Judge Posner: Ban Linking to save newspapers

I think there should be a new law – lawyers and judges who don’t have the first clue of how the web works should automatically disallow themselves from any involvement with anything resembling legal decisions or arguments that have to do with technology of any kind. When they do they only show to the world exactly how little they understand how things work and how dangerous they are.

Case in point is the recent ramblings of Judge Posner on a <gasp> blog he shares with another judge, The Becker-Posner Blog, in which he waxes romantically about the importance of newspapers but at the same time is pessimistic about their chance of survival. He concludes this ode to newspapers by uttering the most moronic collection of words that you could imagine anyone, let alone a judge, about how the newspaper industry could be saved.

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.

– Judge Posner

Now others like Jeff Jarvis and Stowe Boyd have already done a good job off ridiculing the thought that the banning of links is the way to save the newspapers, not to mention the obvious threat to First Amendment rights.

This is another case — like the failed attempt of the music industry to stop the spread of digital music — where those who ‘own’ the elements of our culture want to make us pay for the privilege of living in our culture. And of course, the bug media companies would strike deals with each other to cross link, creating an oligarchy, and pushing all the non-professionals out.

People like Posner would figure out how to make us pay for air, if they could.

– Stowe Boyd

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

Jeff Jarvis

The point that I wanted to look at is Posner’s apparent believe in the illusion that the news industry can stay doing business the same way that it has since almost the first turn of a printing press. In his post he likes to point the finger at the rising cost of producing the physical medium by which we read the news. As well he condemns those “not affiliated with a newspaper” living like vultures off of the still breathing carcass of the news industry.

So what will happen to news and information? Online news is free for two reasons. First, in the case of a newspaper, the marginal cost of providing content online is virtually zero, since it is the same content (or a selection of the content) in a different medium. Second, online providers of news who are not affiliated with a newspaper can provide links to newspaper websites and paraphrase articles in newspapers, in neither case being required to compensate the newspaper.

– Judge Posner

The judge ties this in with the current economic problems and how people are abandoning an outmoded way of getting their news for ways that suite their needs better, which unfortunately are free.

What Posner doesn’t seem to want to admit is that maybe – just maybe – newspapers are failing because their model of delivering the news just doesn’t work anymore. It might be nice to blame the economy, the readers, those nasty new media vultures – when in fact they are just the symptom of a world that is moving on to discovering new and better ways to get their daily news and information.

The idea that any industry will remain invulnerable to change as we move inexorably into the future is flawed. Try as they might all industries as we know them today will change no matter how many roadblocks they might try to put in the way. Change will come regardless of how people like Judge Posner try and turn back the clock.

Any business today that still wants to be here in the future will only do so if they acknowledge that no matter how hard they try they can’t roll back time. When they do the only thing they are postponing is the reading of their epitaph – which will probably happen online.