Judge Releases Order in Free Republic Copyright Infringement Case

(August 7, 2000) U.S. District Court Judge Margaret Morrow released an order dated July 31 in the Internet copyright infringement case, Los Angeles Times v. Free Republic, granting partial summary judgment adjudging defendants James Robinson and the Free Republic liable for copyright infringement. The defendants plan to appeal.

Judge Morrow had previously granted partial summary judgment for the plaintiffs on the affirmative defense of fair use and freedom of speech. The defendants withdrew their other affirmative defenses. Judge Morrow also granted plaintiffs' request for a permanent injunction, but added that the injunction will issue as part of any final judgment entered in this case. The court has not ruled on plaintiff's request for damages.

Judge Morrow wrote in her order that the plaintiffs "have not moved for summary adjudication with respect to damages, and therefore a final judgment cannot yet be entered, precluding the granting of permanent injunctive relief."

Nevertheless, this brings the case closer to the defendants' promised appeal to the U.S. Court of Appeals. "The only way to get to the 9th Circuit is to get a final judgment," defense counsel Brian Buckley told Tech Law Journal. "Our strongest and most viable defenses are fair use and First Amendment."

This case is important in that it calls upon the courts to apply copyright law, and in particular, the fair use provisions of 17 U.S.C. 107, to the practice of copying and posting of news stories and other content from copyrighted commercial web sites to bulletin board web sites.

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 that is run, and part-owned, by James Robinson.

The defendant web site includes full text postings and discussion of copyrighted news articles from the Times, Post, and other publications. Defendants have raised fair use, First Amendment freedom of speech, and a boilerplate list of other affirmative defenses.

The Court held a hearing on the latest round of summary judgment pleadings on July 28. Brian Buckley informed that court that the defendants would withdraw their remaining affirmative defenses.

These defenses, which were plead in defendants' Answer, filed October 20, 1998, include failure to state a claim upon which relief can be granted, statutes of limitation, failure to include indispensible parties, laches, waiver, estoppel, and unclean hands. Defendants also plead that "Factors other than Defendant’s alleged wrongful conduct caused some or all of Plaintiff’s alleged damages", and that "Plaintiffs did not exercise due care and did not act reasonably to protect themselves or to mitigate any damages that they may have sustained by reason of Defendant’s alleged wrongful conduct."

It was never in dispute that the Los Angeles Times and Washington Post held the copyrights to the news stories in their web sites, or that James Robinson and users of the Free Republic copied the full text of many of these stories into the Free Republic. The only significant issues in the case were whether the copying was covered by the fair use exception, and if not, what remedies were available.

Both sides conducted discovery on the issue of fair use throughout 1999, and then filed cross motions for summary judgment on that issue. Judge Morrow ruled that the fair use defense fails in a lengthy legal analysis, issued in tentative draft on November 8, 1999, and in revised final form on April 4, 2000.

The defendants could not appeal this order (except as an interlocutory appeal) because it was merely a partial summary judgment, rather than a final judgment.

Plaintiffs then moved for summary judgment on the issue of infringement by defendants, and on the remaining affirmative defenses. Plaintiffs also sought an injunction. However, plaintiffs did not seek summary judgment on the issue of damages.

Defendants did not oppose these requests.

Judge Morrow opined that James Robinson and the Free Republic are liable for contributory infringement in connection with members' posting of articles to the Free Republic web site. She elaborated:

"Here, there is no doubt that members' posting of full-text copies of plaintiffs' articles to the Free Republic website constitutes copyright infringement. Robinson, and through him, Free Republic, have induced and contributed to this infringing activity by providing guidelines and instructions for posting, and by actively encouraging full-text copying."

Tech Law Journal spoke with Brian Buckley after the July 28 hearing. He stated that the defendants agreed to drop their other affirmative defenses "to expedite the resolution of this so that we could take it up on appeal."

"The only way to get to the 9th Circuit is to get a final judgment." In the mean time, said Buckley, "we have offered to prohibit full text posting from their web sites."

"We toyed with giving a more rigorous defense in some of the issues," added Buckley. These included "waiver" and "failure to police their copyright." He elaborated that, for example, the defendants could have argued that by publishing it in HTML format, the plaintiffs made it easy for people to copy their articles.

However, he stated that defendants concluded that "our strongest and most viable defenses are fair use and First Amendment."

Tech Law Journal also asked Buckley if the Napster case would have any effect on this case. "The Napster case is so different from ours," Buckley responded. "They are trying to make money. We are not trying to make money."

He raised another distinction. "The material being used is not as susceptible to fair use" as in the Free Republic case. He stated that Free Republic users are engaging in "political discourse."

Rex Heinke

The plaintiffs have been represented throughout this case by Rex Heinke of the law offices of Greines Martin Stein & Richland.

The complaint named as defendants James Robinson, the Free Republic, the Electronic Orchard, and 10 John Does. The plaintiffs have not amended their complaint to name any John Does.

Judge Morrow's July 31 summary judgment order denied plaintiffs' motion for summary judgment on the issue of liability against the Electronic Orchard, an inactive company that offered Internet programming and web design services. She wrote that "Plaintiffs have proffered no credible evidence that this entity has engaged in copyright infringement."