Judge Posner: Expand copyright to protect newspapers?

By Kristopher A. Nelson
in June 2009

1100 words / 5 min.
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Judge Posner recently suggested that copyright law might need to be expanded to protect the news industry, including barring linking to copyrighted content or paraphrasing it.

Please note that this post is from 2009. Evaluate with care and in light of later events.

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Judge Richard Posner has recently suggested that copyright law might need to be expanded to protect the news industry, including barring linking to copyrighted content or paraphrasing it. I view such protectionism as effectively enabling “rent seeking” by the established news industry. Ultimately, such acts harm society more than they help it. Certainly, at times legal intervention is important to improve markets (banning monopolies, establishing and enforcing safety standards, regulating financial institutions), but this is one case where I am more in favor of a libertarian/”let me market decide” approach. Perhaps this is because I am more confident that alternatives to traditional newspapers will emerge to provide new venues for professional journalism, even if the exact form that will take is still unclear.

Posner, and many in favor of expanding copyright and intellectual property, are generally obsessed with the “free rider” problem: people other than the original creator (or owner) scooping up their labor and profiting by it., without adding any additional value. Free riders undercut the incentive to create.

Jeff Jarvis thinks Posner’s view of free riding in this context is backwards:

Schultz and the Marbergers complain about what they call the “free-riding” of aggregators, et al. But they simply don’t understand the economics of the internet. It’s the newspapers that are free-riding, getting the benefit of links.

These newspaper people are the ones trying to act as if they own the news and can monopolize it. Those days are over, thank God.

via First, kill the lawyers – before they kill the news.

I think, though, that Posner’s free rider worry is a indeed concern to be aware of, just as worrying about those who may seek to exploit welfare systems are cause for concern. But an over-obsession with this problem can lead to overly restrictive policies that stifle innovation and hamper new ideas, new approaches, and keep society stuck in place. This is good if you are a “have,” and bad if you are a “have not” – or if you’re an entrepreneur with a new idea.

I am not the only this troubling. There has been a vigorous reaction his idea that expanding copyright laws to protect newspapers “might be necessary” to avoid a duopoly on “news and opinion”:

Imagine if the New York Times migrated entirely to the World Wide Web. Could it support, out of advertising and subscriber revenues, as large a news-gathering apparatus as it does today? This seems unlikely, because it is much easier to create a web site and free ride on other sites than to create a print newspaper and free ride on other print newspapers, in part because of the lag in print publication; what is staler than last week’s news. 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.

via The Becker-Posner Blog: The Future of Newspapers – Posner.

Economist Gary Becker instead argues that, while “the printed newspaper business is doomed,” this does not mean the end of independent and accurate news sources:

Although the printed newspaper industry is doomed, and will be missed by those of us that remember newspapers in their heyday, they are being replaced by good substitutes in the form of blogs, social networks like Facebook and Twitter, online news gathering by various groups, including newspapers, and other electronic forms of communication.

via The Becker-Posner Blog: The Social Cost of the Decline of Newspapers – Becker.

Mike Masnick at Techdirt responded to Posner’s idea by saying:

Wow. Now Posner has always been a stronger believer in the need for intellectual property to “solve” the “free rider problem,” but this is still stunning. He’s usually a lot more balanced in recognizing the downsides to greater IP protectionism. Here, he seems to ignore it completely, while also brushing off the ability of other sources of information to step into the void created by newspapers. Right before the statement above, he oddly assumes that there’s no way to support news production in an online only situation. His mistake, though, is assuming that it needs to have the same type of profits as monopoly newspapers used to have. For such an economically literate person, this is a surprising statement.

via Judge Posner Recommends Extending Copyright Law to Protect Newspapers | Techdirt.

And Erick Schonfeld of TechCrunch is highly critical as well:

Of all the misguided schemes put forth lately to save newspapers (micropayments! blame Google!), the one put forth by Judge Richard Posner has to be the most jaw-dropping. He suggests that linking to copyrighted material should be outlawed.

via How to Save the Newspapers, Vol. XII: Outlaw Linking.

As I suggested above, I am not in favor of Posner’s idea, but I do share some of the worry that quality journalism might be threatened, at least in the short term. I, however, do not blame “linking” or “paraphrasing,” but rather a combination of a rapidly changing business landscape with a certain reluctance by newspapers to adapt. Change is not easy, and protectionism always seems easier to hold on to what one already has. But radically changing long-establish legal precedent around the copyrightability and protection of “facts” is not the best way forward in the long term. A similar push against change backfired on American car manufacturers; I predict a similar fate for newspapers even if the law is changed to “protect” them.