Richard Posner’s sense of pragmatism seems to have entirely escaped him as he offered up this bizarre suggestion last week about how to maintain the financial viability of newsgathering:
Imagine if the New York Times migrated entirely to the World Wide Web. Could it support, out of advertising and subscriber revenues, as large a news-gathering apparatus as it does today? This seems unlikely, because it is much easier to create a web site and free ride on other sites than to create a print newspaper and free ride on other print newspapers, in part because of the lag in print publication; what is staler than last week’s news. 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.
This just seems to totally misunderstand the relationship between the linked and the linker. In my years of blogging, I have never once heard the author of an article or the editor of a publication complain to me about having linked to an article. By contrast, on a daily basis authors and editors ask me to link to their articles. This is because having published the article on the World Wide Web, the authors and editors in question want people to read the articles. If they didn’t want to get links, they wouldn’t put the article online. If they put the article online, they want to get links. And certainly if any publication were to request that I stop linking to or otherwise mentioning their content, I would be happy to grant that request without any legal coercion.
Paraphrase is a somewhat different manner, but attempting to ban it would be wildly impractical. The Posner proposal would make it illegal for me to debate the merits of Posner’s argument without first securing Posner’s specific approval. Online dialogue about political topics would grind to a halt. It would become impossible to review movies, recommend TV shows, praise songs, etc.