Monday, June 29, 2009

Posner's solution: Ban linking, paraphrasing

The old saying is that bad cases make bad law.

The danger is that ridiculous thinking out loud by respected jurists could make very bad law.

Let's hope the legislative and judicial communities do not take up the suggestion from U.S. Court of Appeals Judge Richard Posner that it may be time to expand copyright law to ban not only linking, but paraphrasing, without the rights-holder's consent.

This is seriously flawed in so many ways.

Let's just consider what this would do to search, the only really practical way to begin to even find, let alone comprehend, the vast amount of information being created. So could a search engine link to any company's copyrighted page, for instance?

Erick Schonfeld of Tech Crunch had an effective response in the Washington Post:

Much of what Posner wants to outlaw is public discourse. Why is it okay for people to talk about the day's news in a bar or barber shop, but not online? People should be able to discuss the day's news on the Web without fear of violating copyright law. The natural way people discuss things on the Web is by quoting and linking to the source. (Except maybe Posner, he doesn't seem to link to much of anything in his blog posts).

Posner never squares his position with freedom of speech or fair use rights. He doesn't even mention them. Yet those are precisely the rights which allow me to paraphrase his argument without his permission so that I can disagree with it.
Posner calls sites linking to newspapers "free riders," but Schonfeld notes that a link in itself is valuable in driving traffic to a site.

We'll just assume the judge has had his little joke and is chuckling at the hand-wringing. If not, put a stake in this vampire of an idee.

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