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deep linkingAren't legal judgements supposed to be based on legal precedent? Apparently not for prominent US Judge Richard Posner, whose opinions on how to save the newspaper industry are being met with slack-jawed incredulity from just about, well, everyone.

Writing on his blog, Posner posits that what's killing newspapers are links. That's right, links:

"...online providers of news who are not affiliated with a newspaper can provide links to newspaper websites and paraphrase articles in newspapers, in neither case being required to compensate the newspaper."

And here you were thinking that links are a great way to increase traffic, raise awareness, enhance SEO and make display advertisers happy. Posner disagrees. He thinks if you link to a newspaper's copyright content you should pay them for the privilege:

"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."

Let's disregard more recent history, such as The New York Times opting to lift their paid wall in favor of all the traffic links and search generated to their properties. Instead, let's go back, way back, into the actual legal precedents of the issue. Remember "deep linking"?

1996: The Shetland Times and The Shetland News wind up in a UK court when the latter linked to stories in the former.

1997: Ticketmaster sues Microsoft for linking directly to ticket sales pages rather than its homepage. Then it sued Tickets.com for the same thing.

1999: Universal Studios sends cease-and-desists to Movie-List.com for linking to trailers on Universal sites. Universal's lawyers, among other complaints, said the site is not a "registered search engine."

2000: The Dutch have a go at links when newspaper publisher PCM fails to get an injunction against aggregator kranten.com when a judge rules that links on kranten only sent more eyeballs to PCM's advertisers. Undaunted, the Dutch real estate trade association slapped search engine De Telegraaf with a lawsuit because its users could use it to search for information on real estate.

These cases are just the tip of the iceberg. For a thorough roundup of primarily European and American cases involving deep linking, LinksandLaw.com is a great resource. One Judge Posner might consider referring to before his next blog post.

Yes, it would be easy to take Judge Posner's opinion with a grain of salt, as the opinions of an eminent, if uninformed jurist who's blogging outside of his league as well as his field of expertise. His opinions, at this juncture, are just that: opinions, not a legal mandate. But aside from Posner's lack of understanding of how the web works, his opinion also threatens basic rights around copyright issues, such as fair use. Posner presides on the U.S. Court of Appeals for the Seventh Circuit. His extensive resumé includes authorship of a large number of books and teaching law at the University of Chicago. He's connected and influential, and has the ear of equally influential individuals, many of them in positions to enact or influence legislation around this critical issue.

Which is why, all legal precedents to the contrary, it's important to sit up, take notice, and dispel these grotesquely misguided opinions before they threaten to become something more substantial and ominous.

Rebecca Lieb

Published 1 July, 2009 by Rebecca Lieb

Rebecca Lieb oversees Econsultancy's North American operations.

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Comments (4)

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mark. chapman

Copyright is one of the issues but, you know, I don't think some influential people like Posner like sharing. Get it? File sharing, copy sharing, link sharing... see a pattern forming? Probably, they didn't learn to share much when they were kids - or maybe no-one shared with them.

More seriously, I think we're seeing legal lines appearing in the online sand - anything that looks like someone is profiting from someone else's (copyrighted) work could be pursued legally. Call me a cynic but lawyers can smell potential fees, dare I suggest, which is why they are taking a broad, probing, investigative, in-depth interest in the Internet.

"There be gold in them thar virtual hills," as they said in pioneering days in the US...

mark.

almost 7 years ago

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Sam

This is absolute madness. How does this affect photos then? Does this mean if anyone wants to link to a photo on my site they need to seek my consent??

It makes you wonder how people like this are in the powerful positions they are.

almost 7 years ago

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mark. chapman

This has really got under my skin - I read your piece again this morning.

Theft of others work obviously cannot be condoned - but I think Posner can see that people and businesses that link to 'intellectual property' (IP includes copyrighted materials) held within company websites etc are potentially targets to take legal action against. Individuals and businesses have legitimate legal rights to their IP - and concerned businesses and people will pay to protect their IP.

It's a massive legal area. Thinking this through, this really could be (primarily) a gold mine for smart lawyers who can work to protect the IP rights of client companies, organisations and individuals across the globe. Imagine - law firms can run 'cease and desist' protection programmes that prevent certain sites and companies linking to others.

We might expect a whole raft of legal precedence cases to come and go as the law is shaped over time, especially by those with powerful financial muscle and keen commercial interests. New laws will be drafted and more legal minds will argue, defend and prosecute. You can see why this is of immense interest to the legal profession.

No wonder Posner is blogging about it - keep drilling bore holes and lawyers and solicitors are bound to strike oil every so often. Hey, we all need to earn a living...

mark.

almost 7 years ago

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Matt Inertia

Links are citations... whats next? Students/Professors/Sicentists not being able to put citations on white papers? It screams big brother style crap where the guys at the top have no idea of whats going on at the bottom. As times goes on I read more and more evidence of the complete ignorrance of the elite... I predict serious civil un-rest within the next 20 years... fight the power!!!

almost 7 years ago

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