Editor's Notes:
 • Appellants' attorney, Brian Buckley, kindly provided Tech Law Journal with a word processor version of this brief.
 • Tech Law Journal converted the word processor document into HTML.
 • Several features were eliminated in the conversion, including pagination and double spacing.
 • Footnotes were converted into endnotes.
 • The Certificate of Compliance Pursuant to Fed.R.App. 32(a)(7)(C) and Circuit Rule 32-1 for Case Number 00-57211 and Statement of Related Cases were omitted.
 • See also, Tech Law Journal summary of the case.
 • Copyright Tech Law Journal. All rights reserved.

Court of Appeals Docket No. 00-57211

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LOS ANGELES TIMES, and THE WASHINGTON POST COMPANY and its wholly owned subsidiary, WASHINGTON.NEWSWEEK INTERACTIVE COMPANY,

Plaintiffs-Appellees,

vs.

FREE REPUBLIC, ELECTRONIC ORCHARD, JIM ROBINSON

Defendants-Appellants.

BRIEF OF APPELLANTS

Appeal from Final Judgment of the United States District Court,
Central District of California (Hon. Margaret M. Morrow)
U. S. Dist. Ct. No. CV-98-7840 MMM (AJWx)

Defendant-Appellant Free Republic is a not-for-profit limited liability company which has no parent corporations. No publicly held company owns any interest in Free Republic.

Defendant-Appellant Electronic Orchard is a now-defunct limited liability company which has no parent corporations. No publicly held company owns any interest in Electronic Orchard.

Dated: April 16, 2001

TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases

Statutes

The District Court had jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1338(a).

This Court has jurisdiction over this appeal under 28 U.S.C. § 1291 because the final judgment appealed from was a final determination of all claims by all parties in this copyright infringement action. See, the Complaint (ER, 1), and see, the Final Judgment (ER, 36).

Final Judgment (ER, 36) was entered on November 16, 2000. The Notice of Appeal (ER, 37) was filed on December 15, 2000. See also, trial court Docket Sheet (ER, 38:12). Thus, this appeal is timely pursuant to Fed. R. App. P. 4.

II. ISSUES PRESENTED

1. Are the owner/operators of a nonprofit "bulletin board" internet website which permits the posting of articles for discussion liable for contributory infringement of the copyrighted newspaper articles which are posted by third-party users of the website?

2. Where the principal purpose of such a "bulletin board" website is political discussion and commentary, do newspaper articles posted by third-party users for discussion fall under the "fair use" exception to the copyright statutes as codified in 17 U.S.C. § 107?

3. When applying the first "fair use" factor of 17 U.S.C. § 107, viz., the "purpose and character of the use," does the fact that such a website is supported by contributions from third-party users weigh against a finding that the "bulletin board" website exists for "nonprofit educational purposes" within the meaning of 17 U.S.C. § 107?

4. When numerous postings by third-party users of the website are appended (posted) to the putative infringing newspaper article for purposes of political discussion and commentary, or for purposes of discussing the quality or bias of the newspaper's coverage of political events, are the appended comments and discussion "productive" and "transformative" uses of the original work?

5. Can the bulletin-board website's owner/operators assert their own and third-party users' rights of free speech under the First Amendment as a separate affirmative defense to alleged copyright infringement?

6. Is there a conflict between the First Amendment and the Copyright Clause (Article I, § 8) of the United States Constitution rendering certain portions of the copyright statutes unconstitutional? (Prof. Nimmer, Nimmer on Copyright, has commented that this is an issue of first impression.)

This is an appeal from a final judgment in a copyright infringement action which was brought by the Los Angeles Times and Washington Post newspapers and by Washington.Newsweek Interactive, a subsidiary of the Washington Post which publishes an online version of the newspaper (collectively "Plaintiffs-Appellees" or "Appellees").[1] The action was brought against Free Republic, a nonprofit limited liability company which owns and operates the FreeRepublic.com internet website, against its founder and co-owner, Jim Robinson, and against Electronic Orchard a now-defunct internet consulting company co-owned and operated by Jim Robinson (collectively "Defendants-Appellants" or "Appellants").

FreeRepublic.com is a politically-oriented "bulletin board" internet website which allows registered third-party users[2] of the website to post articles, letters, comments, and generally, any document or comment which can be expressed in standard internet "HTML" code.[3] Once an article is "posted" to the freerepublic.com site, other users can then append comments, discussion and criticism thereby creating a "thread" of discussion on the same web page concerning the posted material. Numerous articles from the Los Angeles Times and Washington Post were posted for discussion by third-party users of the freerepublic.com website. In some few instances, such articles were posted by Jim Robinson himself.

On September 28, 1998, Appellees brought a copyright infringement action against Appellants in the U. S. District Court, Central District in Los Angeles alleging that the freerepublic.com website infringed on Appellees' copyrights by republishing verbatim copies of copyrighted articles.[4]

After extensive discovery, the parties brought cross-motions for partial summary judgment on the "fair use" and First Amendment affirmative defenses asserted by Appellants.[5] Ultimately, the trial court found that only one of the four principal "fair use" factors favored Appellants and disallowed Appellants' First Amendment defenses.[6] The trial court granted Appellees' motion for partial summary judgment on these issues and denied Appellants' motion for summary judgment. In order to seek expeditious appellate review of these issues, Appellants waived their remaining defenses and stipulated to entry of judgment.[7] The final judgment permanently enjoins Appellants from posting or facilitating any posting of Appellees' copyrighted material (other than allowable "fair use") and awards Appellees $ 1 million in statutory damages against appellants Free Republic and Jim Robinson for contributory infringement of Appellees' copyrights.[8] Judgment was entered on November 16, 2000. Appellants filed their Notice of Appeal on December 15, 2000.

Appellant Free Republic is a not-for-profit[9] politically-oriented "bulletin board" internet website begun as a hobby by appellant Jim Robinson ("Robinson"). The freerepublic.com website allows visitors to the site to "post" articles and commentary to the site which can then be read and commented upon by other visitors to the site. Robinson created Free Republic in 1996 out of sheer frustration. He was dissatisfied with the then Presidential administration ("Administration") and with "mainstream" media coverage of the Administration's policies and activities.[10] Frustrated with the inability on other internet sites and forums to engage in a completely free and open discussion of news, politics and media coverage of them, Robinson created freerepublic.com to provide an alternative that would allow truly free and uncensored speech.[11] Before creating Free Republic, Robinson frequented other internet discussion sites and was frustrated by their censorship and restrictions upon straight talk and free speech.[12]

Already in the computer consulting business, Robinson saw the need to create an alternative forum.[13] He worked on Free Republic in his spare time until Muscular Dystrophy forced his retirement and confined him to a wheelchair.[14]

[begin page 9]

When Robinson was terminated by his former employer, he started Electronic Orchard with the help of his son, John Robinson, and a former co-worker, Amy Defendis, in the hope of doing Internet computer consulting.[15] Electronic Orchard, now defunct, had only very modest revenue.[16]

An examination of sample "posts" to the freerepublic.com website will reveal that the discussion "threads" are usually either an exercise of First Amendment free speech rights concerning political topics, have an educational purpose, or criticize and comment upon "mainstream" media coverage of governmental affairs.[17]

The standard of review for this Court is de novo in reviewing a final judgment based upon the granting of a motion for summary judgment.

Appellants contend that trial court, in its order granting summary judgment to Appellees, essentially accurately characterized Appellants' contentions but failed to consider all the evidence and erred in weighing the evidence as regards the "fair use" factors. Appellants contend that the factors weigh in favor a finding of fair use. Each of the factors is treated of in detail in the argument below.

Since the four statutory "fair use" factors provided for in 17 U.S.C. § 107 are nonexclusive, Appellants also assert their First Amendment right of free speech as an additional factor to be weighed by the this Court.

Appellants also raise the First Amendment as a separate affirmative defense to the alleged contributory infringement. Appellants believe this to be an issue of first impression.

VI. ARGUMENT

The principal issues raised in this appeal are: (1) Whether or not the postings of Appellees' newspaper articles to the freerepublic.com "bulletin board" website for discussion are "fair use" within the meaning of 17 U.S.C. § 107; and (2) Whether or not the First Amendment of the U. S. Constitution can be asserted by Appellants as a separate defense.

The final judgment below was based upon, and incorporated therein, the trial court's order granting Appellees' motion for partial summary judgment.[18] No trial was had in this matter. Hence, this Court reviews the record de novo applying the same standard as the district court. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.1998). A motion for summary judgment is properly granted only if there is no genuine issue as to any material fact. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court must draw all justifiable inferences in favor of the nonmoving parties, including questions of credibility and of the weight to be accorded particular evidence. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520 111 S.Ct. 2419, 2434-35, 115 L.Ed2d 447 (1991); T. W. Electric Service, Inc. v. Pacific Electric Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987).

In absence of an available defense, a plaintiff need only establish by a preponderence of evidence the required elements of (1) ownership of a valid copyright and (2) copying of the original elements of the protected work.[19] Nimmer, supra, p. 13-148, § 13.04; Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1151 (9th Cir. 1986) citing Melville B. Nimmer & David Nimmer, Nimmer on Copyright [Matthew Bender 1999] § 13.01; Feist Publications v. Rural Telephone Service Co., 499 U.S. 340, 361 (1991); Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1043, n.2 (9th Cir. 1994).

The defense of "fair use" evolved in decisional law even before being codified in 1976 as 17 U.S.C. § 107. "[T]he courts have long recognized that certain acts of copying are defensible as 'fair use.'" Melville B. Nimmer & David Nimmer, Nimmer on Copyright [Matthew Bender 2000] ["Nimmer"], p. 13-149, § 13.05. "The Copyright Act of 1976 for the first time accorded express statutory recognition of this judge-made rule of reason. However, this codification was 'intended to restate the present [e.e., pre-1978] judicial doctrine of fair use, not to change, narrow, or enlarge it in any way." Ibid. "Therefore, in determining the scope and limits of fair use, reference must be made to pre- as well as post-1978 cases." Ibid. "The statutory formulation of the defense of fair use in the Copyright Act of 1976 reflects the intent of Congress to codify the common-law doctrine." Harper & Row Publishers, Inc. v. National Enters., 471 U.S. 539, 549 (1985) [citing Nimmer].

The "fair use" exception, codified as 17 U.S.C. § 107 sets forth four nonexclusive factors to be included among the factors considered in evaluating "fair use." 17 U.S.C. § 107 provides:

"§ 107. _Limitations on exclusive rights: Fair use

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--

(1)_the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2)_the nature of the copyrighted work;

(3)_the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4)_the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

The House Committee on the Judiciary, in its comments on the 1976 Act which first codified the "judicial doctrine of fair use" characterized the doctrine as "one of the most important and well-established limitations on the exclusive right of copyright owners."[20] The Committee explained that the fair use doctrine is an equitable rule of reason:[21]

"Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts."

See also, Nimmer, supra, § 13.05 at p.13-150. "The 1976 statutory formulation of the defense of fair use in the Copyright Act of 1976 reflects the intent of Congress to codify the common-law doctrine." Harper and Row, supra, 471 U.S. 539 at 549 (1985). Nimmer, supra, § 13.05[A], p.13-153, citing, inter alia, New Era Publications Int'l v. Carol Pub. Group, 729 F. Supp. 992 (S.D.N.Y. 1990) states:

"Strictly speaking, Section 107, does not attempt to define "fair use." Rather, it lists 'the factors to be considered' for the purpose of 'determinining whether the use made of a work in any particular case is a fair use." It does not, and does not purport to, provide a rule that may automatically be applied i deciding whether any particular use is "fair." [citing footnote omitted] This is so for several reasons. First, the factors contained in Section 107 are merely by way of example, and are not an exhaustive enumeration. [citing footnote omitted] This means that factors other than those enumerated may prove to have a bearing upon the determination of fair use."

Thus, the statutory factors in determining whether particular use of copyrighted work is fair are not exclusive; the doctrine of fair use is in essence an equitable rule of reason. Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (C.A.9 Cal. 1992). See also, the discussions of the fair use factors in American Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1995); Twin Peaks Productions, Inc. v. Publications Intern., Ltd., 996 F.2d 1366 (CA2 NY 1993), Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co., Inc., 900 F.Supp. 1287 (C.D.Cal. 1995), Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148 (9th Cir. 1986).

In a rather thoroughly-stated ruling on the parties' cross motions for summary judgment, the trial court essentially correctly recognized and articulated Appellants' contentions concerning their fair use defense. (See, ER, 34). The court, however, found that only one of the four statutory factors, the "nature of the copyrighted work," weighed in Appellants' favor. The court found that the "balance of all factors tips toward plaintiffs." (ER, 34, 2:12-16) The court disallowed Appellants' fair use defense. Ibid. Appellants contend that the trial court incorrectly weighed the relevant fair use factors, failed to consider all relevant evidence supporting Appellants' defense, and failed to view the facts "in the light most favorable to the nonmoving party." Masson v. New Yorker Magazine, supra, 501 U.S. 496 at, 520; 111 S.Ct. 2419, 2434-35, 115 L.Ed.2d 447 (1991); Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999); and see, Section A above.

In addition, subsequent to entry of final judgment in this matter, one of Plaintiffs-Appellees' principal witnesses, Thomas Chappell Aldridge, was entirely discredited and is now the subject of an injunction issued by the U. S. District Court, Eastern District of Virginia, barring Aldridge from further disrupting the operation of the freerepublic.com website.[22]

1.  First Factor: Purpose and Character of Use

The first factor set forth in 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." In analyzing this first factor, Nimmer,

§ 13.05[A][1][a], explains:

"This inquiry in itself does not specify which purposes -- beyond the 'nonprofit educational' -- will tend to render a given use 'fair,' and which will not. But the preamble to Section 107 does enumerate certain purposes that are most appropriate for a finding of fair use: 'criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research.' It is important to stress that these purposes should be considered by the court among others that are not specifically enumerated; it has been held to be error for the trial court to refrain from considering the four fair use factors on the ground that the use did not fall within the preamble enumeration." [citing footnotes omitted.]

Nearly all of the preamble's specifically enumerated factors apply directly to Free Republic. Free Republic falls directly within the "'criticism, comment, and news reporting" factors. Indeed, this was it's very purpose.[23] In addition, there is arguably an educational element to the Free Republic website. Ibid.

a.  Free Republic Is A Poor Substitute For Appellees' Websites

The exact purpose of the copying of a copyrighted work is also extremely important for the first fair use statutory factor. An extensive discussion of such purposes is contained in American Geophysical Union v. Texaco, Inc., supra, 60 F.3d 913, Section II (2d Cir. 1995). 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 noted that the copies in that case were made for essentially the same purpose for which sales of the original were intended. By contrast, when users "post" articles for discussion and comment to the Free Republic "bulletin board" site, such postings are made for a very different purpose from the intended purpose of the original Los Angeles Times and Washington Post articles. The value of the original publication of articles by plaintiffs Los Angeles Times and Washington Post is twofold. First, a visitor to plaintiffs' websites, or a reader of copyrighted content in plaintiffs' newspapers does so for one of two reasons: (1) To read articles containing current news, articles and commentary created by either the Los Angeles Times or the Washington Post; or (2) to research such content in archived versions of plaintiffs' publications after the fact. In either case, Defendants' freerepublic.com web site is a very poor and impracticable substitute for either of these purposes.[24]

As can be seen from the randomly selected[25] posted articles in (ER, 23) and (ER, 24) the purpose of the posting of articles by users of the freerepublic.com "bulletin board" feature is quite different. The subsequent comments and criticism in the posted replies shows that the purpose of the "posting" of these articles is to enable other users of the site to comment upon the article and to criticize or praise the quality of the media coverage of current and political events.[26] It is not to allow freerepublic.com to be used as a substitute for the original publications. Thus, unlike the facts in American Geophysical Union v. Texaco, Inc., supra, 60 F.3d 913, Section II (2d Cir. 1995), the purpose of the "copying" of copyrighted content onto the freerepublic.com site is very different from, and a poor substitute for, the published original content.

b.  The Use of Original Works On Free Republic is both Productive and Transformative

Nimmer notes that whether or not a use of an original copyrighted work by a putative infringer is "productive" is of "crucial importance" in analyzing the first fair use factor. And whether the new use is "transformative" factors heavily into whether that use is "productive." Nimmer, supra, at p. 13-160, § 13.05[A][1][b] explains:

"In Campbell v. Acuff-Rose Music, Inc., the Supreme Court characterized the "central purpose" of the investigation under the first fair use factor as determining whether "the new work merely supersedes the objects" of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, "whether and to what extent the new work is 'transformative.'" Conceding that "such transformative use is not absolutely necessary for a finding of fair use," the Court nonetheless ruled that "the goal of copyright ... is generally furthered by the creation of transformative works," adding the "the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." Whatever the label, therefore, productive use is now of crucial importance to the fair use analysis." [Underline added.]

Could anyone reasonably claim that the use of posted works on freerepublic.com for purposes of free speech, criticism and commentary -- including critical analysis of media coverage of governmental affairs -- is not productive? To what more productive use, to what more valuable use to the American public, could such works be put? Appellants contend that the use of copyrighted works clearly satisfies this standard set out by our Supreme Court and that this first fair use factor weighs in favor of Defendants-Appellants.

Indeed, the use of original works posted to freerepublic.com is also transformative. The appending of critical commentary and new information onto the same web page with the posted article is transformative of the original work within the meaning of Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 114 S.Ct. 1164 (1995). "A work is transformative when it adds something new to another work with "a further purpose or different character, altering the first with new expression, meaning or message." Campbell, at p. 579. Do not the appended comments and criticism on freerepublic.com add new meaning and message to the original works? See, (ER, 23) and (ER, 24).

Appellants contend that the use of original works on the freerepublic.com site are both productive and transformative and that this first factor weighs in favor of Defendants-Appellants.

c.  Free Republic Is Not "Commercial" Within The Meaning of 17 U.S.C. § 107

The mere fact that a use is "commercial" does not "give rise to a presumption of unfairness." Sony Computer Entertainment, Inc. v. Connectix Corp., 203 F.3d 596, 606 (9th Cir. 2000). A commercial use is only "a separate factor that tends to weigh against a finding of fair use." Campbell, supra, 510 U.S. at 585. 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." [Underline added.] Ibid. Accord, MCA, Inc. v. Wilson, 677 F.2d 180 (2nd Cir. NY 1981).

Notwithstanding the foregoing, Free Republic is not a commercial enterprise. As set forth in the Statement of Facts, infra, Appellant Jim Robinson started the site as a hobby. The site is supported by contributions from users and Robinson takes no salary or benefits.[27]

2.  Second Factor: The Nature of the Copyrighted Work

"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). In NiNihon Keizai Shimbun, Inc. v. Comline Business Data, Inc., 166 F.3d 65, 72 (2d Cir. 1999), the court 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.")

As the trial court for the within action indicated in its ruling on the parties' cross motions for summary judgment (ER, 34, 28):

"A number of cases that have analyzed alleged copying of news articles or videotapes of news events have concluded that the second fair use factor weighs in the defendant's favor. See, Reuters Television, supra, 149 F.3d at 994 (the court held that the second factor weighed in favor of defendants that copied news footage); Los Angeles News Service v. KCAL-TV Channel 9, 108 F.3d 1119, 1122 (9th Cir. 1997) (the second factor weighed in favor of a finding of fair use where defendants copied news footage); Los Angeles News Service v. Tullo, 973 F.2d 791, 792, 798 (9th Cir. 1992) (the second factor favored a video news clipping service that used portions of copyrighted videotapes of newsworth events)."

There could hardly be a more "informational and functional" work than a newspaper article such as those of Appellees' which were posted on freerepublic.com. See, (ER, 23) and (ER, 24).

3.  Third Factor: The amount and Substantiality Of The Portion Used In Relation To The Copyrighted Work As A Whole

While it is true that for purposes of analyzing this third factor, "[g]enerally, no more of a work may be taken than is necessary to make the accompanying comment understandable,"[28] Appellants contend that the criticism and commentary function of the freerepublic.com site could not be served in most cases without the full text of the posted article.[29] As already indicated, one of the very purposes for the creation of Free Republic was to provide a forum to criticize the "mainstream" media coverage of political and governmental affairs. See, Statement of Facts, infra. It would hardly be possible to comment on omissions and errors of the media without posting the entire article. How could one even point out omissions in an articles' coverage without posting the entire article?[30]

Nimmer, supra, at § 13.05[D][1], notes that in certain limited situations where the alleged infringing use is for a different functional purpose, even wholesale copying of entire copyrighted works may be regarded as a fair use. Nimmer, states:

"It would seem, nevertheless, that there may be certain very limited situations wherein copying of even the entire work for a different functional purpose may be regarded as a fair use. Indeed, the Supreme Court has even validated complete copying in the context of time-shifting of television programs. As these exceptional situations are considered below, it should be borne in mind that the defendant's different functional usage may serve a different aspect of the goals of copyright from plaintiff's; it is also possible that defendant's different functional usage may serve laudable goals altogether disparate from those underlying copyright protection."

"Courts balance these factors to determine whether the public interest in the free flow of information outweighs the copyright holder's interest in exclusive control over the work. Hustler, supra, 796 F.2d 1148, 1151, citing DC Comics, Inc. v. Reel Fantasy, Inc., 696 F.2d 24, 27 (2d Cir. 1982).

Plaintiffs-Appellees contend that the freerepublic.com site affects the value of their copyrighted works in two ways. First, Appellees claim that if a user of the latimes.com or the washingtonpost.com seek to view an article in one of their archives, such a user could circumvent paying a fee by locating the same article on the freerepublic.com site. However, as more fully explained in Section VI.B.1.a, infra, this contention of Plaintiffs-Appellees is factually incorrect. Defendants-Appellants retained Richard L. Stout, an internationally known Internet website traffic statistics expert, to analyze the potential loss of "hits" to Plaintiffs' websites. In addition to this website traffic evaluation, Mr. Stout also ran tests to evaluate the foregoing contentions of Plaintiffs-Appellees and to determine how good of a market "substitute" the freerepublic.com website is for Appellees' websites.[31]

Stout performed actual tests using Internet search engines to see how easy it would be for a visitor to Appellees' websites to circumvent paying a fee to Appellees by locating the same article on the freerepublic.com site. Stout's conclusion after running numerous tests was: "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 news. In fact, it is no substitute at all." (ER, 27, 8, ¶ 25) Plaintiffs offered essentially no controverting evidence. See, fn.24, infra.

Plaintiff's second contention concerning the affect on the value of their websites is that "hits" and "page views" are diverted away from their websites to the freerepublic.com site resulting in a loss of advertising revenue to their site. However, after extensive discovery and analysis by Mr. Stout, this contention turns out to be also factually incorrect. Rather than losing "hits" or viewers to their website, Plaintiffs-Appellants actually gained traffic to their website[32] resulting in a small increase in their advertising revenue.[33]

Having been caught flat-footed on the facts, Plaintiffs-Appellants turned to the "fallback" position of asserting that even if freerepublic.com caused them no loss in revenue, they would suffer a loss in revenue should "bulletin-board" sites such as freerepublic.com become widespread. However, Plaintiffs offer not a scintilla of evidence to support this contention. They merely assert it in a conclusory fashion. The clear evidence shows that Plaintiffs-Appellants are actually benefitted by the existence of the freerepublic.com site. If they seek to prevail on the "widespread use" theory, the burden was on Plaintiffs-Appellees to support their contention with evidence. There is none in the record. As set forth in Section VI.A, infra, when reviewing the granting of a motion for summary judgment, this Court is required to draw all justifiable inferences in favor of the nonmoving parties, including questions of credibility and of the weight to be accorded particular evidence. Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520 111 S.Ct. 2419, 2434-35, 115 L.Ed2d 447 (1991); T. W. Electric Service, Inc. v. Pacific Electric Contractors Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987). Plaintiffs-Appellants failed to meet their burden. The evidence in the record tips this fourth fair use factor in favor of Appellants.

As outlined above, the four statutory fair use factors are nonexclusive. That is, the Court may consider other factors as part of the "rule of reason" weighing.

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.[34] The sample posts contained in (ER, 23) and (ER, 24) are consistent with Jim Robinson's testimony that the purpose of Free Republic is to "expose government corruption and to expose the bias of the liberal media." Robinson Depo, (ER, 9, 438:8-19. 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 right 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).

This exercise of First Amendment rights facilitated by freerepublic.com should further weigh in favor of Appellants.

It is indeed ironic, that two of the largest newspapers in the world -- normally champions of the First Amendment -- herein seek to restrict the First Amendment rights of Appellants.

Appellants, in asserting their First Amendment rights as a separate and independent 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 First Amendment and 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,[35] 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, and 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.

For the reasons set forth herein, Defendants-Appellants respectfully request that this Court: (1) Find that the fair use factors weigh in favor of Appellants; (2) Hold that Appellants are entitiled to assert their First Amendment rights as a separate defense; (3) Vacate the judgment of the District Court and the order granting partial summary judgment to Appellees; and (4) Direct the District Court to enter judgment in favor of Defendants-Appellants.

Dated: April 16, 2001

Respectfully submitted,

__________________
Brian L. Buckley
Attorney for defendants-appellants
Free Republic, Jim Robinson and
Electronic Orchard

Footnotes

[1] The Los Angeles Times also publishes an online internet version of the newspaper.

[2]  There is no charge or fee for registration.

[3] HTML stands for "HyperText Markup Language."  Essentially all web pages on the internet are written in HTML code.

[4] See, Complaint (ER, 1).

[5]  See, Plaintiffs' Notice of Motion and Motion For Partial Summary Judgment (ER, 6), and see, Defendants' Notice of Motion and Motion For Summary Judgment (ER, 13).

[6]  See, the trial court's Order Granting Plaintiffs' Motion For Partial Summary Judgment and Denying Defendants' Motion For Summary Judgment (ER, 34).

[7]  See, Stipulation For Entry of Final Judgment (ER, 35), and see, Final Judgment (ER, 36).

[8]  No damages were awarded against defendant-appellant Electronic Orchard.

[9] See, Declaration of Howard K. Szabo (ER, 16, 1-2); Supplemental Declaration of James Robinson In Support Of Defendants' Motion For Summary Judgment (ER, 28, 1-2) [hereinafter "Robinson Decl. #2"]; and Transcript of the 6/23/99 Deposition of Jim Robinson, taken by Plaintiffs-Appellees (hereinafter "Robinson Depo") (ER, 9, 383 at 406-408)

[10]  See, Jim Robinson Profile from "Live Odds London" (ER, 19) produced to Appellants By Appellees; and see, Robinson Declaration (ER, 22, 5-6).

[11] Ibid.

[12]  Ibid.

[13]  Robinson Declaration (ER, 26, 2-3).

[14]  Ibid., and see, Robinson Depo (ER, 9, 406-408)

[15]  Robinson Declaration (ER, 26, 4, ¶¶ 25-28).

[16]  Id. at ¶ 28.

[17]  At (ER, 23) and (ER, 24) are randomly-selected sample "threads" resulting from posted Los Angeles Times and Washington Post articles. These posts will give the Court a feel for how the freerepublic.com site works.  (These are a random subset of posts of Appellees' articles -- not a random selection of all posts on the website.)  For a more complete explanation of how these random posts were selected, see, Declaration of Richard L. Stout In Opposition To Plaintiffs' Motion For Summary Judgment (ER, 22, 12-13).

[18]  See, Order Granting Plaintiffs' Motion For Partial Summary Judgment and Denying Defendants' Motion for Summary Judgment (ER, 34), and see, Final Judgment (ER, 36).

[19]  This is the standard for establishing direct infringement as opposed to contributory infringement.

[20] See, Exhibit A to Defendants' Request for Judicial Notice, Notes of Committee on Judiciary, House Report No. 94-1476, included in the annotation to 17 U.S.C. § 107, of West's United States Code Annotated, at Paragraph 1.

[21] Id., at Paragraph 2.

[22]  See, Appellants' Request For Judicial Notice, filed concurrently herewith; and see, Chappell Aldridge Decl. (ER, 12, 1-2); Robinson Decl. #1 (ER, 26, 8-12).

[23]  See, Robinson Declaration (ER, 26, 2-3), and see, (ER, 23) and (ER, 24), randomly-selected sample "threads" resulting from posted Los Angeles Times and Washington Post articles with the resulting appended criticism and comment.

[24]  Appellants' Internet website expert, Richard L. Stout, a world-recognized Internet expert, performed actual tests using Internet search engines to see how easy it would be for a visitor to Appellees' websites to circumvent paying a fee to

Appellees by locating the same article on the freerepublic.com site.  See, Stout Decl. (ER, 27, 1-8).  Stout's conclusion after running numerous tests was: "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 news.  In fact, it is no substitute at all." (ER, 27, 8, ¶ 25)

Plaintiffs-Appellees submitted essentially no evidence to controvert these tests run by Mr. Stout.  In declarations submitted in support of summary judgment, Appellees' employees Perruso (ER, 11, 1-5, ¶¶ 21-22) and Koefoot (ER, 10, 3, ¶¶ 13-17) merely assert in conclusory fashion that users of Appellees' websites are using  freerepublic.com to circumvent paying fees to Appellees.  However, they run no tests whatsoever to contravert the tests run by Stout.

The only purported "test" offered to the trial court by Plaintiffs-Appellees was a "test" purportedly run by Thomas Chappell Aldridge, ' (ER, 12, 1-2) a known hostile and frequent user of the freerepublic.com site.  See, Robinson Decl. #1 (ER, 26, 8-12).  The trial court read and considered the declaration submitted by Aldridge, and overruled Defendants-Appellants' objections thereto.  See, Order (ER, 34, 8, fn.28).  Subsequent to entry of judgment, Aldridge was entirely discredited and, after pleading the Fifth Amendment, is now the subject of an injunction issued by the U. S. District Court, Eastern District of Virginia, barring Aldridge from further disrupting the operation of the freerepublic.com website.  See, Appellants' Request For Judicial Notice, filed concurrently herewith, for a copy of the Stipulated Injunction of the Virginia U. S. District Court.

Aside from this now-discredited testimony from Aldridge, there is no evidence in the record supporting Appellees' claims that Internet users are using, or even could use, freerepublic.com to circumvent the fees charged by the the latimes.com and washingtonpost.com websites.

[25] See, Stout Decl. (ER, 22, 12-13) for a description of how these random articles were selected.

[26]  For examples of such postings criticizing the "mainstream" media coverage of political affairs, see (ER, 24, 49-52; 91-95; 171-174; and 222-231).

[27] See, Declaration of Howard K. Szabo (ER, 16, 1-2); Supplemental Declaration of James Robinson In Support Of Defendants' Motion For Summary Judgment (ER, 28, 1-2) [hereinafter "Robinson Decl. #2"]; and Transcript of the 6/23/99 Deposition of Jim Robinson, taken by Plaintiffs-Appellees (hereinafter "Robinson Depo") (ER, 9, 383 at 406-408)

[28]  Supermarket of Homes, Inc. v. San Fernando Valley Board of Realtors, 786 F.2d 1440, 1409 (9th Cir. 1986).

[29]  Defendants-Appellants noted in opposing summary judgment that the copyright registration certificates treat the entire daily newspaper as a single copyrighted work, and not each individual article.  If one treated the newspaper as the copyrighted work for purposes of analyzing this factor, then only a small portion of the copyrighted work is being posted.  See, (ER, 10, 13-42) and (ER, 11, 10-39) for samples of Appellees' copyright registration certificates.

[30]  For examples of such postings criticizing the "mainstream" media coverage of political affairs, see (ER, 24, 49-52; 91-95; 171-174; and 222-231).

[31]  See, Stout Decl. (ER, 27, 1-8).

Plaintiffs-Appellees submitted essentially no evidence to controvert these tests run by Mr. Stout.  and is now the subject of an injunction issued by the U. S. District Court, Eastern District of Virginia, barring Aldridge from further disrupting the operation of the freerepublic.com website.  See, Appellants' Request For Judicial Notice, filed concurrently herewith, for a copy of the Stipulated Injunction of the Virginia U. S. District Court.

Aside from this now-discredited testimony from Aldridge, there is no evidence in the record supporting Appellees' claims that Internet users are using, or even could use, freerepublic.com to circumvent the fees charged by the the latimes.com and washingtonpost.com websites.

[32]  As set forth in the Stout declarations, examples of the diverted "hits" from freerepublic.com to the latimes.com site can be seen on the monthly "Referrer Logs" produced by Plaintiffs-Appellees. (ER, 25, pp. 3, 4, and 5).  Small arrows have been added to the exhibit for the convenience of the Court next to the referred "hits" from the freerepublic.com site.  On page 3, for example, the Referrer Log shows that 2,540 "hits" were referred to the latimes.com site from the freerepublic.com site.  The entry next to the arrow on Page 4 of the Referrer Log shows 1,180 referred "hits" and so forth.  The total referred hits for that monthly period are the sum of all these entries.  See, Stout Decl. #2 (ER, 22).

[33]  See, Stout Decl. #1 (ER, 15, 1-12), Stout Decl. #2 (ER, 22, 1-13), Stout Decl. #3 (ER, 27, 1-12).

[34]  See, Robinson Depo, (ER, 9, 433-434), and see,  (ER, 23) and (ER, 24).

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