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Julie Hilden

Would a Law Requiring Consent to Link Violate the First Amendment?


Monday, July 20, 2009

Traditional journalism is in trouble – and it is clear that the problem is largely economic. Print newspapers are losing much of their advertising revenue to online competitors – including those that offer advertising for free, such as; and those that offer highly-targeted and pay-per-click advertising, such as Google.

Meanwhile, newspapers' websites, too, are attracting relatively paltry advertising revenue – in sums that are estimated to fall very far short of the cost of the thorough domestic and international reporting the papers traditionally have done.

But is this severe economic problem also, in part, a legal problem? Should the law be protecting newspapers and their websites better, or differently, than it now does? And are the law's limits themselves an important cause of journalism's predicament?

Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit -- writing in his private capacity -- suggests that, indeed, some of journalism's current woes may arise from a deficiency in the copyright law. In this column, I'll summarize Posner's argument, and question whether the kind of alteration to the copyright law that Posner envisions might violate the First Amendment.

Posner's Suggestion: Defeat Journalistic Free-Riding with An Extension of Copyright Law

Specifically, Posner suggests the possibility of "[e]xpanding 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…." Presumably, this expansion of copyright law would take place via a federal statute.

Posner suggests that such a measure would solve a notorious free-rider problem regarding online news: Under the current copyright regime, he explains, "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."

Here, the Drudge Report would be one obvious example, with respect to linking, of a site that would need to get consent – and perhaps also to pay for it – under Posner's proposal. (In contrast, I'm assuming here that Posner does not mean to include search engines like Google in his consent-to-link scheme. Posner references "providers of news" and I doubt search engines would qualify; also, search engines may be helping news websites more than they hurt or supersede them.)

Posner is certainly right that some sites make significant amounts of money from being parasites on others' content --- or, put more charitably, by either "aggregating" related content to bring together that content for readers interested in a particular subject, or "curating" a collection of links of special value to a particular group of readers.

And Posner is certainly right that significant free-riding is going on here: While aggregating and curating do require some money and time, creating the underlying articles to which the links lead is generally much more taxing and costly.

Ultimately, the key point here is that aggregators and curators profit from copyrighted material that they played no part in creating. Thus, to the extent that the copyright law seeks to link creative effort to revenue -- and thus to the original author's incentive and ability to continue to produce creative work -- aggregators and curators arguably undermine that law's purpose.

In sum, it's hard to dispute that Posner's proposal responds to a genuine problem. But is his solution -- of banning linking and paraphrasing without the original author's consent
-- unconstitutional?

Or, can Posner's solution be justified as an ingenious way to do what the Constitution's Copyright Clause has always sought to do – link creative works to the revenue that allows their authors to keep producing them?

Does Posner's Ban on Unconsented Paraphrase Violate the First Amendment?

To begin, with respect to paraphrasing, I think Posner's proposal goes much too far, and that it would very likely be found to violate the First Amendment in this respect. For this reason, I'm surprised that Posner even included the paraphrasing component of his proposal, rather than just stopping with proposing a ban on linking without the original author's consent.

Granted, a ban on unconsented linking could be somewhat undermined by the absence of a ban on unconsented paraphrasing: Those who would have linked, could instead paraphrase. But many readers do want to consult the author's original text, not a paraphrase of it by someone else.

Also, it's much quicker to link than to paraphrase, so forcing paraphrase in lieu of linking would make aggregators' work much more labor-intensive, and would thus incentivize them to pay to link. Accordingly, even if unconsented paraphrasing were not banned, a ban on unconsented linking alone likely could still have a major impact.

Specifically, such a partial ban could drive would-be linkers to pony up micropayments to penetrate the original sources' "pay walls." And even if would-be linkers simply decided not to link, the ban could still drive Web readers searching for news on a particular topic, through a search engine, to consult the original source directly -- where they would be exposed to the original site's advertising, not just that of the aggregator/curator.

Overall, then, a ban on unconsented linking would thus likely do just what Posner suggests it would: Drive needed, and mostly deserved, revenue to the original creators of the original, copyrighted news article.

For these reasons, Posner's proposed law would still have "teeth" even if its ban did not extent to paraphrasing. And there is a strong case for differentiating online paraphrasing from linking.

To begin, paraphrasing is a classic "fair use," exempt from the copyright law, and for good reason. Posner's paraphrasing proposal would chill speech because of its inherent lack of clear boundaries: When might even a mere mention of an article's content be deemed by a court to be an illegal unconsented paraphrase of that content? Would-be paraphrasers would likely silence themselves in order to keep clear of a costly legal line.

Moreover, putting a price on paraphrase would undermine the "marketplace of ideas" concept that the Supreme Court has long embraced – the concept that our democracy works best when speakers and thinkers can choose freely among a set of uncensored, freely-expressed views.

Imagine an article that presented the ideas of, say, ten online thinkers, and compared and contrasted them, praising some and lambasting others. That would be the very kind of article that seems to best further the marketplace-of-ideas concept. Yet under Posner's proposal, the article could spark ten different copyright suits, especially from the authors who were both paraphrased and criticized.

Free speech is harmed without the ability, in some circumstances, to paraphrase without consent. After all, writers rarely consent to being criticized. Posner's solution might lead to only positive paraphrase – not paraphrase nested in critique – being authorized.

Finally, while Posner might reply that his proposal would itself contain a fair use exception (perhaps for paraphrase paired with criticism or commentary), the inevitable uncertainty about when the exception applied would inevitably have a chilling effect, too.

Would a Ban on Unconsented Linking Be Unconstitutional?

In contrast, the question of the First Amendment status of a ban on unconsented linking – the second part of Posner's proposal -- is more difficult. That's because a link is arguably very close to what would be called a reprint in the offline world. And in the offline world, a reprint requires permission, and if the copyright holder so chooses, it also may require a payment.

Thus, while Posner's paraphrasing proposal would go far beyond current copyright law, his linking proposal would arguably simply bring online copyright law into conformance with offline copyright law, using the link/reprint analogy.

However, Posner's proposal to ban unconsented linking has its own problems. One is that sites already have the ability to put up a "pay wall" to charge linkers and other users for access to content (and some have done so). This self-help could suggest that a legal solution is unnecessary.

But to be fair to Posner, there are problems with this kind of self-help: Sites that avail themselves of "pay walls" will predictably lose advertising revenue as they lose visitors; that's why so many have opted not to erect a pay wall.

The genius of Posner's "pay-to-link" proposal, moreover, is that it could level the playing field: If consent-to-link were the law, then sites might all evolve toward a standard price-to-link. Alternatively – but somewhat radically -- the same federal statute that Posner envisions could also create a commission to set uniform link prices. Although it may seem anti-First Amendment to put prices in the copyright statute, a proponent of doing so might respond that the statute already sets certain penalties, and ask, How different are the two types of monetary incentive?

Of course, there are very serious issues to be addressed when the government sets prices, especially in a free speech arena. But Posner could respond that it is hard to deny how problematic the current situation is, as well. The destruction of print newspapers is a juggernaut that it seems no one can stop. Under current law, news websites will likely become pale shadows of their print predecessors. Despite years of thought devoted to the matter, it seems no one has a good way to save journalism – and in particular, to preserve funding for the vital, full-time reportage by experienced journalists with strong resources behind them that we had always taken for granted.

Still, in my opinion, the dangers to free speech of the kind of regulation that Posner proposes may outweigh its benefits (and of course, constitutional analysis is not cost-benefit analysis; even a beneficial legal innovation could violate the First Amendment).

I also think it's likely that the current Supreme Court – which seems to be moving away, for instance, from campaign finance regulation on First Amendment grounds– would probably agree, and would find a First Amendment violation were Posner's proposal – or even just its linking component – to be enacted into law.

However, there is no question that those on the other side of this issue have strong points to make. There is going to be massive harm inflicted upon free speech when newspapers fail and reporting diminishes. There may be solutions, but it's troubling that a significant number of years have passed, with no very good ones to be found. Thus, even if we ultimately think that solutions like Posner's take too high a toll on free speech, we need to acknowledge that the free-speech status quo is suffering, too, and that we have yet to find a solution.

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden, a FindLaw columnist, is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes free MP3 and text downloads of the novel's first chapter.

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