Judge Posner’s Copyright Proposal To Save The Newspapers — A Cosmic Paperboy?

I still turn to newspapers, whether on paper or on the Internet for my primary source of news, but it is no secret that newspapers are fighting for their lives — not unlike Bruce Willis in pretty much any Die Hard movie.  Newspapers, rallying around AP, blame Google for their troubles.  Mike Masnick of techdirt, points to the staggering amounts of debt that the newspapers took on and there are probably a dozen other ailments giving newspapers the blues.

Many have suggested cures for the newspapers’ ailments, including, as R. David Donoghue of the Chicago IP Law blogpoints out, the esteemed Judge Posner who hails from the Seventh Circuit in Chicago.  Judge Posner wrote in theBecker-Posner blog that we should ban online access to articles and bar anyone from paraphrasing or linking to a newspaper article without the newspaper’s consent.  Otherwise, Judge Posner argues, free-loaders will run newspapers out of business.

The commentary in response to Judge Posner’s proposal focuses on skepticism that the proposal is workable, that he has become too sentimental for printed newspapers and that he is out of touch with social media.  But, what troubles me about the proposal is it appears to  venture awfully close to allowing newspapers to copyright facts.

The proposal to bar online access to copyrighted material without the copyright holder’s consent is something the WSJ and a few other newspapers do already.  For example, to get full access to theWSJ’s article about the AP creating an association to license and monitor who is republishing newspaper articles, you would need to subscribe to the WSJ.

Judge Posner’s second suggestion, i.e. bar linking to or paraphrasing news articles, potentially could have greater implications.  Currently, copyright allows all of us to repeat facts found in books, newspapers and on the Internet if we do not copy the way those facts were repeated.  Copyright will protect how historical facts are expressed and not the facts themselves.

To be fair, Judge Posner proposes a ban on paraphrasing newspaper articles or linking to the article.  He doesn’t propose that newspapers should be able to copyright facts, but if nobody can paraphrase the article or link to it, does it effectively do the same thing?  Is there an argument that repeating a key fact or facts in an article is paraphrasing the article?  It strikes me that from a copyright perspective, Judge Posner’s proposal has even wider implications than just for newspapers.

With that said, count me among the people who still subscribe to a printed newspaper and wouldn’t mind having it stick around for a little longer.  If only the newspapers could create a real-life Early Edition where the hero received the Chicago Sun-Times the day before the news actually occurred:

[Discussing the mysterious newspaper]
Gary Hobson: Where is it coming from?
Marissa Clark: The hallway.
Gary Hobson: That’s not what I meant.
Marissa Clark: Maybe it comes from God.
Gary Hobson: Yeah, God’s a cosmic paperboy.

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About Dave Rein

Dave Rein focuses on and will continue to focus on copyright, trademark and patent litigation until the National Geographic adds him to its staff of photographers. In addition to counseling and litigating on behalf of the firm’s clients, he also helps clients through the Kansas City Volunteer Lawyers and Accountants for the Arts where he also serves as a board member. Prior to representing clients, Dave clerked for a federal district court judge who kindly provided invaluable advice and mentorship
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