LA Times v. Free Republic

(1) Los Angeles Times, and The Washington Post Company and its wholly owned subsidiary, WASHINGTONPOST.NEWSWEEK Interactive Company v. Free Republic, Electronic Orchard, Jim Robinson, and Does 1 through 10.  Filed in U.S. District Court, Central District, California, September 28, 1998. Case No. 98-7840 MMM(AJWx).

(2) Free Republic et al. v. LA Times et al., U.S. Court of Appeals for the 9th Circuit, Docket No. 00-57211.

Nature of the Case. The Los Angeles Times and the Washington Post sued the Free Republic website for copyright infringement for publishing copies of news stories from their websites without permission. The Free Republic raised the affirmative defense of fair. The Free Republic lost in the District Court, and has appealed to the U.S. Court of Appeals for the 9th Circuit.

Plaintiffs. The plaintiffs are large news media companies which publish The Los Angeles Times and The Washington Post. Content from their online publications is being published without permission in the defendant website. Attorney: Rex Heinke, Greines, Martin, Stein & Richland.

Defendants. The Defendants include the Free Republic, a news and discussion forum website run by conservative activist Jim Robinson. Free Republic contains many copyrighted news articles from the Los Angeles Times and the Washington Post.  P.O. Box 9771, Fresno, CA 93794. Jim Robinson email: jimrob@psnw.com. Attorney: Brian Buckley, 11661 San Vicente Blvd., Suite 820, Los Angeles, California, 90049, 310-207-4224.

Facts. The plaintiffs are large, well known, and respected news media companies which at great expense produce large quantities of news stories and other information, including coverage of national and political events. Both publish widely circulated print newspapers and heavily trafficked websites. Both carry paid advertising in their websites. Ad revenues are a function of the volume of traffic to their websites. And hence, their revenues are dependent on how many people visit their websites to read their news stories. Both also archive older news stories, and charge for access to those stories.

The Defendant website carries information, discussions, and links to more websites. It also criticizes the news media's coverage of national and political events. For example, the Free Republic website has stated that "the federal government has overstepped its Constitutional limits and the complicit media is acting in concert to continue the illegal government expansion and to strengthen its own stranglehold on truth and to continue its agenda of projecting the socialist government propaganda slant on the news." The Free Republic contains many of the plaintiffs' copyrighted news stories, sometimes immediately after publication. The Free Republic also archives these copied stories.

The Plaintiffs allege that Defendants' copying and archiving decreases revenue from ads and from accessing archived materials. 

Defendant argues that it is entitled to carry plaintiffs' copyrighted material. Its website stated that "The Framers did not intend for the federal government through regulation and copyright law to restrict the right of the people to free speech. In fact, they explicitly prohibited it. They also did not intend for a few major corporations to achieve a virtual monopoly on the news." The Free Republic places its own copyright notices in its website. However, the Free Republic's lawyer has primarily pursued the affirmative defense of fair use.

Plaintiffs sued in federal court in Los Angeles seeking an injunction, damages, and attorneys fees. Pretrial discovery was prolonged and contentious.

Issues. At issue is whether the actions of the Free Republic website in carrying the plaintiffs' copyrighted news stories constitute copyright infringement under Title 17, and whether such actions fall with the fair use defense (17 USC § 107). Defendants did not assert interactive computer service immunity as a defense. (47 USC § 230)

Status. Plaintiffs filed their complaint on September 28, 1998. Defendants answered on October 20, 1998. Plaintiffs and defendants filed cross motions for summary judgment on the fair use issue. Judge Morrow issued a tentative opinion on October 8, 1999 that the fair use defense fails. She finalized this opinion on March 31, 2000. Judge Morrow disposed of remaining defenses in her second tentative opinion, dated July 31, 2000. She issued Final Judgment on November 17, 2000. Defendants plan to appeal to the U.S. Court of Appeals, Ninth Circuit.

Chronology with Links to Pleadings and other Related Materials.

• 9/28/98. Plaintiffs filed Complaint for Copyright Infringement.
• 10/20/98. Defendants filed their Answer.
• 8/16/99. Status conference held and pretrial hearing rescheduled. See, Tech Law Journal Story.
• 10/4/99. Motion for Summary Judgment filed by Plaintiffs. See also:
  • Memorandum in Support.
  • Tech Law Journal Story.
• 10/18/99. Motion for Summary Judgment filed by Defendants. See also:
  • Memorandum in Support.
  • Declaration of Richard Stout.
  • Tech Law Journal Story.
• 10/25/99. Opposition brief filed by Plaintiffs.
• 10/29?/99. Declaration of James Robinson filed by Defendants.
• 11/1/99. Reply brief filed by Plaintiffs.
• 11/8/99. Judge Morrow issued a tentative ruling that the fair use defense fails.
• 3/31/00. Judge Morrow issued her "Order Granting Plaintiffs' Motion for Partial Summary Judgment and Denying Defendants' Motion for Summary Judgment". This order reaches the same conclusion, and follows the same argument, as the tenative ruling issued on November 11, 1999. (Tech Law Journal is in the process of transcribing this 40 page order.)
• 6/5/00. Plaintiffs filed Motion for Summary Adjudication on Liability and Remaining Defenses, Motion for Permanent Injunction, and supporting pleadings.
• 7/28/00. Hearing before Judge Morrow.
• 7/31/00. Judge Morrow issued her second tentative order, titled "Tentative Order Granting Plaintiffs' Motion for Summary Judgment". See also, Tech Law Journal story.
• 11/17/00. Judge Morrow issued her Final Judgment.
• 4/16/01. Appellants filed their appeal brief with the U.S. Court of Appeals.

Plaintiffs' Attorneys: The Plaintiffs were originally represented by the law firm of Gibson, Dunn & Crutcher, a large Los Angeles based law firm which has long represented Times Mirror (and the Los Angeles Times). The attorney on the case is Rex Heinke. On about October 1, 1999, Heinke moved to Greines, Martin, Stein & Richland, which now represents the Defendants in this case.

• Greines, Martin, Stein & Richland: 9601 Wilshire Boulevard, Suite 544, Beverly Hills, CA, 90210-5207, 310-859-7811, fax 310-276-5261.
• Rex Heinke, rheinke@gmsr.com.

Defendants' Atttorney: Brian L. Buckley, SBN 116705, Law Offices of Brian L. Buckley, 11661 San Vicente Blvd., Suite 820, Los Angeles, California 90049, ferosa.esq@gte.net, 310-207-4224, fax 310-820-2187.