This Blog Post Could Be Illegal

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If Richard Posner, a judge on the United States Court of Appeals for the Seventh Circuit in Chicago, gets his way, blog postings like this one could be illegal.

On his blog, Posner recently suggested that copyright law might need to be expanded.

"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," his blog entry concluded.

Copying another site's work is one thing. But barring linking to or paraphrasing copyrighted materials? That would eliminate a huge amount of what makes the Web valuable.

In the early days of the Web, there were some issues regarding copyright issues and linking. But that sort of thing had largely gone away over time as newspapers realized that linking actually brought new readers to them.

But now, others are suggesting even broader restrictions, such as requesting the copyright holder's consent even to index items. "Google's products (and profit) would look a lot different if, for example, the law said it had to obtain copyright permissions in order to copy and index Web sites," said Bruce Sanford and Bruce Brown, partners in the Washington office of Baker Hostetler, in the Washington Post. "Search engines have instead required copyright holders to "opt out" of their digital dragnets, and so far their market power has allowed them to get away with it."

Both of these suggestions, made under the aegis of "saving journalism," would have the potential of creating a chilling effect on the spreading of news by the Internet -- including by social media sites such as Facebook and Twitter, which often include links to other material.

"[L]inking is the heart and soul of the World Wide Web," according to Dan Tyvser, the author of BitLaw, a legal copyright site from the Minneapolis law firm of Beck & Tysver. "Consequently, if linking were disallowed or made illegal in the abstract, the Web would no longer exist. Clearly, no court or legislature would ever go so far as to outlaw all linking. Practically, then, linking is permissible because otherwise the web would end."

Let's hope he's right.