Newspaper ‘fair use’ challenge could limit what schools and others post on the web: LA Times and Washington Post sue web site for copyright infringement

In a case with broad implications about what you can post on your schools’ web sites, the Los Angeles Times and the Washington Post have filed a copyright-infringement lawsuit against the operator of a site that posts their stories without permission.

The lawsuit, filed Oct. 1 in a federal court in Los Angeles, accuses the Free Republic site of using hundreds of stories from the two newspapers, violating their copyrights and diverting users and potential revenue from their own sites.

Rex Heinke, an attorney for the newspapers, said the Free Republic site has been posting the stories “on a very large scale for a very long time.”

Reproducing the stories without the publishers’ consent is financially detrimental to the newspaper companies, Heinke said. The newspapers rely on hits to their own web sites to generate advertising sales, he said.

The Free Republic site, based in Fresno, Calif., posts the stories and allows users to write comments about them. The site’s operator, Jim Robinson, said he has ignored warnings from the newspapers because the practice is protected by the First Amendment and the “fair use” doctrine of copyright law.

The doctrine allows portions of copyrighted works to be duplicated when presented in the context of commentary, such as a book review that contains excerpts.

“I’m resolved to do whatever it takes to win this case,” said Robinson, a computer programmer. “I will not back down.”

Brian Buckley, the attorney for Free Republic, said his client’s site is protected by the “fair use” principle because it is a non-commercial site whose purpose is to foster discussion and criticism.

‘Loaves and fishes’

The suit is widely seen as a potentially groundbreaking attempt to address how copyright protections apply to the internet.

“It’s a very important lawsuit because it’s a question that needs to be settled,” said John Shepard Wiley Jr., a law professor at the University of California, Los Angeles.

“The net is one giant copying machine, and producers, authors, and content providers have been worried that the net would threaten their basic economic incentives,” he said.

David Splitt, ethics and law columnist for eSchool News, said, “The sheer number of readers who can access the website is a key issue. It’s like the Biblical story of the ‘loaves and fishes’. The issue is whether there is a limit on the number of readers with whom you can share a single copy implied by the fair use clause.

“If you want to discuss a newspaper article with a group, you don’t have to buy a separate copy for everybody in the group,” Splitt said, adding that ad revenues are not based on the number of people who might pick up a newspaper in a waiting room. “The universal circulation afforded by the web raises questions for schools and other non-commercial web-page builders who post copyrighted material,” he added, “because if the plaintiffs are successful, the fair use doctrine could not apply to the web at all.”

Heinke said users who want to read and react to published news articles have an easy way to do so: by visiting the news sites themselves, perhaps by following links to the articles from the Free Republic site.

“We have not sought court relief so that you can’t comment on our articles or criticize them,” Heinke said. “What we object to is whole articles being copied and archived in such numbers.”


Free Republic

Los Angeles Times

Washington Post

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