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Judge Thinks Linking To Copyrighted Material Should Be Illegal

Soulskill posted more than 4 years ago | from the don't-you-point-at-me dept.

The Internet 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."

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390 comments

So this implies... (5, Insightful)

gzipped_tar (1151931) | more than 4 years ago | (#28505077)

...probably the death of Slashdot?

Re:So this implies... (4, Insightful)

eggman9713 (714915) | more than 4 years ago | (#28505161)

Mod parent WAY up! This could be devastating for information distribution. Look around on stories that link from here, Digg, Gizmodo, wherever, and see how many of them say "Copyright by blahblahblah". Imagine not being able to find that information except by checking all of those websites individually. Aggregation could be killed by this.

Re:So this implies... (5, Insightful)

davester666 (731373) | more than 4 years ago | (#28505599)

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:So this implies... (5, Funny)

GreatBunzinni (642500) | more than 4 years ago | (#28505163)

It would, if the anyone clicked on the articles to read them. IF anyone clicked on the articles to read them.
New at this, aren't we?

Re:So this implies... (5, Funny)

ziggamon2.0 (796017) | more than 4 years ago | (#28505171)

And since half the articles are dupes, Slashdot is infringing on itself and must self-destruct!

Nah (3, Funny)

hansraj (458504) | more than 4 years ago | (#28505315)

Hey, have you been sleeping under some rock? We don't RTFAs in this part of the internet. The editors only have to insert a few phony "links" in the story to www.foo.bar

"Slashdot effect" would have to be reinterpreted as "a bunch of people arguing about something without bothering to know the story" though, but around here we take pride in doing that.

Now I will have to ask you to get off my fucking lawn.

Re:So this implies... (5, Interesting)

Anonymous Coward | more than 4 years ago | (#28505449)

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.

Re:So this implies... (1)

someone1234 (830754) | more than 4 years ago | (#28505537)

Well, if the copyrighted site consents to google (why it wouldn't) then the link is legal.
I just don't know how Google would handle the gazillions of links if they would have to ask for permission first.

Re:So this implies... (1)

Larryish (1215510) | more than 4 years ago | (#28505591)

Some sort of hard limit on the size of borrowed snippets that are use in conjunction with links seems reasonable. Banning links seems sort of short-sighted.

If nobody links to news, how do the corporate news sites get readership? By purchasing ad space on other websites, television, radio, etc. and drawing from the current online readership as well?

Is this some sort of funneling process?

Re:So this implies... (5, Insightful)

R2.0 (532027) | more than 4 years ago | (#28505657)

"...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."

Re:So this implies... (1)

ImOnlySleeping (1135393) | more than 4 years ago | (#28505745)

Only if slashdot kept their company registered in the US. Plenty of room in less crazy countries. Good luck enforcing a law that ridiculous everywhere.

Posner (5, Interesting)

Raindance (680694) | more than 4 years ago | (#28505081)

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.

Re:Posner (5, Interesting)

gum2me (723529) | more than 4 years ago | (#28505145)

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.

Re:Posner (0)

Anonymous Coward | more than 4 years ago | (#28505273)

> How do you maintain a free press when free-riders can inexpensively and quickly copy and redistribute your original content

You don't. Welcome to 2009. The market isn't immutable, you know.

Re:Posner (1)

Artifakt (700173) | more than 4 years ago | (#28505397)

But, saying we can't maintain a free press is basically saying the first amendment is now unworkable. If you start from that position, then taking all sorts of legal steps, all the way up to amending the constitution to make copyright something, anything, that can again bolster the first amendment, automatically become reasonable options. 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.

Re:Posner (Chewbacca Defense) (3, Insightful)

Coriolis (110923) | more than 4 years ago | (#28505607)

That doesn't make any sense. One has nothing to do with the other:

  • The First Amendment says that the government should not have the right to limit what the press says, amongst other things.
  • The parent is suggesting that the current press business model is fatally flawed, because it's not the 1900s any more.

See? Different things.

Re:Posner (3, Interesting)

Anonymous Coward | more than 4 years ago | (#28505713)

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?

Re:Posner (4, Insightful)

causality (777677) | more than 4 years ago | (#28505285)

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 (0)

gum2me (723529) | more than 4 years ago | (#28505651)

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.

Re:Posner (1, Insightful)

Anonymous Coward | more than 4 years ago | (#28505295)

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.

Re:Posner (1)

gum2me (723529) | more than 4 years ago | (#28505683)

The main problems that the internet cannot deal with yet:

1) Reliable news-gathering for overseas or far away places

2) Reputable sources like the NYTimes or The Washington Post

Admittedly, after a while, some online newspapers/blogs will gain credibility.

Re:Posner (4, Insightful)

TheRaven64 (641858) | more than 4 years ago | (#28505349)

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:Posner (0)

Anonymous Coward | more than 4 years ago | (#28505399)

If your content is that "Hospital X has pronounced Y dead at Z:ZZ", then you're really just copying and redistributing the hospital's original content. Maybe one day hospitals and other such *original sources* will have feeds that bloggers can directly link to. In the end newswires might not be needed anymore, so why protect them from market forces?

Re:Posner (3, Interesting)

QuoteMstr (55051) | more than 4 years ago | (#28505669)

How do you maintain a free press when free-riders can inexpensively and quickly copy and redistribute your original content?

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.

Re:Posner (2, Insightful)

TeXMaster (593524) | more than 4 years ago | (#28505743)

Making it illegal to redistribute copyrighted content as in making verbatim copies of a text might make sense, but banning _linking_ to copyrighted content is just ridiculous, and so is banning paraphrasing copyrighted content. On the contrary, I would say that it should be _mandatory_ to link to copyrighted content when paraphrasing it ("read the original article _here_").

Re:Posner (5, Insightful)

causality (777677) | more than 4 years ago | (#28505169)

"I am distrustful of people who think they have confident answers to such questions." That goes for both sides in this debate.

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.

Re:Posner (1)

Raindance (680694) | more than 4 years ago | (#28505299)

I'm not quite sure what inalienable right you feel would be violated by preventing deep linking. I'm not scoffing at the idea that your rights would be violated-- but I'm saying it's problematic to just claim your rights are being violated. You need to enunciate which rights are being violated.

Posner's opinion seems not to push the government into determining "who wins and who loses in the business world" so much as explore what the ideal legal state of affairs would be so as to create the most social and economic good.

Obviously if things keep on as they are and free riders essentially reap most of the benefit from real reporting, newspapers are by and large going to go under, and the sort of deep reporting newspapers have traditionally done will be done much less frequently. Nobody wins in that scenario. Perhaps tweaking the law so as to protect newspapers would create the most good; perhaps letting newspapers crash and burn and seeing what arises from the ashes (and it would be messy, and a lot of good organizational structure / wealth would be destroyed) would create the most good.

I have my own opinions, but I see possible merit and possible pitfalls in both routes. If you don't, I submit you're not giving the issue careful enough attention.

Re:Posner (1)

Raindance (680694) | more than 4 years ago | (#28505353)

I'm sorry; on my initial reading I glossed over where you detailed you feel this infringes upon your rights of freedom of speech and of the press. I take back my criticism re: enunciating rights.

I do think the ability to deep link to specific articles, etc, is important for a healthy public debate. I'm not certain linking to someone else's work is completely under the umbrella of speech, however, and would be protected under the speech/press protections.

Re:Posner (4, Insightful)

QuoteMstr (55051) | more than 4 years ago | (#28505533)

I'm not certain linking to someone else's work is completely under the umbrella of speech

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:

  1. A URL and the aforementioned sentence are dissimilar
  2. The URL itself it protected speech, but its machine-readable form, the link, is not

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:

  • Defamation
  • Causing panic
  • Fighting words (an exception seldom used today)
  • Incitement to crime
  • Sedition
  • Obscenity
  • Establishment of religion

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 (0)

Anonymous Coward | more than 4 years ago | (#28505625)

Well said. Also, you might consider the difficulty of delimiting what constitutes as "machine-readable."

I'm out of mod points, otherwise I would mod you up. Perhaps someone else feels the same way?

Cheers, mike

Re:Posner (2, Insightful)

causality (777677) | more than 4 years ago | (#28505543)

I'm sorry; on my initial reading I glossed over where you detailed you feel this infringes upon your rights of freedom of speech and of the press. I take back my criticism re: enunciating rights.

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 do think the ability to deep link to specific articles, etc, is important for a healthy public debate. I'm not certain linking to someone else's work is completely under the umbrella of speech, however, and would be protected under the speech/press protections.

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."

Re:Posner (1)

QuoteMstr (55051) | more than 4 years ago | (#28505623)

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.

The constitution embodies the principles of the enlightenment (which we seem to have sadly forgotten), and those include the presence of a benevolent, utilitarian government that works for the common good (or "general welfare", to use a familiar phrase). Your argument that some abhorrent dictators did what they thought was for the common good, and therefore that the government should never act for the common good, is fallacious, cynical, and specious.

Ignoring the presence of genuinely malevolent bad actors, sometimes those in government will get it wrong, and a mismatch between the actual good and perceived good will result. In a dictatorship, there is no mechanism to correct this mismatch. But the entire point of a democracy is to provide a feedback mechanism to ensure that what the government thinks is for the common good, actually is. In a democracy, it's good and right for a government to act to improve the lot of its people.

Re:Posner (0)

Anonymous Coward | more than 4 years ago | (#28505707)

The reason we should hold such quick conclusions suspect is that they do not rely on a careful analysis of the facts. He wasn't suggesting a broad corporate right to profit. He was pointing out the very real danger that this country's free press (you may remember them from every important event in the history of the nation) might be destroyed by the Internet, which typically relies on print sources for its primary investigation.

The problem is that the economics of the web do not support the sort of decentralized journalism that's embodied in newspapers. That would require more staff than most web sites can muster. So they either buy their news from Reuters or the AP, or they just comment on what was said elsewhere.

I disagree with his solution on practical grounds, though. The value of the web is in hyperlinking. We need, instead, to find a way to transition journalists from dead trees to the Web in ways that don't drive them into poverty. But let's not pretend that that's an easy problem to solve that everyone will agree is tractable.

Re:Posner (3, Insightful)

clarkkent09 (1104833) | more than 4 years ago | (#28505757)

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.

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:Posner (1)

dword (735428) | more than 4 years ago | (#28505457)

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.

You realize you just quoted him without his consent, right? Lucky you, it's licensed under CCv3 [creativecommons.org]... otherwise he should've torched your ass!

Re:Posner (5, Insightful)

brxndxn (461473) | more than 4 years ago | (#28505479)

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:Posner (3, Interesting)

Kjella (173770) | more than 4 years ago | (#28505523)

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.

Re:Posner (1)

SurenPala (1587109) | more than 4 years ago | (#28505549)

His idea to bar linking to copyrighted materials is absurd and could break the web, almost everything on the web is copyrighted by someone. How exactly would implement this for pages where there are multiple copyright owners for different parts of the page, who have only given permission to the original site to use them? Would I need every commenter's permission to link to a Slashdot comment page? You only give permission to Slashdot to use your content not me.

There are already ways to restrict people from linking to your site, you could block all requests that don't have a referer from a list of approved sites. I realize that it is easy to turn off or fake referers but most users either won't know how or won't bother. Also as for restricting copyrighted material to only preapproved individuals, that technology already exists and is used very widely on the internet and copyright law can already deal with sites that will take copyrighted material and simply redisplay it. While I share his desire to see newspapers continue and not die out, this is not the right approach (or at least we don't need new laws for them).

Re:Posner (2, Insightful)

Anonymous Coward | more than 4 years ago | (#28505557)

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.

Why, Just Because! (4, Insightful)

FranTaylor (164577) | more than 4 years ago | (#28505731)

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?

Driving a car should be illegal (0)

Anonymous Coward | more than 4 years ago | (#28505087)

Buggy manufacturers are too important an industry to lose.

Fascination With Legacy (0)

Anonymous Coward | more than 4 years ago | (#28505101)

Why is there such a fascination to save legacy products? I understand black and white print is important but if we applied this logic to other mediums the courts would be protecting inferior technologies like VHS.

Mr. Newspaper, Welcome to the Internet. (0)

Anonymous Coward | more than 4 years ago | (#28505109)

Watch the step.

Mr. Darwin has some advice for you: evolve or die.

What kind of stupid idea is this? (1)

Octogonal Raven (1516671) | more than 4 years ago | (#28505115)

I'm not going to stop talking about news or current events in my own house, let alone online. I use Skype for a reason, including talking with friends about stories in the news, and that requires *GASP* LINKING to the stories, or posting snippets. Not only that, but this would effectively make all decent sources for any sort of research paper illegal to access. This legal eagle needs to take a drink from the fountain of non-stupidity.

Don't RTFA! You could charged as an accomplice. (1)

ziggamon2.0 (796017) | more than 4 years ago | (#28505123)

By clicking the link you create incentives for other stealing pirate swine to put up more links. And then all is lost!

He's wrong (5, Interesting)

BadAnalogyGuy (945258) | more than 4 years ago | (#28505139)

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.

Re:He's wrong (2, Interesting)

causality (777677) | more than 4 years ago | (#28505323)

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.

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.

Re:He's wrong (1)

FooAtWFU (699187) | more than 4 years ago | (#28505551)

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.

I disagree with this specific sentiment. When the incentive to compile news is no longer financial, I think there will be two groups of news-gatherers who will make it big: news-gatherers who are paid by people who want to manipulate the news and public opinion (which will rekindle the financial incentive) and activist news-gatherers with an axe to grind who want to manipulate the news and public opinion. Both these groups have significant incentives to go out and gather news. Other groups have less of an incentive. Have you visited many community news gathering/reporting sites recently? Can you name two of them which stand out as cool, neutral reporters of what happens in the world? (A hint, here's one of them [wikinews.org].) In general, though, I don't think it bodes well for the integrity of the news.

Re:He's wrong (2, Insightful)

causality (777677) | more than 4 years ago | (#28505747)

Have you visited many community news gathering/reporting sites recently? Can you name two of them which stand out as cool, neutral reporters of what happens in the world?

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?

If I didn't respect Posner... (1, Interesting)

Anonymous Coward | more than 4 years ago | (#28505141)

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:If I didn't respect Posner... (2, Insightful)

causality (777677) | more than 4 years ago | (#28505413)

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.

Re:If I didn't respect Posner... (2, Informative)

that this is not und (1026860) | more than 4 years ago | (#28505541)

Being a prominent figure in a large institution impresses men.

That gives him a leg up on the rest of us in lobbying his legislators to pass the laws that he 'thinks' are needed. Other than that, he's just like any other Joe Citizen as far as the legislative process is concerned.

Judges have no role whatsoever in enacting laws.

Enforcement? (4, Interesting)

GammaStream (1472247) | more than 4 years ago | (#28505159)

If a search engine is located in another country, how do you stop it linking to your copyright material? Fines that they won't pay? Extradition? Blocking their site?

Why would they want to ban linking? (1)

basementman (1475159) | more than 4 years ago | (#28505183)

I can see how he thinks banning paraphrasing might help the newspaper industry. A huge number of high profile blogs are guilty of basically ripping the content off the original source and providing a tiny link on the bottom citing their source. I would agree that is unfair to the people that originally reported the story. The linking part makes no sense however. Reuters and the AP want people linking to content on their site, it's one of main ways they get traffic. Unless the anchor text of the link is on huge ass summary than banning linking makes no sense.

Throwing out the baby to save the bath water (4, Insightful)

Voivod (27332) | more than 4 years ago | (#28505193)

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.

No more bibiliographies (3, Funny)

seekret (1552571) | more than 4 years ago | (#28505225)

I wanted to write that paper about the current affairs of the political system but I can't give you any sources since it's illegal to link to copyrited material...the new my dog ate my homework.

Won't change anything (5, Insightful)

javacowboy (222023) | more than 4 years ago | (#28505263)

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.

Not a problem for slashdot.... (0)

Anonymous Coward | more than 4 years ago | (#28505289)

This really is not a problem for slashdot, we can just remove references from news postings...just formalizing what slashdot readers have been doing for years

Interpretation (5, Insightful)

DoofusOfDeath (636671) | more than 4 years ago | (#28505297)

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???

Re:Interpretation (2, Interesting)

dword (735428) | more than 4 years ago | (#28505495)

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."

So sad (2, Insightful)

woboyle (1044168) | more than 4 years ago | (#28505301)

It is so sad that someone who is so clueless is in such an influential position, and for life no less! Anybody else in favor of term limits for federal judgeships?

Re:So sad (3, Insightful)

that this is not und (1026860) | more than 4 years ago | (#28505493)

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.

a death blow to print media (0)

Anonymous Coward | more than 4 years ago | (#28505317)

This would be a death blow to traditional media online... Most everything anyone reads online, if this law passes, would be creative commons liscensed. I will probably never buy a news paper or other traditional print media. I imagine much of the the younger generation feels the same way. The new generation has to be told Wikipedia is not an academic resource.

Everything is copyrighted (1)

shadylookin (1209874) | more than 4 years ago | (#28505319)

Everything is copyrighted by default. Online papers might want ad revenue from clicks, but how on earth will I reach them if it's never linked anywhere(assuming I don't know their url off the top of my head)

The solution. (1)

MrMista_B (891430) | more than 4 years ago | (#28505347)

Turn off the internet, and make it illegal to receive any news that isn't officially state mandated, state protected, state owned, and state run.

Even that won't give this judge what he wants, because people would still be able to use pencils, pens, or other mark making tools to do such things as 'paraphrase' news sources.

This judge is an idiot, and because he has power, he is a dangerous idiot. He should be removed for the safety of the American people in particular, and the safety of the internet in general.

This makes all linking illigal (1)

houghi (78078) | more than 4 years ago | (#28505361)

By default all material is copyrighted.

Basically it is about going back to what they are used to do in the past.
Newspapers bought their content from companies like Reuters, so they would love to continue to do so and 'own' the news. Do not forget that a newspapers, like television, now is a way of selling advertisement space. The public is not the customer, the advertisers are.

To newspapers: (1)

mastropiero (258677) | more than 4 years ago | (#28505385)

Well, boo-hoo. Nobody forced newspapers to put their content online. It sure is convenient for us readers, but if they were not prepared to deal with what is happening now, then they should just pull out and go to just print or subscription only. Let's see how well that will fare. Will they want people writing about their stories banned?

The Internet's whole point is copying and sharing information, and if you don't want to share your content or cannot afford to, then don't freaking put it there.

Monopoly (1)

marco.antonio.costa (937534) | more than 4 years ago | (#28505391)

For people who still don't get that monopolies are always created by government coercion, here might be one fresh in the getting of yet another privilege.

This is a great idea (0)

Anonymous Coward | more than 4 years ago | (#28505401)

Let's eliminate all linking to copyrighted material, especially material on traditional slow-to-adapt news sites. No quotations, no citing, no discovery via search engines. This should do wonders to speed their well-deserved demise.

Thats unpossible (2, Informative)

RichMan (8097) | more than 4 years ago | (#28505419)

- without destroying the net
a) everything written essentially has creator copyright
b) making a link to anything else would then be violation

- internet assumption
a) if it is on the net you can link to it
      this follows from the basic structure of the net as addressable content

If someone does not want a link made they had better not put it on the internet. Putting it on the internet essentially means permission to link.

Reference != content (3, Insightful)

jernejk (984031) | more than 4 years ago | (#28505421)

Banning links to web content is the same as banning references in off-line world, which is of course, idiotic. On the other side, caching and aggregating pages without permission from original author/publisher is a whole different matter.

Library card catalog (4, Interesting)

peektwice (726616) | more than 4 years ago | (#28505431)

I'm pretty sure that this also means the end of the Dewey Decimal system, since it links to copyrighted material.

They really want to be part of the "Dark" web? (1)

Gooba42 (603597) | more than 4 years ago | (#28505437)

So the print media thinks that they'll benefit from the loss of the digital equivalent of word-of-mouth advertising? Isn't becoming invisible the last thing you want your website to do?

That's insane but we should let them have it. Any company who understands the internet will modify their copyright license terms to circumvent this ridiculousness and any company that doesn't just has to search for referrer=anything-at-all and deny everyone from viewing their content unless they actually bookmarked or manually entered the URL in the browser.

I don't really savour the idea of the death of "real" media, central control is bad but having actual life-long students of journalism working the stories is good. If media companies decide that they won't go where the market is leading them, that's their decision.

Re:They really want to be part of the "Dark" web? (1)

Darkness404 (1287218) | more than 4 years ago | (#28505585)

I don't really savour the idea of the death of "real" media, central control is bad but having actual life-long students of journalism working the stories is good

Really, what you call "real" media is worthless anyways. Most of the traditional media focuses on either A) already beaten to death stories (yes, we know Michael Jackson died, we don't need reminded of it every 10 minutes) B) pointless hype stories (we all are going to die of swine flu!!!1!1!1!) C) glorified ads for products or political agendas (lets talk to *insert prominent member of a political party* on why they supported/didn't support a bill in order to paint them in a positive to negative light for the viewers of the program). Newspapers similarly have no real content, there are a few interesting stories but the most part even that is tiny things that few people care about, things that won't affect your life, or in incredibly brief overview of something. All of those interesting bits are better done on the web.

30 years ago, I might agree with you, but today traditional print media has little to no benefit. There really is no reason for anyone tech-savvy to read the newspaper anymore, the content just isn't there.

Re:They really want to be part of the "Dark" web? (1)

afxgrin (208686) | more than 4 years ago | (#28505663)

There should just be a "robots.txt" or an extension to robots.txt for automated news aggregation sites. If the news service doesn't want it's news aggregated with everyone elses news services, sites like Googles News should respect that. They obviously want to still be indexed by Google, but to have there news articles copy-pasta'd to the front of Google News is a whole other thing.

Judges can 'Think' what they like. (1)

that this is not und (1026860) | more than 4 years ago | (#28505459)

Judges can 'think' whatever they like. However, so can any other random citizen. If there are laws in place that make linking to Copyrighted Material illegal, then if a case comes before said judge, s/he can rule in that fashion. If that's how the law is written, of course.

Otherwise, the judge can lobby his representatives and senators just like the rest of us can.

No judge has any role beyond that of any other random citizen in enacting laws. There's this thing called separation of powers.

This assumes no more innovation (2, Interesting)

kawabago (551139) | more than 4 years ago | (#28505467)

Providing no one ever has a new idea, the judge just might be right. In the real world however, if there is a need for an independent news service, it will pop up all on it's own. That is the nature of the internet, someone is always trying something new and when a need arises or an opportunity develops, there are 8 billion people in the world that can offer a solution. One of them is bound to have a good idea!

!capitalism (0)

Anonymous Coward | more than 4 years ago | (#28505483)

This may represent the modern perversion of capitalism, but schemes to prop up failed industries because of their political connections is not capitalism. Closer to socialism or really corporatism. And I can't think of many more deserving of failure than the dead tree status quo merchants.

Linking to your public ad serving website is not free riding. The fact that you can't stay in business with your model doesn't give you the right to look toward those that are successful to fund your failure. That ain't capitalism for sure.

P.S. The captcha word for this post is dinosaur.

Just one more way the world is changing... (1)

OpinionatedDude (1323007) | more than 4 years ago | (#28505505)

The one thing that is completely missed by the judge is that the death of corporate news is a Good Thing! (tm) Big companies and the people who pay them off and/or own them have been telling us "what is going on" for far too long. As the big news wires die off they will be replaced by a much more difficult to control/exploit wiki-type news reported/edited by people who were there and don't have some corporate/political axe to grind. News is dead. Long live the news. jp

Re:Just one more way the world is changing... (1)

MightyMartian (840721) | more than 4 years ago | (#28505635)

Is the other end of the spectrum any better? For the most part, news agencies have had codes of standards and ethics. It's not perfect, I'll admit.

At the other end of the scale look at Iran where, yes, you essentially had citizen reporters taking over the role of journalist when the government had detained or thrown out all the professional journalists. But the government and pro-government forces proved to be just as effective at spreading disinformation.

Bad choice of words (2, Insightful)

Arancaytar (966377) | more than 4 years ago | (#28505547)

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?

Tubes, it's tubes! or stupiest idea ever (0)

Anonymous Coward | more than 4 years ago | (#28505555)

This would destroy the entire web. Every single link in existence is a link to copyrighted material.

This sounds like yet another plan that will create bureaucracy where none is needed. All in an attempt to inflate budgets and get more money (like so, so many government plans).

Trend towards Government-sponsored news (1, Interesting)

Animats (122034) | more than 4 years ago | (#28505587)

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".

He DOES have a point. (1)

Sowelu (713889) | more than 4 years ago | (#28505611)

It's a horrible point, and we don't want to deal with the consequences if he decides to interpret law based on his point, but that doesn't mean it isn't *TRUE*. Remember that. The internet is killing newspapers, and it wouldn't be killing them as fast if draconian laws were keeping Fark and Slashdot from existing.

Re:He DOES have a point. (1)

freedom_india (780002) | more than 4 years ago | (#28505659)

Simple. Stop online banking for him, stop paying bills online, and prevent him from taking notes when a lawyer argues.
Once he realizes his dumbness he will change,

Well, don't publish then (1)

joh (27088) | more than 4 years ago | (#28505613)

This reminds me of the only sane answer to the piracy whining of the music industry: Don't want people copying and distributing your music? Don't produce music! Problem solved. (Or find other ways to profit from people marketing and distributing your stuff without requiring money for it -- there *must* be ways to profit from people working for nothing.)

No, really. As long as the only answer to individual people complaining about abuse of data they publish on facebook (or whereever) seems to be "don't publish things you don't want others to know" this is the only answer you can give Big Content likewise.

site would never get any traffic (0)

Anonymous Coward | more than 4 years ago | (#28505653)

well fuck them anyhow.

Outrageous (2, Interesting)

Eravnrekaree (467752) | more than 4 years ago | (#28505689)

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.

Wikileaks? (1)

psychcf (1248680) | more than 4 years ago | (#28505693)

Wouldn't this sort of thing discourage people from using things like Wikileaks to disclose sensitive information? Although I could see the argument for piracy, I think such a policy has the potential for being used in other ways that would ultimately hurt more then just pirates.

The thing to do next is... (1)

BlackBloq (702158) | more than 4 years ago | (#28505699)

The main thing to do next is to patent stories. You see... someone can still creatively paraphrase or just re-write the story! We should stop the theft of news! Really news is creative...look at Fox news, most of their reporting uses a creative license... why not patent the license and get it over with? Now everyone could pay royalties for the use of a story! Awesome!

Close bookshops and Amazon then (1)

Kupfernigk (1190345) | more than 4 years ago | (#28505701)

What is a bookseller's list or a library catalog if it is not "linking to copyrighted material"? What is an advertisement for a book that contains extracts or information about the contents if it is not a derivative work?

The ultimate revenge of the Internet would indeed be to bar all access to controlled copyright material, and all references to and advertisements for the same. Leave nothing available but material in the public domain, copyleft and suchlike. Such an Internet would be more useful than the present one. No advertisements for anything other than 3D solid products. Quicker and easier search for real information in the public domain, like that from NASA and the NIH. Kids downloading Mozart and Bach recordings by amateur orchestras.

Thinking about it, I want it.

It is called the World Wide Web (2, Interesting)

tombeard (126886) | more than 4 years ago | (#28505715)

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.

Don't *refer* To Something?! (2, Insightful)

blcamp (211756) | more than 4 years ago | (#28505735)

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.

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