Should linking be illegal?

Those who wish to keep the internet free and open had best dust off their legal arguments. One of America’s most influential conservative judges, Richard Posner, has proposed a ban on linking to online content without permission. The idea, he said in a blog post last week, is to prevent aggregators and bloggers from linking to newspaper websites without paying:

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.

Posner’s notion set off an eruption from the likes of Jeff JarvisMatt Welch and Erick Schonfeld, among others. And they are right to be furious. Not only would Posner stop online media dead in their tracks, but he would also overturn long-established rules of fair use, which, among others things, allow for the reproduction of short excerpts of copyrighted material for the purposes of commentary, parody and the like – precisely what bloggers and aggregators do all the time.

And Posner, who sits on the seventh circuit court of appeals in Chicago, has a way of getting his way. A brilliant, provocative thinker and a frighteningly prolific writer, he was described in a 2001 New Yorker profile as “the most mercilessly seditious legal theorist of his generation”. And if, at 70, Posner and his generation are not quite so influential as they once were, he is still a formidable presence on the legal scene.

In something of an irony for journalists who might be inclined to cheer Posner’s latest, it was a 2003 opinion he wrote that helped cement journalists’ modern status as cultural and social pariahs. Posner’s decision in the case of McKevitt v Pallasch did more than any other to vanquish the idea that journalists called into court had some protection under the first amendment from having to reveal their confidential sources.

For a generation, journalists and their lawyers had relied upon the hazy wording of a 1972 supreme court case called Branzburg v Hayes, in which a bare majority ruled there was no reporter’s privilege. One of the majority, Lewis Powell, wrote what his fellow justice Potter Stewart called “an enigmatic concurring opinion” suggesting that maybe, in some cases, there was a privilege. As retired New York Times lawyer James Goodale explained in the Frontline documentary News Wars several years ago, media lawyers used Powell’s opinion to keep the reporter’s privilege on life support for more than 30 years until Posner, finally, pulled the plug.

As an appeals court judge, Posner could not, of course, overrule the supreme court. In McKevitt, though, he didn’t have to: he wrote that he had reread Branzburg and had come to the conclusion that, lo and behold, it meant what it said. No more reporter’s privilege, although the states were free to create their own through shield laws and state court precedents. (All except Wyoming have done so, many of them long before McKevitt. And Congress may create a federal shield law later this year.) More from

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