A Bad Idea from Judge Posner:

Over on the Becker-Posner blog, Richard Posner is again contemplating the [bleak] future of the newspaper industry. The problem (as I, too, have blogged about in the recent past) is a serious one — if “the newspaper” as a business model fails (because of competition from the free content available on the Net), who will invest the resources required for adequate news-gathering services in the first place?

“[W]hile in many industries a reduction in output need not entail any reduction in the quality of the product, in newspaper it does entail a reduction in quality. Most of the costs of a newspaper are fixed costs, that is, costs invariant to output–for they are journalists’ salaries. A newspaper with shrinking revenues can shrink its costs only by reducing the number of reporters, columnists, and editors, and when it does that quality falls, and therefore demand, and falling demand means falling revenues and therefore increased pressure to economize–by cutting the journalist staff some more. This vicious cycle, amplified by the economic downturn, may continue until very little of the newspaper industry is left.

His proposal for reform, however, goes into the “Cure Worse Than Disease” file:

“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.

It’s hard for me to summarize why this is so terrible an idea. One (immense) problem: (1) There is, and can be, no special copyright law for “newspapers,” because the definitional (not to mention the First Amendment) problems are such that it is simply impossible to imagine such a thing coming into existence. [“Is the Volokh Conspiracy a ‘Newspaper’ within the meaning of the Posner Proposal? Slashdot.com? Facebook.com? Discuss”] So what Judge Posner is proposing is, necessarily, an Internet-wide prohibition on linking or paraphrasing without the copyright holder’s consent. Given (2) the fact that virtually all content on the Internet (at least if it displays a “modicum of creativity” and is not simply copied from another source verbatim) is protected by copyright the moment that it is placed into a readable file, that’s it for the Internet as we know it – any act of linking or paraphrasing such as this one will require copryight-holder consent.

So here we’ve gone and invented this fabulous global machine for linking and paraphrasing and sharing information, but nobody will be able to use it because we want to preserve the New York Times’ business model. Hmmm.

My advice to the New York Times: don’t count on that. Start thinking about how you can make money — large quantities of it — in a world in which linking and paraphrasing are pervasive and unrestricted. It’s not going to be easy – if it were easy, we’d all be doing it already. But millions upon millions of people visit your website, every day – because you are the New York Times, and people value the product you produce. There’s a way, I’m pretty certain, of converting that into income, though I don’t know what it is and as far as I can tell neither does anyone else at the moment. Google, though, makes a lot of money giving away information, and you can too. Don’t waste your time hoping that copyright law is going to come to your assistance, for it will not.