rather, it is an almost unilateral gift from site A to site B.
Naturally, I also disagree about the main concept, which essentially calls Fair Use economically untenable. But that is an actual matter for debate, rather than the hyperlink stuff, which is self-evidently contradictory. From looking at Posner's works and credentials, I'd be hesitant to label him "stupid about technology". Maybe it was just a verbal slip?
Re:Posner (Score:2, Insightful)
Posner is notorious for his belief that everything right and just in the world flows from monetary considerations. He justifies his opinions based on economic efficiency, often to the detriment of what most people would consider obvious human rights. For example, he has come out against a right to privacy, merely because it is "economically inefficient." The man is Mr. Spock -- rational to a fault, but not compassionate.
His opinion of copyright misses the bigger picture: that copyright is meant to encourage culture, not stifle it. If it's doing the latter because of the economics, then changes need to be made, even if they are inefficient. This is especially true for news, which contributes to the political debate. I don't give a damn how much it costs, the public requires unfettered access to the news in order to be an informed electorate. If it comes from smaller papers, or from blogs that give out "free" content, and if that destroys large newspapers, then so be it.
Re:So this implies... (Score:5, Insightful)
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.
Re:Posner (Chewbacca Defense) (Score:4, Insightful)
That doesn't make any sense. One has nothing to do with the other:
See? Different things.
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."
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?
Don't *refer* To Something?! (Score:3, Insightful)
Am I reading this correctly?
Don't link (or provide a reference) to something, simply because it's copyrighted material?
I see... so what's next? How about: don't recommend a book, since that's a verbal or printed "link"? Don't point to a painting? Don't share a photo? Don't let someone read a newspaper you're finished with? Don't play a CD in the car?
Ban all libraries?
I don't care that this guy is a judge. I don't care about any so-called "legal" angle to this... this is plain and simple common sense that's being defied here.
Re:Posner (Score:3, Insightful)
Re:He's wrong (Score:3, Insightful)
We don't have those right now with mainstream sources. What we have is an image, usually enhanced by leggy blondes with large breasts. Now, I'm all for leggy blondes with large breasts, but don't pretend that this makes the news any more accurate.
My point is that we really don't have the neutral, scientifically skeptical, disinterested, willing-to-go-wherever-the-facts-lead sort of reporting the way we think that we do. We have an idea of "credibility" that is rooted in two things: image and authority (as in "appeal to authority"). If community news sites are more honest about this, that can only be an improvement.
The mainstream news is really not your friend and never was. They are careful to make sure that whatever they report is factually accurate, yes. The techniques of modern propaganda are far more sophisticated than telling provably false lies. The biggest problem with the mainstream news is that they selectively omit information that doesn't suit a rather statist agenda. When I say "agenda" there, I mean that not so much in terms of "smoky back-room conspiracy" as much as plain old-fashioned bias. These are big corporation, institutional, organization type of people who are well known for a pro-government bias (the accusation is often "a left-leaning bias" but that's just the specific form of pro-government bias).
I'll give you an example of statism: the government wants a monopoly on the use of all force. This is why most people don't know that when the news says "the attacker was subdued until police arrived" what usually really happened is that a citizen who legally owned and legally carried a firearm used it to stop a crime and protect innocent people. It's also why most people don't know that when this happens, the criminal is shot by the gunowner in something like three or four out of every one thousand such cases. Now you'd think that factually correct, easily verifiable information like that would be newsworthy... Do you think that's so unique? Do you think it would be difficult to find other examples where certain things are routinely not reported, or reported in deliberately ambiguous ways in stark contrast to the painstaking detail of the rest of the story? Do you think that if you looked at the subject matter of these examples, you would not find that all of them tend to be aligned against the pro-freedom pro-individual position?
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.
Re:So this implies... Death of the internet (Score:3, Insightful)
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.
Re:Posner (Score:3, Insightful)
The way I read Posner's post, he isn't talking about sites like Slashdot that take a snippet and link to the appropriate source.
He is talking about sites that will copy wholesale the content of another site (i.e. myblog.com copies nytimes.com) or will summarize the entire article of the other websites.
I agree with you that sites like Slashdot actually benefit the press.
Then I am genuinely confused by your response because the proposal is to make it illegal to link to copyrighted material. That would be new.
If they are copying articles wholesale and those articles are copyrighted, that's already against the law or at the very least could get them sued. As for summarizing an article, I could be wrong (I am definitely not a lawyer) but as I understand it, "fair use" is a legal defense, meaning it would be up to a judge to determine if it was fair use. Either way, we have existing ways to deal with that. This new proposal is about linking.
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.
Re:So this implies... (Score:5, Insightful)
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.
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?
Re:Posner (Score:2, Insightful)
Unsearchable news (Score:4, Insightful)
Re:Posner (Score:3, Insightful)
Everything's copyrighted! (Score:3, Insightful)
It would mean the death of all media online, because anything an author doesn't explicitly waive his rights to is under his copyright! Such a law would render linking to anything that wasn't under a free licence completely illegal. That a judge could be so cosmically ignorant of the law to not realise this is diabolical.
Re:So this implies... (Score:5, Insightful)
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.
Re:Posner (Score:3, Insightful)
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.
If he's the one Judge who stands above all others in technical matters, then I want all Judges to go through five years of mandatory Computer Science courses. He's a #*%$^&#ing idiot. Posner, you're #*%%#@ stupid. You may be a legal genius, but please rely on technical advisors before thinking you know anything about technology.
Linking to something on the web is the exact equivalent to saying "Hey, look at that over there!" in meatspace. If people want to prevent someone from pointing at their FOO in meatspace, they make a wall and allow only the people the want in (either charging admission or inviting just their friends). Sometimes they even restrict cameras (although restricting printscreen on a https site can't happen). What gets me tickled about this is that the web in its current incarnation has had 15 years of fame (companies started regularly advertising websites in television commercials in 1994-1996). You'd think that the mentally competent among us would understand some of its basic concepts by now.
Re:So this implies... (Score:4, Insightful)
Re:So this implies... (Score:4, Insightful)
Re:So this implies... (Score:5, Insightful)
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.
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.
Re:So this implies... (Score:2, Insightful)
They also purposely keep their currency weak/deflated to maintain the cheap price of Chinese manufactured goods on the international market, a deliberately anti-competitive (and anti-free market) move.
Don't get me wrong, our economic relationship with China has been good for America, but it has been and will continue to be much, much better for China.
Re:So this implies... (Score:3, Insightful)
Re:So this implies... (Score:1, Insightful)
Then he's a cock-end, because his job is to fucking well interpret the law as it is.
Re:So this implies... (Score:1, Insightful)
We must close the analog hole! Every time someone chats with a friend about the day's news, a poor, helpless newspaper loses money.
Or a major sports team!
"This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL's consent is prohibited."
"Hey Joe, did you catch the game?"
"Did I ever! - let's discuss it after we get clearance from the copyright holders."
Re:So this implies... (Score:5, Insightful)
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."
Re:So this implies... (Score:1, Insightful)
No, Google is perfectly willing to only provide links to their main page in the search results. It simply takes a properly configured robots.txt file. What they *really* want is for their entire site to be indexed by Google for free, have Google results direct to the front page, and have Google *pay* them for the privilege of driving traffic to their sites.
That's what Google isn't willing to give them.
Re:So this implies... (Score:5, Insightful)
Now do you see the irony?
Re:Posner (Score:1, Insightful)
I'll just point out that copying and redistributing the original content is already illegal. Making it doubly so will not help. Maybe if we made it triply so...
Re:So this implies... (Score:4, Insightful)
You know, I'm pretty sure that doesn't prevent him from also having opinions about possible changes to the law.
Re:So this implies... (Score:2, Insightful)
But he's also a professor at the University of Chicago. One thing academics frequently do is publish proposals about changing the law.
Re:So this implies... (Score:3, Insightful)
Richard Posner (Score:3, Insightful)
Richard Posner is an interesting guy; the kind of guy who'd be great on a law school faculty but who's a little scary on the bench. He thinks outside the box and is not afraid of taking positions most people think are wrong.
I've come across his name in reading about privacy. Posner is famous for opposing the concept of right of privacy. "Is there a right of privacy?" is the kind of question somebody should ask; having people seriously examine this question is good for society. Having people on the bench who don't believe there is a right to privacy is a different matter.
So he's not the kind of person who would balk from turning things upside down if he had an internally consistent theory that supported it. Not an activist judge, but something much worse: a philosopher judge.
Ironically... (Score:3, Insightful)
...if linking to copyrighted material were made illegal, I would *stop* reading newspaper articles. I only ever see those to which I link through Google News.
As usual, the judge has got it backwards. Linking is what the Web is all about. If your copyrighted material is so precious you don't want anyone linking to it, your remedy is perfectly simple. Don't post it on the Web.