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More on Judge Posner and the Intersection of Copyright and the Internet

Posted in Legal News

LexBlog’s Kevin O’Keefe picked up on Judge Posner’s proposal to make linking and summarizing news stories copyright infringement, which I blogged about Friday.  O’Keefe takes a different approach than I did, based in part upon a post by Jeff Jarvis at the Buzz Machine.  O’Keefe argues that the issue is really that news spreads from newspapers faster today than it used to.  But just as newspapers benefited from word of mouth about their stories twenty years ago, they benefit from links to their stories today.  As a result, linking should not be limited in any way and certainly not just to prop up the newspaper industry:

Because news spreads faster we’re supposed to give newspapers a monopoly on the news? That’s crazy.

Jarvis makes a compelling point which lawyers advising newspapers ought to think about when counseling newspaper clients.

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.

The framers of our Constitution, including the First Amendment, intended it to endure and cope with the effects of the anticipated changes of our nation.

Things have changed – changed quickly. But let’s be careful when thinking of following lawyers and Judges who may not understand the nature of the change.

I understand his view, although I am not sure it is the best decision from a policy stand point.  It is important not to lose site of the fact that copyright holders with content on the internet still have significant protection.  Direct copying of the stories is already protected by copyright law, especially if a paper registers its copyrights and can get statutory damages.  Of course, as I pointed out Friday, it is hard to police the use of facts from news stories.  So, it will be difficult to make an infringement case when someone truly summarizes a news story.  But I can see the value in incentivizing traditional news media to continue spending on reporters and reporting.  For example, a system of paying newspapers, and other content providers that would choose to opt into the system, a nominal fee for click-throughs on links from your site to a current news story.  To me that seems like a reasonable compromise which would not cost most websites much, but could provide real economic benefit to news websites, thereby maintaining reporting staffs.  Of course, newspapers could accomplish something similar and maybe even economically better by shifting to subscription-based sites, which has been received with mixed reactions and effects previously.

But more important than which position is correct, is the discussion.  While the Constitution does give Congress the power to protect copyrights, it says little about how to protect them.  That is left to Congress, which enacts copyright laws based upon the technology available when the law is drafted and some limited vision of technology to come.  As a result, it is difficult to effectively apply the Copyright Act of 1976, even with more recent amendments and additions, to every aspect of the internet world.  So, in light of the fast pace of technological change over the last ten to twenty years, an open dialogue about how to make the copyright laws adequately protect authors and the public  is very important.  And as O’Keefe and Jarvis point out, it is a dialogue that requires more than just lawyers, who understand the legal issues, but artists, newspapers, media consumers and many other copyright stakeholders.

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