Judge Posner has proposed that we ban hyperlinking in order to save newspapers.
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.
Copyfight says that this is Proof That Even Very Smart People Can Say Very Stupid Things. Brilliant as Judge Posner most undoubtedly is, and will full respect for his many true contributions to legal thinking, this is far from the first such example he has provided us. (Recall Posner on rape, or on baby-selling.) Which, along with a certain degree of unpredictability, is why he's not on the Supreme Court, even though most lawyers would rank him as at least one of the most brilliant legal scholars of his generation.
I wish that you had linked to Posner’s opinions on rape and baby-selling.
Actually, they’re not opinions but legal academic writing (as is the hyperlinking suggestion). I’m away from my books, so I can’t give you chapter and verse, but the baby market idea was floated in an article a long time ago, maybe even before Posner was appointed to the 7th Circuit. The rape stuff may have been in his book SEX AND REASON, but I wouldn’t swear to it.
How many flamingly idiotic things can someone say before we stop calling him brilliant?
Would it be ok just to, you know, _tell_ people about stuff we read on the web, or would that also be breach of copyright?
You know what they say, ‘there’s a fine line between madness and genious’. I know which side of the line he’s on! lol
Something to remember about Posner is that he’s a man with extraordinarily little worldly experience. I think this often comes out in his writings, both judicial and academic. He’s never held a “real world” job of any sort. He went from a well-to-do family (a leftists one, interestingly enough, but quite well-to-do) to college, where he studied English (not economics or any science at all), to law school, to clerkships, to academia to the judiciary. So, his background and experience is quite limited. Additionally, one of the explanations for his ability to turn out so many pages of writing is that he takes care of essentially zero practical aspects of his life. According to an article on him in Lingua Franca some years ago he can’t do even the most basic day-to-day tasks, as his wife does all of them for him and he has little idea how such things happen in the concrete. When you know this stuff you can sometimes better understand how he has such flatly ridiculous views on so many topics, and it becomes much harder to take him seriously in many areas.
Posner may just be losing it.
I, like most lawyers, have read a number of his opinions and they are are almost universally well thought out and interesting. However, most of those opinions are also at least a few years old. The most recent commentary I have heard from Judge Posner (on NPR a few weeks ago, in a recent movie I saw on HBO, and these comments on copyright) made him seem completely out to lunch. I wonder whether the years are starting to catch up with him? Judge Ponser is now 70 years old. At 70, none of my grandparents were gaga, but neither were they 100% anymore.
Then again, maybe he’s just been cast in a poor light lately.
Matt, that makes me think maybe there is something to the notion of phronesis, which can be identified here by its complete absence.
‘Everyone on the ‘net comes off sounding like a kook sooner or later.’
—Unknown, in an unremembered usenet ‘froup
It’s clear that Posner’s comment may be unpopular. But stupid? Please advise.
Stupidity, briefly:
1. Probably counterproductive, since it would drive away revenue that newspaper websites get from online ads. Unless, that is, you believe that demand for news is sufficiently inelastic that people would go out and buy newspapers to read something that some blogger commented about but couldn’t link. But that’s an absurd belief.
2. Linking ban would be a bizarre legal solution to a technical/business problem I: arguably, online stories can deliver advertisement just as well as print sources can, probably better because usage can be much better monitored and advertisement can be directed to high traffic locations. If that’s true, then newspapers can make use of that — they can load more ads on stories, for example.
3. Linking ban as legal solution to technical/business problem II: also, online publications are free to take content offline or make people pass through password-protected locations (like, indeed, wapo and nyt already do for many stories). They can put a stop to direct linking any time they damn well please that way: they can, for example, make people enter password to see any story, and then have users directed to homepage on login. If they fail to do so, it suggests that they view it as sufficiently profitable to have direct access online, or they are forced to do so by competition from those who would be happy to permit direct access (a competitive threat that wouldn’t go away w/ Posner’s proposal).
4. Paraphrasing ban is so profoundly antidemocratic that it’s a sign of the unjustified* prestige in which Posner is held that anyone responds with anything other than horrified laughter. It would amount to an outright ban on commentary on news stories and political opinion. It would almost certainly require a constitutional amendment (since no way can the copyright clause extend that far into the first amendment) and would seriously violate the ideals of free discussion in a political community.
These objections are all sufficiently obvious and devastating that proposing a plan like this without addressing them is well worth the title “stupid.”
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* Seriously, can someone name one idea of Posner’s that is all a) original, b) plausible, and c) important? A bunch of the stuff he’s done hits two out of three, but I can’t think of one that gets the hat trick.
Paul, i like your post.