BRIAN L. BUCKLEY, SBN 116705
UNITED STATES DISTRICT COURT
"In the future days, which we seek to make secure, we look forward to a world founded upon four essential freedoms. The first is freedom of speech and expression....." When Franklin Roosevelt spoke these words to a gathered Congress on January 6, 1941, he added eloquence to a revered notion in American history, though he did not express a new idea. Americans have been and are accustomed to free speech as an underpinning of our social stability. Without the right to express ourselves freely, even and perhaps especially through harsh criticism of those who govern us, the vitality that assures our continuance as the greatest nation on earth is directly and immediately threatened.
It is well known that our free press, which is the envy of stifled voices throughout the world, found its footing and secured its permanence by ratification of the Constitution and enactment of the Bill of Rights, the 1st amendment of which guarantees protections against laws inhibiting free speech.
On September 28, 1998, two of the most prominent and influential newspapers in the United States, in a feat of special irony, filed an action in federal court in Los Angeles, California seeking to shut down an internet web site that is devoted to giving expression to political and social commentary from anyone who wishes to participate.
The website operated by the defendants, www.freerepublic.com, permits anyone who wishes to post news articles or other items and to post commentary about the article as well. Thousands of persons participate every day. No fee of any kind is charged. The site is a not for profit enterprise that summons us to enjoy the very essence of free speech principles. The political views expressed by the majority of participants are congruent with the goal of rooting out corruption in government, though no censorship is made and all views are permitted.
The internet has arrived with a bang, and virtually all major newspapers have set up their own websites to exploit it for profit, as is their right. Jim Robinson, a disabled wheelchair bound activist, set up www.freerepublic.com not to compete with them but to give a voice to individuals throughout the land. It is a virtual town hall for the nation. If this action by The Los Angeles Times and the Washington Post is permitted to close town hall, we are headed back toward what Franklin Roosevelt and others before him feared. Free speech must remain a treasured national asset, accessible to all, including but not limited to The Los Angeles Times and The Washington Post.
Defendant Free Republic (freerepublic.com) is a not-for-profit politically-conservative internet web site begun as a hobby by defendant Jim Robinson ("Robinson"), a disabled wheel-chair bound victim of Muscular Dystrophy. Free Republic is a "bulletin board" type of internet site which allows visitors to the site to "post" articles and commentary to the site which can be read and commented upon by other visitors to the site. Robinson created Free Republic in 1996 out of shear frustration. He was dissatisfied with the current Presidential administration (the "Clinton Administration") and with the "mainstream" media coverage of its policies and activities. Robinson was frustrated with the inability on other internet sites and alternative forums to engage in a completely free and open discussion of news and politics -- especially by dissenters to the current Presidential Administration's policies and activities and dissenters to the "mainstream" media coverage of same. Before creating Free Republic, Robinson frequented other internet discussion sites and was frustrated by their censorship and restrictions on free expression of ideas.
Already in the computer consulting business, Robinson saw the need to create an alternative forum which would allow open discussion of news and politics -- and allow open discussion of the "mainstream" media coverage of same. Thus was born Free Republic.
Among the many articles "posted" for discussion to Free Republic's "bulletin board" forum were articles from the Los Angeles Times and from the Washington Post -- which resulted in the within action for copyright infringement against defendants Free Republic, Jim Robinson, and against Electronic Orchard, a small website development concern in which Robinson is a partner (collectively "Defendants".)
As agreed by the parties and ordered by the Court, Defendants raise in this motion raise only the issue of "fair use" -- and the related First Amendment defense, which, should the Court find in Defendants' favor, would be dispositive of this action and would entitle Defendants to a judgment of dismissal. Defendants do not herein raise their other defenses -- affirmative or otherwise.
In absence of "fair use" or other defenses, the mere act of unauthorized copying of copyrighted material would constitute infringement. It would only be necessary for a plaintiff to prove the necessary elements of ownership and copying. Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1151 (9th Cir. 1986) citing Melville B. Nimmer & David Nimmer, Nimmer on Copyright [Matthew Bender 1999] (" Nimmer"), § 13.01. However, a "fair use" exception, originating in case law, was codified in the Copyright Act of 1976 as Section 107 of Title 17 of the United States Code. Section 107 expressly sets forth factors to be included among the factors considered in evaluating "fair use." 17 U.S.C. § 107 provides as follows:
"§ 107. _Limitations on exclusive rights: Fair use
"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."
Defendants contend that each of the expressly enumerated factors, as well as the non-statutory common law factors to be considered for the determination of "fair use" weigh in favor of a determination by this Court that Defendants' use of Plaintiffs' copyrighted work on the freerepublic.com site constitutes a "fair use" within the meaning of 17 U.S.C. § 107.
The "fair use" doctrine "confers a privilege on people other than the copyright owner 'to use the copyrighted material in a reasonable manner without his consent, notwithstanding the monopoly granted to the owner." Hustler, supra, 796 F.2d 1148 at p.1151 citing and quoting Marcus v. Rowley, 695 F.2d 1171, 1174 (9th Cir. 1983).
The House Committee on the Judiciary, in its comments on the 1976 Act which first codified the "judicial doctrine of fair use" characterized the doctrine as "one of the most important and well-established limitations on the exclusive right of copyright owners." The Committee stated explained that the fair use doctrine is an equitable rule of reason:
See also, Nimmer on Copyright (Matthew Bender 1999), § 13.05 at p.13-150. "The 1976 statutory formulation of the defense of fair use in the Copyright Act of 1976 reflects the intent of Congress to codify the common-law doctrine." Harper and Row, Publishers, Inc. v. National Eners., 471 U.S. 539, 549 (1985). As Nimmer, supra, § 13.05[A], p.13-153, citing, inter alia, New Era Publications Int'l, ApS v. Carol Pub. Group, 729 F. Supp. 992 (S.D.N.Y. 1990) points out:
Thus, the statutory factors in determining whether particular use of copyrighted work is fair are not exclusive; rather the doctrine of fair use is in essence an equitable rule of reason. Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (C.A.9 Cal. 1992). See also, the discussions of the fair use factors in American Geophysical Union v. Texaco, Inc. 60 F.3d 913 (2d Cir. 1995), Twin Peaks Productions, Inc. v. Publications Intern., Ltd., 996 F.2d 1366 (CA2 NY 1993), Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co., Inc. 900 F.Supp. 1287 (C.D.Cal. 1995), Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148 (9th Cir. 1986).
Defendants contend that each of the statutory factors enumerated in 17 U.S.C. § 107 (hereinafter also "Section 107") weighs strongly in their favor. "Courts balance these factors to determine whether the public interest in the free flow of information outweighs the copyright holder's interest in exclusive control over the work. Hustler, supra, 796 F.2d 1148, 1151, citing DC Comics, Inc. v. Reel Fantasy, Inc., 696 F.2d 24, 27 (2d Cir. 1982).
The first enumerated factor of Section 107 is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes."
Nimmer, § 13.05[A][a], explains:
Nearly all of the preamble's specifically enumerated factors apply directly to Free Republic. Free Republic falls directly within the "'criticism, comment, and news reporting" factors. Indeed, this was it's very purpose. See, Exhibit 1009 [Deposition of James Robinson, pp. 51-52. And see, Exhibits 1006 and 1007, which are randomly-selected articles of the Los Angeles Times and the Washington Post with the resulting criticism and comments. And see, Exhibit 1009, Transcript of the Deposition of Jim Robinson. In addition, there is arguably an educational element to the Free Republic website. Ibid.
The exact purpose of the copying of a copyrighted work is also extremely important for the first fair use statutory factor. An extensive discussion of such purposes is contained in American Geophysical Union v. Texaco, Inc. supra, 60 F.3d 913, Section II (2d Cir. 1995). In American Geophysical, at issue was the making of photocopies of articles within a scientific journal by a chemical engineer at a research facility. The Court pointed out that the copies in that case were made for essentially the same purpose for which sales of the original were intended. By contrast, when users "post" articles for discussion and comment to the Free Republic "bulletin board" forum, such posting is made for a very different purpose than the intended purpose of the original Los Angeles Times and Washington Post articles. The value of the original publication of articles by plaintiffs Los Angeles Times and Washington Post is twofold. First, a visitor to plaintiffs' websites, or a reader of copyrighted content in plaintiffs' newspapers does so for one of two reasons: (1) To read articles containing current news, articles and commentary created by either the Los Angeles Times or the Washington Post; or (2) to research such content in archived versions of plaintiffs' publications after the fact. In either case, Defendants' freerepublic.com web site is a very poor and impracticable substitute for either of these purposes. First, it is difficult, if not nearly impossible, for any internet user desiring to read any of plaintiffs' current original published content, to ever know when such an article is "posted" on the freerepublic.com site. The only possible way to do this, short of repeatedly searching the 5,000 to 8,000 daily posts during the day on the freerepublic.com site, would be to use one of the various "third party" internet search engines to try to locate plaintiffs' published material, or articles on the same subject. However, this is impractical and unlikely for several reasons. First, there is a considerable time lag before any of the content on the freerepublic.com site is indexed on such third-party search engines. This alone makes it impractical to obtain the current news from freerepublic.com as an alternative to the original publishers. By contrast, visitors to the latimes.com and washingtonpost.com sites can locate articles essentially immediately upon their publication.
Using freerepublic.com as an alternative to using the latimes.com or washingtonpost.com archives is similarly impracticable. Anyone who attempts to use a third-party search engine to attempt to locate such "archived" articles can immediately see the difficulty. See, Declaration of Richard L. Stout; and see Exhibit 1009 [Deposition of James Robinson]. In order to locate any of plaintiffs' original content on the freerepublic.com site an internet user would have to be considerably lucky in the order the third party search engines display the results.
As can be seen from the randomly selected posted articles in Exhibits 1006 and 1007, the purpose of the posting of articles by users of the freerepublic.com "bulletin board" feature is quite different. The subsequent comments and criticism in the posted replies shows that the purpose of the "posting" (copying) of these articles is to enable other users of the site to comment upon the article and to criticize or praise the quality of the media coverage of current and political events. It is not to allow freerepublic.com to be used as a substitute for the original publications. Thus, unlike the facts in American Geophysical Union v. Texaco, Inc. supra, 60 F.3d 913, Section II (2d Cir. 1995), the purpose of the "copying" of copyrighted content onto the freerepublic.com site is very different from, and a poor substitute for, the published original content.
"Under this factor, 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." Nimmer, § 13.05[A][a], p. 13-169. There could hardly be more "informational and functional" a work than a newspaper article such as those of Plaintiffs posted on Defendants' site. See, Exhibits 1006 and 1007, hereto, a random sample of Plaintiffs' articles posted to Defendants' site. Diamond v. Am-Law Corp., 745 F.2d 142 (2d Cir. 1984); and see, Hustler, supra.
The copyright registration certificates filed by Plaintiffs show that the "work" registered was the entirety of the daily newspaper -- not the individual articles which make up the daily newspaper. See Exhibit 1020. Thus, any particular article from the copyrighted work which is posted by a user of the Free Republic web site, constitutes a small fraction of the registered work. However, under the doctrine of "fair use," a finding of "fair use" is not barred even if the entire copyrighted work is copied. See, Belmore v. City Pages, Inc., 880 F.Supp. 673 (1995); Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1151 (9th Cir. 1986). As set forth in section (1) above, the very nature of criticism and comment makes "essential" the copying of an entire article. The subsequent postings of criticism and comment which are then affixed to the web posting have the effect of performing a valuable "transformation" on the posted articles, thereby creating a new and entirely different work -- for the fundamental purpose of the posting are the comment and criticism and not reading the article for the information contained therein. This can be seen by the review of Exhibits 1006 and 1007, which is a random selection of posts on the freerepublic.com site which contain articles from Plaintiffs' newspapers. See also, Exhibit 1009 [Transcript of Deposition of James Robinson].
Because of the rather unique technology involved, Internet web sites are uniquely situated to gather evidence showing the effect of one web site upon the traffic of another. The currency of Internet web sites are "hits" -- requests for information made to the site from a user's computer. In determining the effect of one Internet web site upon the website traffic of another, recorded data called web server logs have the ability to show the number of "hits" which were "referred" from one web site to another. Plaintiffs have alleged that the posting of Plaintiffs' copyrighted content on Defendants' freerepublic.com website has deprived Plaintiffs of "hits" to their websites, and consequently of advertising revenue therefrom.
Through discovery, Defendants have obtained reports prepared by Plaintiffs which are derived from the raw web server logs showing the number of "hits" referred from Defendants' freerepublic.com website to Plaintiffs' web sites, latimes.com and washingtonpost.com. Defendants have retained an expert of worldwide repute, Richard L. Stout to analyze the website traffic data obtained from Plaintiffs. As set forth in detail in the Declaration of Rick Stout, the evidence shows literally tens of thousands, if not hundreds of thousands of hits per month "referred" to Plaintiffs' web sites. This evidence, coupled with the analysis set forth under the Section (1), above, showing that the freerepublic.com is a poor substitute for Internet users to locate and read Plaintiffs' copyrighted content, weighs heavily in favor of a conclusion that Plaintiffs have greatly benefitted in terms of "hits" and advertising revenue. And, in the worst case, the effect of Defendants' website upon Plaintiffs' websites is de minimis. See, Declaration of Rick Stout, and exhibits thereto.
A fundamental purpose for the existence of the freerepublic.com website is the exercise of the First Amendment rights of users of the site. This further weighs in favor of a finding of "fair use" in light of the purpose of the copying for the expression of First Amendment rights of free speech. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) (the "Nation" case); Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1151 (9th Cir. 1986). See, Exhibits 1006 and 1007 hereto.
II. FIRST AMENDMENT AS A SEPARATE DEFENSE (An Issue of First Impression)
Defendants, in asserting a First Amendment defense in this context, raise what Defendants believe to be an important issue of first impression of Constitutional magnitude. Various commentators have noted and commented upon a fundamental conflict between the Copyright Clause of the United States Constitution. A particularly extensive discussion occurs in Nimmer, supra, at § 1.10[A] ("The Need to Reconcile Copyright and the First Amendment"). In commenting upon the tension between copyright law and the First Amendment, Nimmer notes with respect to various conflicts in the law that some analysts avoid conflicts in legal views by keeping them mentally separate. Borrowing a phrase from Jerome Frank, Nimmer wryly observes, at p. 1-66.43:
To understand the conflict at issue, it is worthwhile to quote somewhat extensively from Nimmer. At p. 1-66.45, Nimmer discusses the paradox between the First Amendment and copyright law:
Nimmer, at pp.1-6646 and 1-67, points out that there is an unacceptable tendency in the Courts to resolve such constitutional conflicts with "ad hoc balancing" in each case. However, Nimmer explains, at p.1-67, that in recent years a resolution of such dilemmas has begun to emerge in decisions of the United States Supreme Court which commentators have termed "definitional balancing" of speech and nonspeech interests. "The crucial difference, however, lies in the fact that the balancing is not for the purpose of determining which litigant deserves to prevail in the particular case before the court, but rather for the purpose of determining which forms of speech are to be regarded as 'speech' within the meaning of the First Amendment. Definitional balancing, unlike its 'ad hoc' cousin, creates a rule that may guide those who wish to speak, and that may further shield the courts in some degree from the pressures of a public aroused against a particular speaker." Nimmer, § 1.10[A], p. 1-68.
Nimmer, at p. 1-69, points out that: "Rather surprisingly, up to now the Supreme Court of the United States has not found it necessary fully to delineate the respective claims of copyright and freedom of speech. [citing footnote omitted] One can predict with confidence, however, that such a confrontation will eventually occur, as it has already occurred in the lower courts. Those concerned with copyright, and those concerned with freedom of speech (and it is suggested that the latter includes the former) must then turn their minds to the policy questions that underlie an acceptable definitional balance between these two interests."
The decisions to date which have expressly considered the impact of the First Amendment in copyright infringement actions have generally done so by treating a defendants' First Amendment rights as an element of the "fair use" defense. In Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) (the "Nation" case), Nation magazine reprinted, without authorization, 300 words from the memoirs of President Gerald Ford. Nation magazine asserted both "fair use" and First Amendment defenses. However, the Court "limited its inquiry to 'the traditional equities of fair use.'" Nimmer, § 1.10[C], p, 1-82. Similarly, in Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1151 (9th Cir. 1986), the court treated First Amendment concerns as an element of the "fair use" doctrine.
Nimmer, however, at § 1.10[D], p.1-99, suggests that the Nation case may be distinguishable, opines that assuming, arguendo, that if portions of the copyrighted content are 'newsworthy' "not merely in the sense that they pique popular interest, but further in the sense that vital news elements will be lost unless the exact language can be quoted," or where the "copying of the expression is essential effectively to convey the idea expressed, then the line between First Amendment and copyright interests may have been drawn differently.
In the case of Free Republic it is difficult to see how site users could opine upon and criticize the "mainstream media's" coverage of current events and politics, and comment upon material omissions or bias therein, without including for comment the entirety of the article being criticized.
Under both the "fair use" doctrine, and under their First Amendment right of free speech, Defendants pray the Court for a finding of "fair use" and a judgment of dismissal of this action in its entirety.
DATED: October 18, 1999
LAW OFFICES OF BRIAN L. BUCKLEY
Brian L. Buckley, Esq.