Justice Richard Posner’s Copyright Law No One Can Talk About (Or Link To)

US Appellate Court justice Richard Posner proposes doing something with copyright law that I can’t tell you about, if the law he proposes actually passed. I may have said too much already.

I’d like to quote exactly what he said, the key part in bold, which was:

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.

Unfortunately, as you can see from his proposal, if paraphrasing isn’t allowed, I certainly don’t expect I’d be allowed to actually quote specific material, even if doing some might fall under existing fair use provisions. His writings are naturally protected by copyright in the United States and thus verboten.

Paraphrasing is certainly out, so with the new law, it would be difficult for me to even express succinctly what he’s talking about.

To even point at his exact piece here could result in a lawsuit.

Ironically, Posner’s proposed law will cripple the very newspaper industry he thinks he’s protecting. Unable to use search engines, they’ll be unable to research many of the stories Posner says we all depend on. Unable to paraphase, many of the papers will not be able to report on major events they don’t personally cover (if they don’t personally get confirmation of Michael Jackson’s death, each and everyone one of them, paraphrasing from where they heard the news would be illegal).

And forget the online world. Newspapers and others commonly paraphrase copyrighted materials under fair use provisions. With that tossed out, there will be a further degradation of information sharing (unless we’re talking another special rules law for the offline world, like that Washington State tax break for print papers).

Meanwhile, attention is renewed on the idea from a few weeks ago that laws should be changed facts in stories couldn’t be reported for 24 hours. So the next time someone like Michael Jackson dies, whoever breaks that news — everyone else can just sit back and watch, lest they be accused of unfairly profiting off another person’s “original” reporting. And won’t that fuel good journalism — increasing further the rush to be first.

You know, I don’t think we should have a court system with lawyers and judges and juries all that. I think we should have a panel of experts appointed in various areas of case law. These experts, because they are experts, won’t need to be “educated” about the situation of certain cases. They won’t be a jury easily swayed by court theatrics. It should result in better law.

If that sounds crazy, like I’m writing about how the court system works with no real experience of it, let me introduce you to some people who write about newspapers, journalism and how information works on the internet. They have some crazy laws of their own.

For more, see discussion on Techmeme here and here.