Posted by David Post:
A Bad Idea from Judge Posner:
http://volokh.com/archives/archive_2009_06_28-2009_07_04.shtml#1246371942
Over on the Becker-Posner blog, Richard Posner is again
[1]contemplating the [bleak] future of the newspaper industry. The
problem (as I, too, have blogged about in the recent past) is a
serious one -- if "the newspaper" as a business model fails (because
of competition from the free content available on the Net), who will
invest the resources required for adequate news-gathering services in
the first place?
"[W]hile in many industries a reduction in output need not entail
any reduction in the quality of the product, in newspaper it does
entail a reduction in quality. Most of the costs of a newspaper are
fixed costs, that is, costs invariant to output--for they are
journalists' salaries. A newspaper with shrinking revenues can
shrink its costs only by reducing the number of reporters,
columnists, and editors, and when it does that quality falls, and
therefore demand, and falling demand means falling revenues and
therefore increased pressure to economize--by cutting the
journalist staff some more. This vicious cycle, amplified by the
economic downturn, may continue until very little of the newspaper
industry is left.
His proposal for reform, however, goes into the "Cure Worse Than
Disease" file:
"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's hard for me to summarize why this is so terrible an idea. One
(immense) problem: (1) There is, and can be, no special copyright law
for "newspapers," because the definitional (not to mention the First
Amendment) problems are such that it is simply impossible to imagine
such a thing coming into existence. ["Is the Volokh Conspiracy a
'Newspaper' within the meaning of the Posner Proposal? Slashdot.com?
Facebook.com? Discuss"] So what Judge Posner is proposing is,
necessarily, an Internet-wide prohibition on linking or paraphrasing
without the copyright holder's consent. Given (2) the fact that
virtually all content on the Internet (at least if it displays a
"modicum of creativity" and is not simply copied from another source
verbatim) is protected by copyright the moment that it is placed into
a readable file, that's it for the Internet as we know it - any act of
linking or paraphrasing such as this one will require copryight-holder
consent.
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.
References
1. http://www.becker-posner-blog.com/archives/2009/06/the_future_of_n.html
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