December 06, 2000, 7:19 PM — 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.