BRIAN L. BUCKLEY, SBN 116705
Attorneys for Defendants
UNITED STATES DISTRICT COURT
The envelope containing this document includes documents and information that are subject to an order entered by this Court on February 5, 1999, and filed February 9, 1999, governing the use and disclosure of confidential discovery material in this matter. The envelope shall not be opened nor the contents thereof displayed nor revealed except: (a) by a judge or employee of the Court as necessary for the resolution of any issue presented to the Court in the captioned action; or (b) by order of the Court. Any violation may be regarded as contempt of Court.
INTRODUCTION AND SUMMARY OF ARGUMENT
The time has come for this charade of a copyright infringement action to end.
Over and over the plaintiffs cry theft, all the while ignoring the fair use
doctrine and the overwhelming evidence supporting its clear application
to the facts at bar. Mixed in with their bluster is a measure of mock
solicitude for the first amendment and outright scorn for those who would dare
to comment on and criticize the adequacy of their reporting.
Reduced to its essential argument, Plaintiffs’ opposition papers make clear their antagonism toward the fair use doctrine. Their quarrel is with Congress, which enacted the exception. Their remedy, if such be needed, is in Congress’ hands. It was Congress that enacted legislation permitting “infringement” if the material is put to fair use. Why?
The fair use exception has noble bloodlines, as defendants have demonstrated. Congress declared that what would otherwise be infringement would be fair if it promoted certain lofty public policies, including education, scholarship, and research. Political expression would be given special standing. If the use meets certain fluid requirements, then infringement is not possible.
One could hardly imagine a more fitting applicant for a fair use finding than Free Republic. The four prongs of the fair use doctrine fit perfectly on the four corners of the website.
(1) There is no commercial aspect whatsoever to Free Republic.
Plaintiffs cast about desperately to argue otherwise, even going to far as to
declare that the ".com" shows how commercial Free Republic.com really
is. The absurdity of that gem is not uncharacteristic of their arguments
in general, which fall substantially short of overcoming the evidence defendants
have presented in support of the first fair use factor. As the preamble to
Section 107 notes, “criticism, comment, [and] news reporting” are
“most appropriate” for a finding of fair use.
(2) The second factor to be considered in the fair use doctrine, the nature
of the copyrighted work, also clearly favors defendants. Plaintiffs hardly even
try to win this round, devoting only 11 lines or text to their half-hearted
presentation. Why? Because the law is overwhelmingly in Free Republic’s
favor: when the nature of the copyrighted work is nonfiction, the scale tilts
toward fair use. As Professor Nimmer has noted, the more informational or
functional the plaintiff’s work, "the broader should be the scope of
the fair use defense.”
(3) Factor three also comes in for Defendants. Under the transformation doctrine, Free Republic’s activities clearly amount to fair use. Each article pasted to Free Republic is instantly transformed, becoming something entirely new and different.
As a result of comments and criticism from hundreds and thousands of Free
Republic participants, the articles are chameleons, changing with each new
comment appended to them. The additions are new and different. They
are, by definition, transforming. To the Plaintiffs, self-professed
“champions of the First Amendment,” this process is oddly threatening, but
to Congress it is the epitome of fair use.
(4) The fourth and final factor seals the matter in Defendants’
favor. Indeed, as to the effect on the market, Plaintiffs fell flat on
their faces, but only after a long stumble. The evidence, which Plaintiffs
took great pains to suppress and conceal, shows that the hits they have claimed
to be losing for the entire 12 months of this litigation and prior are
COMPLETELY ILLUSORY. Their complaint makes this express claim, that Free
Republic “diverts hits” from the Plaintiffs' websites. Lo and behold,
the opposite is true. Then Plaintiffs compound their phony damage claim by
reliance on the concocted story of one Chappell Aldridge, whose shattered
credibility and integrity are more a matter for the Virginia Bar to consider
than for this Court.
1. Each of the "Fair Use" Factors of 17 U.S.C. § 107 Weigh in Favor of Defendants
Playing on the somewhat counter-intuitive character of the "fair use" doctrine, Plaintiffs characterize the posting of Plaintiffs' newspaper articles onto freerepublic.com for comment as "theft." A close reading of Plaintiffs' opposition reveals that Plaintiffs' are not concerned with a careful analysis of the "fair use" factors set forth in 17 U.S.C. § 107. Rather, Plaintiffs object to the "fair use" doctrine itself. Plaintiffs seek to enforce their "monopoly" over their newspaper articles. However, they fail to acknowledge that 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 Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1151 (9th Cir. 1986) citing and quoting Marcus v. Rowley, 695 F.2d 1171, 1174 (9th Cir. 1983). If Plaintiffs seek elimination of the fair use doctrine, they should address their concerns to Congress. As noted in 23 American .Law Reports 3d 139 (1998) ["Extent of Doctrine of 'Fair Use' Under Federal Copyright Act"], at II.3.a, "[A]s the cases and writers often point out, the copyright law, unlike the patent law, does not give the copyright owner the exclusive right to "use" the copyrighted work."
The first enumerated factor of 17 U.S.C. § 107 is "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes."
Plaintiffs argue as if the first factor of Section 107 consists of the "transformation" element only. Plaintiffs attempt to distinguish Defendants' citation to the extensive discussion of the purpose of use in American Geophysical Union v. Texaco, Inc. 60 F.3d 913 (2d Cir. 1995), Section II, by making a transformation argument. This is inapposite. Transformation is a separate and different element of the first factor of "purpose and character of the use" -- which Defendants appropriately discuss separately.
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. "Chickering had them photocopied, at least initially, for the same basic purpose that one would normally seek to obtain the original -- to have it available on his shelf for ready refererence if and when he needed to look at it." American Geophysical, supra, 60 F.3d 913, Section II.A. (2d Cir. 1995).
By contrast, the central purpose of the use of Plaintiffs' articles on Free Republic is to allow users to "post" followup comment and criticism concerning both the substance of the article and the "mainstream media" coverage of it.
Plaintiffs argue that because in many cases the entire text of Plaintiffs' articles is posted on Free Republic, that Free Republic's use is not transformative. Plaintiffs ignore as transformative all of the "comments" and "replies" added to the same web page by registered users of Free Republic. In support of this point of view, Plaintiffs cite NiNihon Keizai Shimbun, Inc. v. Comline Business Data, Inc., 166 F.3d 65 (2d Cir. 1999). However, NiNihon can be easily distinguished on the facts. In NiNihon, was a Japanese corporation that published financial, business and industry newspapers -- both in Japanese and in English translation. The defendant published, for commercial purposes, translated abstracts of the original articles. "[D]efendants added almost nothing new in their works." Id. at p. 72. The court held that the defendant's "infringing abstracts are "not in the least 'transformative.' That mere translated abstracts would be held to be non-transformative is no surprise.
The facts of Free Republic are very different. Each "work" on Free Republic consists of an Internet "web page." See, Defendants' Exhibits 1006 and 1007. Each web page, contrary to Plaintiffs' characterization, consists of much more than just a posted article. Once an article is posted, users of the Free Republic site then post follow-up comments and criticism which are then included into the same web page. These follow-up comments and criticism are creative works which "add something new" to the original posted articles. Indeed, these posted follow-up replies are the main reason that users visit the site. The Court in Nihon, 166 F.3d at 72, quoting Twin Peaks Prods., Inc. v. Publications Int'l, Ltd., 996 F.2d 1366, 1373 (2d Cir. 1993), and Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 579, 114 S.Ct. 1164, 127 L.Ed2d 500 (1994), stated:
The reply posts, containing comment and criticism, which are added to each web page on Free Republic "alter the first with new expression, meaning or message."
In analyzing the "fair use" factors, the Supreme Court of the United States, in Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984), upheld and approved of the District Court's analysis in finding that the home use of video recorders was a "fair use." The Supreme Court, in characterizing the District Court's analysis, noted that the District Court emphasized the "noncommercial character of the use" and that the purpose of the use "served the public interest in increasing access to television programming, an interest 'that is consistent with the First Amendment policy of providing the fullest possible access to information through the public airwaves.' [cite omitted] Even when an entire copyrighted work was recorded, the District Court regarded the copying as fair use 'because there is no accompanying reduction in the market for 'plaintiff's original work.'' Sony, supra, at 464 U.S. 417, 426. [Underline added.]
In addition, the "scope" of the fair use doctrine is wider when the use relates to issues of public concern. National Rifle Ass'n of America v. Handgun Control Federation of Ohio, 15 F.3d 559 (6th Cir. Ohio 1994). "Issues of public concern" are the sine qua non of the existence of Free Republic. See also, Consumers Union of United States, Inc. v. General Signal Corp., 724 F.2d 1044 (2nd Cir. NY 1983) (Scope of fair use doctrine is wider when information conveyed relates to "matters of high public concern").
Plaintiffs attempt to bootstrap the one-time TalkSpot consulting payment to defendant Jim Robinson into a finding that the Free Republic site is commercial. Nothing could be further from the truth -- as defendant Jim Robinson has testified. The only evidence before this Court concerning the interpretation and "meeting of the minds" for the TalkSpot agreement is the testimony and declarations submitted by defendant Jim Robinson. This testimony is uncontroverted by any evidence submitted by Plaintiffs. If Plaintiffs wanted to establish to the contrary, they could have taken the deposition of the principals of WorldStream Communications ("WorldStream") -- the other party to the agreement. But Plaintiffs chose not to do so. All the evidence concerning the TalkSpot agreement is consistent with a finding that Free Republic is a non-profit public interest web site.
When making a fair use analysis, the "commercial nature" is a
"matter of degree" and "not an absolute." Maxtone-Graham
v. Burtchaell, 803 F.2d 1253 (2nd Cir. NY 1986). The "presumption
of unfairness" arising from use of copyrighted material for profit making
purpose can be rebutted by characteristics of the use. Hustler, supra,
796 F.2d 1148. When a use has both commercial and nonprofit
characteristics, the court may consider whether the alleged infringing use was
"primarily for public benefit" or for "private commercial
gain." Ibid. Accord, MCA, Inc. v. Wilson,
677 F.2d 180 (2nd Cir. NY 1981).
Plaintiffs also point to the TalkSpot clause assigning rights to user lists to WorldStream. However, since the beginning of the now-defunct TalkSpot website, defendant Robinson has never shared any user information with any person or entity. Indeed, the current Free Republic User Registration Agreement expressly provides that Free Republic will not share user information with anyone.
Plaintiffs also contend that the attempt to collect "dues" by a local association of "fans" of Free Republic, which call themselves "Free Republic chapters," somehow transforms the Free Republic site into a for-profit enterprise. Plaintiffs offer Exhibit "O" to the Wayland Declaration in support of this proposition, which is a web page for such a local "chapter." However, as set forth in the Declaration of James Robinson In Opposition To Plaintiffs' Motion For Partial Summary Judgment, these local chapters are unconnected with Free Republic, and the web page soliciting dues for this local organization is not taken from the Free Republic site. It is from an entirely different site.
Last, Plaintiffs seem to think it very significant that the freerepublic.com domain name ends in "com." This is absurd as saying a "Thunderbird" is a bird that thunders. It is well known that domain endings are mnemonic devices of convenience -- and that any entity is free to choose among domain "levels" and in fact is free to register multiple domain endings, E.g., *.com, *.net, and *.org, for the same entity. Plaintiffs attempt to draw any inference of commerciality from this is spurious.
"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. See also, Diamond v. Am-Law Corp., 745 F.2d 142 (2d Cir. 1984).
The Court in the Ninihon case, supra, 166 F.3d at 72, stated:
See also Stewart v. Abend, 495 U.S. 207, 237, 110 S.Ct. 1750 (1990) ("In general, fair use is more likely to be found in factual works than in fictional works.")
There could hardly be more "informational and functional" a work than a newspaper article such as those of Plaintiffs posted on Defendants' site. See, Defendants' Exhibits 1006 and 1007, a random sample of Plaintiffs' articles posted to Defendants' site.
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, Defendants' 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].
Through the use of the declaration submitted by Chappell Aldridge, a long-standing and well-known opponent of Free Republic, Plaintiffs attempt to show, by a single anecdotal incident by a clearly biased witness, that Free Republic is a "perfect substitute" for Plaintiffs' web sites latimes.com and washingtonpost.com and that Plaintiffs' archive fee can be circumvented by locating the same articles on Free Republic.
This is utter nonsense. Defendants' freerepublic.com web site is a very poor and impracticable substitute Plaintiffs' web sites. 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 -- as Mr. Aldridge purports to have done. 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. In addition, there is considerable difficulty in locating such an article even after it is indexed on third-party search engines.
In order to show this, Defendants' expert, Richard L. Stout, ran his own tests as set forth in the Supplemental Declaration of Richard L. Stout, submitted herewith. The results were unequivocal. Using a random selection of searches (unlike the Chappell Aldridge test), Mr. Stout found that the Free Republic site cannot be used as a substitute for Plaintiffs' sites at all -- much less a "perfect" substitute.
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.
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. As set forth in detail in the Declaration of Rick Stout (submitted with Defendants' moving papers) the evidence shows literally tens of thousands, if not hundreds of thousands of hits per month "referred" to Plaintiffs' web sites. 
Even without an expert's analysis, the Court can see for itself the thousands of "hits" "referred" to the latimes.com web site by Free Republic by simply looking at the "Referrer Reports" produced by Plaintiffs for the latimes.com site. And in an August 2, 1999, letter from Plaintiffs' counsel, Exhibit 1060, Plaintiffs admit that these thousands of hits represent only the first hit to Plaintiffs' web site and do not reflect all the hits incurred during the referred users visit to the site. Plaintiffs introduce absolutely no controverting evidence that they do not gain "hits" from Free Republic-- even though Plaintiffs have even more data in their possession.
This evidence, coupled with the analysis set forth 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.
The analysis of Mr. Stout was principally done for Plaintiffs' latimes.com site because more data was available for that site. However, the data to perform a similar analysis for the washingtonpost.com site was and is in possession of Plaintiffs -- but Plaintiffs refused to produce it. Plaintiffs' failure to controvert this evidence entitles Defendants to infer that the results obtained for the latimes.com site would be similar for the washingtonpost.com site. Winckler & Smith Citrus Products Co. v. Sunkist Growers, 346 F.2d 1012 (C.A.Cal. 1965).
A fundamental purpose for the existence of the freerepublic.com website is clearly the exercise of the First Amendment rights of users of the site. Defendants' Exhibits 1006 and 1007 are consistent with Jim Robinson's testimony that There is evidence that the purpose of Free Republic is to "expose government corruption and to expose the bias of the liberal media." [Robinson Depo, 56:8-19.] 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.
2. FIRST AMENDMENT AS A SEPARATE DEFENSE (An Issue of First Impression)
Plaintiffs' rather cavalier dismissal of Defendants' First Amendment defense with a metaphorical "wave of the hand" flies in the face of well respected commentators on copyright law.
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. 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 granting of their motion for summary judgment.
DATED: November 1, 1999
LAW OFFICES OF BRIAN L. BUCKLEY
Attorneys for Defendants FREE REPUBLIC,
 Supplemental Declaration of James Robinson, submitted herewith, ¶¶ 2-3.
 Ibid. and Defendants' Exhibit 1065.
 Supplemental Declaration of James Robinson, submitted herewith, ¶¶ 5.
 See, Supplemental Declaration of Richard L. Stout, submitted herewith, ¶¶ 35-38; and see, Defendants' Exhibit 1064, a copy of Network Solutions' [the company under contract to Internic for the assignment of *.com domain names] Glossary, Help, Fact Sheet, and Company Profile pages which discuss the choice of domain "levels" or endings. [Authenticated in Buckley declaration.]
 See, Declaration of Richard L. Stout in Opposition To Plaintiffs' Motion For Partial Summary Judgment, for an explanation of how these random articles were selected.
 See, Declaration of Chappell Aldridge submitted by Plaintiffs, and see, Declaration of James Robinson in Opposition To Plaintiffs' Motion For Partial Summary Judgment.
 Supplemental Declaration of Richard L. Stout, submitted herewith, ¶¶ 3-25. After an detailed analysis of the tests run, Mr. Stout concludes, at ¶ 25: "In my professional opinion, the FreeRepublic web site is not merely an extremely poor substitute for real news sources for the general public looking for the news. In fact, it is no substitute at all."
 See, Declaration of Richard L. Stout in Opposition To Plaintiffs' Motion For Partial Summary Judgment, ¶¶ 49-50; and Defendants' Exhibit 1009 [Deposition of James Robinson], pp.82-83.
 Supplemental Declaration of Richard L. Stout, submitted herewith.
 See, the Declaration of Rick L. Stout in Opp. To Pltfs. Motion For Partial Summary Judgment; Exhibits 1009 - 1012 [Deposition Transcripts] and exhibits thereto.
 See, Defendants' Exhibits 1021 - 1030.
 Declaration of Richard L. Stout in Support of Defendants' Motion For Summary Judgment
 See, for example, Defts Exhibit 1021 (March, 1998 Referrer Report), p.5, 836 initial hits (at left edge); Exhibit 1022 (April, 1998 Referrer Report), p. 5, 851 initial hits + p.6, 659 initial hits + p.8, 482 initial hits + p.13, 248 initial hits; Exhibit 1024 (July, 1998 Referrer Report), p.5, 714 intial hits + p. ; and see, Exhibits 1021-1030 [Monthly latimes.com Referrer Reports] generally; and see, Declarations of Richard L. Stout in Support of Defendants' Motion For Summary Judgment, and Defendants' Opposition to Plaintiffs' Cross-Motion For Partial Summary Judgment, for an estimate of the "multiplier" showing the average number of page views for every single one of these referred "hits."
 See, Defendants Exhibit 1060; Declaration of Richard L. Stout in Opposition To Plaintiffs' Motion for Partial Summary Judgment; and Defendants' "Emergency" Ex Parte Application For a Continuance of the Summary Judgment Motion Briefing and Hearing Schedule
 See Defendants' Exhibit 1060 [8/2/99 Letter from Plaintiffs' counsel Heather Wayland], and Exhibits 1061-1063 [Plaintiffs' first amended discovery responses].
 See, Defendants' Exhibit 1009 [Robinson Depo], pp. 51-52, 56:8-19 and Exhibits 1006 and 1007.
 U.S. Constitution, article I, § 8.
 See, the Declaration of Rick L. Stout, and Exhibits 1006, 1007 and 1009 [Deposition Transcript of Jim Robinson deposition.]