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?