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.

Filed Under: copyright, gary becker, newspapers, richard posner


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  1. icon
    chris (profile), 25 Jun 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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