A New York Times op-ed today (2/15/11) by Scott Turow, Paul Aiken and James Shapiro ("Would the Bard Have Survived the Web?") uses William Shakespeare as exhibit A in their case for copyright, noting that theater flourished in 16th century England because playwrights were able to make money by charging people to enter their theaters.

This they translate into a sweeping argument against attempts to reform copyright law, disparaging

a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress. Their theory is that if we severely weaken copyright protections, innovation will truly flourish. It's a seductive thought, but it ignores centuries of scientific and technological progress based on the principle that a creative person should have some assurance of being rewarded for his innovative work.

It's actually not counterintuitive at all--and, in fact, Shakespeare is exhibit A here. Many of Shakespeare's most famous and beloved plays, written in the late 1500s and early 1600s, borrowed heavily from other works that, under current U.S. (or British) copyright law, would have been off-limits to him. (In turn, many of those works were themselves based on other sources in a long derivative chain of what today would be called massive copyright infringement.)

Shakespeare's classics Romeo and Juliet, Othello, As You Like It and Measure for Measure, among others, were based on works of fiction published in the decades before Shakespeare's career. They thus would have been illegal under current U.S. copyright law, which keeps works out of the public domain for 70 years after the death of the author, or a total of 95 years for works for hire. Copyright protection for decades after Shakespeare's death would have had no impact on his ability to produce work and limited impact on his incentive to do so--while the inability to retell contemporary stories would have directly restricted his creativity.

Turow, Aiken and Shapiro warn, "We tamper with those [copyright] rules at our peril." Too bad lawmakers hadn't gotten that warning earlier; they've extended copyright from 28 years to a maximum of 95 years over the course of U.S. history, and have lengthened it by 39 years just since 1976 (Extra!, 8/10). It's impossible to say how many literary masterpieces have not been written as a result.

The problem with Rupert Murdoch's proposal to create an online news consortium, in which major publishers would all band together to put their news content behind pay walls (L.A. Times, 8/21/09), is that it's not illegal to discuss news events online.  And you don't want to make it illegal to discuss news events online.

And yet, absent a law forbidding such discussions, there's nothing to stop someone from buying subscriptions to the various pay news sites and starting a website (like this one, but more so) in which they write about what they've learned from them--thus offering for free what the Murdoch's news trust would be trying to get people to pay for.  You can't copyright facts, and any attempt to change the law to allow publishers to do so would run straight into the shoals of the First Amendment and the concept of democracy itself.

Let's say you could keep the "tech tapeworms in the intestines of the Internet" (as a Murdoch editor memorably calls them) from passing along the news for free.  According to the L.A. Times piece, News Corp points to the Wall Street Journal as a success story with its website's 1 million paying customers, and has encouraged the New York Times Co., Washington Post Co., Hearst Corp. and Tribune Co. to follow its lead. Imagine that each of those publishers was as successful, and that the paying readers they attracted did not significantly overlap (both rather unrealistic assumptions, it strikes me)--that would be great news for publishers but something of a disaster for democracy, with the news generated by these leading (and not-so-leading) outlets confined to an elite audience of 5 million--or roughly 1-2 percent of the citizenry.

It's not like we have a particularly well-informed electorate as it is; if Murdoch's plan for an online news cartel is at all successful, though, today's voters may seem like Encyclopedia Brown.

Considering how, "in recent months, news aggregators like the Huffington Post have received heated criticism from some who believe they’re stealing valuable traffic and ad revenue from newspapers," with even "appeals court Judge Richard Posner recently wr[iting] a widely-linked post arguing that copyright law should be changed in order to bar linking to websites and paraphrasing their content," media blogger Simon Owens (Bloggasm.com, 7/6/09) has conducted an experiment to evaluate the premise of corporate media management "that news aggregators simply repackage news so there’s little incentive to click on the actual link":

So how much traffic does a large news aggregator like Huffington Post bring? I’ve been linked several times within Huffington Post, but typically on its users blogs, which only send a few hundred readers at most. But on early Friday I was fortunate enough to be featured prominently on Huffington Post’s front page with a banner headline linking to one of my articles.

How much traffic did this link bring? Lots. For the first three hours I received approximately 4,000 unique visitors an hour to just that one article. Traffic for the rest of the day remained strong, not once dipping below 2,000 uniques an hour as the link began traveling down the front page. By midnight that night, Huffington Post had sent approximately 30,000 unique visitors to that one article.

But though the first day’s worth of traffic was the heaviest, the Huffington Post continued to send me strong traffic for two more days as the link moved down on its main page but remained prominent on its highly-trafficked Politics page.

"All together," Owens tells us, he "received a grand total of 37,739 unique visitors from a prominent link on the Huffington Post over a three day period," while days later "still seeing relatively strong traffic from there"--which all sounds like decidedly good news for linked-to big media outlets, doesn't it?

Richard Posner is the sort of judge who gets mentioned as a possible Supreme Court nominee because of his supposed brilliance. But, then, he's also the person who wrote this:

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.

With the first suggestion, does Posner mean that copyright laws should forbid people from posting other people's material online without permission, or hacking into subscriber-only sites? Because copyright laws already do that. If he means that whenever someone puts up something on a website, you have to get their permission before you can type in the url,  that would be quite bizarre. What does he mean?

The second part is no less strange. As an anonymous commenter points out, prohibiting links would be like prohibiting footnotes; you could also compare it to outlawing card catalogs, or phone directories.  And the idea that linking to a newspaper's website somehow harms the newspaper is nutty; newspapers don't want people to stop linking to them. (They would like people to give them money for doing something that people have an inherent 1st Amendment right to do, but that's a different question.)

The gap between the federal Appeals Court judge's understanding of copyright law and the Internet commenter's is striking.  Maybe Anonymous should be nominated to the Supreme Court?

Corporate media's arguments against Google are getting stranger and stranger. While previously the Washington Post had accused the search engine of "vacuum[ing] up their content without paying a dime," now the Post has media lawyers Bruce Sanford and Bruce Brown (5/16/09) charging that search engines "crawl the Web and ingest everything in their path."

Can anything be done to stop these terrifying monsters?  Yes, the two Bruces say--you could change the law to require search engines to "obtain copyright permissions in order to copy and index websites." Given that the point of this would be to force search engines to "negotiate with copyright holders over the value of their content"--that is, with millions of copyright holders located all over the world--this would likely eliminate all problems associated with search engines...by eliminating search engines.  Then I'm sure we'd have a golden age of journalism once again.