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July 1 2009

Is Outlawing Links A Way To Save Newspapers?

link arrestSometimes I read something online that is so mind numbingly stupid that I can’t even conceive how someone reached that conclusion. Yep… this is one of those times.

Over the weekend, Erick Schonfeld of TechCrunch wrote up a post about how Judge Richard Posner wrote up a blog about the death of newspapers, and he had one of the craziest ideas I’ve ever heard of for saving them from the worsening economy:

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.

For those of you unfamiliar with the theory of linking and how it works, it’s a fairly simple concept.  Take me linking the word “TechCrunch” above.  I chose to link to the actual story Ms. Schonfeld wrote, so now when this post is published he will receive a notice called a “trackback” that allows him to know that I referenced his article in my post.  This will also be used by search engines to see how relevant his post is and how much credence they should give it.  The more links a site or story receives, the more importance a search engine puts on it, and the more chance of people searching on the appropriate terms will see it.

Essentially, links are the life’s blood of blogging.

Now, what Judge Posner is suggesting that linking to copyrighted material, or using a portion of it as a quote (like I did with his blog post above), should be illegal under copyright law , you have to wonder how he thinks this will save the the newspaper industry.  I’m not sure where to even start with just how wrong he has gotten this, but lets give it a go anyway:

Expanding copyright law to bar online access to copyrighted materials without the copyright holder’s consent, or to bar linking…

Okay, lets say you want to link to NYTimes.com, that would probably be fine, but if you want to link to a specific story, say Karl Malden, Everyman Actor, Dies at 97, the link would look like this:

http://www.nytimes.com/2009/07/02/movies/02malden.html?_r=1&hp

This is known as “deep linking”, and I have a feeling this is what Judge Posner is talking about as this is actual copyrighted material.  The problem is that without deep linking you could never share a story with any one.  Are you going to link to the main page and then tell them “Okay, click here… and then here… and then do this…”, no, you aren’t.

Deep linking is also essential to how search engines index the importance of a specific page so that it knows how much priority to gie it when people search on a term.  The more links a page has to it, the more important it is, the higher up in search results it appears.  Deep linking is a very, very good thing in the Internet business.
posner kitteh

…paraphrasing copyrighted materials without the copyright holder’s consent

What he is talking about here is block quotes like I did above.  The problem with this is that it would make it impossible for anyone to write a rebuttal to anything as you would have to do a long, drawn out, explanation of what the original article said.  You would have to make sure the wording was different enough so as not to be accused of plagiarism, but then balance making sure you got the original tone of the article.  That is essentially impossible.

Quoting stories is as old as journalism and is essential to editorials as well as stories.  So long as you only quote a small portion of the story it falls under Fair Use, and I don’t really see that ever being written out of copyright law.

It all comes down to “consent”

Judge Posner does stipulate that people could get the copyright holder’s consent and do the linking and quoting, but due to time constraints, and the timeliness of stories, would any newspaper want a dedicated person sitting around 24/7 just to approve requests?  Of course they wouldn’t,  so the solution would be giving people carte blanche to link and quote.  Those papars that wouldn’t do it would quickly see themselves losing popularity due to a lack of links, and… in short, everyone would have to give blanket permission and we would be back to where we started.  Everyone would have permission, and those that didn’t grant it would get zero traffic because of how far behind they are.

So, basically I am saying that Judge Posner’s solution is flawed beyond belief and that he shows a total lack of understanding for how the Internet actually operates.  His ‘solutions’ will do nothing but create grief for bloggers and newspapers alike  It would take no time for workarounds to be found, and in the meantime it would end up costing those papers money as they try to handle all of the increased number of requests for permission.

Try to save old media if you want, but at least have a working knowledge of your “solution” before you suggest it.



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