-Caveat Lector-
http://www.worldnetdaily.com/bluesky_dougherty/
19991111_xnjdo_court_says.shtml
Court says no to FreeRepublic.com
Rejects 'fair use' argument
for copying articles
By Jon E. Dougherty
Thursday, November 11, 1999
© 1999 WorldNetDaily.com
A federal judge has ruled against the operator of a popular
online conservative discussion forum, rejecting the owner's
claim that reposting entire news stories constituted a
"fair use" of copyrighted material.
Judge Margaret Morrow of the U.S. District Court in Los
Angeles rejected FreeRepublic.com's request to dismiss the
case, and said owner Jim Robinson was not protected under
"fair use" provisions of existing copyright law when he
copied and posted entire newspaper articles on his site.
The court sided with both plaintiffs -- the Los Angeles
Times and the Washington Post -- by writing in her 28-page
ruling on Monday that Robinson was "not entitled to assert
a fair use defense to the claims of copyright infringement
alleged in the complaint."
Both newspapers claimed that Robinson -- who posted or
allowed the posting of articles for the purpose of
soliciting comments from site members -- was damaging their
websites, and that by posting entire articles both
newspapers were losing online advertising revenue. They
also said consumers were less likely to pay their standard
$1.50 fee to access archived stories if the FreeRepublic
was reproducing them for free.
Robinson told WorldNetDaily he believes Morrow's decision
is wrong and pledged to fight the ruling.
"She ignored any testimony or evidence we put forward and
sided with the barest of assertions made by the
plaintiffs," Robinson said, adding that the only factor out
of four he presented that the court agreed with was his use
of non-fiction material. "It's harder to get a 'fair use'
ruling on fictional materials."
Robinson also said the judge ignored the fact that his
website "only uses a small portion" of each newspaper every
day, and said that by law users of copyrighted material are
permitted to do that. "We use individual articles; however,
they copyright the entire paper," he said.
One source, who requested anonymity, said his
interpretation of copyright law "limited users to either a
certain number of words or no more than a certain portion
of a news story" when reprinting copyrighted information,
rather than the entire article.
Another aspect of the decision that Robinson disagreed with
was the court's characterization of FreeRepublic as a
commercial website. He told WorldNetDaily that Judge Morrow
said because he received donations through his site, "that
makes me a commercial enterprise, but that's completely
false."
In disputing Morrow's claim, Robinson said he has recently
filed for non-profit status but that the paperwork has not
yet been approved. "We have never operated the FreeRepublic
as a commercial venture -- not at any time," he said. "She
just ignored that. She said in the courtroom that the only
reason for our existence was to raise donations."
Binyamin L. Jolkovsky, editor of another Internet news and
commentary site, the Jewish World Review, sees merit in
both sides of the case, but said he was more concerned
about the loss of impact FreeRepublic could have as a
"valuable and informative site" if Robinson loses his case.
"For small sites like ours, it's somewhat damaging when
somebody copies entire articles and reposts them
elsewhere," he said, "especially when you're a site that is
paying for content."
On the other hand, he said, "they have been very kind to
me. We've had a lot of their readers come to JWR."
"I don't want to see FreeRepublic weakened because I think
it's an absolutely amazing site," he said. "As something is
breaking live, on television for example, site members (at
the FreeRepublic) will immediately post a synopsis of the
event, and that's just incredibly useful." Jolkovsky said
the plaintiffs couldn't completely stop Robinson or his
members from posting allowable amounts of copyrighted
information.
He also believes that if the newspapers decide to seek
monetary damages from Robinson, who is reportedly in bad
health, "I think it would be the epitome of corporate
America picking the wrong battle."
Robinson said he views the court's decision as "the same
liberal encroachment that is going on throughout." He sees
his defeat as "just a step" to limit future use of
copyrighted materials on the Internet. He said neither
plaintiff has said it will pursue monetary remuneration
from FreeRepublic, "but they may just be saving that for
the end."
A trial has been set for June of next year, but in the
meantime, Robinson and his attorney, Brian L. Buckley, plan
to file motions to dismiss the case or motions for
reconsideration.
"The judge got it wrong," said Buckley, adding that unless
Monday's ruling is reversed, "it will have a tremendous
chilling effect and will impinge free discussion."
"We haven't decided yet what we're going to do, but we're
going to do something," he said.
Jon E. Dougherty is a staff writer for WorldNetDaily.
© 1999 WorldNetDaily.com, Inc.
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