Someone (Who Could Have Been a Justice) Is Wrong on the Internet

Richard Posner is the sort of judge who gets mentioned as a possible Supreme Court nominee because of his supposed brilliance. But, then, he’s also the person who wrote this:

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.

With the first suggestion, does Posner mean that copyright laws should forbid people from posting other people’s material online without permission, or hacking into subscriber-only sites? Because copyright laws already do that. If he means that whenever someone puts up something on a website, you have to get their permission before you can type in the url, that would be quite bizarre. What does he mean?

The second part is no less strange. As an anonymous commenter points out, prohibiting links would be like prohibiting footnotes; you could also compare it to outlawing card catalogs, or phone directories. And the idea that linking to a newspaper’s website somehow harms the newspaper is nutty; newspapers don’t want people to stop linking to them. (They would like people to give them money for doing something that people have an inherent 1st Amendment right to do, but that’s a different question.)

The gap between the federal Appeals Court judge’s understanding of copyright law and the Internet commenter’s is striking. Maybe Anonymous should be nominated to the Supreme Court?

About Jim Naureckas

Extra! Magazine Editor Since 1990, Jim Naureckas has been the editor of Extra!, FAIR's monthly journal of media criticism. He is the co-author of The Way Things Aren't: Rush Limbaugh's Reign of Error, and co-editor of The FAIR Reader: An Extra! Review of Press and Politics in the '90s. He is also the co-manager of FAIR's website. He has worked as an investigative reporter for the newspaper In These Times, where he covered the Iran-Contra scandal, and was managing editor of the Washington Report on the Hemisphere, a newsletter on Latin America. Jim was born in Libertyville, Illinois, in 1964, and graduated from Stanford University in 1985 with a bachelor's degree in political science. Since 1997 he has been married to Janine Jackson, FAIR's program director. You can follow Jim on Twitter at @JNaureckas.