Free Republic Files Motion for Summary Judgment on Fair Use Issue

(October 20, 1999) The Free Republic filed its motion for summary judgment on the fair use issue in the lawsuit brought against it by the Los Angeles Times and the Washington Post for copyright infringement. The Free Republic asserts that posting of full copies of news articles in its discussion web site is protected by the fair use doctrine and the First Amendment.

The Free Republic filed its Motion for Summary Judgment, supporting memorandum, and other pleadings, with the U.S. District Court on Monday, October 18. The Plaintiffs filed their own motion for summary judgment, memorandum, and other pleadings, on the fair use issue on October 4.

Both sides had been scheduled to file their cross motions on October 4. However, a continuing discovery dispute over Plaintiffs' web sites access logs and other data caused the Defendants to seek a continuance.

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 web site for political conservatives. Thousands of complete articles have been copied from the Plaintiffs' websites and posted and archived in the Free Republic web site.

The Free Republic alleged in their answer, and again in the just filed summary judgment pleadings, 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. It also argues that its actions are protected by the free speech clause of the First Amendment.

Both sides agree on some key points. First, it is not disputed that Plaintiffs' articles have been republished in the Defendant web site. Second, it is not disputed that these articles are protected by copyright.

The dispute centers on whether the Defendants' use of these articles is permitted under the fair use doctrine. Defendants also advance the argument that the First Amendment protects this use, not only as an element of fair use, but also as an independent defense. There is no judicial precedent for the latter proposition.

17 USC 107 does not define fair use. Rather, it sets forth four criteria that judges may apply in determining whether a copying copying constitutes a fair use. Defendants' brief argues that each of these four criteria weigh in its favor.

First, Defendants argue that "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes" (17 USC 107(1)), supports their position. Defendants rebut the Plaintiffs' claims that the Free Republic is a commercial web site. The brief emphasizes that the Free Republic is a not for profit web site founded as an avocation by a wheel chair bound political activist who had been unable to find an Internet forum open to conservatives.

Defendants' also argue their uses are "criticism, comment, and news reporting" which are entitled a high level of protection under the fair use doctrine. They also argue that their use of the Plaintiffs' articles does not conflict or interfere with the Plaintiffs' use. The brief argues that readers go to the Los Angeles Times and Washington Post to read news stories. In contrast, readers go to the Free Republic to discuss political issues. The Free Republic only republishes a small percentage of their news articles, and then, it is very difficult to locate articles by the source. Hence, Defendants argue, the Free Republic is not being used by its readers as a substitute going to the newspapers' web sites.

Defendants next argue the second criteria of 17 USC 107, "the nature of the copyrighted work". The brief states that legal precedent gives greater protection to "creative" works than "informational" works; Plaintiffs' news articles are "informational", and hence, entitled to lesser protection under the fair use doctrine.

The third criteria, "the amount and substantiality of the portion used in relation to the copyrighted work as a whole", offered Defendants' counsel the opportunity to engage in some creative writing himself. The Free Republic republishes the entirety of news articles. Hence, the newspapers argued in their brief that this criteria supported their position. However, the Defendants point out that these newspapers register daily issues of their newspapers, not individual articles. So, the Defendants claim, they are only republishing a small portion of each copyrighted work.

The final criteria is "the effect of the use upon the potential market for or value of the copyrighted work." The newspaper Plaintiffs argued that the Free Republic diverts traffic away from their web sites, and thus, decreases advertising revenues, potential licensing revenue, and archive access revenues, among other things.

Defendants contend, however, that they divert little traffic away from the newspapers' sites, but generate much traffic to their sites. Defendants filed a Declaration of Richard Stout, an expert on web site traffic, to support this argument. His argument is based in part on a study of access logs.

He concluded: "In my professional opinion, any detrimental effect to the plaintiff’s web sites resulting from the existence and operations of the Free Republic web site are trivial and probably are more than offset by the beneficial effect of the referrals the Free Republic site feeds to plaintiffs web sites."

The attorneys in this case have battled over what web site data the Defendants are entitled to. This has been a cause of the many delays in the suit. Much of the court record pertaining to this dispute, and the underlying data, is covered by a protective order. Some pleading are under seal, and others are heavily redacted.

Brian Buckley, counsel for the Free Republic commented on this matter in an October 13 posting in the Free Republic web site. "In the days and weeks leading up to October 4, we had several substantial disputes with the plaintiffs and their counsel, centered on the adequacy of their responses to our various discovery demands. Certain information that we consider extremely relevant and highly damaging to the plaintiffs' case was being withheld from us."

Jim Robinson, an owner of the Free Republic, and a Defendant in the case, has also posted many comments on the case in the Free Republic. For example, on October 13, he wrote that "The plaintiffs are throwing up a lot of smokescreens which will be brushed aside with the facts. We will win this case simply because we are operating legally and within our rights under the copyright law and the fair use doctrine."

The case in pending in U.S. District Court in California. It has been assigned to Judge Margaret Morrow. The parties are scheduled to file opposition briefs on Monday, October 25. The oral argument on the cross motions for summary judgment is scheduled for November 8. Although, it has been postponed several times.

The Plaintiffs' counsel are Rex Heinke and Heather Wayland, of the law firm of Greines Martin, Stein and Richland. The Defendants' counsel is Brian Buckley.