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Lawyers ill equipped to advise on intersection of social media and copyright laws

I ran across the same shocking legal commentary as American journalist, Jeff Jarvis, this morning. Legal commentary from a judge and a lawyer who look ill equipped to counsel anyone on the future of copyright laws.

I agree with Jarvis when he posts ‘First, kill the lawyers – before they kill the news.’

Following the frighteningly dangerous thinking of Judge Richard Posner – proposing rewriting copyright law to outlaw linking to and summarizing (aka talking about) news stories – now we have two more lemming lawyers following him off the cliff in a column written by the Cleveland Plain Dealer’s Connie Schultz.

First note well that Schultz is married to U.S. Senator Sherrod Brown as she calls on her newspapers and employer (my former employer, Advance Publications) and fellow columnists to influence Congress to remake copyright. She should be registered as a lobbyist. No joke.

Schultz says that David Marburger, an alleged First Amendment attorney for her paper, and his economics-professor brother, Daniel, have concocted their own dangerous thinking, proposing the copyright law be changed to insist that a newspaper’s story should appear only on its own web site for the first 24 hours before it can be aggregated or retold.

Incredible. So if the Plain Dealer reported exclusively that, say, the governor had just returned from a tryst with a Argentine lady, no one else could so much as talk about that for 24 hours. A First Amendment lawyer said this.

Jarvis goes on to explain how nutty thinking like Marburger’s is. The death of Michael Jacksoon spread like wild fire across social media (mostly Twitter) with people linking to TMZ’ report. Marburger would give TMZ an exclusive on the report for 24 hours. But TMZ is not a newspaper so they don’t get the Marburger/Plain Dealer protection?

I’m not a copyright law expert representing newspapers. I don’t know how copyright law issues will play out. I don’t know how social media and the Internet will continue to change everything.

But actively taking part in social interaction on the net for the last 14 years (first as a practicing lawyer), blogging for the last six, and Twittering for the last couple, I wonder if I have a far better view of what’s going on than some lawyers who profess to be experts on the subject.

I’m not certain anything has changed in the way news spreads. It just spreads faster. Newspapers, Radio, and TV historically broke the news. We spread the word. We told people to turn on the radio, watch TV right now, and get a copy of the newspaper. Newspapers didn’t complain then when we sent them traffic and new subscribers.

Because news spreads faster we’re supposed to give newspapers a monopoly on the news? That’s crazy.

Jarvis makes a compelling point which lawyers advising newspapers ought to think about when counseling newspaper clients.

Schultz and the Marburgers complain about what they call the ‘free-riding’ of aggregators, et al. But they simply don’t understand the economics of the internet. It’s the newspapers that are free-riding, getting the benefit of links.

The framers of our Constitution, including the First Amendment, intended it to endure and cope with the effects of the anticipated changes of our nation.

Things have changed – changed quickly. But let’s be careful when thinking of following lawyers and Judges who may not understand the nature of the change.