Richard Posner: Expand Copyright Protections to Save Newspapers!

Judge Richard Posner, pondering (Posnering?) the troubled current state of what was one of the most profitable industries of the 20th century, attempts to think outside the bun:

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.

I'm with Jeff Jarvis: Good God. The scary thing here is not necessarily that we will see some new federal law requiring that the L.A. Times give expressed written consent every time I link to one of its pieces, but rather that some damn fool freedom-reducing scheme like this is likely to be introduced at the federal level in the not-too-distant future, given the economic and political clout of these very large, very troubled, and very connected organizations. And the fact that a respected judge is so breezy about jigging the nation's laws to prop up a single struggling industry reminds us afresh how ingrained is the bias toward seeing the government as a cost-and consquence-free solution to anything perceived as a problem.

Reason on Posner here; on media issues here.

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  • ||

    Judge Posner

    "We had to destroy the 1st Amendment to save it."

  • ||

    Somebody should off this stupid judge.

  • Xeones||

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

    Shut the fuck up, Dick Posner.

  • ||

    This article shows why people no matter how well meaning or smart should ever be given any kind of unchecked responsibility. Posner is a brilliant and all around great guy who is right about 90% of the time. Sadly, he is totally out of his tree on this one.

  • Naga Sadow||

    Yo! Fuck Dick Posner!

    Inspired by Xeones.

  • Fluffy||

    The argument is stupid, but you know what's really offensive? The lies in it.

    The newspapers aren't really mad that Google News offers people links to them. What they're actually mad about is that Google News offers links to everyone else.

    They're mad that if I search Google News for "Micheal Jackson dead" I have about 2000 copies of the same fucking article to choose from, and they're pissed that there's only a 1 in 2000 chance that I'll click theirs.

    The copyright holders of all that content aren't losing out because others are stealing their content. They're losing out because someone else made it very easy to see that the overwhelming majority of news content produced in the US is redundant and just repeats content that can be found in thousands of other places.

  • MNG||

    Who is that guy in the pic, Captain Copyright or something? He looks like he was drawn right from Watchmen.

  • ||

    bar linking to or paraphrasing copyrighted materials

    Paraphrasing???

    Okay, go ahead and pass a law. Now prove anyone has done any of the things that is now against the law. There's gonna be a lot of people going to court.

    Oh wait, this is one of those "selective" laws, isn't it? Only to be trotted out when necessary to screw someone that isn't inside the circle of trust(read:campaign contributors).

  • ||

    "The copyright holders of all that content aren't losing out because others are stealing their content. They're losing out because someone else made it very easy to see that the overwhelming majority of news content produced in the US is redundant and just repeats content that can be found in thousands of other places."

    I have never thought of it that way. That is a great point.

  • ||

    And this is why I hate the idea of "public intellectuals."

  • ||

  • ||

    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,

    Can't you do that right now, based on how you set up your website.

    I mean, if you don't want online access to your Good Stuff, either don't put it online or put it behind a subscription wall.

    As for paraphrasing - Good Ghod, Posner. Between this and your asinine non-incorporation opinion on the 2A, you have moved off of the RC List of Judges to Have Much Respect For.

  • ||

    "paraphrasing copyrighted materials without the copyright holder's consent"

    So if you read that Michael Jackson is dead, you can't tell anyone?

  • ||

    Well, that was a hash. This place needs EZ formatting buttons, or at least a preview function.

    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,

    Can't you do that right now, based on how you set up your website.

    I mean, if you don't want online access to your Good Stuff, either don't put it online or put it behind a subscription wall.

    As for paraphrasing - Good Ghod, Posner. Between this and your asinine non-incorporation opinion on the 2A, you have moved off of the RC List of Judges to Have Much Respect For.

  • zoltan||

    HTML FAIL.

  • ChrisO||

    Newspapers would flourish even more if they forced everyone to use a 9,600bps modem.

  • ||

    At least Posner is honest about copyright being corporate welfare. Oh, is it time to increase benefits? Let's crank up copyright again.

    Content businesses are like GM and Chrysler. They put out a mediocre, fungible, but fair product. When the brand fails to sell like it did when the company was putting out better product, the government comes in to save the day. We now have the government running GM and/or Chrysler and we have a government tribunal that determines copyright royalties (plus jurists like Posner who advocate ramping up copyright).

    Why are Americans incapable of allowing terrible companies to go under? Why does nobody care that tomorrow's car company isn't going to win by selling trucks designed in the 1970s? The answer? We just love to bail out shitty management and poor performance.

  • ellipsis||

    How is expanding copyright law going to save the New York Times? They steal from everybody else anyway.

  • ||

    We just love to bail out shitty management and poor performance.

    But isn't that true of all levels of welfare?

    No one pays for their mistakes except the people who don't make them.

  • harpoon||

    Considering ad rates correspond to the number of page hits, barring linking would actually drive down revenue based on the current business model.

  • Granite26||

    I'm not arguing FOR this solution, but it seems obvious to me that large newsgathering organizations are losing advertising dollars because commentators and readers share the content but do not reimburse for lost advertising revenues.

    Given that newspapers are becoming unprofitable, I think it is reasonable for people to be concerned that the profit motive for the source of pundit's information is going away.

    By reading a pundit's commentary on a quoted news story, you are consuming both the newspaper's effort (sending a reporter to the scene to gather facts) and the pundit's effort (writing the commentary.) The pundit gets paid for your usage through the advertising you are exposed to while on his site. The newspaper (and by far the source of most of the effort) is not reimbursed.

    This is clearly an unsustainable model, and it is not unreasonable or unfair for newspapers to search for a way to protect their profits.

  • ||

    This is clearly an unsustainable model, and it is not unreasonable or unfair for newspapers to search for a way to protect their profits.

    God forbid that they find a new business model. Much better to implement an utterly ridiculous legal regime instead.

  • ||

    services like Reuters and the Associated Press would become the only professional, nongovernmental sources of news and opinion.

    If newspaper reporters were currently doing something beyond repeating the comments of government spokespeople, I would be worried about this. I'd reckon that Radley Balko does more to dig deep and discomfit the powerful than any newspaper reporter in the country.

  • ||

    "God forbid that they find a new business model. Much better to implement an utterly ridiculous legal regime instead."

    The Wall Street Journal is doing fine.

  • ||

    Before the newspapers cry poor and beg for a handout, they need to try all available options. Clearly they haven't tried printing good old fashioned T&A. A welfare mother can't claim she is too proud to work at a crappy job. Newspapers shouldn't be too proud to do what it takes to survive.

    As for my "GM/Chrysler" theory, car marketing is already 98% sex and 2% "oh, and there's a car too". Record labels rarely include actual music any more, preferring a 100% T&A regime. Why not tell newspapers to get with the program?

  • Peter||

    God forbid that they find a new business model. Much better to implement an utterly ridiculous legal regime instead.

    Actually I believe this was one of the 11-15 Commandments that Moses dropped on the way down the mountain.

    The 13th Commandment: Thou Shalt Not Change Business Model Whenst Thou Is Able To Abuse Thyst System To Screw Over Consumers Instead.

  • Rich||

    Please -- this is simply Judge Posner's way of encouraging people to _think_for_themselves_.

    Just kidding!

    There's nothing new under the sun, anyway, so sue me.

  • ||

    If you don't want to be linked to, don't put it online.

    If you don't want it in the library, don't put it in print.

    No, he thinks the Detroit Free Press should be the only guy in town who has access to AP and NYT articles. That way people will have no choice but to buy the Free Press for daily access to national and international news.

    It is not as if your local rag actually has reporters in Teheran and London, they just passed data back and forth via the wire services and charged the populace for assembling it into a paper. Everybody got their auto news from the Detroit AP feed and traded the local news from Tokyo or Seattle scene for it.

    Newspapers are middlemen, and as soon as it is economically, politically or technologically possible to cut out the middleman, out he goes.

    The dead tree media is going the way of Mom and Pop grocery stores. Thank goodness we don't have to buy our food there anymore.

  • ||

    If newspapers don't want people linking their copyrighted material, or using it in some other way, they can try fucking putting a copyright notice at the top of the article saying what are the prohibited uses.

    Or, you know, avoid putting it on Teh Intertubes with no restrictions to access. That's like parking a Lexus in a high-crime neighborhood, engine running with keys in the ignition and then being shocked, SHOCKED, that someone stole the bugger.

  • ||

    I'm not arguing FOR this solution, but it seems obvious to me that large newsgathering organizations are losing advertising dollars because commentators and readers share the content but do not reimburse for lost advertising revenues.

    Newspapers are losing money because Craigslist scooped up about half of their ad revenue, and then the papers put their content online for free, giving people an incentive to not subscribe to the dead tree edition.

    This change to one's business model is gonna drive a lot of the papers out of business. Tough. Adapt or fold.

  • Chad||

    Ahh, it is funny to watch libertarians, yet again, stick their head in the sand in the face of yet another market failure.

    I wonder at what ratio of utter crap to real content on the internet will libertarians admit there is a problem.

  • ||

    "Ahh, it is funny to watch libertarians, yet again, stick their head in the sand in the face of yet another market failure."

    This sad behavioral quirk started when libertarians refused to step in and save the buggy whip industry.

  • Russ 2000||

    and then the papers put their content online for free, giving people an incentive to not subscribe to the dead tree edition.

    Which is why I contend that newspapers should be giving the dead tree edition away. They may have to eliminate home delivery to do that, they may have to eliminate honor boxes and simply drop off more papers at fewer sites, but charging 75 cents for a handful of decent stories a day just won't fly. Heck, I spend very little time at newspaper web sites because the headlines are all visible and show how vapid the contents are. That's the real killer - you used to have to flip through 80 pages and eyeball a dozen ads before you realized there was nothing worth reading in paper - now it takes a quick scan of 10 seconds before you realize there's nothing worth reading in the paper and at best you saw 2 ads.

  • B||

    Christ, and this guy is someone libertarians look up to? Why and the fuck is it so important to save the print media anyway?

  • ||

    Chad, yet again, confuses the market working with the market failing.

    Chad, try to grasp that newspapers don't exist to provide jobs to their employees. They exist to make money by delivering content to the public.

  • Russ 2000||

    Where was the shakedown when afternoon TV news killed the afternoon paper? The afternoon papers went away, that's all.

    I contend that it isn't the internet killing the newspaper, it's the 4-hour morning news blocks on most TV stations that's doing it - the same thing that killed the afternoon editions.

    If newspapers are going to try the rent-seeking angle, shouldn't they first try shaking down the TV stations that do nothing but rip-n-read from the paper? It's not like blogs invented the reading-from-the-paper concept. Or will TV stations get an exemption from a scheme like Posner's?

  • Chad||

    R C Dean | June 26, 2009, 4:11pm | #

    Chad, try to grasp that newspapers don't exist to provide jobs to their employees. They exist to make money by delivering content to the public.


    And that is rapidly becoming impossible, due to a free-rider market failure that the current copyright system cannot handle. Even Posner is admitting that there is market failure. Why can't you?

  • KingShamus||

    LAMAR | June 26, 2009, 3:58pm | #

    "Ahh, it is funny to watch libertarians, yet again, stick their head in the sand in the face of yet another market failure."

    This sad behavioral quirk started when libertarians refused to step in and save the buggy whip industry.

    -------------------

    Exactly.

    If town criers existed today, the socialists would demand a federal bail-out of the news-calling industry, DC-funded scholarships for out-of-work bellowers and a cap and trade scheme to tax the hell out of carbon dioxide emmissions produced by the computers using the internet.

    The liberals always scream how progressive they are, but their plans almost always around protecting the most antiquated and backwards industries in our economy. It's almost like they don't live up to their self-chosen labels or something.

  • Chad||

    KingShamus | June 26, 2009, 4:18pm | #
    LAMAR | June 26, 2009, 3:58pm | #

    "Ahh, it is funny to watch libertarians, yet again, stick their head in the sand in the face of yet another market failure."

    This sad behavioral quirk started when libertarians refused to step in and save the buggy whip industry.


    I don't even think you guys are smart enough to understand what a market failure is. Oh well, we can't all be bright.

  • Elana||

    Can you imagine the copious amounts of money that will be wasted in enforcing this ban -- a ban which probably wont actually profit anyone (especially the newspaper industry) since people haven't stopped reading newspapers because other sites are linking to their online articles.

  • ||

    And that is rapidly becoming impossible, due to a free-rider market failure that the current copyright system cannot handle.

    Ah, so you don't know what the free rider problem is. Let me help:

    A free rider is someone who consumes more than their share of a resource, and/or doesn't contribute their share to its cost. There is a problem when the presence of free riders impedes the availability of the resource.

    I believe the resource at issue here is information. The free riders, presumably, are those who access the information without paying for it. However, the economic failure of one particular means of delivering that information (newspapers) does not show that information creation and delivery suffers from a free rider problem. In fact, the enormous explosion in the quantity of information available and the ease with which it can be accessed would seem to refute conclusively the claim that we have a free rider "problem".

    Now, if you want to define the resource at issue as newspapers, I think you have set yourself up a nice little tautology, which proves exactly as much as any tautology: nothing.

  • BeesInTheBrain||

    Whats funny is someone has recently started a free newspaper where I live that gets delivered to our house once a week. No national news, just local articles, and I actually read the whole thing.

    It's simple,easy and cheap for me to pay for the article and I will. Make me break out my CC and pay $1.95 for an article then no way.

    On a side note, can I patent the idea of using a third party application that handles the incremental billing and display of news articles when a special link is clicked in a web page?

  • ||

    Chad,

    Several people have pointed out that the failure of an industry does not mean the failure of the market. You are the one who (I thought) confused business failure with market failure. In the spirit of rhetorical courtesy, I responded to what it appeared that you meant rather than chastise you for being ignorant. I also correct people's spelling without ado.

    So it causes some consternation when you act like a 20 year old sociology major who'd suck his professor's dick for a B+ and a bowl of Mexican farmer weed.

  • BeesInTheBrain||

    I don't even think you guys are smart enough to understand what a market failure is. Oh well, we can't all be bright.

    I personally have no doubt that newspapers in one form or another will survive. Specific newspapers may fail but there will always be a place for small independent newspapers that report local news. Maybe not enough to support reporters with 6 figure salaries but someone will make a living doing it.

  • LarryA||

    I wonder at what ratio of utter crap to real content on the internet will libertarians admit there is a problem.

    I wonder at what ratio of utter crap to real content in newspapers will liberals admit there is a problem.

    Our local almost-daily prints mostly AP, with a smattering of superficially covered local news. They keep firing more experienced reporters and hiring cheaper rookies, and cutting other staff.

    They're competing with a weekly that prints exclusively local news. The very experienced weekly staff just went to Texas Press Association and came back with multiple awards, including first for overall excellence.

    My wife (25 years experience) writes most of the weekly's articles except local sports. This year she won ten awards (eight first place) in the Press Women of Texas contest and three of the eight first place entries won awards at the National Federation of Press Women level.

    The weekly's experienced ad rep uses "Advertise with us. You'll reach more people per dollar and we won't screw up your layout." arguments to lure advertisers from the daily.

    Over the last three years the weekly paper has moved up in competition categories from small circulation weekly to medium circulation weekly to medium-large circulation weekly, and has operated in the black since the second year it was published.

    Quality customer service is always a good business model.

  • ||

    Quality customer service is always a good business model.



    No, it's a business model that often works, but not always. Appropriate price for your service is generally a good business model. There's often a niche for crappy customer service at low prices.

    Unless "quality" just means "getting what you pay for."

  • Rich||

    John, are you claiming information is worth what people are willing to pay for it?

  • ||

    "The scary thing here is ... that some damn fool freedom-reducing scheme like this is likely to be introduced at the federal level in the not-too-distant future, given the economic and political clout of these very large, very troubled, and very connected organizations."

    And that's the scarier point; not that a judge has come up with a ridiculous scheme to "save" print media, but that private media companies have enough clout these days to force something like this to pass.

    News isn't news any longer; it's just rehashed crap passed from station to station because there aren't enough reporters anymore to actually go out and get stories.

  • LarryA||

    Unless "quality" just means "getting what you pay for."

    I was thinking more of providing customers with a product they want at a price they're willing to pay.

  • robc||


    Ahh, it is funny to watch libertarians, yet again, stick their head in the sand in the face of yet another market failure.


    What market failure? The market is WORKING. Businesses failing is a sign of market success.

  • g4m3th30ry||

    Yes, business failure in a free market is a feature not a bug. It's what makes the US the most dynamic system in the world, or at least has in the past, allowing it to innovate through the use of creative destruction.

    In good economic times, 15% of jobs are lost due to failing businesses and the like. This is through bankruptcy, acquisition, technological shifts, and other mechanisms. These jobs are replaced at a greater clip than they are lost, by the surviving businesses.

    Due to this fast moving society, some people will always fall behind and some Luddites will always resent the changes.

    Those who wish to retard progress by propping up failing industries are no better than the religious nuts who wish us to live as if it were the 16th century.

    No thanks to both of those groups - I prefer longer life spans, increased living standards, plentiful food, and the rest of the things we've gotten as a society through this progress.

  • Thewlis||

    Given your 4:45pm comment, I'll respond:

    "I wonder at what ratio of utter crap to real content on the internet will libertarians admit there is a problem."

    And you seem intent on running an experiment.

  • Nike Dunk High||

    thanks

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