THE BLOG
07/27/2009 05:12 am ET Updated May 25, 2011

Judge Posner's Dangerous Thinking

Mike Masnick on techdirt points us to some dangerous and incomplete thinking from Judge Richard Posner on his blog. At the bottom, Posner writes:

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.

Good God. Posner is not just trying to mold the new world to old laws - which is issue enough - but is trying to change the law to protect the old world and its incumbents from the new world and its innovators. He is willing to throw out fair comment and free speech for them. That is dangerous.

Posner's thinking is incomplete in a few ways. First, he is ignorant of the imperatives of the link economy. The links and discussion he wants to outlaw is precisely how content is distributed and value is added to it in the new media economy.

Second, as Masnick points out, Posner assumes that jouranlism as it was done is journalism as it should be done: that the goal is to protect newsrooms, unchanged. But there are tremendous savings to be had thanks to the link economy: do what you do best, link to the rest.

Note how The New York Times and The Guardian - not to mention the Huffington Post and Andrew Sullivan - covered the Iran crisis. They linked. Links made their journalism complete. So did readers. The Times has three editors for every writer but in the blog, there was no need - no opening - for them. There was no need for production or design. The new news organization can and will operate at a different scale from the old one, because it can and because it must. So what is Posner protecting besides the old budget and payroll. He's not protecting journalism - or rather, he's protecting it only from progress.

No, sir, the news industry - and the law - must be updated for this new world and so must your thinking.