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.


  1. says

    Great piece. Not only would the linking prohibition impact newspapers’ ability to research items, but would deprive them of a vitally important revenue source by preventing links to their content, and so curtailing their traffic. This, of course, is at ironic heart of the newspapers’ misguided efforts to prevent “content theft”: Internet traffic to a paper’s website will replace (if it hasn’t already) audited subscribers as the most important revenue stream.

  2. says

    Forgetting for a moment how stupid this whole idea is, would it even matter if something like this happened? We have Twitter. Twitter is a conversation and it moves faster than current ‘news sources’ anyway.

  3. says

    This proposal would not only cripple newspapers, as Danny persuasively argues, but even more importantly it would chill, if not effectively eliminate, the free speech rights of individual citizens to discuss the issues of the day.

  4. says

    I’ve been saying for a while that one of the fundamental challenges that puts the newspaper industry in a tougher spot than the music industry is that while you can copyright an expression of ideas, you can’t copyright the facts.

    In the music industry, most of the value is in the expression. In the newspaper industry, it’s in the facts. So this is their solution? Oy.

    On the plus side, if this passes we won’t have to put up with all the “news” stories which are just paraphrases of press releases.

  5. says

    Twitter doesn’t have enough users for it to move THAT fast and be THAT relevant, believe it or not. We’d either be underestimating the power of the search engine, blog, and internet or overestimating how many people actually live by Twitter enough to report that quickly to it.

    I really respect the effort to THINK about ways to help protect our print media in their progression toward moving online… but perhaps our justices need to do a little more digging and research involving people who work with THIS for a living every day? Certainly one of us could’ve told him any number of things in Danny’s post.

    Great article. Tweeting now! :)

  6. says

    Its seems a bit ridiculous to try and implement this it would be impossible to police. It really brings to light the question, who are the real pirates. “In the magical universe there are no coincidences and there are no accidents. Nothing happens unless someone wills it to happen.” via Burroughs ups! regards Dape.

  7. says

    Just how exactly would you know if someone is paraphrasing a story? You would have to know what source is being paraphrased, and if I don’t link to that source, which I wouldn’t be able to do anyway, then who is going to know. The whole thing is just stupid, but sadly, it is the natural and predictable outcome of believing in such restrictions on free speech as “Intellectual Property” and “Copyrights” in the first place. Which is exactly what copyright is. You can’t own thought. That’s preposterous.

    How would such a ruling affect parody and satire?