Posner: Expand Copyright Law, Save Newspapers

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When Richard Posner writes (which he does a bit more often than most federal appellate judges), people tend to sit up and listen. Which is why a recent post he did on the Becker-Posner Blog sent shudders down the Law Blog’s spine.

The topic that Posner tackles in a June 23 post is the newspaper industry. That is, why it’s struggling and what can possibly be done to save it.

At the end of the post, Posner writes:

As newspaper revenues decline, newspaper content becomes thinner and thinner–but by the same token so does the linked or paraphrased newspaper content found in web sites that have no affiliation with a newspaper. If eventually newspapers vanish, online providers will have higher advertising revenues (because newspaper advertising will have disappeared) and may decide to charge for access to their online news, and so the critical question is whether online advertising revenues will defray the costly news-gathering expenses incurred at this time by newspapers. 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.

As you might imagine, it’s that last sentence which makes us a bit nervous, as such a regime — which would likely hinge on cutting back on the fair-use exception to copyright law — would, in turn, make our job vastly more difficult, and possibly lead to the end of the Law Blog, at least in its current form (as well as other popular blogs we imagine you frequent, like Above the Law, How Appealing, the ABA Journal).

For instance, in order to do this post, we’d have to check in with Posner not only for permission to link to his, but for permission to even paraphrase his argument.

Of course, the Law Blog might still exist under such a system, but it would likely have to rely solely on originally reported material and originally generated opinion. Not that that would be a bad thing, necessarily, but we’d likely sacrifice some breadth for depth. And we’re not even sure that what we could provide at that point would even be a blog, per se, but something more akin to a web-based publication. Again, not that that would be a bad thing . . .

LBers, any thoughts?