Posner: extend copyright to protect newspapers

Though I don't alway agree with him I'm a big fan of the writings of prolific legal scholar and appeal court judge Richard Posner. Posner, along with long time collaborator Gary Becker, has maintained a really interesting blog for the past few years on which he posts regular, sometimes provocative and always thought-provoking essays on matters of contemporary interest.

Last week the esteemed judge expressed his view that the ongoing decline of the newpaper industry might only be arrested through the special extension of copyright law to ban linking to, paraphrasing or accessing extracts from online newspaper articles without the permission of the copyright holder.

"Warren Buffett, who is a wit as well as a multibillionaire, said with reference to the fact that Bernard Madoff's long-running Ponzi scheme came to light during the financial collapse of last fall that until the tide goes out, you don't know who's swimming naked. A year ago Becker and I blogged about the decline of the newspaper industry. A year later the decline has accelerated. The economic crisis has hurt the newspaper industry as it has so many industries. The question is whether it will recover (or at least rejoin its slower downward path of last year) when the economy as a whole recovers; or has the economic crisis merely revealed the terminal status of the industry.

I am pessimistic about a recovery by the newspapers. One reason is the current economic situation. A serious, protracted economic crisis can result in changes in consumer behavior that persist after the end of the crisis. A change in consumption, even in some sense involuntary, can be a learning experience. People make what they think will be merely temporary adjustments in their consumption behavior to reduce financial distress but may discover that they like elements of their new consumption pattern; and businesses too, which have reduced their newspaper (and other print-media) ad expenditures drastically. They may never go back...

So what will happen to news and information? Online news is free for two reasons. First, in the case of a newspaper, the marginal cost of providing content online is virtually zero, since it is the same content (or a selection of the content) in a different medium. Second, online providers of news who are not affiliated with a newspaper can provide links to newspaper websites and paraphrase articles in newspapers, in neither case being required to compensate the newspaper...

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."

It is something of a surprise to note Judge Posner's support for a special expansion of copyright law to protect a particular industry, as he has in the past been critical of such moves as the continual expansion of copyright terms (See The Economic Structure of Intellectual Property Law by Richard Posner and William Landes and The Little Book of Plagiarism by Richard Posner). I don't have the solution to the decline of the newspaper industry or the killer idea for a sustainable business model that would rescue them but I can't agree that a law banning access or linking to their content is the way forward. People go to the New York Times because it is a reputable, credible source of news and commentary not because it is a newspaper. Their delivery medium was paper, it is now paper and the Net. Making it more difficult to get access to the NYT is unlikely to be the way to tackle their revenue problems. As Tim O'Reilly has been saying for some years, obscurity is a bigger threat than piracy.

Update: This online conversation from December last year amongst a who's who of legal scholars on the subject of challenges facing newspapers in a digital age is highly recommended.

Update 2: David Post is one of may respected scholars who think judge Posner's proposal is unworkable.

"So here we've gone and invented this fabulous global machine for linking and paraphrasing and sharing information, but nobody will be able to use it because we want to preserve the New York Times' business model. Hmmm.

My advice to the New York Times: don't count on that. Start thinking about how you can make money -- large quantities of it -- in a world in which linking and paraphrasing are pervasive and unrestricted. It's not going to be easy - if it were easy, we'd all be doing it already. But millions upon millions of people visit your website, every day - because you are the New York Times, and people value the product you produce. There's a way, I'm pretty certain, of converting that into income, though I don't know what it is and as far as I can tell neither does anyone else at the moment. Google, though, makes a lot of money giving away information, and you can too. Don't waste your time hoping that copyright law is going to come to your assistance, for it will not."