LA Judge rules against on issue of fair us - will it affect this forum? : LUSENET : TimeBomb 2000 (Y2000) : One Thread

This article appeared on the front page of the LA Times Business section for Tuesday Nov 9, 1999. However, I cannot find it online, either at the web site or on other news services.

LA US District Court Judge Margaret Morrow has issued an opinion that is not entitled to assert a fair use defense in a copyright infringement case brought against it by the LA Times and the Washington Post.

Trying not to violate the laws on copyright, I will summarize parts of the article. Judge Morrow agreed with the newspapers that Freerepublic's posting of articles in their entirety damaged the newspapers' web sites, since they stand to lose online advertising revenue with fewer people visiting their sites. and because consumers are less likely to pay $1.50 for an article that they can read for free. The Judge was sympathetic to the argument that Freerepublic could simply link to the stories on the newspaper's sites. She rejected the claim that the posting was covered by the First Amendment.

The article quotes Prof Pamela Samuelson, an expert on copyright law from UC Berkeley, who criticized Judge Morrow for not giving some latitude to Freerepublic, because it copies articles for its readers to comment on them, not to set up an alternative publication system.

Morrow may reverse or modify her opinion after arguments on Monday, and the case is scheduled for trial in June. (Hey - that should give them enough time to work out the bugs in the Court's case scheduling software.)

The case will certainly be appealled, as it is the first to address fundamental questions about copyright laws and the net.

Brian L. Buckley represents Freerepublic. Rex Heinke represents the newspapers.

There's nothing to do now but sit tight and watch.

-- kermit (, November 09, 1999


That FAIR USE in the title. Need a spellchecker.

-- kermit (, November 09, 1999.

What would you expect from the People's Republik of Kalifornia? I am SO glad that I don't live there. The recent list of their gov't abuses of the Constitution is unbelievable.

And Sen. Diane FeinSwine is attempting to spread their Socialist contagion to the rest of the country....

(BTW, I'm a LIFELONG Democrat. Kali's politics make Ted Kennedy look like Pat Buchanon.)

-- Dennis (, November 09, 1999.

Misuse---> Abuse---> Disuse

-- Randolph (, November 09, 1999.


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.

-- kermit (, November 10, 1999.

My understanding of "fair use" (and take this FWIW, since neither am I a lawyer nor do I play one on TV), is that EXCERPTS of copyrighted material may be used. In other words, if I'm reviewing "Rocky XXVI", I can freely use a few snippets of dialog -- but including the whole script in the review is a no-no. ("...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....") Whether it's a for-profit or non-profit organization doesn't seem to make a difference, so far as the law is concerned -- you just don't cop someone else's material in toto no matter now noble the intent may be.

This is why, if you read through, say, GN's postings, you'll almost always see ". . ." here and there to indicate snipped material. Dealing with Y2k is easy, actually, since you can just about ALWAYS snip the obligatory paragraph that begins "The Y2k problem is a result of programmers..."

-- I'm Here, I'm There (I'm Everywhere@so.beware), November 10, 1999.

It's a bullshit decision. What's really at stake is the fact that FR posts articles for discussion, and then the forum pokes holes in them. It was a selective attack against FR because of its conservative membership. Nobody is paying $1.50 to get archived articles to post. They come from the free sites.

Total political bullshit. It's not about money, it's about silencing criticism and keeping the liberal mainstream press in charge of the information flow in this country.

-- Dog Gone (, November 10, 1999.

You got that right Dog Gone!

How come this is the first case involving this issue when newsgroups have been around for over a decade?

Because FR had the balls to criticize the traitorous bastard who currently defiles the Oral Office.

Hmmmm...Liberal WP and LAT vs. Conservative FR.

YOU figure it out.

-- nothere nothere (, November 10, 1999.

At last - found a URL.

You are all missing the point if you think that this is about the politics of freerepublic, as this SALON article indicates:

h ttp://

-- kermit (, November 11, 1999.

From: Y2K, ` la Carte by Dancr (pic), near Monterey, California

I thought people were going to get in trouble for this...

-- Dancr (addy.available@my.webpage), November 12, 1999. critiques Salon article

-- David L (, November 12, 1999.

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