Free Republic's Reply Memorandum.
Re: whether Free Republic's republication of Plaintiffs' articles constitutes fair use.
Case: Los Angeles Times  v. Free Republic.
Court: U.S. District Court, C.D.Cal., Case No. 98-7840 MMM(AJWx).
Date filed: November 1, 1999.

Editor's Notes:
 • Brian Buckley, attorney for Defendants, kindly provided Tech Law Journal with a word processor version of this memorandum.
 • Tech Law Journal converted the word processor version into HTML.
 • Several features have been lost, including page numbering and double spacing.
 • Hypertext links have been added.
 • Otherwise, this document has not been edited for HTML, but not for content.

BRIAN L. BUCKLEY, SBN 116705
LAW OFFICES OF BRIAN L. BUCKLEY
11661 San Vicente Blvd., Suite 820
Los Angeles, California 90049
(310) 207-4224    FAX (310) 820-2187

Attorneys for Defendants
FREE REPUBLIC, ELECTRONIC ORCHARD,
JAMES C. ROBINSON s/h/a JIM ROBINSON

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

The envelope containing this document includes documents and information that are subject to an order entered by this Court on February 5, 1999, and filed February 9, 1999, governing the use and disclosure of confidential discovery material in this matter.  The envelope shall not be opened nor the contents thereof displayed nor revealed except: (a) by a judge or employee of the Court as necessary for the resolution of any issue presented to the Court in the captioned action; or (b) by order of the Court.  Any violation may be regarded as contempt of Court.

INTRODUCTION AND SUMMARY OF ARGUMENT

The time has come for this charade of a copyright infringement action to end.  Over and over the plaintiffs cry theft, all the while ignoring the fair use doctrine and the overwhelming evidence supporting its clear application to the facts at bar.  Mixed in with their bluster is a measure of mock solicitude for the first amendment and outright scorn for those who would dare to comment on and criticize the adequacy of their reporting.

SCANDAL CAUSES NEWSPAPER'S CREDIBILITY TO DIMINISH

October 31, 1999

By TOM KISKEN, Scripps Howard News Service

VENTURA, Calif. - Editors and ethicists agree a newspaper's credibility -- perhaps its most valuable commodity -- washes away when news decisions are made because of money.

Reacting to reports of an unseemly alliance at one of the nation's most respected newspapers, journalism ethics professor Don Ranly outlined a path that begins when a newspaper's advertising sales staff members benignly mention they could generate more ads if they knew what stories were being planned. Give in and editors will face suggestions that coverage of a particular topic would bring in even more revenue. Finally, and fatally, the suggestions can mutate into directives.

Reduced to its essential argument, Plaintiffs’ opposition papers make clear their antagonism toward the fair use doctrine.  Their quarrel is with Congress, which enacted the exception.  Their remedy, if such be needed, is in Congress’ hands.  It was Congress that enacted legislation permitting “infringement” if the material is put to fair use.  Why?

The fair use exception has noble bloodlines, as defendants have demonstrated.   Congress declared that what would otherwise be infringement would be fair if it promoted certain lofty public policies, including education, scholarship, and research.  Political expression would be given special standing.  If the use meets certain fluid requirements, then infringement is not possible.

One could hardly imagine a more fitting applicant for a fair use finding than Free Republic.  The four prongs of the fair use doctrine fit perfectly on the four corners of the website.

(1) There is no commercial aspect whatsoever to Free Republic.  Plaintiffs cast about desperately to argue otherwise, even going to far as to declare that the ".com" shows how commercial Free Republic.com really is.  The absurdity of that gem is not uncharacteristic of their arguments in general, which fall substantially short of overcoming the evidence defendants have presented in support of the first fair use factor. As the preamble to Section 107 notes, “criticism, comment, [and]  news reporting” are “most appropriate” for a finding of fair use.

"They'll tell you what to write and what not to write," said the admittedly cynical Ranly, who teaches ethics and principles at the heralded University of Missouri's School of Journalism in Columbia. "I'm just suggesting that once you start playing their game, you lose. You lose editorial control."

The publisher of the Los Angeles Times this week acknowledged, and apologized for, a revenue-sharing agreement that one former employee called potentially the most severe fracture to journalistic veracity in recent years. According to news reports, the paper and Staples Center agreed to split profits from an issue of the Sunday news publication, the Los Angeles Times Magazine, devoted to the new sports arena.

The agreement has invoked outrage throughout the newspaper industry -- including reports of a protest petition signed by 300 reporters and editors at the Times. The many critics call the revenue-sharing plan a glaring conflict of interest that could be interpreted by readers as an infection of the journalistic pledge to present news without outside influence.

(2) The second factor to be considered in the fair use doctrine, the nature of the copyrighted work, also clearly favors defendants. Plaintiffs hardly even try to win this round, devoting only 11 lines or text to their half-hearted presentation.  Why? Because the law is overwhelmingly in Free Republic’s favor: when the nature of the copyrighted work is nonfiction, the scale tilts toward fair use.  As Professor Nimmer has noted, the more informational or functional the plaintiff’s work, "the broader should be the scope of the fair use defense.”

"This is moving into completely uncharted waters," said Charlie Waters, executive editor of the Fresno Bee and former editor of the Times Magazine. "This is the corporate side deciding that it would use and abuse the editorial side for profit."

Stressing that reporters and editors were not advised of the pact and praising the integrity of the paper's journalists, Waters worries readers may have one more reason to doubt what they read.

"The credibility of newspapers has been staggered by a series of blows over the last two or three years. This may be the worst," he said. "It gives those who are uncertain about how we do our work real pause. All we have is the reputation of going out and trying to gather real news in a manner that is not fettered by special interests."

Maybe newspapers don't even have that. A credibility survey released last year by the American Society of Newspaper Editors showed 78 percent of the respondents believe powerful people can get stories in or out of the newspaper. About 50 percent said they think certain people or groups get preferential treatment by newspapers.

(3)  Factor three also comes in for Defendants. Under the transformation doctrine, Free Republic’s activities clearly amount to fair use.  Each article pasted to Free Republic is instantly transformed, becoming something entirely new and different.

As a result of comments and criticism from hundreds and thousands of Free Republic participants, the articles are chameleons, changing with each new comment appended to them.  The additions are new and different.  They are, by definition, transforming.  To the Plaintiffs, self-professed “champions of the First Amendment,” this process is oddly threatening, but to Congress it is the epitome of fair use.

Such grim conclusions are not plucked out of thin air. Newspapers often strike promotional partnerships that allow them to plaster their name and sell their product at sports stadiums, performing arts centers and other venues where the community gathers. They publish advertising supplements known as advertorials with stories written by advertising staff and catering to the needs of advertisers.

Though newspaper leaders say such efforts are clearly marked as advertising and are pushed far away from editors and reporters pursuing news, many insiders worry about the potential for cross-over.

"The question is: How often does this happen?" said Fred Brown, chief of the capitol bureau for The Denver Post and national ethics chairman for the Society of Professional Journalists. A journalist with nearly 40 years' experience, he specifically cited the Los Angeles Times situation and Publisher Kathryn Downing's admission that the revenue-sharing agreement was caused by her own misunderstanding of fundamental journalistic principles.

"It appears to me that until it was called to her attention, the publisher didn't think there was anything wrong with this," Brown said. "That makes me think."

(4)  The fourth and final factor seals the matter in Defendants’ favor.  Indeed, as to the effect on the market, Plaintiffs fell flat on their faces, but only after a long stumble.  The evidence, which Plaintiffs took great pains to suppress and conceal, shows that the hits they have claimed to be losing for the entire 12 months of this litigation and prior are COMPLETELY ILLUSORY.  Their complaint makes this express claim, that Free Republic “diverts hits” from the Plaintiffs' websites.  Lo and behold, the opposite is true.  Then Plaintiffs compound their phony damage claim by reliance on the concocted story of one Chappell Aldridge, whose shattered credibility and integrity are more a matter for the Virginia Bar to consider than for this Court.

For many, the concern is the instability of the wall separating advertising from the newsroom. Waters calls the Times controversy a realization of a nightmare that began when Mark Willes, a vice president from General Mills who had no newspaper experience, assumed control of the newspaper four years ago as chief executive officer of parent company Times Mirror.

"This is the business side run amok," Waters said. "This is the worst fear come true."

A growing number of media outlets are owned by consolidated corporations, said Sharon Docter, chairman of the communications department at California Lutheran University in Thousand Oaks. That means there are more people in power who have spent a lifetime successfully generating revenue but may have little if any experience in journalism.

Already, it is not uncommon to hear newsroom stories of advertisers, or government leaders for that matter, trying to use influence to gain favorable coverage. Professors and former publishers talk about magazines and newspapers that run articles conceived specifically to attract advertising.

The irony of the stories, in the mind of Loren Ghiglione, comes in the way newspapers present themselves -- societal watchdogs committed to uncovering truth.

"If we're going to pretend we're a special calling, we need to act like we really are," said Ghiglione, director of the USC School of Journalism and former owner and editor of a group of small newspapers in Massachusetts.

He preaches honesty. If newspapers are going to pursue business relationships that could affect news content, readers deserve to know.

(Tom Kisken writes for the Ventura County Star in California.)

 

ARGUMENT

1.  Each of the "Fair Use" Factors of 17 U.S.C. § 107 Weigh in Favor of Defendants

Playing on the somewhat counter-intuitive character of the "fair use" doctrine, Plaintiffs characterize the posting of Plaintiffs' newspaper articles onto freerepublic.com for comment as "theft."  A close reading of Plaintiffs' opposition reveals that Plaintiffs' are not concerned with a careful analysis of the "fair use" factors set forth in 17 U.S.C. § 107.  Rather, Plaintiffs object to the "fair use" doctrine itself.  Plaintiffs seek to enforce their "monopoly" over their newspaper articles.  However, they fail to acknowledge that the "fair use" doctrine "confers a privilege on people other than the copyright owner 'to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner."  Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1151 (9th Cir. 1986) citing and quoting Marcus v. Rowley, 695 F.2d 1171, 1174 (9th Cir. 1983).  If Plaintiffs seek elimination of the fair use doctrine, they should address their concerns to Congress.  As noted in 23 American .Law Reports 3d 139 (1998) ["Extent of Doctrine of 'Fair Use' Under Federal Copyright Act"], at II.3.a, "[A]s the cases and writers often point out, the copyright law, unlike the patent law, does not give the copyright owner the exclusive right to "use" the copyrighted work."

A.  Each Statutory "Fair Use" Factor Weighs in Favor of Defendants

(1)  The Purpose and Character of the Use

The first enumerated factor of 17 U.S.C. § 107 is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes."

(a)  The Purpose for the Posting of Articles on Free Republic Is Entirely Different From Plaintiffs' Purpose In Publishing

Plaintiffs argue as if the first factor of Section 107 consists of the "transformation" element only.  Plaintiffs attempt to distinguish Defendants' citation to the extensive discussion of the purpose of use in American Geophysical Union v. Texaco, Inc.  60 F.3d 913 (2d Cir. 1995), Section II, by making a transformation argument.  This is inapposite.  Transformation is a separate and different element of the first factor of "purpose and character of the use" -- which Defendants appropriately discuss separately.

In American Geophysical, at issue was the making of photocopies of articles within a scientific journal by a chemical engineer at a research facility.  The Court pointed out that the copies in that case were made for essentially the same purpose for which sales of the original were intended.  "Chickering had them photocopied, at least initially, for the same basic purpose that one would normally seek to obtain the original -- to have it available on his shelf for ready refererence if and when he needed to look at it."  American Geophysical, supra, 60 F.3d 913, Section II.A. (2d Cir. 1995).

By contrast, the central purpose of the use of Plaintiffs' articles on Free Republic is to allow users to "post" followup comment and criticism concerning both the substance of the article and the "mainstream media" coverage of it.

(b)  Free Republic's Use is Transformative

Plaintiffs argue that because in many cases the entire text of Plaintiffs' articles is posted on Free Republic, that Free Republic's use is not transformative.  Plaintiffs ignore as transformative all of the "comments" and "replies" added to the same web page by registered users of Free Republic.   In support of this point of view, Plaintiffs cite NiNihon Keizai Shimbun, Inc. v. Comline Business Data, Inc., 166 F.3d 65 (2d Cir. 1999).  However, NiNihon can be easily distinguished on the facts.  In NiNihon, was a Japanese corporation that published financial, business and industry newspapers -- both in Japanese and in English translation.  The defendant published, for commercial purposes, translated abstracts of the original articles.  "[D]efendants added almost nothing new in their works."  Id. at p. 72.   The court held that the defendant's "infringing abstracts are "not in the least 'transformative.'   That mere translated abstracts would be held to be non-transformative is no surprise.

The facts of Free Republic are very different.  Each "work" on Free Republic consists of an Internet "web page."  See, Defendants' Exhibits 1006 and 1007.  Each web page, contrary to Plaintiffs' characterization, consists of much more than just a posted article.  Once  an article is posted, users of the Free Republic site then post follow-up comments and criticism which are then included into the same web page.  These follow-up comments and criticism are creative works which "add something new" to the original posted articles.  Indeed, these posted follow-up replies are the main reason that users visit the site.  The Court in Nihon, 166 F.3d at 72, quoting Twin Peaks Prods., Inc. v. Publications Int'l, Ltd., 996 F.2d 1366, 1373 (2d Cir. 1993), and Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 579, 114 S.Ct. 1164, 127 L.Ed2d 500 (1994), stated:

 "[T]he fair use factor of purpose and character of use 'is not an all or nothing matter.'  Twin Peaks, 996 F.2d at 1374.  It requires a more nuanced analysis: it asks whether and to what extent the new work 'adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.'  [ Campbell, at p. 579] If the second work is substantially transformative, this factor favors a finding of fair use."

The reply posts, containing comment and criticism, which are added to each web page on Free Republic "alter the first with new expression, meaning or message."

(c)  The Use on freerepublic.com is Noncommercial and in the Public Interest

In analyzing the "fair use" factors, the Supreme Court of the United States, in Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984), upheld and approved of the District Court's analysis in finding that the home use of video recorders was a "fair use."  The Supreme Court, in characterizing the District Court's analysis, noted that the District Court emphasized the "noncommercial character of the use" and that the purpose of the use "served the public interest in increasing access to television programming, an interest 'that is consistent with the First Amendment policy of providing the fullest possible access to information through the public airwaves.' [cite omitted] Even when an entire copyrighted work was recorded, the District Court regarded the copying as fair use 'because there is no accompanying reduction in the market for 'plaintiff's original work.''  Sony, supra, at 464 U.S. 417, 426.  [Underline added.]

In addition, the "scope" of the fair use doctrine is wider when the use relates to issues of public concern.  National Rifle Ass'n of America v. Handgun Control Federation of Ohio, 15 F.3d 559 (6th Cir. Ohio 1994).  "Issues of public concern" are the sine qua non of the existence of Free Republic.  See also, Consumers Union of United States, Inc. v. General Signal Corp., 724 F.2d 1044 (2nd Cir. NY 1983) (Scope of fair use doctrine is wider when information conveyed relates to "matters of high public concern").

Plaintiffs attempt to bootstrap the one-time TalkSpot consulting payment to defendant Jim Robinson into a finding that the Free Republic site is commercial.  Nothing could be further from the truth -- as defendant Jim Robinson has testified.  The only evidence before this Court concerning the interpretation and "meeting of the minds" for the TalkSpot agreement is the testimony and declarations submitted by defendant Jim Robinson.  This testimony is uncontroverted by any evidence submitted by Plaintiffs.  If Plaintiffs wanted to establish to the contrary, they could have taken the deposition of the principals of WorldStream Communications ("WorldStream") -- the other party to the agreement.  But Plaintiffs chose not to do so.  All the evidence concerning the TalkSpot agreement is consistent with a finding that Free Republic is a non-profit public interest web site.

When making a fair use analysis, the "commercial nature" is a "matter of degree" and "not an absolute."  Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2nd Cir. NY 1986).  The "presumption of unfairness" arising from use of copyrighted material for profit making purpose can be rebutted by characteristics of the use.  Hustler, supra, 796 F.2d 1148.  When a use has both commercial and nonprofit characteristics, the court may consider whether the alleged infringing use was "primarily for public benefit" or for "private commercial gain."  Ibid.  Accord, MCA, Inc. v. Wilson, 677 F.2d 180 (2nd Cir. NY 1981).

Plaintiffs also point to the TalkSpot clause assigning rights to user lists to WorldStream.  However, since the beginning of the now-defunct TalkSpot website, defendant Robinson has never shared any user information with any person or entity.[1]  Indeed, the current Free Republic User Registration Agreement expressly provides that Free Republic will not share user information with anyone.[2]

Plaintiffs also contend that the attempt to collect "dues" by a local association of "fans" of Free Republic, which call themselves "Free Republic chapters," somehow transforms the Free Republic site into a for-profit enterprise.  Plaintiffs offer Exhibit "O" to the Wayland Declaration in support of this proposition, which is a web page for such a local "chapter."  However, as set forth in the Declaration of James Robinson In Opposition To Plaintiffs' Motion For Partial Summary Judgment, these local chapters are unconnected with Free Republic, and the web page soliciting dues for this local organization is not taken from the Free Republic site.  It is from an entirely different site.[3]

Last, Plaintiffs seem to think it very significant that the freerepublic.com domain name ends in "com."  This is absurd as saying a "Thunderbird" is a bird that thunders.  It is well known that domain endings are mnemonic devices of convenience -- and that any entity is free to choose among domain "levels" and in fact is free to register multiple domain endings, E.g., *.com, *.net, and *.org,  for the same entity.[4]  Plaintiffs attempt to draw any inference of commerciality from this is spurious.

(2) The Nature of the Copyrighted Work:  Copyrighted Material of a "Factual" Nature, as opposed to creative works of "Fiction", Favor a Finding Fair Use

"Under this factor, the more creative a work, the more protection it should be accorded from copying; correlatively, the more informational or functional the plaintiff's work, the broader should be the scope of the fair use defense."  Nimmer, § 13.05[A][2][a], p. 13-169.    See also, Diamond v. Am-Law Corp., 745 F.2d 142 (2d Cir. 1984).

The Court in the Ninihon case, supra, 166 F.3d at 72, stated:

"[W]hile the articles are original works, and thus protected by copyright, the law recognizes that "some works are closer to the core of intended copyright protection than others.'  Campbell, 510 U.S. at 586, 114 S.Ct. 1164.  As predominantly factual news articles, [the Plaintiff's] articles are less close to the core than more fictional pieces, and their expressive elements, while protectible, are not dominant features of the works."

See also Stewart v. Abend, 495 U.S. 207, 237, 110 S.Ct. 1750 (1990) ("In general, fair use is more likely to be found in factual works than in fictional works.")

There could hardly be more "informational and functional" a work than a newspaper article such as those of Plaintiffs posted on Defendants' site.  See, Defendants' Exhibits 1006 and 1007, a random sample of Plaintiffs' articles posted to Defendants' site.[5]

(3) The Amount and Substantiality of the Portion Used

The copyright registration certificates filed by Plaintiffs show that the "work" registered was the entirety of the daily newspaper -- not the individual articles which make up the daily newspaper.  See, Defendants'  Exhibit 1020.  Thus, any particular article from the copyrighted work which is posted by a user of the Free Republic web site, constitutes a small fraction of the registered work.  However, under the doctrine of "fair use," a finding of "fair use" is not barred even if the entire copyrighted work is copied.  See, Belmore v. City Pages, Inc., 880 F.Supp. 673 (1995);  Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1151 (9th Cir. 1986).  As set forth in section (1) above, the very nature of criticism and comment makes "essential" the copying of an entire article. The subsequent postings of criticism and comment which are then affixed to the web posting have the effect of performing a valuable "transformation" on the posted articles, thereby creating a new and entirely different work -- for the fundamental purpose of the posting are the comment and criticism and not reading the article for the information contained therein.  This can be seen by the review of Exhibits 1006 and 1007, which is a random selection of posts on the freerepublic.com site which contain articles from Plaintiffs' newspapers.  See also, Exhibit 1009 [Transcript of Deposition of James Robinson].

(4)  The Effect upon the Plaintiffs' Potential Market

(a)  Free Republic is a poor substitute for Plaintiffs' Web Sites latimes.com and washingtonpost.com

Through the use of the declaration submitted by Chappell Aldridge, a long-standing and well-known opponent of Free Republic,[6] Plaintiffs attempt to show, by a single anecdotal incident by a clearly biased witness,[7]  that Free Republic is a "perfect substitute" for Plaintiffs' web sites latimes.com and washingtonpost.com and that Plaintiffs' archive fee can be circumvented by locating the same articles on Free Republic.

This is utter nonsense.  Defendants' freerepublic.com web site is a very poor and impracticable substitute Plaintiffs' web sites.[8]  It is difficult, if not nearly impossible, for any internet user desiring to read any of plaintiffs' current original published content, to ever know when such an article is "posted" on the freerepublic.com site.[9]  The only possible way to do this, short of repeatedly searching the 5,000 to 8,000 daily posts during the day on the freerepublic.com site, would be to use one of the various "third party" internet search engines to try to locate plaintiffs' published material, or articles on the same subject -- as Mr. Aldridge purports to have done.  However, this is impractical and unlikely for several reasons.[10]  First, there is a considerable time lag before any of the content on the freerepublic.com site is indexed on such third-party search engines.  In addition, there is considerable difficulty in locating such an article even after it is indexed on third-party search engines.

In order to show this, Defendants' expert, Richard L. Stout, ran his own tests as set forth in the Supplemental Declaration of Richard L. Stout, submitted herewith.  The results were unequivocal.  Using a random selection of searches (unlike the Chappell Aldridge test), Mr. Stout found that the Free Republic site cannot be used as a substitute for Plaintiffs' sites at all -- much less a "perfect" substitute.[11]

This alone makes it impractical to obtain the current news from freerepublic.com as an alternative to the original publishers.  By contrast, visitors to the latimes.com and washingtonpost.com sites can locate articles essentially immediately upon their publication.

(b)  Free Republic  causes website traffic on Plaintiffs' sites to increase -- not to decrease

Because of the rather unique technology involved, Internet web sites are uniquely situated to gather evidence showing the effect of one web site upon the traffic of another.  The currency of Internet web sites are "hits" -- requests for information made to the site from a user's computer.[12]  In determining the effect of one Internet web site upon the website traffic of another, recorded data called web server logs have the ability to show the number of "hits" which were "referred" from one web site to another.[13]  Plaintiffs have alleged that the posting of Plaintiffs' copyrighted content on Defendants' freerepublic.com website has deprived Plaintiffs of "hits" to their websites, and consequently of advertising revenue therefrom.

Through discovery, Defendants have obtained reports prepared by Plaintiffs which are derived from the raw web server logs showing the number of "hits" referred from Defendants' freerepublic.com website to Plaintiffs' web sites, latimes.com and washingtonpost.com.[14]  As set forth in detail in the Declaration of Rick Stout (submitted with Defendants' moving papers) the evidence shows literally tens of thousands, if not hundreds of thousands of hits per month "referred" to Plaintiffs' web sites. [15]

Even without an expert's analysis, the Court can see for itself the thousands of "hits" "referred" to the latimes.com web site by Free Republic by simply looking at the "Referrer Reports" produced by Plaintiffs for the latimes.com site.[16]  And in an August 2, 1999, letter from Plaintiffs' counsel, Exhibit 1060, Plaintiffs admit that these thousands of hits represent only the first hit to Plaintiffs' web site and do not reflect all the hits incurred during the referred users visit to the site.  Plaintiffs introduce absolutely no controverting evidence that they do not gain "hits" from Free Republic-- even though Plaintiffs have even more data in their possession.[17]

This evidence, coupled with the analysis set forth above, showing that the freerepublic.com is a poor substitute for Internet users to locate and read Plaintiffs' copyrighted content, weighs heavily in favor of a conclusion that Plaintiffs have greatly benefitted in terms of "hits" and advertising revenue.  And, in the worst case, the effect of Defendants' website upon Plaintiffs' websites is de minimis.  See,  Declaration of Rick Stout, and exhibits thereto.

The analysis of Mr. Stout was principally done for Plaintiffs' latimes.com site because more data was available for that site.  However, the data to perform a similar analysis for the washingtonpost.com site was and is in possession of Plaintiffs -- but Plaintiffs refused to produce it.[18]  Plaintiffs' failure to controvert this evidence entitles Defendants to infer that the results obtained for the latimes.com site would be similar for the washingtonpost.com site.  Winckler & Smith Citrus Products Co. v. Sunkist Growers, 346 F.2d 1012 (C.A.Cal. 1965).

B.  The First Amendment As An Element of  Fair Use:  To Find Other Than Defendants' Use is a "Fair Use" Would Cloud the First Amendment Rights of Both Defendants and Users of the Free Republic web site

A fundamental purpose for the existence of the freerepublic.com website is  clearly the exercise of the First Amendment rights of users of the site.[19]  Defendants' Exhibits 1006 and 1007 are consistent with Jim Robinson's  testimony that There is evidence that the purpose of Free Republic is to "expose government corruption and to expose the bias of the liberal media."  [Robinson Depo, 56:8-19.]  This further weighs in favor of a finding of "fair use" in light of the purpose of the copying for the expression of First Amendment rights of free speech.  Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) (the "Nation" case); Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1151 (9th Cir. 1986).  See,  Exhibits 1006 and 1007 hereto.

2.  FIRST AMENDMENT AS A SEPARATE DEFENSE (An Issue of First Impression)

Plaintiffs' rather cavalier dismissal of Defendants' First Amendment defense with a metaphorical "wave of the hand" flies in the face of well respected commentators on copyright law.

Defendants, in asserting a First Amendment defense in this context, raise what Defendants believe to be an important issue of first impression of Constitutional magnitude.  Commentators have noted and commented upon a fundamental conflict between the Copyright Clause of the United States Constitution.  A particularly extensive discussion occurs in NIMMER, supra, at § 1.10[A] ("The Need to Reconcile Copyright and the First Amendment").  In commenting upon the tension between copyright law and the First Amendment, Nimmer notes with respect to various conflicts in the law that some analysts avoid conflicts in legal views by keeping them mentally separate.  Borrowing a phrase from Jerome Frank, NIMMER wryly observes, at p. 1-66.43:

"Nowhere is this phenomenon better illustrated than in the "logic-tight compartments" of those devoted to copyright maintaining, on the one hand, their attitude toward copyright, and on the other, their views on freedom of expression under the First Amendment.  Not only is there a general failure to relate one to the other, but there is, moreover, a failure to perceive that views of copyright and the First Amendment, held "side by side," may, in fact, be contradictory."

To understand the conflict at issue, it is worthwhile to quote somewhat extensively from NIMMER.  At p. 1-66.45, NIMMER discusses the paradox between the First Amendment and copyright law:

"It might be contended that copyright laws fall within a built-in exception to First Amendment protection, not by the words of the First Amendment, but by reason of another passage of the Constitution, namely the Copyright Clause[20], expressly authorizing Congress to grant to authors 'the exclusive right' to their 'writings.'  However, there are several reasons why refuge for copyright may not be found in this manner. First, if a completely literal reading of the First Amendment is to be made, then we must likewise recognize that the First Amendment is an amendment, hence superseding anything inconsistent with it that may be found in the main body of the Constitution.  This, of course, includes the Copyright Clause.  In any event, even were the original Constitution and the Bill of Rights to be viewed as a single instrument, the Copyright Clause may not be read as independent of and uncontrolled by the First Amendment.  Because Congress is granted the authority to legislate in a given field, it does not follow that such a grant immunizes Congress from the limitations of the Bill of Rights, including the First Amendment."  [citing footnotes omitted]

NIMMER, at pp.1-6646 and 1-67, points out that there is an unacceptable tendency in the Courts to resolve such constitutional conflicts with "ad hoc balancing" in each case.  However, NIMMER explains, at p.1-67, that in recent years a resolution of such dilemmas has begun to emerge in decisions of the United States Supreme Court which commentators have termed "definitional balancing" of speech and nonspeech interests.  "The crucial difference, however, lies in the fact that the balancing is not for the purpose of determining which litigant deserves to prevail in the particular case before the court, but rather for the purpose of determining which forms of speech are to be regarded as 'speech' within the meaning of the First Amendment.  Definitional balancing, unlike its 'ad hoc' cousin, creates a rule that may guide those who wish to speak, and that may further shield the courts in some degree from the pressures of a public aroused against a particular speaker."  NIMMER, § 1.10[A], p. 1-68.

NIMMER, at p. 1-69, points out that: "Rather surprisingly, up to now the Supreme Court of the United States has not found it necessary fully to delineate the respective claims of copyright and freedom of speech. [citing footnote omitted] One can predict with confidence, however, that such a confrontation will eventually occur, as it has already occurred in the lower courts.  Those concerned with copyright, and those concerned with freedom of speech (and it is suggested that the latter includes the former) must then turn their minds to the policy questions that underlie an acceptable definitional balance between these two interests."

The decisions to date which have expressly considered the impact of the First Amendment in copyright infringement actions have generally done so by treating a defendants' First Amendment rights as an element of the "fair use" defense.  In Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) (the "Nation" case), Nation magazine reprinted, without authorization, 300 words from the memoirs of President Gerald Ford.  Nation magazine asserted both "fair use" and First Amendment defenses.  However, the Court "limited its inquiry to 'the traditional equities of fair use.'"  NIMMER, § 1.10[C], p, 1-82.  Similarly, in Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1151 (9th Cir. 1986), the court treated First Amendment concerns as an element of the "fair use" doctrine.

NIMMER, however, at § 1.10[D], p.1-99, suggests that the Nation case may be distinguishable, opines that assuming, arguendo, that if portions of the copyrighted content are 'newsworthy' "not merely in the sense that they pique popular interest, but further in the sense that vital news elements will be lost unless the exact language can be quoted," or where the "copying of the expression is essential effectively to convey the idea expressed, then the line between First Amendment and copyright interests may have been drawn differently. 

In the case of Free Republic it is difficult to see how site users could opine upon and criticize the "mainstream media's" coverage of current events and politics, and comment upon material omissions or bias therein, without including for comment the entirety of the article being criticized.[21]

CONCLUSION

Under both the "fair use" doctrine, and under their First Amendment right of free speech, Defendants pray the Court for a finding of "fair use" and a granting of their motion for summary judgment.

DATED:  November 1, 1999

Respectfully Submitted,

LAW OFFICES OF BRIAN L. BUCKLEY


By: ______________________________
                 Brian L. Buckley, Esq.

Attorneys for Defendants FREE REPUBLIC,
ELECTRONIC ORCHARD, and
JAMES C. ROBINSON s/h/a JIM ROBINSON

Footnotes

[1]  Supplemental Declaration of James Robinson, submitted herewith, ¶¶ 2-3.

[2]  Ibid. and Defendants' Exhibit 1065.

[3]  Supplemental Declaration of James Robinson, submitted herewith, ¶¶ 5.

[4]  See, Supplemental Declaration of Richard L. Stout, submitted herewith, ¶¶ 35-38; and see, Defendants' Exhibit 1064, a copy of Network Solutions' [the company under contract to Internic for the assignment of *.com domain names] Glossary, Help, Fact Sheet, and Company Profile  pages which discuss the choice  of domain "levels" or endings.  [Authenticated in Buckley declaration.]

[5]  See, Declaration of Richard L. Stout in Opposition To Plaintiffs' Motion For Partial Summary Judgment, for an explanation of how these random articles were selected.

[6]  See, Declaration of Chappell Aldridge submitted by Plaintiffs, and see, Declaration of James Robinson in Opposition To Plaintiffs' Motion For Partial Summary Judgment.

[7]  Ibid.

[8]  Supplemental Declaration of Richard L. Stout, submitted herewith, ¶¶ 3-25.  After an detailed analysis of the tests run, Mr. Stout concludes, at ¶ 25: "In my professional opinion, the FreeRepublic web site is not merely an extremely poor substitute for real news sources for the general public looking for the news.  In fact, it is no substitute at all."

[9]  Ibid.

[10]  See, Declaration of Richard L. Stout in Opposition To Plaintiffs' Motion For Partial Summary Judgment, ¶¶ 49-50; and Defendants' Exhibit 1009  [Deposition of James Robinson], pp.82-83.

[11]  Supplemental Declaration of Richard L. Stout, submitted herewith.

[12]  See, the Declaration of Rick L. Stout in Opp. To Pltfs. Motion For Partial Summary Judgment; Exhibits 1009 - 1012 [Deposition Transcripts] and exhibits thereto.

[13]  Ibid.

[14]  See, Defendants' Exhibits 1021 - 1030.

[15]  Declaration of Richard L. Stout in Support of Defendants' Motion For Summary Judgment

[16]  See, for example, Defts Exhibit 1021 (March, 1998 Referrer Report), p.5, 836 initial hits (at left edge); Exhibit 1022 (April, 1998 Referrer Report), p. 5, 851 initial hits + p.6, 659 initial hits + p.8, 482 initial hits + p.13, 248 initial hits; Exhibit 1024 (July, 1998 Referrer Report), p.5, 714 intial hits +  p. ; and see, Exhibits 1021-1030 [Monthly latimes.com Referrer Reports] generally; and see, Declarations of Richard L. Stout in Support of Defendants' Motion For Summary Judgment, and Defendants' Opposition to Plaintiffs' Cross-Motion For Partial Summary Judgment, for an estimate of the "multiplier" showing the average number of page views for every single one of these referred "hits."

[17]  See, Defendants Exhibit 1060; Declaration of Richard L. Stout in Opposition To Plaintiffs' Motion for Partial Summary Judgment; and Defendants' "Emergency" Ex Parte Application For a Continuance of the Summary Judgment Motion Briefing and Hearing Schedule

[18]  See Defendants' Exhibit 1060 [8/2/99 Letter from Plaintiffs' counsel Heather Wayland], and Exhibits 1061-1063 [Plaintiffs' first amended discovery responses].

[19]  See, Defendants' Exhibit 1009 [Robinson Depo], pp. 51-52, 56:8-19 and Exhibits 1006 and 1007.

[20]  U.S. Constitution, article I, § 8.

[21]  See, the Declaration of Rick L. Stout, and Exhibits 1006, 1007 and 1009 [Deposition Transcript of Jim Robinson deposition.]