Free Republic Plans to Continue the Legal Fight

(November 11, 1999) The Defendants in the cyber copyright case, LA Times v. Free Republic, vow to continue their legal fight. On Monday a federal judge ruled that defendants' posting of copies of copyrighted news articles in their political discussion web site is not protected by the fair use doctrine.

The Los Angeles Times and the Washington Post filed a complaint in U.S. District Court in Los Angeles against the Free Republic, and others, alleging copyright infringement. The Free Republic is a bulletin board web site used by political conservatives. Thousands of full text copies of copyrighted news articles from the Times and Post have been posted in the web site, without authorization.

On Monday, November 8, Judge Margaret Morrow issued a detailed 28 page tentative opinion in which she ruled that the Defendants' defense of fair use fails. The defendants' case relies primarily on this defense.

"We certainly desire to have this decision reversed, either by Judge Morrow, or the Court of Appeals, as quickly as possible," said Brian Buckley, attorney for the defendants.

"The judge erred yesterday. She tried hard, and gave a very thorough analysis, but it was very wrong headed. Some of her argument cannot withstand any scrutiny."

Buckley added that "one thing that was very gratifying was that the Judge took the time to do a very thorough job. That is gratifying."

Jim Robinson, a defendant in the case, and an owner of the Free Republic, posted a comment in the Free Republic web site on November 10, which included the following statement:

"This obviously biased judge ignored the law and the facts in evidence and sided with the plaintiffs dodge (and there are several other instances where she did the same), and has unfairly deprived us of this very important defense and thus is depriving us of our Constitutional right to a fair trial. This ruling will be overturned on appeal." [Editor's note: Parentheses in original.]

Tech Law Journal spoke with the lead attorneys for the plaintiffs (Rex Heinke) and defendants (Brian Buckley) after the ruling.

Buckley stated that the Free Republic will seek review of Judge Morrow's tentative opinion. "The options are a motion for reconsideration, or a request for her certification of an interlocutory appeal." However, the defendants have not yet decided which course to follow.

"There is no right of immediate appeal, because it only granted a motion for partial summary judgment," said Buckley.

And also, the defendants are prepared to proceed to trial, now set for June 2000, and if necessary, appeal the final decision to the Court of Appeals for the Ninth Circuit.

Buckley also stated that the Free Republic has other defenses to the newspapers' claims, which are all listed in the Answer to the complaint, which was filed with the court on October 20, 1998.

One of these other defenses is "failure to include indispensible parties," said Buckley. This would be "the actual persons who actually posted the allegedly infringing document."

Buckley stated that Judge Morrow raised this question at the hearing on Monday morning.

In addition, Judge Morrow addressed this in her tentative opinion. She wrote, at pages 8-9:

Before proceeding to the substance of the parties' motions, it is important to State what issues are not before the court at this time. Because the parties address the availability of a defense to copyright infringement, their motions assume for present purposes that such a claim can be proved. The court expresses no opinion as to whether this is so, given that the "copying" of news articles at issue in this case is to a large extent copying by third-party users of the Free Republic site. The court also makes no determination as to whether plaintiffs have in any manner consented to the copying of their articles.29

Footnote 29 states:

"Defendants Robinson and Free Republic admit that they have personally posted certain of plaintiffs' articles on the Free Republic site. Because several thousand articles have been posted to the site, however, defendants assert that much of the posting has been done by registered third-party users. Plaintiffs contend that defendants provide instructions and tools that permit third-party copying, and that they have the ability to control what is posted on their website and that they have removed certain postings from time to time. Defendants agree that they have the technical ability to remove material from the site, but argue that it is not possible for them to monitor the large quantity of daily postings that the site receives. They do not respond directly to the assertion that they provide tools and instructions that permit third-party copying of plaintiffs' articles, acknowledging only that "the Free Republic web site provides a virtual 'bulletin board' forum which enables and allows registered users to post whatever content they wish," Whether defendants' operation of the Free Republic website, and the posting by third parties of verbatim copies of plaintiffs' copyrighted news articles renders defendants liable for copyright infringement is not an issue decided in this order.  Similarly, the court does not address defendants' assertion that plaintiffs' posting of the articles on their websites constitutes implied consent for others to copy the works." [Editor's note: citations have been omitted.]

The plaintiffs did name John Doe defendants in their Complaint, filed on September 28, 1998. However, they have not followed up on individual posters. Buckley believes that Plaintiffs' counsel named John Doe defendants because of a concern about possible corporate alter egos.

Two other remaining defenses which Buckley emphasizes are waiver and estoppel. The Answer's sixth and seventh affirmative defenses allege simply:

"Plaintiffs Complaint is barred by the Plaintiffs’ waiver."

"Plaintiffs Complaint is barred by the Doctrine of Estoppel."

Buckley said that among the facts that would support these defenses is the plaintiffs' "failure to police their copyrights", such as taking no action regarding "newsgroups where full text posting is common."

Buckley singled out two findings of Judge Morrow for comment. First, he challenged her conclusion regarding the transformativeness of the full-text posts to the Free Republic. Second, he challenged her conclusion regarding the commercial nature of the Free Republic.

17 U.S.C. § 107 sets forth the fair use defense to copyright infringement. It includes four numbered criteria that courts may apply. The first of these four considerations is:

"(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educations purposes;"

Judge Morrow wrote the following regarding "character of use":

"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 omitted; quotation marks omitted.]

After a lengthy analysis of legal precedent, and how they apply to the facts of this case which are not in dispute, she concluded that the Free Republic's use was not sufficiently transformative to warrant a finding that this criteria weighs in Free Republic's favor. She relied heavily on the fact that complete and verbatim copies of news articles were copied. She also stated that hypertext linking to the articles would serve the same purpose as copying.

Nevertheless, Buckley contends that the discussion and comment by Free Republic members is transformative, and that full text copying is necessary to facilitate discussion.

Buckley also disputes Judge Morrow's finding regarding the "commercial nature" of Free Republic. "Calling Free Republic a commercial operation is really backward. It shows that she focused on the user -- not the use."

"We don't operate Free Republic," said Buckley, "so that we can raise money. We raise money so that we can operate Free Republic."

"In addition, there has to be some proportionality," said Buckley. "To say that we are commercial grossly exaggerates the importance of the fundraising that is done ..."

"And the evidence that the Defendants ... were using the site to make money is zero."

Regarding James Robinson's books sales revenue sharing, an exasperated Buckley said: "His share of that revenue was thirty dollars."

"Thirty!"

Regarding the Electronic Orchard, he said: "Electronic Orchard's total revenue in 1998 was $2,000. The year before -- $6,000."

Buckley concluded that "it is unreasonable to describe Free Republic as a for profit operation."

Buckley said that the Free Republic will continue to operate as it has. There is no order in effect. The subject of any order did not even come up at the hearing. The Judge merely ruled on an affirmative defense.

Moreover, he added the following: "If the matter -- if the areas that concern the judge, are addressed -- if we cease all fundraising -- if we take on everything -- then our fair use defense should survive."

"The order has no prospective effect," added Buckley.

However, "it will define forever whether Free Republic has infringed up to now."

Buckley says also that this case is unlikely to be settled by the parties. The nature of the dispute precludes settlement.

"We made a settlement proposal some time ago which they rejected," said Buckley. "We have no intention of upping the ante."

"We offered to frame their articles," including their ads, "and they rejected that."

"We offered to have articles that come over to our site to be open for only a certain period of time -- two weeks," and subsequently archive a summary, but not the entire text. "They rejected that."

"Their wishes and desires are more than we are going to give them."

He asserts that the newspapers are not interested in the Free Republic; rather, they want to set a legal precedent. "That is the whole purpose" of this suit, said Buckley. "What they are trying to do is stop this kind of thing."

They want "to get a ruling that they can use as a club." Then they will be able to tell other web sites which copy their articles, "we are going to cream you if you try this."

"They want a spiked club."

Buckley says that he is concerned that if this ruling stands, it is going to have a "chilling effect" on other web sites. He stated also that "we have heard from numerous other web sites ... and a number of public interest foundations" which have encouraged Free Republic to continue the fight.