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 for the same thing.

1999: Universal Studios sends cease-and-desists to 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 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, 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.