By Dan Kennedy • The press, politics, technology, culture and other passions

A new threat to the Internet

In my latest for the Guardian, I consider the implications of an idea put forth recently by influential U.S. Court of Appeals Judge Richard Posner: making it illegal to link to copyrighted content without permission. Not only would Posner’s proposal do enormous damage to the Internet, but it would destroy the doctrine of “fair use” as well.

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16 Comments

  1. mike_b1

    Wacky things emanate from those Illinois based courts. Remember, that's where Solaia Technology vs Speciality Publishing almost upset the fair-report privilege even in cases where there was no reckless defamation.

  2. matteomht

    This is the digital equivalent of prohibiting me from giving a tourist directions to Fenway Park without first asking the Red Sox if it's OK. This will go nowhere.

  3. mike_b1

    Is "influential Judge Richard Posner" his actual name? Because it's written that way with stunning frequency.Google it: You'll see what I mean.

  4. Dan Kennedy

    mike_b1: That's because he is. As I explain in the Guardian piece, he is more responsible than anyone for the demise of a constitutional reporter's privilege. (Possibly journalists are more attuned to him for that reason.)

  5. mike_b1

    Fair enough. But seeing the number of hits that search term comes up with, seems to me it has become cliche.

  6. An Astute Observer

    Seems to me that a lot of the people who are making decisions about the internet don't really understand it well enough to make informed decisions. i.e..politicians, judges, lawyers, (three professions that are mired in the paper document world.), as well as the MPAA and RIAA. Maybe it's changed….I dont know.

  7. mike_b1

    There's no evidence to suggest Posner or others in similar positions of power don't "understand" the Internet.Moreover, Posner is not the first to suggest that linking suggests a business relationship that may not actually exist. These issues are almost as old as the Internet itself. Read "Licensed to Link," from March 2001, by Michael Overing of the Online Journalism Review. What, for example, would you do if your personal site was linked to by ilovekiddieporn.com?

  8. Dan Kennedy

    Posner's as smart as they come, and he understands the Internet better than most 70-year-old federal judges.Still, there's something willfully ignorant about his assertion that aggregators and bloggers are taking audiences away from newspaper Web sites.There may be a few sites that go too far. If I were Arianna Huffington, for instance, I'd watch my back. I think she's right up at the limits of fair use.For the most part, though, links mean more traffic, which theoretically means more advertising revenue.The flip side of this is that Posner pays no heed to how easy it is to opt out. Even if a newspaper publisher wants to maintain a free site, there are various tech fixes that would stymie Google News, at the very least.

  9. mike_b1

    Simply putting content behind a registration wall will keep Google News at bay, whether the content is free or not.I think the bigger concern would rest with B2B publications, which in the aggregate actually generate more ad revenue now than consumer titles do. B2B titles are being "newslettered" to death by aggregators that roll up content through links to all the news on a collection of related industry sites, then selling advertising to the same folks who would ordinarily buy it straight from the original content provider. Such measures directly undercut the actual content provider. The analogy that comes to mind is buying all kinds of software from MS, Oracle, H&R Block, etc., offering free use of it via your website, and charging for ads. Can't think of an instance where that is allowed.

  10. mike_b1

    Dan, I would add that my company's sites generate far, far more traffic from Google and Yahoo searches than we've ever seen from any linked sources.

  11. Dan Kennedy

    mike_b1: Boston.com requires registration, yet pops up regularly on Google News and Yahoo News. In fact, the Globe folks brag about how well they do with the aggregators.

  12. mike_b1

    Boston.com doesn't require registration to read every story, just ones older than so many (7?) days.

  13. matteomht

    Registration walls do not keep you off Google News.Google forces news sites to allow it to link to individual stories– yes, even if they are pay-restricted pages. A Google searcher can see that content, but not use any of the *other* links on that page to see *other* paid content. If you don't agree to those terms, Google blocks all your stories from its audience entirely.At least, that's how it treats me.

  14. Michael Pahre

    Did Posner write his opinion with a quill pen?Posner's position for no linking to copyrighted material without consent is idiotic. Quaint libraries of yore had drawers of index cards that linked to the Dewey Decimal System call number of every book on the shelves, but I don't believe that any library ever obtained such permission in advance of putting the card in the drawer.Posner needs to be educated in the difference between referring to a work (e.g., citation, footnote, bibliography, etc.) and using part of it through quotation or excerpt (the issue that brings up fair use). The two are very, very different. His attempt to conflate the two is either extremely aggressive or extremely naive of copyright law.Posner's blog is amazing in that he doesn't seem to have a single hyperlink in any of the posts! At least he practices what he preaches.

  15. LFNeilson

    The possibilities that Posner offers might seem draconian, but the questions he raises are certainly legitimate.There is no question that newspapers are in trouble. But I doubt that a change to copyright laws would help. Would a "Danger, Thin Ice" sign help someone who's already fallen through? New ideas pop up and evolve so quickly that we have no idea what's going to come next.I would expect that we will see a means evolve where journalists doing legit original work receive payment for their work. Otherwise, the world's in deep doo-doo, because democracy and freedom heavily depend on good reporting and freedom of information. Already we've lost a great many foreign bureaus. NBC seems to have reduced its foreign coverage to a version of "Where in the world is Richard Engle?"zzzzzzzz

  16. Amused

    Posner has tended to let economic theories guide, and even dictate, his judicial reasoning during his career. The Right seems fine with it, but is paradoxically very upset with a hispanic woman bringing her life perspective to the Supreme Court.

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