Judge Posner Recommends Extending Copyright Law To Protect Newspapers

from the this-is-a-bad,-bad-idea dept

One of my favorite economics blogs is the Becker-Posner blog, where each week (usually on Sunday), economist Gary Becker and appeals court Judge Richard Posner each write up separate posts on a particular topic. Becker is a brilliant economist and Posner is one of (if not) the most economically literate judges around. He's also quite knowledgeable about intellectual property, and I often recommend his book (written with William Landes), The Economic Structure of Intellectual Property Law. While I don't always agree with Posner, I always find his writings (both in court and in books) to be thoughtful and thought-provoking. However, I'm quite surprised at his most recent contribution.

This week, Becker and Posner published on Tuesday, rather than the usual Sunday, and the topic of discussion was the newspaper business. I have to admit, I gave up reading Posner's post about halfway through, because while it seemed to do a decent job describing the problems some newspapers faced, it didn't seem like he was adding much beyond what has been covered widely elsewhere. Also, I was disappointed that he seemed to put absolutely no weight on the fact that much of the newspaper industry's problems were because they took out massive amounts of debt -- and it's the liabilities that are killing them. That's a big point that's totally ignored. He also appears to ignore the incredible profits that many newspapers made for years, and assumes that shrinking revenue automatically means that newspapers need to get rid of staff. That's not necessarily the case. Shrinking revenue could (and likely is) just a sign of a market becoming more efficient. Newspapers were so profitable because in many cases they were de facto monopolies in the areas they covered. So I was a bit disappointed in that, and didn't even bother to read the conclusion.

However, reader CT suggested I get to the end where I was stunned to read the following:

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.

Wow. Now Posner has always been a stronger believer in the need for intellectual property to "solve" the "free rider problem," but this is still stunning. He's usually a lot more balanced in recognizing the downsides to greater IP protectionism. Here, he seems to ignore it completely, while also brushing off the ability of other sources of information to step into the void created by newspapers. Right before the statement above, he oddly assumes that there's no way to support news production in an online only situation. His mistake, though, is assuming that it needs to have the same type of profits as monopoly newspapers used to have. For such an economically literate person, this is a surprising statement.

But, really, the idea that some extra protectionism is needed to create news gathering operations suggests an ignorance of what's actually happening in the marketplace. Yes, it's messy right now, but more and more news gathering operations are showing up every day -- and they're doing things more efficiently, embracing the power of new technologies to do so, rather than relying on the old inefficient structures. This is a good thing.

Furthermore, the idea that copyright should be expanded to ban linking or even paraphrasing of facts, goes against pretty much all of copyright law and its intended purpose. Posner must know this. He certainly knows that the law doesn't allow it now, but even suggesting that the law be expanded to cover that goes against pretty much all common sense over the reasons why linking is allowed and why copyrighting facts isn't allowed.

Instead, Gary Becker's opposing post to Posner's is much more well-reasoned. He basically notes that it's not a big deal that newspapers are dying, because others will take their place, and they'll be a lot more efficient:

I do not believe that the decline in the number of dailies, even if it rapidly accelerates, poses a major threat either to the viability of democracies, or to the spread of political and other information.

The main reason for this belief is that the Internet is far more efficient than newspapers in providing news, information, and opinion. This is obvious with respect to sports, financial developments, and weather since online updates are much more frequent than is possible even for the best papers. During the past 10 days of the Iranian election crisis, my wife and I turned mainly to the Internet for the very latest news and pictures on what was happening in Teheran and elsewhere in that country. These sources certainly included online editions of several newspapers, but also important were various online accounts by observers of and participants in the protests....

Although the printed newspaper industry is doomed, and will be missed by those of us that remember newspapers in their heyday, they are being replaced by good substitutes in the form of blogs, social networks like Facebook and Twitter, online news gathering by various groups, including newspapers, and other electronic forms of communication. People in democracies will continue to have access to independent and often quite accurate, reports on events in their own countries and most other parts of the world. In fact, the populations of undemocratic countries now have much greater access to what is happening in the world than they had in the past because it is far more difficult to suppress access to the Internet and other electronic forms of communication than it is to suppress newspapers.

Indeed. Hopefully Posner will reconsider his thoughts based on what Becker has written. In the meantime, though, you can bet that some newspapers are looking at filing their next lawsuits against "linkers" and "aggregators" in district courts in the 7th Circuit, where perhaps Posner will handle the appeal.

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