Judge Posner Recommends Extending Copyright Law To Protect Newspapers

from the this-is-a-bad,-bad-idea dept

One of my favorite economics blogs is the Becker-Posner blog, where each week (usually on Sunday), economist Gary Becker and appeals court Judge Richard Posner each write up separate posts on a particular topic. Becker is a brilliant economist and Posner is one of (if not) the most economically literate judges around. He's also quite knowledgeable about intellectual property, and I often recommend his book (written with William Landes), The Economic Structure of Intellectual Property Law. While I don't always agree with Posner, I always find his writings (both in court and in books) to be thoughtful and thought-provoking. However, I'm quite surprised at his most recent contribution.

This week, Becker and Posner published on Tuesday, rather than the usual Sunday, and the topic of discussion was the newspaper business. I have to admit, I gave up reading Posner's post about halfway through, because while it seemed to do a decent job describing the problems some newspapers faced, it didn't seem like he was adding much beyond what has been covered widely elsewhere. Also, I was disappointed that he seemed to put absolutely no weight on the fact that much of the newspaper industry's problems were because they took out massive amounts of debt -- and it's the liabilities that are killing them. That's a big point that's totally ignored. He also appears to ignore the incredible profits that many newspapers made for years, and assumes that shrinking revenue automatically means that newspapers need to get rid of staff. That's not necessarily the case. Shrinking revenue could (and likely is) just a sign of a market becoming more efficient. Newspapers were so profitable because in many cases they were de facto monopolies in the areas they covered. So I was a bit disappointed in that, and didn't even bother to read the conclusion.

However, reader CT suggested I get to the end where I was stunned to read the following:
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.
Wow. Now Posner has always been a stronger believer in the need for intellectual property to "solve" the "free rider problem," but this is still stunning. He's usually a lot more balanced in recognizing the downsides to greater IP protectionism. Here, he seems to ignore it completely, while also brushing off the ability of other sources of information to step into the void created by newspapers. Right before the statement above, he oddly assumes that there's no way to support news production in an online only situation. His mistake, though, is assuming that it needs to have the same type of profits as monopoly newspapers used to have. For such an economically literate person, this is a surprising statement.

But, really, the idea that some extra protectionism is needed to create news gathering operations suggests an ignorance of what's actually happening in the marketplace. Yes, it's messy right now, but more and more news gathering operations are showing up every day -- and they're doing things more efficiently, embracing the power of new technologies to do so, rather than relying on the old inefficient structures. This is a good thing.

Furthermore, the idea that copyright should be expanded to ban linking or even paraphrasing of facts, goes against pretty much all of copyright law and its intended purpose. Posner must know this. He certainly knows that the law doesn't allow it now, but even suggesting that the law be expanded to cover that goes against pretty much all common sense over the reasons why linking is allowed and why copyrighting facts isn't allowed.

Instead, Gary Becker's opposing post to Posner's is much more well-reasoned. He basically notes that it's not a big deal that newspapers are dying, because others will take their place, and they'll be a lot more efficient:
I do not believe that the decline in the number of dailies, even if it rapidly accelerates, poses a major threat either to the viability of democracies, or to the spread of political and other information.

The main reason for this belief is that the Internet is far more efficient than newspapers in providing news, information, and opinion. This is obvious with respect to sports, financial developments, and weather since online updates are much more frequent than is possible even for the best papers. During the past 10 days of the Iranian election crisis, my wife and I turned mainly to the Internet for the very latest news and pictures on what was happening in Teheran and elsewhere in that country. These sources certainly included online editions of several newspapers, but also important were various online accounts by observers of and participants in the protests....

Although the printed newspaper industry is doomed, and will be missed by those of us that remember newspapers in their heyday, they are being replaced by good substitutes in the form of blogs, social networks like Facebook and Twitter, online news gathering by various groups, including newspapers, and other electronic forms of communication. People in democracies will continue to have access to independent and often quite accurate, reports on events in their own countries and most other parts of the world. In fact, the populations of undemocratic countries now have much greater access to what is happening in the world than they had in the past because it is far more difficult to suppress access to the Internet and other electronic forms of communication than it is to suppress newspapers.
Indeed. Hopefully Posner will reconsider his thoughts based on what Becker has written. In the meantime, though, you can bet that some newspapers are looking at filing their next lawsuits against "linkers" and "aggregators" in district courts in the 7th Circuit, where perhaps Posner will handle the appeal.


Reader Comments (rss)

(Flattened / Threaded)

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    Ima Fish (profile), Jun 25th, 2009 @ 1:25pm

    I've said it before, if the only thing that can save your business is enforcement of a new law, you might as well pack it up. You're done.

     

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    hank mitchell, Jun 25th, 2009 @ 1:39pm

    News is kind of like salt, at one point it was expensive because

    1. it's important (humans die without it)
    2. It was hard to reliably find in all places.

    But then someone figured out that you could drain parts of salty lakes and scrape it up with bulldozers. Now you can buy salt at a supermarket for next to nothing because it's so abundant regardless of it's value. When that happens the price always falls close to zero. These news guys need to stop sailing across the ocean to get their precious salt, and instead invest in a couple of bulldozers.

     

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    Designerfx (profile), Jun 25th, 2009 @ 2:00pm

    odd

    Posner is one of the smartest judges known and probably the most cited. That last part = This does not bode well, and shows his bias as it isn't a logical viewpoint. It makes me rethink the idea of wanting to have lunch discussing copyright law with the guy (I live really close to where he presides and wanted to see some serious lawyering at the appeals court). Meanwhile, just a FYI mike - they can't really file a case to be reviewed by Posner. As he is a justice of the highest court in Illinois (the circuit appellate - appeals court). If you had him on an appeal case you'd have two other judges making decisions with him, minimum. So it really doesn't effect anything other than showing that Posner has a view on newspapers that is a little bit limited. That whole court group, while opinionated, are some of the most qualified judges on the planet...we're talking seriously experienced and smart people. Meanwhile, it brings the truth/its own issue: no matter how smart or stupid you are, in the end you're putting out your own opinion, not something that your intellect can help with if it's a generational gap. PS Mike - wherever FMpub.net, (I think thats the name?) is involved with techdirt's site loading/previews, my connection hangs on loading constantly, waiting on fmpub, in firefox and chrome (haven't tested anything else). Do they have a bad connection to the midwest or something.

     

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      Dark Helmet (profile), Jun 25th, 2009 @ 2:42pm

      Re: odd

      "Meanwhile, just a FYI mike - they can't really file a case to be reviewed by Posner. As he is a justice of the highest court in Illinois (the circuit appellate - appeals court)."

      Thank you, thank you, thank you for this comment. I work within spitting distance of the Dirksen Federal Building (which is where the 7th dist. court of appeals presides, if I'm understanding the wiki article). I would LOVE to see if I could get in the gallery of any upcoming cases on this guy, just to hear the opinions of someone intelligent on the other side.

       

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        Designerfx (profile), Jun 25th, 2009 @ 5:14pm

        Re: Re: odd

        There's a few I have heard are super smart. Posner is actually not a good speaker from what I hear. He's just an amazing writer of legal opinions.

        I have heard Easterbrook and/or Diane Sykes are amazing to hear. If you ever want to go, look up http://www.ca7.uscourts.gov/ and note the week and session calendar/daily calendar. You will need to check the day you plan to go to see who is covering cases that day. These justices are not in every day (by far!) so it's not like you can just decide to go. As an example, they are in recess until 7/7/09.

         

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      Mike Masnick (profile), Jun 25th, 2009 @ 2:47pm

      Re: odd

      Meanwhile, just a FYI mike - they can't really file a case to be reviewed by Posner.

      Right. That's why I said "where **perhaps** Posner will handle the appeal."

      I wasn't saying they'd throw a case to him, but you could see why they'd want a case that has a chance of having him sit on the panel.

       

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    Designerfx (profile), Jun 25th, 2009 @ 2:01pm

    ugh

    I wish I could go back and edit comments and add pagination

     

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    Pangolin (profile), Jun 25th, 2009 @ 2:03pm

    Simple Solution

    Google is the main "target" of this campaign.

    The simple solution is for Google to STOP linking/summarizing articles from, oh say, the WSJ and the AP. Once THEY realize the negative impact of that the tune might change....

     

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      For all the Eeoyres (profile), Jun 25th, 2009 @ 4:15pm

      Re: Simple Solution

      Again, there dosen't need to be a LAW to stop others from indexing/referring the newspapers content. they can stop it from being even so much as looked at by simply using the robots.txt file.
      However they know that doing that is cutting of their nose to spite their face.

      This is NOT about protecting newspapers or journalism, it's about giving newspaper companies a way to take some of the money being made by Google regardless of the fact that Google is making their content more valuable and already giving them money by driving up ad revenues for them.

      They see Google making money and are incensed that anyone BUT them is making money on the news.

      Also, hasn't "The News" already been deemed as being un-copyrightable facts?

       

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    PrometheeFeu (profile), Jun 25th, 2009 @ 2:32pm

    If copyrighting facts becomes allowed, it would be fun to oppose it by starting a "newspaper" with a $1000 monthly membership and aggressively go after all sorts of facts then copyright them. You're not allowed to know a plane crashed unless you have $1000 to spend. That would show the disaster that such a law could wreck.

     

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    Anonymous Coward, Jun 25th, 2009 @ 2:38pm

    It's a two headed problem here.

    While the current loss of newspapers is not the biggest of issues, over time the erosion of credible news sources is. Newspapers are often considered credible news sources, and gives a certain amount of weight to stories that might otherwise not be visual enough for television news. Newspapers also have the luxury (and the punishment) of a hard cycle time, which means they are often recording the history of the event rather than the instant "this just in" stuff that often crowds up the TV news channels.

    If you lose enough newspapers and they aren't replaced on the other side by something of equal value, then yes, we all lose out. No, I don't think citizen journalists / bloggers / twits on twitter are particularly valid news sources.

    On the other side, there has to be some freedom to infomation. I think there are some very big concerns that Google is crossing the line, slowly but surely encroaching on other's mandates, to the point where they may be detrimental rather than helpful.

    The judge's comments are a little beyond what is expected.

     

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      Hayden Frost, Jun 25th, 2009 @ 3:35pm

      Re:

      No, I don't think citizen journalists / bloggers / twits on twitter are particularly valid news sources.


      Except most "investigative journalists" have just been using press releases and filings from government agencies that are freely available online. And if they're not paraphrasing government documents, they're just doing it to press releases from one of the many business wires (also free).

       

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    Anonymous Coward, Jun 25th, 2009 @ 2:52pm

    News Creators

    Well, if Posner wants to get ridiculous, then what about extending copyright law to protect news creators? After all, isn't it the "creators" who are supposed to be protected? Aren't the newspapers then part of the "free rider problem"? I'd like to see him explain how one kind of "free loader" is OK and the other isn't.

     

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    Overcast (profile), Jun 25th, 2009 @ 3:25pm

    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.

    Even *IF* they kill blogs and forums with this - it doesn't mean for one second, people will go back to these companies.

     

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    M Hazen, Jun 25th, 2009 @ 3:26pm

    Copyright permission? Sweet!

    I presume that this would work both ways...meaning AP, et al would have to get permission to link, quote or note anything anyone posts on Facebook, Twitter, Blogs, etc.

    That reminds me of some old ditty about sharp instruments, noses and faces.

     

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    Stew, Jun 25th, 2009 @ 4:18pm

    Both are Delusional

    "Although the printed newspaper industry is doomed, and will be missed by those of us that remember newspapers in their heyday, they are being replaced by good substitutes in the form of blogs, social networks like Facebook and Twitter, online news gathering by various groups, including newspapers, and other electronic forms of communication."

    Becker is obviously one of the idiots that think everything on the internet is a fact. The more Web 2.0 the better. Blogs are primarily vehicles for expressing the writer's opinion. NOT for reporting news. Any moron can start a blog and write anything he wants. Including truths, half-truths and outright lies. These writings may or may not be reviewed by peers or employers. But in no case that I've heard of to date has a blogger been subject to any serious sanctions for spreading bullshit, unless he makes up lies about a person that can sue him. What stops Joe Blow fram Kalamazoo getting his kicks by claiming to be someone else and spreading disinformation just for the hell of it? Absolutely nothing.

    Actual card carrying journalists on the other hand are subject to sanctions. When a newspaper writer makes up a story and gets caught at it he loses his job at the very least. At the same time he is vilified by every other serious journalist.

    A blogger who puts garbage on the net may actually benefit from increased traffic and readership. And he can very easily change his name and open a new blog within hours.

    I have a certain amount of respect for Mike but I would be surprised if many people consider him a journalist. I certainly don't. Bloggers are more akin to "columnists" that write op-ed pieces in the newspapers. And many bloggers are even more like gossip columnists. I won't even go into the foolishness of considering Facebook and Twitter to be reliable news sources!

    Just consider how many internet sites are out there that claim George Bush's family were secret Nazi's. Or that the 9/11 attacks were done by the CIA to give a pretext for invading Iraq. And on and on and on. Then consider that there are people that believe every word on those websites because they are on the internet.

    Do you think that you can tell absolutely if a post on Twitter, Facebook or Joe's Blog is fact or fiction just by reading it? Can I sell you some farmland in Atlantis?

     

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      Mike Masnick (profile), Jun 25th, 2009 @ 5:35pm

      Re: Both are Delusional

      Becker is obviously one of the idiots that think everything on the internet is a fact. The more Web 2.0 the better. Blogs are primarily vehicles for expressing the writer's opinion. NOT for reporting news. Any moron can start a blog and write anything he wants. Including truths, half-truths and outright lies.

      You might want to try reading what Becker actually wrote, before trashing him based on only part of it.

      I have a certain amount of respect for Mike but I would be surprised if many people consider him a journalist. I certainly don't. Bloggers are more akin to "columnists" that write op-ed pieces in the newspapers. And many bloggers are even more like gossip columnists. I won't even go into the foolishness of considering Facebook and Twitter to be reliable news sources!

      Indeed. I am not a journalist. But being a "blogger" and being a "journalist" is not mutually exclusive. There are many bloggers who are journalists. Don't confuse the technology used with the profession.

       

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        Stew, Jun 25th, 2009 @ 8:07pm

        Re: Re: Both are Delusional

        >
        That's the part of his reasoning that I take issue with. Perhaps I was a bit harsh in my language, but it's a pet peeve of mine.

        >
        Indeed I am not confusing the technology with the profession. I take issue with blanket assertions that certain types of technology are all to be treated as equal.

        Becker is basically saying that blogs are news organs. But blogs are just blogs. Indeed many journalists are bloggers. But how many actually, reliably report news on those blogs? And how many use the blog for commentary? Is a journalists blog a news source just because it is written by a journalist? Or is it just a blog?

        A blog is a tool that can be used for a variety of purposes to a variety of ends. Yes one of those purposes can be dissemination of accurate news. Notice that I didn't make a blanket assertion. I very purposefully used the word "primarily".

        I take issue with Becker saying that blogs, and the others, are "good substitutes" as a group without even considering the very obvious problems with how a reader can judge the reliablity of that particular source.

         

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      chris (profile), Jun 25th, 2009 @ 9:22pm

      Re: Both are Delusional

      Becker is obviously one of the idiots that think everything on the internet is a fact. The more Web 2.0 the better.

      and you sound like an idiot that stubbornly refuses to see the writing on the wall. news papers are dead grandpa, and they ain't coming back.

      Blogs are primarily vehicles for expressing the writer's opinion. NOT for reporting news. Any moron can start a blog and write anything he wants. Including truths, half-truths and outright lies. These writings may or may not be reviewed by peers or employers.

      yeah, and how much drek comes out of the mainstream media without proper fact checking? remember the run up the the invasion of iraq? the press was a government powered feedback loop.

      and newspapers don't answer to readers the way that bloggers do, in the end they just have to answer to sponsors.

      what does ink on paper have to do with journalism?

      good journalism is good journalism. integrity is integrity. hard evidence is hard evidence. it doesn't matter if it appears on dead trees or a back lit screen.

      Actual card carrying journalists on the other hand are subject to sanctions. When a newspaper writer makes up a story and gets caught at it he loses his job at the very least. At the same time he is vilified by every other serious journalist.

      and blogs don't criticize other blogs? the rest of the media doesn't bash blogs? your friends and people you trust don't have opinions on blogs and the bloggers that write for them?

      do you think that people who publish to the internet belong to some sort of secret cabal where they all pledge to get along all peachy keen?

      A blogger who puts garbage on the net may actually benefit from increased traffic and readership. And he can very easily change his name and open a new blog within hours.

      and you think the rest of the internet will just mindlessly follow them to the new place?

      if you change your name and start over you have to build up a new readership and establish a new reputation. you lose your rank on search engines and word of mouth. you think someone can just whip up a site with a million unique hits a day with no real investment of time?

      sure there are sleazy search engine optimizations you can pull to look more important than you really are, but it's not hard to tell wannabes from the real deal.

      if you shut down a site, you lose readership. if you abandon one in scandal, you have to be pretty careful how you set up your new one. you can't leave a link on your old blog saying "find my new site here!" or people will obviously know that the two sites are linked and carry the controversy over with them. building a new reputation online takes time, which is something that is pretty hard to fake. reputation is a real scarcity.

      I have a certain amount of respect for Mike but I would be surprised if many people consider him a journalist. I certainly don't. Bloggers are more akin to "columnists" that write op-ed pieces in the newspapers. And many bloggers are even more like gossip columnists. I won't even go into the foolishness of considering Facebook and Twitter to be reliable news sources!

      so if a journalist you respect started blogging and using twitter, that would somehow discredit them?

      what if mike went to work for your favorite paper? would that suddenly make his writing more relevant?

      why does publishing to the web make you not a journalist? why is the demise of the newspaper business somehow the demise of journalism, rather than the liberation of it?

      Just consider how many internet sites are out there that claim George Bush's family were secret Nazi's. Or that the 9/11 attacks were done by the CIA to give a pretext for invading Iraq. And on and on and on.

      so, do you read the national enquirer and believe that shit too? it's on paper, it's gotta be legit, right? and all those conspiracy theory books about the kennedy assassination from the 70's and 80's? that's on paper as well, so they gotta be true as well, right? he really was killed by elvis under orders from the red cross which is really a front for the mafia, right?

      not all publications are created equally, online or off. it's the same thing online, and you can easily discuss it with people you trust. not to mention that online, other people can comment, and while 90% of them are dribbling idiots (read the comments on a CNN.com article sometime; america is doomed) people occasionally offer useful feedback.

      Do you think that you can tell absolutely if a post on Twitter, Facebook or Joe's Blog is fact or fiction just by reading it? Can I sell you some farmland in Atlantis?

      yes we can. or at least one of us can. we do things like look for some mention of sources. we look at other articles. the more outrageous the claim, the easier it is to check it via google, or the more likely the claim is sarcasm.

      i think it might be hard for you to grasp that since we're just a bunch of crazy kids playing with our computers, but we really can. can every single one of us tell the difference on sight? of course not, but there will be someone among us who can, and he or she will tell the rest of us, or at least tell someone that we listen to.

      i don't get why so many people think the end of newspapers will be the end of journalism. they act as though when the last printing press stops, someone is going to round up all the journalists and shoot them, or the "actual card carrying journalists" will crumble to dust, or be called back to their home planet.

      if you are a beat reporter working for the *.times and the paper goes under, why can't you keep covering your beat on your own website? won't you finally be able to write pieces that you think should be written but the editors kept nixing?

      from what i gather, a lot of newspaper journalism is using wire services, lexis-nexis type services, and public records, why does that require a whole newspaper? that sounds like something a small team of people could do from home while collaborating via email/IM. like the band that goes independent of the record label, surely you have a chance to make more and do more on your own, or at the very least say more than you could before.

      it seems like embracing online journalism could be an exit strategy for writers, editors, and researchers facing a collapsing industry. why do so few see it that way?

       

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    Andrew D. Todd, Jun 25th, 2009 @ 4:19pm

    Why Reporters Use Press Releases.

    Hayden Frost (#14) is correct in noting the role of press releases. News stories usually begin with press releases, de facto press releases, public documents, obscure publications, etc. The reporter does not own them in the first place. Nowadays, practically everyone involved in public affairs, anyone above a certain economic level, has a website. That which they are willing to disclose, they publish on their website, just to make sure that it gets out. The best way to compel a newspaper to pay attention to some material is to publish it, and play on the newspaper's fear of being "scooped."

    Most people do not do their work in the public street, and it is very difficult to find out what they are doing, without either having their consent, or else committing the elements of burglary. Naturally, the contents of a newspaper are mostly recycled press releases. We have "sunshine laws" of one kind or another to enforce a minimum level of information about public affairs, but these, by their nature are available to all. The reporter's problem is that he cannot get exclusive information very well. The best he can do is, in effect, to blog.

    As the case of Judith Miller demonstrated, when a reporter is offered special access, it is very likely a case of the reporter being induced to publish gross disinformation as if it were fact. If the story were true, the officials could simply have posted it on their websites, and invited anyone to challenge them.

    If you are interested in a story, and you have the bare minimum of information, such as a couple of proper names, you can easily Google for this information, and find the original press release or whatever. At that point, the reporter's summary of the information is redundant. Thus, Judge Posner is effectively proposing to prop up newspapers by allowing them to copyright other people's writings.

     

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    Andrew D. Todd, Jun 25th, 2009 @ 4:29pm

    Reliability of Blogs (to: Stew, #16)

    The basic scholar's test for veracity is: "do you have a source?" I don't care about your personal respectability. Can you cite a source which I can check by looking it up myself? As adapted to blogs, that means, "have you got a link?"

     

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      Anonymous Coward, Jun 25th, 2009 @ 8:20pm

      Re: Reliability of Blogs (to: Stew, #16)

      "The basic scholar's test for veracity is: "do you have a source?" I don't care about your personal respectability. Can you cite a source which I can check by looking it up myself? As adapted to blogs, that means, "have you got a link?""

      Exactly wrong. A source is NOT a link to some page somewhere on the internet. A source is a person or evidence consulted or obtained by the writer. A link to a web page is neither. It's simply an assertion that says: Hey this guy said it so I must be right.

      But who is this guy? What are his qualifications? Why should he be considered reliable? Basically you are asserting that if two people write something on the internet it must be correct.

      "Can you cite a source which I can check by looking it up myself?"
      Have you heard of peer reviewed journals? Encyclopedias? Dictionaries? Textbooks? Of course it's possible, with or without the internet. But how do you provide a link to a person who provided information on the condition that he not be named?

      Journalists are not scholars, they are reporters!

       

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    Bruce Partington, Jun 26th, 2009 @ 11:55am

    I stopped taking Posner seriously when I read him saying that in a trial he decides what he wants the outcome to be, and then finds the way to construe the law to make it so. (Something like how journalism has devolved.) I can't see why he hasn't been impeached for violating his oath of office.

     

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      Anonymous Coward, Jun 26th, 2009 @ 9:53pm

      Re:

      I stopped taking Posner seriously when I read him saying that in a trial he decides what he wants the outcome to be, and then finds the way to construe the law to make it so.

      That's the way the legal system and most judges work. Posner is no different there. The real job of the judge is to ensure that the outcome of the trial is politically correct and they have a variety of means at their disposal to do so. They can decide which evidence is allowed and which is not, give "instructions" to jury, "interpret" laws and so forth all in ways to ensure the proper outcome. Trials are mostly for show, didn't you know that?

      Now, what is most politically correct isn't always clear and sometimes a judge misses it. That's when a more superior judge will either change the results or tell the original judge to try again.

       

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    Gene Cavanaugh, Jun 27th, 2009 @ 10:52am

    Newspapers and regulation

    The real problem is whether you believe in autocracy (deciding how people get the news they desire, and potentially WHAT news they are allowed to get), or democracy, where the marketplace (individuals) decide. If we assume we still live in a democracy (debatable) then people will vote with their money or otherwise for what they want - at this time they seem to be voting for online sources; and in a democracy that is their right.

     

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