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."
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.
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.
If I didn't respect Posner... (Score:1, Interesting)
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.
Re:Posner (Score:5, Interesting)
Enforcement? (Score:4, Interesting)
Re:He's wrong (Score:3, Interesting)
Indeed, and this is very much more like the traditional American idea of a free press. That is, a press that is small and local and what you might call "grassroots" in that participation in it is available to the everyday person. This is directly opposed to the national, big-business model based on one-way, one-to-many communications in which your only modes of participation are whether or not you turn on the TV or pick up the paper.
Really it'd be a drastic improvement. Perhaps also when it's "small and local" people will be more discerning about information and what they believe instead of the "appeal to authority" position where it must be true if it's on TV and sponsored by a major name.
Comment removed (Score:5, Interesting)
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.
This assumes no more innovation (Score:2, Interesting)
Re:Interpretation (Score:3, Interesting)
This has been discussed on /. over and over again: if you don't want to make it public, don't publish it. Especially on the web. "Hey, look at what I did! It's a sign in the middle of the street, but don't tell anyone else about it or I'll sue you."
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.
Trend towards Government-sponsored news (Score:2, Interesting)
It's worth noting the rise of Government-sponsored news sources. Until a few years ago, few in the US paid any attention to what the Voice of America put out. Now, it's a widely aggregated news source, because it's free. Google News aggregates the BBC, Xinhua, and Al-Jazeera, all of which are Government-controlled. (The BBC and Al-Jazeera have some independence, but it's limited. [nytimes.com] Xinhua is the official output of the Chinese government.)
From the private sector, there's an endless supply of self-serving material, some of which gets picked up as "news". Google News sometimes thinks PR Newswire is a valid news source.
The independent sources remaining tend to be aimed at people with serious money. The Wall Street Journal, The Economist, and Bloomberg are still quite good, and are profitable. Mass market print journalism, though, is dying. The proud boasts in newspaper banners ring hollow today. The San Francisco Examiner still says "Monarch of the Dailies" at the top of page one, but that was a long, long time ago. San Francisco's mayor recently remarked that if the SF Chronicle stopped publishing its print edition, no one under 35 would notice.
Newspaper vending machines seem to be mostly empty now; it's not even worth filling them. Locally, I've seen some stickered with abandoned-car like notices from the city, which tell the newspaper "fill it with papers or we tow it away".
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.
Outrageous (Score:3, Interesting)
While there may be a credible argument that internet via craigslist, et al, have been eating away at newspaper revenue, this claim that deep linking is a big problem I think is really absurd. If anything, deep linking, improves advertiser exposure as users click on a link to be transported to a newspapers website. The benefit and ad exposure to the newspaper is quite the same as if the user had entered the article from the newspapers own main index page. This just seems to be an Orwellian attempt to censor the internet and expand tyranical powers. If a newspaper were really concerned about the financial issues, maybe they should provide some premium online subscription option and password protect their content. THe idea of banning linking is totally unnecessary, since the newspapers if they wished could password protect, and in fact, unconstitutional violation of free speech, similar to banning citations in written material.
I would also suggest that, a solution best for all users is allow for an alliance or cooperative of newspapers nationally, a recipricol agreement between them that when one purchases a subscription to the local newspaper, they also get access to other newspapers around the country as well. This preserves the benefits of the internet to be able to access information easily coming from everywhere, and makes it affordable, given the thousands of news sources, its impossible to subscribe to each one. There can be 'low income' and 'consumer' plans which are targeted at the affordability in the consumer market.
Re:Posner (Score:3, Interesting)
There are damned few prices too high to pay to 'restore the power of the first amendment', so you might want to hope it isn't really that threatened.
Um, you mean steps like gagging citizens who link to "copyrighted" content?
How does that "bolster the first amendment" in any way?
It is called the World Wide Web (Score:2, Interesting)
I have always felt that if you name your server WWW then you are consenting to linking. That is what the WWW is, a web of links. If you don't like it don't play here.
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.
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.
Re:So this implies... (Score:1, Interesting)
The death of the internet.
All content (including this comment) is implicitly copyrighted. Fair use allows you to quote this text and comment on it. Making links to copyrighted material (read ALL material) illegal, makes links (all links) illegal. A WWW without links isn't a WWW. Tim Berners-Lee's break-through in the development of the WWW was the hyper-link. Without the hyperlink, there is no internet.
Internet RIP.
Re:So this implies... (Score:2, Interesting)
Lots of forums that link to copyrighted material already tell people to put stuff in code tags, one so that they don't get in the server logs (referral in header), second that they don't provide links (hey, it's just plaintext!).
Comment removed (Score:5, Interesting)
Re:Posner (Score:3, Interesting)
The problem is that there's quite a bit of room between "no more" and "no less". The founders intended for the constitution to be interpreted and applied to particular situations of the day. The constitution is not scripture: it doesn't contain the answers. Instead, it describes a good way of agreeing on the answer.
I'd agree with you if you deleted the word "moral". What does morality have to do with it? Either we're talking about utilitarian (or Kantian) morals, or we're talking about religious ones. In the first case, we're actually still talking about the common good, just indirectly. In the latter case, well, since when have religious morals led to a happy society?
The constitution isn't as clear-cut as you make it sound. Consider the regulation of interstate commerce, a constitutionally-enumerated duty of the federal government: there are good ways to do it, and poor ways to do it. What better way is there to decide on a regulatory scheme than to see which one will lead to the greatest public good?
I think what you're actually angry about is the government exceeding its constitutional authority in the name of the public good. That, I agree, is dangerous. The limitations expressed in the current constitution exist for a good reason, and exceeding them should require the full onerous amendment process to ensure that this expansion is really warranted.
I think another problem that makes you angry is that people often invoke the "public good" to justify policies that are demonstrably against it, like the Sonny Bono copyright act. I should remind you that "morality" has been used to justify bad laws just as often as the "public good" has. If you want to combat bad laws, combat bad laws, not their purported justification.
But within the bounds of the constitution, it's perfectly legitimate to argue for one policy over another for reasons of the "public good"
I agree with you there. By default, we should be free, and bound only to the degree necessary to maintain a happy, civil society.
Re:Posner (Score:3, Interesting)
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.
Summary (Score:2, Interesting)
Usually-insightful judge thinks out loud on his blog, shows he doesn't "get" the Web, makes tentative suggestion to stretch copyright to cover paraphrasing and linking, is skeletonized by bloggers in under 60 seconds.
On the other hand, of course he's making economic arguments about copyright: the whole two-hundred-year-old justification for copyright is that we chip away a bit at my right to repeat what you wrote in hopes that it'll give you an incentive to write more and better stuff, which makes everyone better off on the whole. When copyright implementation doesn't lead to broad economic rewards, there's no justification for it.
The real WTF here is... wait, wrong site. What's actually wrong with Posner's post is that he just doesn't understand why newspapers are dying: it's because they suck. The reporters are ignorant and biased, the editors are worse, the readers have never been the ones really paying the bills, actual news-gathering has been declining for decades, and when they piss off a chunk of their readers, that chunk can go elsewhere for their news now. That the "elsewhere" is frequently of far better quality is just an extra stake through the heart.
Re:Posner (Score:3, Interesting)
Well, if the way the web works (the way it was designed to work) isn't good for the free press, I guess they shouldn't be posting all their stuff there!
They are equally free to put it all behind a pay wall and watch as people stay away in droves.
There's absolutely no reason to change the world to suit their needs, they just need to quit acting against their own interests (if, indeed posting on the web IS against their best interests.
The web exists so people can post their stuff and have others link to it. The act of posting implies consent.
There's a zillion analogous situations out there. Society can not work at all if we're going to get rid of the concept of implied consent.
So, yes, I am dumbfounded that he could even consider such a change to be a good idea. And yes, I did read his blog post.
I can only hope (for his sake and for the litigants that will be before him in the future) that he was just having a bad day or was drunk at the time.
Re:So this implies... (Score:2, Interesting)
If I were to write something groundbreaking and interesting (sure, it's far-fetched but it's just an example folks) then newspapers or other sites may pick up on the story and link to my site. Then I change the content they link to into some sort of top 100 list of what the MPAA and friends track and sue over. Will the MPAA not only come after me, but all the newspapers too? Will the newspapers be at fault? Will I be at fault both for my "crime" and the newspapers now illegal links?
This is the sort of things that makes me feel like I have too much spare time...
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.
Websites are billboards (Score:3, Interesting)
Websites are billboards that are designed to be looked at.
Any website that wants to prevent anyone from linking to their 'content' can simply install a "door" with a "lock" (a password" to protect the content).
If you don't want someone to look at your website or your billboard, then you don't create it open to view from passersby...
This idiocy won't get off the ground.
Capitalism isn't suited to a non-scarcity based economy -- since the only way capitalism can continue to work is to induce artificial scarcities where there really are none.
The only way to do that is to create laws restricting access to access to things people already take for granted and already have access to. It'll be like
the war on drugs, except that it will be every "Intellectual Property" -- and on a scale 10x as large.
The big loser -- will be the parasites who profit off of 'free information' being sold again and again -- getting rich and depleting the worlds resources and capital -- lowering standards of living and lowering productivity, and lowering overall progress needed for humans to survive and prosper into the next millennium. Without drastic attitude changes in people 'in power', there will be no humans next millennium, or humans will have devolved to tribal status and be subject/victim to whatever natural disaster comes along -- resulting in our eventual extinction.
If we don't solve the energy crunch issue -- and don't "free up wealth" the concept of 'wealth', and don't raise up the humanity, as a whole, we are dead. Unfortunately, no one living to day really cares much about life after their death (or their children's death). It's already the case, in the US, that the standard of living for the current generation is on track to decline from the previous generation -- and further declines are expected after that. Unless we create large, new, amounts of raw resources, we don't have anything even close to what is necessary in this world to support a standard of living even half that of what exists in the US.
Globalization-> leads to lower standard of living for top inventors and will limit technological growth as "high tech" knowledge becomes a 'luxury' -- we'll be stuck at the "using up resources" phase -- in a non-renewable, non-sustainable way -- until massive shortages destroy our civilization. At current rates of consumption against known reserves some materials will run out this century. Some within the next decade.
We are going downhill as a species -- because we are all like the lobsters you put in a barrel -- they will keep pulling down the ones that are almost about to escape, so that all are trapped and all die. That's us and our current morality/mindset.
Only a new religion of humanity, of caring and reducing suffering among all feeling creatures now and for all time in the future (no taking now at expense of the future), will we turns things around.
I believe that only a religion of sacrifice will bring the commitment necessary for our species to grow beyond our current condition and have the possibility of surviving by growing beyond this planet. A religion could inspire the passion necessary for the sacrifices and changes necessary -- and a religion could spread...but I don't know of any other form of human institution or system that could bring about the changes necessary.
Most certainly religions that focus on 'afterlife' and letting things slide in this life-time for reward in the next life are certainly an anathema to the survival of the species and should be, as enemies of humanity -- seen as pure and destructive evil, now matter how much they cloak themselves with good works or words of faith and belief.
linda