Much digital ink has already been spent on commenting on Judge Richard Posner’s bizarrely reactionary proposal that the only solution to save newspapers is to ban linking. I usually try to avoid stories already heavily covered because most of the times I end up repeating things that some other people have already said in a more eloquent fashion. Nonetheless, this topic is very relevant to an earlier post that received some coverage in Techdirt and other places, so I feel that perhaps a bit of redundancy may not be such a bad thing.
Perhaps what has caused some surprise is that, although Judge Posner is known for leaning on the copyright maximalist side, he is also widely recognised as an astute observer of the law, and is known to posses a keen intellect (there is no way of conveying those thoughts without sounding a bit condescending, so apologies in advance for that). The article is mostly an innocuous observation about the sorry state of the printed newspaper industry. The real problem occurs near the end, when he says:
“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.”
As I said, the reaction against this piece has been fierce, from people claiming that this proves that lawyers should not talk about the Internet, to others who see the article as just another sign that old people simply don’t get it. I surprise even myself by saying that I am willing to cut Judge Posner some slack because he comes from an honest position. He makes several accurate comments, such as highlighting some of the causes for the decline, and particularly by pointing out that one of the major issues is the migration of readers from paid to free content, often offered by the newspapers themselves. However, I disagree with several key points.
It is obvious that Judge Posner sees the demise of printed newspapers as the worst thing that could ever happen to the news media, tantamount to the destruction of the free press. I disagree strongly with his outlook because there is no reason to believe that newspapers in their present form should continue if there are no adequate business models behind them. If people will not buy newspapers, it is because they are getting their news elsewhere. It is often argued that large news-gathering organisations have the resources to provide the news because of their size, and therefore can support adequate news coverage. Anyone who has ever read the Daily Mail, or watched Fox News, will know that resources do not translate into quality or journalistic integrity. On the contrary, a lot of newspapers are often reliant on second-hand information, and are riddled with lazy journalism. Every country has some few outstanding newspapers, but for the most part there is a lot of rehashed dross out there.
There is also an astounding short-sightedness about the source of the problem. The competitors for the printed newspaper are not the blogosphere, or Google; they are other news sources such as the BBC, CNN, CBS, CNBC, FOX, etc. Because TV news already have news-gathering operations in place, they can provide free online news for less cost than a newspaper, mostly because their web presence serves to enhance their TV news-gathering operations. But perhaps most importantly, newspapers have to recognise that the Internet is instantaneous, and that you not only have to compete against free content, but you also compete with being yesterday’s news.
Google is depicted in some pieces as the parasite, the guilty party that is destroying the news organisations because it is the largest online target at the moment. I suspect that many newspaper organisations are setting the stage for a large-scale lawsuit against Google and other web intermediaries. However, they are fighting the Internet, not Google.
Not all is lost for newspapers. Many people still like reading printed papers, myself included, so many of the larger ones will continue to exist. It is also evident that there are some papers that are doing things well in the digital environment, such as the NYT, The Guardian and The Times. I think that these will be the last papers standing when the solution for some of their problems arrives in the shape of electronic paper, and other new technologies that will maintain the tactile nature of the newspaper with the immediacy of the Web.
One thing however is clear, there is no way that the solution lies in copyright. Linking is here to stay, get over it.