Not Fair –

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.

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