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.
