Judge Rules Against Free Republic Web Site on Fair Use

(November 11, 1999) Judge Margaret Morrow ruled on Monday, November 8, that the Free Republic web site's posting of copies of copyrighted news stories from the Los Angeles Times and the Washington Post is not protected by either the fair use doctrine or the First Amendment.

The Los Angeles Times and Washington Post filed their complaint for copyright infringement against the Free Republic in September of 1998. The Free Republic is a conservative bulletin board web site run and part-owned by James Robinson.

The defendant web site includes thousands of copyrighted news articles from the Times and Post. Defendants have raised fair use as an affirmative defense. The parties filed cross motions for summary judgment on the fair use and First Amendment issues.

The attorneys and representatives of their clients went to the U.S. District Court in Los Angeles on Monday morning for oral argument on the cross motions. However, Judge Margaret Morrow announced that she had already reached a decision in favor of plaintiffs. She also issued a 28 page tentative opinion which explains her analysis.

The decision is a major victory, not only for the LA Times and Washington Post, but also for other content producers and owners who publish material on the web. Conversely, the decision is a loss for those who republish other people's material on the web without permission.

The problem for the plaintiff newspapers is that the Free Republic, and many of its users, are cutting and pasting thousands of entire news articles from their web sites, and posting them in the Free Republic web site, which is a popular destination for political conservatives. The newspapers are losing advertising revenue, licensing fees, and archive access fees.

Prior to this ruling, there were many cases which applied the fair use doctrine to other media, such as books, records, and film. However, this is the first decision regarding cut and paste infringement by a discussion group web site.

The defendants argued that they were posting the articles for discussion purposes, and were thus protected by the fair use doctrine. While this decision went against them, they intend to continue to post articles, and carry on the legal battle.

Judge Marrow summed up her ruling as follows:

"The fair use doctrine, codified at 17 U.S.C. § 107, permits the reproduction of copyrighted works for certain purposes. Section 107 sets forth four nonexclusive factors to be considered in determining whether a defendant's copying is a fair use. "(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," 17 U.S.C. § 107. Based on the evidence submitted by the parties, the court concludes that the first, third and fourth factors militate against a finding of fair use in this case. The second factor weighs in defendants' favor. The balance, however, tips towards plaintiffs, and the court thus finds that defendants are not entitled to assert a fair use defense to the claims of copyright infringement alleged in the complaint."

Judge Morrow analyzed each of the four criteria of Section 107, as well as the First Amendment argument, in detail.

First, she addressed "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes". She broke this down into its two components: "character use" and "commercial nature."

The "character of use" goes to "transformativeness". Judge Morrow wrote that:

"This factor assesses 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." [Editor's note: citations to other opinions, and quotation marks, omitted.]

"There is no dispute that at least some of the articles posted on the Free Republic website are exact copies of plaintiffs' articles," wrote Judge Morrow. "There is nothing transformative about copying the entirety or portions of a work verbatim."

"Adding commentary to its verbatim copy of a copyrighted work or portions thereof does not transform the work, especially where the first posting of the article by a Free Republic user often contains little or no commentary."

Also, Judge Morrow found a "commercial nature" to the Free Republic.

"The undisputed evidence reveals that Free Republic is currently a for-profit company," She wrote. "... Free Republic solicits donations from visitors to the website who wish to support its mission and operations."

Judge Morrow continued that "The relevant inquiry, however, is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price."

And, "Since the general purpose of the site is to provide a forum where individuals can discuss current events and media coverage of them, posting copies of plaintiffs' articles assists in attracting viewers to the site. This in turn enhances defendants' ability to solicit donations and generate goodwill for their operation and Robinson's other business."

Hence, Judge Morrow found that both components of the first criteria of section 107 weigh in favor of the newspapers.

Second, she addressed "the nature of the copyrighted work". Judge Morrow stated that "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." Since the copied news stories where informational, rather than creative, Judge Morrow reasoned that this criteria weighs in favor of the Free Republic.

This was the only point which the defendants won.

Third, she addressed "the amount and substantiality of the portion used in relation to the copyrighted work as a whole".

"The fact that exact copies of plaintiffs' article are posted to the Free Republic site weighs strongly against a finding of fair use in this case." Judge Morrow rejected defendants' argument that since the newspaper copyright entire issues, not individual articles, the portion copyied is small.

She also rejected plaintiffs' argument that full text copying was necessary for discussion purposes. She suggested a hyperlink would serve the same purpose.

Fourth, she addressed "the effect of the use upon the potential market for or value of the copyrighted work". The defendants argued that since they not only copied articles, but also hyperlinked to plaintiffs' articles, they increased traffic to the newspapers' sites. The defendants conducted discovery of access logs and related documents, and submitted declarations from an expert in support of this contention.

However, Judge Morrow rejected this argument. "Even assuming this is true," she wrote, "[t]he mere absence of measurable pecuniary damage does not require a finding of fair use."

"This is particularly true when one considers the impact that widespread copying of this type would have on plaintiffs' ability to sell and license their articles. Thus, an adverse effect on the potential market for the articles has been demonstrated, and the fourth factor weighs against a finding of fair use."

Judge Morrow took all criteria into consideration, found that in balance they favored the newspapers, and hence concluded that the fair use defense fails.