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Judge Rejects 'Fair Use' of News Protection

November 09, 1999|GREG MILLER | TIMES STAFF WRITER

In a ruling that could shape how copyright laws are applied in cyberspace, a federal judge on Monday rejected a conservative Web site's position that posting articles copied without permission from major newspapers is legally protected.

The preliminary ruling, delivered in U.S. District Court in Los Angeles, stems from a copyright infringement suit filed last year by Los Angeles Times and Washington Post newspapers against Freerepublic.com, a Fresno-based site that has posted thousands of copies of those papers' articles so users can attach comments to them.

The case has been followed closely by legal scholars because it is the first to address fundamental questions about how copyright laws might translate to the Net, a medium that thrives on the free flow of information and has made copying and distributing documents around the globe almost effortless.

"What this means is that copyright laws do apply on the Internet and people are not free to ignore those laws," said Rex Heinke, a Beverly Hills attorney representing The Times and the Post.

The ruling represents a legal blow to Free Republic, a site founded and operated by Jim Robinson, a 53-year-old Fresno resident, Vietnam veteran and right-wing political activist.

An attorney for Free Republic said the site will continue to contest the suit, and that the judge made a misguided decision that could dampen the flow of free information that many consider so important to the Internet's vitality.

"The judge got it wrong," said Brian L. Buckley, who represents Free Republic. Unless Monday's ruling is reversed, he said, "it will have a tremendous chilling effect and will impinge free discussion."

Free Republic had asked for the case to be dismissed, arguing that it was protected under a legal doctrine known as "fair use," which allows copyrighted works to be duplicated without permission in certain situations, such as when the works are the subject of review or commentary.

But overall, Judge Margaret Morrow showed little sympathy for Free Republic's position. She not only rejected the site's request to have the case dismissed, but wrote in a 28-page opinion that Robinson and his site "are not entitled to assert a fair use defense to the claims of copyright infringement alleged in the complaint."

Morrow could still alter her decision after arguments from attorneys in the case on Monday, but attorneys for both sides said a reversal is unlikely.

Morrow agreed with many of The Times' and Post's central claims, including that Free Republic's activities damage the newspapers' own Web sites. The newspapers have claimed they lose online advertising revenue because consumers are less likely to visit their sites, let alone spend $1.50 to view archived articles, when Free Republic posts so many articles for free.

The judge also appeared receptive to The Times' and Post's argument that Free Republic could simply link to stories on the newspapers' sites instead of copying their articles, even though Buckley argued that would impose a significant inconvenience on users.

Finally, the judge rejected Free Republic's claim that posting newspaper articles was protected by the First Amendment.

Some legal scholars said they disagreed with portions of Morrow's decision. Pamela Samuelson, an expert on copyright law at UC Berkeley, said Morrow was mistaken in not giving Free Republic some latitude because it copies and posts articles mainly to enable Internet users to comment on them.

"They're not trying to set up an alternative publication system," Samuelson said.

But Morrow wrote that Free Republic's practices often amount to wholesale copying, including initial postings of many articles that are accompanied "by little or no commentary."

Buckley said he still hopes to persuade Morrow to reverse her position on the fair use portion of his defense. But failing that, he said he will focus on other arguments.

The case is scheduled to go to trial in June of next year.

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