Free Republic Case Delayed by Discovery Dispute

(August 20, 1999) A pretrial discovery dispute has delayed the cyber copyright case, LA Times v. Free Republic. On Monday, August 16, the court rescheduled a hearing on cross motions to October 25. The LA Times has sued to stop the Free Republic from republishing its copyrighted news stories.

The Los Angeles Times and The Washington Post and one of its subsidiaries filed a Complaint for Copyright Infringement against the Free Republic in U.S. District Court in Los Angeles on September 28, 1999. The Free Republic is a heavily trafficked web site run by conservative activist Jim Robinson.

The Free Republic is a conservative news and discussion web site, with frequent criticism of the Clinton administration and the news media. It is configured to allow users to post their own comments, or to copy and post the HTML code, text and images from other web sites. In particular, copyrighted news articles from the Los Angeles Times and the Washington Post are frequently posted in the Free Republic, without the Plaintiffs' permission.

These republications of articles from the LA Times and Washington Post are not plagiaristic. That is, they carry the name of the source, and hyperlink to the copied page.

Rex Heinke

The Plaintiffs are represented by Rex Heinke, of the Los Angeles based law firm of Gibson, Dunn & Crutcher. Heinke listed in the Complaint numerous articles that had been copied in full in the Free Republic. He plead that "Plaintiffs have complied in all respects with 17 U.S.C. §§ 101 et seq., and secured the exclusive rights and privileges in and to the copyrights of the above-referenced works. Plaintiffs have been and still are the sole proprietor of all rights, title, and interest in and to the copyrights in their respective works as referenced above. 

The Complaint continued that "Defendants' conduct violates the exclusive rights belonging to Plaintiffs as owners of the copyrights in their respective newspapers and websites, including without limitation Plaintiffs' rights under 17 U.S.C. § 106." (See, pages 15-16 of Complaint.)

Rex Heinke plead that his clients are entitled to an award of damages, an injunction against the Free Republic, and a declaratory judgment as to the rights of the parties.

At issue in this case is whether the actions of the Free Republic web site in carrying the plaintiffs' copyrighted news stories constitute copyright infringement under Title 17. This is a case of first impression which is of great importance to the application of copyright law to cyberspace.

Brian Buckley, the attorney for Defendants Free Republic and Jim Robinson, filed an Answer to the Complaint on October 20, 1998. Buckley does not dispute that material from the LA Times and Washington Post is posted in his clients' web site. However, he plead the affirmative defense that "Plaintiffs Complaint is barred by the fair use exception to the Federal Copyright Statute."

The Plaintiffs also alleged in the Complaint that "Defendants have realized and continue to realize profits and other benefits rightfully belonging to Plaintiffs" and that "Defendants' infringing conduct has also caused and is causing substantial and irreparable injury and damage to Plaintiffs". These allegations are in dispute.

Brian Buckley insists that the Free Republic carries no paid advertising, does not sell subscriptions, and has no profit motive.

Buckley also disputes whether the Plaintiffs have been injured by the Free Republic's actions. This is a factual dispute. Resolution may turn on evidence pertaining to the traffic patterns of the web sites.

Brian Buckley has been endeavoring to obtain access logs, including referrer logs, from the technical staff for the LA Times and Washington Post. He asserts that a fact important to the case is the number of page views, or hits, to the Plaintiffs' websites caused by Free Republic visitors clicking through to the copied articles in the Plaintiffs' web sites.

The Defendants' attempts to get copies of the logs that would demonstrate this traffic pattern are the basis of discovery dispute. Buckley asserts that Rex Heinke and his clients have been dragging their feet in producing this material.

Brian Buckley told Tech Law Journal yesterday that from the discovery responses that he has received so far, he can demonstrate that a significant number of page views in the LA Times and Washington Post web sites are click throughs from the Free Republic web site.

"Thousands, and thousands, and thousands, and thousands, and thousands are hits that are from Free Republic. We are the referring URL."

" 'We divert hits from their site' is the essence of their damages claim," Buckley continued. "But, in fact that is simply false."

Brian Buckley has also scheduled depositions of employees of the Defendants for next week.

Other possible defenses for the Free Republic include freedom of speech under the First Amendment of the U.S. Constitution, and interactive computer service immunity (47 USC § 230).