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Judge Posner's Proposal: Save a Newspaper, Kill a Blog

Sure, the newspaper industry is in trouble. But not even old-guard media companies have proposed as extreme a remedy as what Judge Richard Posner recommends. In a recent blog post, Posner proposed barring online links to copyrighted materials without the consent of the copyright owners as a way to help revive the failing newspaper business.

Not surprisingly, Posner's proposal has drawn criticism from bloggers, as well as conventional media outlets. Dan Froomkin, of, asks: If links are banned, why not footnotes? (That should give lawyers pause!) Erick Schonfeld at The Washington Post deemed the scheme "misguided," asserting that the Web works via free and unregulated linking. Moreover, linking to a newspaper post is not all that different from engaging in conversations, Schonfeld points out. He continues:

Much of what Posner wants to outlaw is public discourse. Why is it okay for people to talk about the day's news in a bar or barber shop, but not online? People should be able to discuss the day's news on the Web without fear of violating copyright law. The natural way people discuss things on the Web is by quoting and linking to the source. (Except maybe Posner, he doesn't seem to link to much of anything in his blog posts).

David Donoghue, of Chicago IP Litigation, makes the point that newspapers in fact benefit from added links to their stories. And while Donoghue acknowledges the existence of "free-riding" aggregators that do nothing more than point to links, Donoghue argues that newspapers are free riders in a way, getting the benefit of links in the form of traffic from visitors who otherwise would not view the site.

Donoghue also emphasizes that even without a consent policy in place for linking, copyright holders have significant protection. He points out that direct copying of stories is prohibited. Moreover, Congress could choose to revisit copyright laws if it deems that additional protection is necessary.

I can't even imagine how I could possibly write Legal Blog Watch if I needed to obtain consent every time I linked to a news article. Even if requiring consent for online links would help newspapers -- and I doubt this is true -- the tradeoff would the death of blogging.

Posted by Carolyn Elefant on June 30, 2009 at 03:29 PM | Permalink | Comments (1)


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