LA Times & Wash Post Move for Summary Judgment in Free Republic Copyright Case

(October 11, 1999) The Los Angeles Times and the Washington Post filed a motion for summary judgment in their copyright infringement suit against the Free Republic. The Defendant argues that its republication of news articles from the websites of other publications falls under the "fair use" exception.

The Los Angeles Times and The Washington Post filed their complaint against the Free Republic on September 28, 1998, alleging copyright infringement by the Free Republic, a news and discussion website for political conservatives. Thousands of complete articles have been copied from the Plaintiffs' websites and posted and archived in the Free Republic website.

The Free Republic alleges that its activities fall with the fair use exception to the exclusive rights provided by copyright, since its users discuss, comment upon, and criticize these articles.

On October 4, 1999, the Plaintiff newspapers filed a motion, and supporting papers, which argues that they are entitled to a judgment that their copyrights have been violated, and that the fair use defense does not apply in this case. In their memorandum of law they argue:

"Defendants want to take a free ride on Plaintiffs' substantial investments in creating their copyrighted articles, and to use Plaintiffs' valuable intellectual property, without compensation to Plaintiffs -- the admitted copyright owners. Defendants do not contest material facts, but simply insist that the fair use defense somehow entitles them to misappropriate and republish throughout the world via the Internet an ever-increasing library of thousands of Plaintiffs' complete news articles. This motion therefore asks the Court to resolve a single, straightforward and purely legal issue: Is Defendants' copying and republication protected by the fair use doctrine?"

Counsel for the Free Republic has filed a motion asking for further discovery, and for more time to file its motion for summary judgment on its fair use defense. However, Defense counsel has not responded to repeated requests from Tech Law Journal for copies or information. (Plaintiffs' opposition to this motion has been filed with the court.)

The fair use doctrine is codified in Section 107 of the Copyright Act. It provides four criteria that a judge is to take into consideration in determining whether the defense is valid. Plaintiffs' brief analyzes each of these four criteria in order.

The first criteria is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit education purposes".

The Free Republic has asserted that it is nonprofit and educational.

In their brief, Plaintiffs argue that the Free Republic is a for profit enterprise. It is registered as a for profit LLC. It has a .com domain name. It has carried advertisements. It has been used to sell products. It advertises a second commercial website, the Electronic Orchard, whose owners are also the owners of the Free Republic. It solicits contributions. And finally, the brief argues, it has developed a commercially valuable list of members.

Another component of the Section 107 "character of the use" criterion is whether the copier has transformed the material. The Plaintiffs' brief argues that the Free Republic republishes utterly untransformed cut and paste copies of its news articles. Hence, the LA Times and Washington Post argue that the first criterion of Section 107 provides no basis for a finding that the fair use defense is applicable.

The Plaintiffs' brief goes on to argue that the second criterion, "the nature of the copyrighted work", also weighs in their favor. They argue that creative works, including news reporting, are entitled to greater protection than mere collections of information.

On the third criterion, "the amount and substantiality of the portion used in relation to the copyrighted work as a whole", Plaintiffs argue that since the Free Republic carries the entirety of articles, this too supports their claim of infringement.

Finally, section 107 provides that the court is to consider "the effect of the use upon the potential market for or value of the copyrighted work". Plaintiffs argue that the Free Republic's actions decrease their advertising revenues, archive sales revenues, and licensing revenues.

Rex Heinke

In a related matter, the Plaintiffs' lead attorneys in this case have switched law firms. Rex Heinke, formerly a senior partner in the Los Angeles based mega firm of Gibson, Dunn & Crutcher, moved to Greines, Martin, Stein & Richland at the beginning of October.

Rex Heinke was a Co-Chair of Gibson, Dunn & Crutcher's large intellectual property group. The associate attorney working on this case, Heather Wayland, also went to Greines Martin. Both specialize in intellectual property, First Amendment, and entertainment law.