Judge Posner's Dangerous Thinking on Links and the Future of News

Mike Masnick on techdirt points us to some dangerous and incomplete thinking from Judge Richard Posner on his blog. At the bottom, Posner writes:

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.

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.

Posner’s thinking is incomplete in a few ways. First, he is ignorant of the imperatives of the link economy. The links and discussion he wants to outlaw is precisely how content is distributed and value is added to it in the new media economy.

Second, as Masnick points out, Posner assumes that journalism as it was done is journalism as it should be done: that the goal is to protect newsrooms, unchanged. But there are tremendous savings to be had thanks to the link economy: do what you do best, link to the rest.

Note how The New York Times and The Guardian – not to mention the Huffington Post and Andrew Sullivan – covered the Iran crisis. They linked. Links made their journalism complete. So did readers. The Times has three editors for every writer but in the blog, there was no need – no opening – for them. There was no need for production or design. The new news organization can and will operate at a different scale from the old one, because it can and because it must. So what is Posner protecting besides the old budget and payroll? He’s not protecting journalism – or rather, he’s protecting it only from progress.

No, sir, the news industry – and the law – must be updated for this new world and so must your thinking.

Comments

[User 436733]

I agree with everything you say, except one point I found odd. You state: "The Times has three editors for every writer but in the blog, there was no need – no opening – for them." Now, I don't know the details of The Times' blog in this specific instance, but it certainly doesn't seem generally true that internet citizen journalism wouldn't benefit from editing. It strikes me that in the age of grassroots citizen journalism the future of "professional" journalism has to do with editing, contextualizing and aggregating internet sources. Global Voices is a website that does this very well. Also check out www.ourblook.com/compo... there are some great interviews with top journalists about the future of journalism that I have found very useful.

2009 Jun 26 02:59 PM

[Wisdom vs. Information]

Posner's concern is economic efficiency; if someone cannot profit from what they create they will have no incentive to do so, which lowers total economic utility for all of us. That is ALL he is saying, and he has a point.

2009 Jun 26 05:38 PM

[whidbey]

We must recall that Posner is a lawyer who barely understands economic efficiency not to mention free speech, even if he is given to prattling about it in his books.

Over arching all is the need to keep the world of ideas and words free (1st amendment rights) so that we as a people have the means to discuss our interests, regardless of who first offered the news and ideas. Anything less than that assures that he who writes first is protected and can not be refuted by direct use of his words. Not a good idea Richard, even for a federal judge.

2009 Jun 26 10:40 PM

[The Lost Agency]

Is it more along the lines of when Music companies tried to prevent users from making mp3 version of their music. Sony installed software that added Malware to the users PC to try and prevent this, now Sony sells walkman mobile phones that you can load with your own mp3s.

If I write something of value, its great when someone comments but if someone writes a story about it and includes a link I get benefit. It will be the case that writers and bloggers will just remove the level of transperancy and will no longer quote the source if The New York Times is going to be looking for their content they wont quote or link to them.

If I read a story by a industry blog or newspaper and want to do a blog post on it, I should be able to. The large newspaper groups dont control the media as much as they used to and that is more the issue they are having a temper tantrum.

So in the end the NYT is going loose strenght online and blogs will start to be the ones getting all the benefit as they understand linking. The legal system struggles to understand normal business how can they try and weigh in on complex matters such as Links/Content?

2009 Jun 27 08:41 AM

[You're Kidding]

Wisdom vs. Information wrote:

> Posner's concern is economic efficiency; if someone cannot profit
> from what they create they will have no incentive to do so, which
> lowers total economic utility for all of us.

NOT TRUE.

The new paradigm is OPEN SOURCE, which is going to reveloutionize the planet in ways beyond what anyone can think with today's consciousness.

For example, Capitalism is really just a mere transitory system which will fall to the wayside in the next few hundred years.

Imagine if libraries didn't exist and you had to buy a book before you could use it. How many books could you afford to buy? And what would society look like?

Libraries are a communial (Marxist - Socialist) institution and share large resources among many people for little comparative cost.

Pirate trading networks for music, TV, movies, s/w, books, etc., are making more people more intelligent and more creative, which helps us all.

People should do what they love to do because that will not only be what makes them happy, but what provides the rest of us with the best possible "stuff."

This is the way everything will be once we grow up and stop being so egocentric and childishly greedy. It will take some time and be met with fierce resistance from the elites, but is where we are headed, if we survive.

2009 Jun 28 01:02 AM

[Wisdom vs. Information]

whidbey, you need to get up to speed on Posner; I disagree with a lot of what he says, but he is an expert on economic efficiency. Youre Kidding, I agree with you about the coming neal stephenson world, but people will always need to be protected or they will not create. as a matter of fact, there is always more creation when there is protection.

2009 Jun 28 03:25 PM

[Richter Scale]

You're Kidding: Libraries exist because of 2 factors, that come to mind: 1) they're supported by tax money & 2) the content creators, that provide the "media" that the libraries make available to the public, make money by selling through traditional sales outlets. So, in your view, all content creators will gladly spend their time, for free, creating the media of the future? If the entire world becomes "open source", who will pay our housing, food, health, etc. bills?

2009 Jun 28 10:36 PM