Imagine that you have had your fill of what you firmly believe to be unfair,
biased media coverage of the upcoming presidential elections. Some of your friends
agree; others disagree. So you disband your monthly book group and replace with it a
monthly "media watch" discussion group. Members bring in copies of offending newspaper
articles and come prepared to attack agenda-driven journalists. Just for fun, a few
members assume the role of defenders of the Fourth Estate. So far so good.

Then imagine that the discussions are so much fun and so informative that your
media watch group decides to move its discussions to the internet. You create a
bulletin board that allows interested people to post articles they want to criticize
for lack of objectivity. Instead of heated discussions in your living room, members
post their critiques and their defenses on the bulletin board. Hundreds, then
thousands, of people find their way to your bulletin board, using the full text of news
stories to spark commentary on media bias. But what if the newspapers under attack
complain that the unauthorized republication of their articles is copyright
infringement? Can it really violate the copyright laws to reproduce a news article for
the purpose of demonstrating media bias? Wouldn't the criticism and commentary
accompanying the reproduced articles provide you with a classic "fair use" defense to
any claim of copyright infringement?

A federal district court in California recently considered a such case (Los
Angeles Times v. Free Republic) and the "fair use" defense was all but useless
against a copyright infringement claim. Free Republic is a bulletin board website whose
members use the site to post copies of news articles to which they add commentary
concerning media coverage of current events, as well as their views on omissions and
biases they see in the articles. Members often post the entire text of new articles,
including verbatim copies of articles from the Los Angeles Times and
Washington Post websites, and both newspapers sued Free Republic and its owners
for copyright infringement. In a partial summary judgment ruling, the Free Republic
Court held that the defendants' fair use defense failed.

The fair use defense provides that the fair use of a copyrighted work for purposes
such as "criticism, comment, news reporting... or research" is not an infringement.
Among the nonexclusive factors to be considered by a court are: 1) the purpose and
character of the use, including whether is of a commercial nature; 2) the nature of the
copyrighted work; 3) the amount and substantiality of the portion used in relation to
the copyrighted work as a whole; and 4) the effect of the use upon the potential market
for or value of the copyrighted work.

Although the Free Republic Court found that "the primary purpose of posting
articles to the Free Republic site is to facilitate the discussion, criticism and
comment" of users, it nevertheless held that the commercial elements of the website's
operations cut against the fair use defense. Because Free Republic solicited donations
from visitors to its website, facilitated links to other webpages where donations to
Free Republic and its affiliates were solicited, and ran advertisements for its parent
company, its use of the newspapers' articles was considered to be commercial.

The fact that the newspaper articles were republished in their entirety also
weighed heavily against the fair use defense. Where media criticism is concerned, one
can well understaand a critic arguing that an offending article must be viewed in its
entirety to assess the context and any subtle bias of the author. But the Court was
unmoved by that argument, and it held that the Free Republic had failed to show how
full-text copying was essential to its discussion forum. The Court implied that posting
summaries of the articles or providing a link to the newspapers' websites where the
full articles could be read were alternatives that Free Republic should have employed.
Finally, because the availability of the papers' articles in full text on the Free
Republic site fulfilled at least some demand for the original works on the papers' own
websites, and because widespread copying of this type would have a deleterious effect
on the papers' markets, the fourth factor weighed against the fair use defense.

In the end, in fact, the Court found that only one factor favored the fair use
defense: that newspaper articles are predominantly factual rather than expressive in
nature. Accordingly, the fair use claim was stronger than it would have been had purely
fictional works been copied.

The Court also considered, and rejected, Free Republic's argument that wholly apart
from the statutory fair use defense, its conduct was privileged under the First
Amendment. Once again, the alternatives available to Free Republic, such as publishing
summaries of the newspapers' articles or providing links to the newspapers' websites,
were considered crucial. "While defendants...might find these options less ideal than
being able to copy the entire news articles verbatim," the court wrote, " their speech
is in no way restricted by denying them the ability to infringe on the plaintiffs'
exclusive rights in the copyrighted news articles."

Does the decision mean that lively and informed debate on potential media bias has
been squelched by two large, establishment media corporations? Probably not. The
commercial nature of Free Republic's operations, as well as its decision to permit the
posting the full-text of copyrighted newspaper articles, were critical to the failure
of the fair use defense. The case does demonstrate, however, that there is a First
Amendment price to pay for the protections afforded to copyrighted forms of expression.

www.cio.com

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