REX S. HEINKE, SBN 066163
333 South Grand Avenue
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
Plaintiffs Los Angeles Times, The Washington Post Company, and The Washington Post Company's wholly owned subsidiary Washingtonpost.Newsweek Interactive Company (collectively "Plaintiffs"), for their Complaint against Defendants Free Republic, Electronic Orchard, and Jim Robinson (collectively "Defendants"), allege:
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JURISDICTION AND VENUE
1. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1338(a).
2. This Court has personal jurisdiction over all the Defendants by virtue of their
transacting, doing, and soliciting business in this District, and because a substantial
part of the relevant events occurred in this District and because a substantial part of
the property that is the subject of this action is situated here.
3. Plaintiff The Times Mirror Company d/b/a Los Angeles Times (the "Times") is a Delaware corporation with its principal place of business at Times Mirror Square, Los Angeles, California. The Times, among other things, publishes the nationally and internationally famous newspaper Los Angeles Times, both in print and in an electronic format on the Internet, known as Latimes.com. Latimes.com is distributed throughout the State of California and in interstate commerce.
4. Plaintiff The Washington Post Company ("Washington Post") is a Delaware corporation with its principal place of business at 1150 15th Street, N.W., Washington, D.C. The Washington Post, among other things, publishes the nationally and internationally famous newspaper The Washington Post, both in print and, through its wholly owned subsidiary, Washingtonpost.Newsweek Interactive Company in an electronic format on the Internet, known as Washingtonpost.com. Washingtonpost.com is distributed throughout the State of California and in interstate commerce.
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5. Plaintiff Washingtonpost.Newsweek Interactive Company ("WPNI") is a Delaware corporation with its principal place of business at 1560 Wilson Boulevard, Arlington, Virginia. WPNI is a wholly owned subsidiary of The Washington Post Company, and is responsible for, among other things, aspects of production of the on-line version of The Washington Post newspaper known as washingtonpost.com, which is distributed throughout the State of California and in interstate commerce.
6. On information and belief, defendant Free Republic is a California business of unknown legal form with its principal place of business in Fresno, California, and a mailing address of P.O. Box 9771, Fresno, California 93794-9771. On information and belief, Free Republic is engaged in the business of designing, publishing, and maintaining an on-line magazine called Free Republic or freerepublic.com. On further information and belief, Free Republic attracts users and advertisers to its "freerepublic.com" Website by republishing verbatim copies of others' copyrighted works, in their entirety, and without their owners' consent.
7. On information and belief, defendant Electronic Orchard is a California business of unknown legal form with its principal place of business in Fresno, California, and a mailing address of P.O. Box 9771, Fresno, California 93794-9771. On information and belief, Electronic Orchard is engaged in the business of Internet website development, and regularly and extensively advertises its services on the "freerepublic.com" website.
8. On information and belief, defendant Jim Robinson ("Robinson") is an individual living in Fresno, California, and at all times relevant to this action, has owned and controlled, and [begin page 4] continues to own and control, both Electronic Orchard and Free Republic.
9. The true names and capacities, whether individual, corporate, or otherwise, of the
Defendants sued as Does 1 through 10 are unknown to Plaintiffs, who, therefore, sue them
by such fictitious names. At such time as their true names and capacities have been
ascertained, Plaintiffs will seek leave of Court to amend this Complaint accordingly. On
information and belief, Plaintiffs allege that each of Does 1 through 10 was the agent,
representative, or employee of each of the other Defendants and was acting at all times
within the scope of his/her agency or representative capacity, with the knowledge and
consent of the other Defendants, and that each of Does 1 through 10 are liable to
Plaintiffs in connection with one or more of the claims sued upon here and are responsible
in some manner for the wrongful acts and conduct alleged here.
FACTS COMMON TO ALL CLAIMS
HOW PLAINTIFFS PROVIDE NEWS AND INFORMATION ON THE INTERNET
10. Each of the Plaintiffs is a well respected source of copyrighted news stories and other information. Each Plaintiff spends substantial amounts of time, money, and effort creating, collecting, and distributing their copyrighted stories.
11. A website is a specific location on the World Wide Web identified by a unique address known as a Universal Resource Locator ("URL"). Among the channels through which the Plaintiffs distribute their content are websites found at the URLs "latimes.com" and "washingtonpost.com." In addition to breaking news coverage and extensive original news content, Plaintiffs' websites include almost [begin page 5] the entire daily content of the Los Angeles Times and The Washington Post newspapers.
12. Plaintiffs' copyrighted content is the way in which Plaintiffs attract readers to their respective websites. Each of the Plaintiffs have been extraordinarily successful in this regard. The "latimes.com" website, for example, currently has more than 250,000 registered users, and more than 13 million hits a month. (A "hit" occurs when someone visits a website.) The "washingtonpost.com" website currently has more than 52 million page views per month.
13. Plaintiffs sell advertising space in their respective newspapers and on their
respective websites based on the success of their copyrighted content in attracting
readers. The more people that read Plaintiffs' newspapers or visit Plaintiffs' websites,
the more advertisers will advertise there, which will increase Plaintiffs' revenues.
DEFENDANTS' INFRINGING SITE
14. Defendants operate a website at the URL "freerepublic.com" ("Infringing Website"). In contrast to Plaintiffs, however, Defendants do not create their own copyrighted stories. Instead, Defendants have been and are engaged in a pattern of misappropriating content and infringing copyrights by republishing verbatim copies of copyrighted articles, in their entirety, and without the copyright owner's consent. Plaintiffs are merely representative of the numerous news organizations whose copyrights are being so infringed by Defendants.
15. The Infringing Website consists of hundreds if not thousands of copyrighted articles from competing "name-brand" news [begin page 6] sources, including, among others, the Los Angeles Times and The Washington Post. Articles from Plaintiffs' websites and other would-be competitors' websites are literally copied onto and posted on Defendants' website -- frequently within hours if not minutes of their initial publication -- and can be accessed from the "freerepublic.com" home page by "clicking" on the "Forum" button underneath the "Main Menu." Alternatively, a user can access these articles by "clicking" on any of the "HOT Forum topics" listed on the home page, e.g., "Click here for the latest 20 posts!" Attached to the Complaint as Exhibit A is a printout from the Internet showing the "freerepublic.com" home page as it appears to an average user.
16. The Infringing Website contains dozens if not hundreds of Plaintiffs' copyrighted articles. Based on information and belief, many of these articles are downloaded by Defendants directly, whereas others are downloaded pursuant to Defendants' written instructions and tools that Defendants' Infringing Website provides. For example:
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17. For their own profit and advantage, Defendants are misappropriating the non-transformed, copyrighted material in which each Plaintiff has invested heavily. Defendants' website relies on the copyrighted content of Plaintiffs' newspapers and websites to attract readers, and to subject those readers to Defendants' and others' advertising and promotional material. Defendants have promoted the Infringing Website to advertisers and the public based on Defendants' routine practice of misappropriating and republishing unauthorized copies of copyrighted articles from competing, "name brand" newspapers and websites. Examples of advertisements currently displayed on the Infringing Website are attached as Exhibit V.
18. Defendant Electronic Orchard further free-rides on Plaintiffs' copyrighted content and good will by advertising on the Infringing Website. Some of Electronic Orchard's advertisements on the Infringing Website are displayed on Exhibit V. The Infringing Website also promotes Electronic Orchard's business by encouraging potential customers to "click" on the Electronic Orchard icon that is displayed on virtually every page of the Infringing Website. Anyone who uses a computer mouse to "click" on the Electronic Orchard icon from within the Infringing Website is automatically transported to Electronic Orchard's website, where the Electronic Orchard's home page is first displayed. A copy of the Electronic Orchard home page is attached as Exhibit W. As a result, Electronic Orchard profits from the proximity to Plaintiffs' copyrighted articles, without compensation to Plaintiffs.
19. What Defendants gain by appropriating Plaintiffs' copyrighted material diminishes the value of Plaintiffs' newspapers, [begin page 12] websites, and their advertising opportunities. For example, Defendants are usurping the funds that Plaintiffs are entitled to receive from licensing these articles through their Permissions Desks, through their sale of reprints, and otherwise. These articles are Plaintiffs' stock in trade.
20. By copying Plaintiffs' copyrighted articles verbatim and posting them on a site other than Plaintiffs' websites, Defendants are also diverting readers that would otherwise read Plaintiffs' newspapers and access Plaintiffs' websites. This usurps Plaintiffs' circulation figures, which, in turn, has damaged and will damage Plaintiffs' ability to attract advertisers.
21. Defendants' website also allows advertisers seeking proximity to Plaintiffs' copyrighted articles to do so on the Infringing Website only, without compensation to Plaintiffs.
22. Plaintiffs do not in any way seek to abrogate or otherwise limit Defendants' First Amendment rights. Plaintiffs have no objection to Defendants discussing the content and ideas expressed in Plaintiffs' articles. Likewise, Plaintiffs would have no objection to Defendants' use of plain hypertext links to Plaintiffs' websites such that Defendants' users would have easy access to Plaintiffs' copyrighted articles. As these alternatives demonstrate, however, Defendants do not need to infringe Plaintiffs' copyrights to exercise their First Amendment rights.
23. Defendants have made, and continue to make, their Infringing Website available to countless users within this District; have misappropriated and infringed Plaintiffs' copyrighted content originating on computer servers located in this District; have promoted and continue to promote their website to countless [begin page 13] people within this District; and as a result, have gained revenue and other benefit from advertisers wishing to reach these people to the detriment of Plaintiffs.
24. Plaintiffs have demanded that Defendants stop copying and publicly displaying Plaintiffs' copyrighted content without their consent. Defendants have refused to cease their infringing activities.
25. Defendants' conduct has been in willful violation of Plaintiffs' repeated warnings
to Defendants that Plaintiffs do not want the content of their newspapers and websites
republished, and that Defendants' conduct is unauthorized. The specific acts of
infringement described above are simply representative of a broader pattern of
infringement in which Defendants make unauthorized use of the content of Plaintiffs'
newspapers and websites 24 hours a day, every day.
FIRST CLAIM FOR RELIEF
(Federal Copyright Infringement)
26. Plaintiffs incorporate by reference all the allegations of paragraphs 1 through 25, inclusive.
27. Plaintiffs each own copyrighted material found at or through the URLs "washingtonpost.com" and "latimes.com." For example, the Washington Post has registered with the United States Copyright Office the following content from The Washington Post and its "washingtonpost.com" website:
The Washington Post is the author and copyright holder of the December 23, 1997, and February 11, July 10, July 14, and July 15, 1998 editions of The Washington Post, each of which are editions of a daily newspaper containing material wholly original with the Washington Post and copyrightable under the laws of the United States. The copyright that the Washington Post possesses in each daily newspaper covers all editions of the newspaper and the text of each edition.
28. Likewise, the Times has registered with the United States Copyright Office the following content from the Los Angeles Times and its "latimes.com" website:
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The Times is the author and copyright holder of the June 27, June 28, July 2, and July 9, 1998 editions of the Times, each of which are editions of a daily newspaper containing material wholly original with the Times and copyrightable under the laws of the United States. The copyright that the Times possesses in each daily newspaper covers all editions of the newspaper and the text of each edition.
29. Plaintiffs have complied in all respects with 17 U.S.C. §§ 101 et seq., and secured the exclusive rights and privileges in and to the copyrights of the above-referenced works. Plaintiffs have been and still are the sole proprietor of all rights, title, and interest in and to the copyrights in their respective works as referenced above.
30. Defendants' conduct violates the exclusive rights belonging to Plaintiffs as owners of the copyrights in their respective newspapers and websites, including without limitation Plaintiffs' rights under 17 U.S.C. § 106.
31. On information and belief, Plaintiffs allege that, as a direct and proximate result of their wrongful conduct, Defendants have realized and continue to realize profits and other benefits rightfully belonging to Plaintiffs. Accordingly, Plaintiffs seek an award of damages pursuant to 17 U.S.C. §§ 504 and 505.
32. Defendants' infringing conduct has also caused and is causing substantial and irreparable injury and damage to Plaintiffs in an amount not capable of determination, and, unless restrained, will cause further irreparable injury, leaving the Plaintiffs with no adequate remedy at law.
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33. On information and belief, Defendants have willfully engaged in, and are willfully engaging in, the acts complained of with oppression, fraud, and malice, and in conscious disregard of the rights of Plaintiffs. Plaintiffs are, therefore, entitled to the maximum statutory damages allowable.
34. As a consequence of this dispute between the parties as to the rights, title, and
interest in the copyrighted articles described above, and pursuant to the Federal
Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, Plaintiffs also seek a resolution
of this ongoing controversy by a declaration of this Court as to the rights of the
respective parties in this matter.
Prayer for Relief
THEREFORE, Plaintiffs pray for judgment against Defendants as follows:
A. Declaring that Defendants' unauthorized conduct violates Plaintiffs' rights under common law and the Federal Copyright Act;
B. Immediately and permanently enjoining Defendants, their officers, directors, agents, servants, employees, representatives, attorneys, related companies, successors, assigns, and all others in active concert or participation with them from copying and republishing any of Plaintiffs' copyrighted articles or copyrighted material without consent or otherwise infringing Plaintiffs' copyrights or other rights in any manner;
C. Ordering Defendants to account to Plaintiffs for all gains, profits, and advantages derived by Defendants by their infringement of Plaintiffs' copyrights or such damages as are proper, and since Defendants intentionally infringed plaintiffs' [begin page 17] copyrights, for the maximum allowable statutory damages for each violation;
D. Awarding Plaintiffs actual and/or statutory damages for Defendants' copyright infringement in an amount to be determined at trial;
E. Awarding Plaintiffs their costs, reasonable attorneys' fees, and disbursements in this action, pursuant to 17 U.S.C. § 505; and
F. Awarding Plaintiffs such other and further relief as is just and proper.
DATED: September 28, 1998