L.A. Times v. Free Republic
Encyclopedia
L.A. Times v. Free Republic is a 1998 United States district court
copyright law
case. Several newspaper
s sued
the Internet forum
Free Republic
for allowing its users to repost the full text of copyright
ed newspaper articles, asserting that this constituted copyright infringement
. Free Republic claimed that they under the doctrine
of fair use
and the First Amendment
guarantee of freedom of speech
the reposting of articles were not liable
. The federal courts
ruled in favor of the newspapers.
for Republican
and conservative activists, was founded in 1996 by Jim Robinson of Fresno, California
, and gained popularity during the impeachment of Bill Clinton
.
During the first few years of its existence, Free Republic's members made a practice of posting and archiving the full text of copyrighted news articles on its website, despite the objection of the copyright holders.
The website
homepage
stated:
, the Washington Post, and other newspapers sent cease-and-desist letters
by certified mail
to Free Republic and to Robinson demanding that they stop republishing and archiving full-text articles of copyrighted materials. Robinson defiantly refused, saying that before he would agree to excerpt and link—that is, to post only excerpts of articles and use hyperlink
s to the original source for the full text—the newspapers would have to "rip the keyboard
from his cold dead fingers" (a reference to the famous statement, "I'll give you my gun when you take it from my cold, dead hands
").
On September 28, 1998, the Los Angeles Times, the The Washington Post Company, and the Washingtonpost.Newsweek Interactive
(the wholly owned subsidiary
of The Washington Post Company that produces the online version of the Washington Post, washingtonpost.com) filed suit in the United States District Court for the Central District of California
against Robinson, Free Republic, and Electronic Orchard alleging copyright infringement. (Electronic Orchard was the name of a "business of unknown legal form" that conducted website development and "regularly and extensively advertised" its services on Free Republic and was owned and controlled by Robinson as Free Republic was). Ten more defendants only known by the usernames were sued as Does
1 through 10. The complaint stated that Free Republic (the "Infringing Website") had contained "dozens if not hundreds of Plaintiffs' copyrighted articles," and named ten examples (one each for Does 1 through 10).
The ensuing court battle over the next four years revolved around issues of copyright and fair use. Robinson characterized it as "a life and death struggle with elements of the socialist
propaganda
machine, namely, the Los Angeles Times and the Washington Post."
The newspapers were represented by Rex S. Heinke, originally of the law firm of Gibson, Dunn & Crutcher
. During the litigation he moved first to the firm of Greines, Martin, Stein & Richland, LLP, of Beverly Hills, then to the Los Angeles
firm of Akin, Gump, Strauss, Hauer & Feld
. Free Republic were represented by the now-disbarred attorney Brian Langford Buckley and the Newport Beach
-based David Flyer.
Free Republic responded to the suit by raising an affirmative defense
of fair use. The plaintiffs moved for partial summary adjudication on defendants' fair use defense on October 4, 1999, and cross-filed for summary judgment
citing a First Amendment defense on October 19 under seal. Judge Margaret M. Morrow
issued a preliminary ruling on November 8, 1999 rejecting the "fair use" argument. On April 4, 2000, Morrow issued an order granting partial summary judgment to the plaintiffs and denying the defendant's motion for summary judgment. In this opinion, Morrow set out the federal standard for fair use of copyrighted materials, which has been the basis of authority in all subsequent litigation.
Plaintiff filed for summary judgment on the remaining issues of permanent injunction
and damages
on June 5, 2000. The defendants failed to file any opposition to the plaintiff's second motion for summary judgment and claiming they had not been served
, but that the point did not matter as they "did not oppose the relief
being requested."
The defendants waived their remaining defenses and stipulated
to the entry of final judgment in district court with a stay on execution, preserving their right to appeal to the United States Court of Appeals for the Ninth Circuit
only on fair use and First Amendment grounds. The stipulation that defendants agreed to on November 16, 2000, gave plaintiffs a permanent injunction against posting full-text versions of copyrighted materials, ordered archived articles be removed, and awarded the plaintiffs $1 million in damages, but no attorney's fee
s. Robinson claimed to be judgment-proof, saying "Practically speaking, we were already bankrupt
long before any of this got started. We just did not have, and still do not have any assets to protect..."
due to noncompliance with Minimum Continuing Legal Education
(MCLE) requirements. He was therefore declared not eligible to practice law. Buckley and Robinson later clashed publicly regarding related legal matters, and Buckley was banned from Free Republic. On October 5, the defendants notified the court of appeals of their substitution of counsel.
The parties then began negotiating a settlement. The parties ultimately agreed that in return for Defendants dropping their appeal and agreeing to both endorse the Stipulation for Entry of Amended Final Judgment containing the Permanent Injunction Order and link to it on the Free Republic homepage, the defendants would only be jointly and severally liable
to the newspapers for $5,000 each, which was not described as damages or legal fees, and the Court found that plaintiffs had "no 'adequate legal remedy' other than a permanent injunction to protect them against further acts of copyright infringements by the three named defendants."
Robinson announced the decision to drop the appeal and begin excerpting and linking articles on June 19, 2002, saying "Well, my fingers are not cold and dead and my keyboard has not been ripped away." Thousands of threads were subsequently deleted from the archives as Times and Post articles were purged. Free Republic has complied with other post-litigation requests from other copyright owners such as USA Today
to excerpt and link.
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
copyright law
United States copyright law
The copyright law of the United States governs the legally enforceable rights of creative and artistic works under the laws of the United States.Copyright law in the United States is part of federal law, and is authorized by the U.S. Constitution...
case. Several newspaper
Newspaper
A newspaper is a scheduled publication containing news of current events, informative articles, diverse features and advertising. It usually is printed on relatively inexpensive, low-grade paper such as newsprint. By 2007, there were 6580 daily newspapers in the world selling 395 million copies a...
s sued
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
the Internet forum
Internet forum
An Internet forum, or message board, is an online discussion site where people can hold conversations in the form of posted messages. They differ from chat rooms in that messages are at least temporarily archived...
Free Republic
Free Republic
Free Republic is a moderated Internet forum for activists, and chat site for self-described conservatives, primarily within the United States. It presents articles and comments posted pseudonymously by registered members, known as "Freepers", using screen names...
for allowing its users to repost the full text of copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
ed newspaper articles, asserting that this constituted copyright infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
. Free Republic claimed that they under the doctrine
Doctrine
Doctrine is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the body of teachings in a branch of knowledge or belief system...
of fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
and the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
guarantee of freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
the reposting of articles were not liable
Legal liability
Legal liability is the legal bound obligation to pay debts.* In law a person is said to be legally liable when they are financially and legally responsible for something. Legal liability concerns both civil law and criminal law. See Strict liability. Under English law, with the passing of the Theft...
. The federal courts
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
ruled in favor of the newspapers.
Background
Free Republic, an Internet forumInternet forum
An Internet forum, or message board, is an online discussion site where people can hold conversations in the form of posted messages. They differ from chat rooms in that messages are at least temporarily archived...
for Republican
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
and conservative activists, was founded in 1996 by Jim Robinson of Fresno, California
Fresno, California
Fresno is a city in central California, United States, the county seat of Fresno County. As of the 2010 census, the city's population was 510,365, making it the fifth largest city in California, the largest inland city in California, and the 34th largest in the nation...
, and gained popularity during the impeachment of Bill Clinton
Impeachment of Bill Clinton
Bill Clinton, President of the United States, was impeached by the House of Representatives on charges of perjury and obstruction of justice on December 19, 1998, but acquitted by the Senate on February 12, 1999. Two other impeachment articles, a second perjury charge and a charge of abuse of...
.
During the first few years of its existence, Free Republic's members made a practice of posting and archiving the full text of copyrighted news articles on its website, despite the objection of the copyright holders.
The website
Website
A website, also written as Web site, web site, or simply site, is a collection of related web pages containing images, videos or other digital assets. A website is hosted on at least one web server, accessible via a network such as the Internet or a private local area network through an Internet...
homepage
Homepage
A home page or homepage has various related meanings to do with web sites:* It most often refers to the initial or main web page of a web site, sometimes called the front page ....
stated:
- Any man, corporation or government entity who wants to challenge our right to discuss news accounts (copyrighted or not) of public policy issues or political events or of government corruption, etc., in our non-commercial, not-for-profit, public electronic townhall forum should first examine each and every word of the First Amendment above and then tell us which words they don't understand. -- Jim Robinson
District court proceedings
In December 1997, the Los Angeles TimesLos Angeles Times
The Los Angeles Times is a daily newspaper published in Los Angeles, California, since 1881. It was the second-largest metropolitan newspaper in circulation in the United States in 2008 and the fourth most widely distributed newspaper in the country....
, the Washington Post, and other newspapers sent cease-and-desist letters
Cease and desist
A cease and desist is an order or request to halt an activity and not to take it up again later or else face legal action. The recipient of the cease-and-desist may be an individual or an organization....
by certified mail
Certified Mail
Certified Mail is a type of Special Service mail offered by the United States Postal Service and other postal services that allows the sender proof of mailing, as well as proof of delivery. Certified Mail also provides the sender with a copy of the recipient's signature, which is obtained at the...
to Free Republic and to Robinson demanding that they stop republishing and archiving full-text articles of copyrighted materials. Robinson defiantly refused, saying that before he would agree to excerpt and link—that is, to post only excerpts of articles and use hyperlink
Hyperlink
In computing, a hyperlink is a reference to data that the reader can directly follow, or that is followed automatically. A hyperlink points to a whole document or to a specific element within a document. Hypertext is text with hyperlinks...
s to the original source for the full text—the newspapers would have to "rip the keyboard
Keyboard (computing)
In computing, a keyboard is a typewriter-style keyboard, which uses an arrangement of buttons or keys, to act as mechanical levers or electronic switches...
from his cold dead fingers" (a reference to the famous statement, "I'll give you my gun when you take it from my cold, dead hands
I'll give you my gun when you take it from my cold, dead hands
"I'll give you my gun when you pry it from my cold, dead hands!" is a slogan popularized by the National Rifle Association on a series of bumper stickers...
").
On September 28, 1998, the Los Angeles Times, the The Washington Post Company, and the Washingtonpost.Newsweek Interactive
Washingtonpost.Newsweek Interactive
Washingtonpost.Newsweek Interactive was an online subsidiary of the Washington Post Company, headquartered in Arlington, Virginia, United States. WPNI operated washingtonpost.com, the website of the Washington Post, as well as the Web sites Newsweek.com, Slate, Foreign Policy Magazine, Budget...
(the wholly owned subsidiary
Subsidiary
A subsidiary company, subsidiary, or daughter company is a company that is completely or partly owned and wholly controlled by another company that owns more than half of the subsidiary's stock. The subsidiary can be a company, corporation, or limited liability company. In some cases it is a...
of The Washington Post Company that produces the online version of the Washington Post, washingtonpost.com) filed suit in the United States District Court for the Central District of California
United States District Court for the Central District of California
The United States District Court for the Central District of California serves over 18 million people in southern and central California, making it the largest federal judicial district by population...
against Robinson, Free Republic, and Electronic Orchard alleging copyright infringement. (Electronic Orchard was the name of a "business of unknown legal form" that conducted website development and "regularly and extensively advertised" its services on Free Republic and was owned and controlled by Robinson as Free Republic was). Ten more defendants only known by the usernames were sued as Does
John Doe
The name "John Doe" is used as a placeholder name in a legal action, case or discussion for a male party, whose true identity is unknown or must be withheld for legal reasons. The name is also used to refer to a male corpse or hospital patient whose identity is unknown...
1 through 10. The complaint stated that Free Republic (the "Infringing Website") had contained "dozens if not hundreds of Plaintiffs' copyrighted articles," and named ten examples (one each for Does 1 through 10).
The ensuing court battle over the next four years revolved around issues of copyright and fair use. Robinson characterized it as "a life and death struggle with elements of the socialist
Socialism
Socialism is an economic system characterized by social ownership of the means of production and cooperative management of the economy; or a political philosophy advocating such a system. "Social ownership" may refer to any one of, or a combination of, the following: cooperative enterprises,...
propaganda
Propaganda
Propaganda is a form of communication that is aimed at influencing the attitude of a community toward some cause or position so as to benefit oneself or one's group....
machine, namely, the Los Angeles Times and the Washington Post."
The newspapers were represented by Rex S. Heinke, originally of the law firm of Gibson, Dunn & Crutcher
Gibson, Dunn & Crutcher
Gibson, Dunn & Crutcher is a global law firm, founded in Los Angeles in 1890. The firm is one of the most prestigious and selective in the nation, and ranks among the most successful firms globally. Gibson Dunn has nearly 1,000 attorneys and over 2,000 staff located in 17 offices around the world,...
. During the litigation he moved first to the firm of Greines, Martin, Stein & Richland, LLP, of Beverly Hills, then to the Los Angeles
Los Angeles, California
Los Angeles , with a population at the 2010 United States Census of 3,792,621, is the most populous city in California, USA and the second most populous in the United States, after New York City. It has an area of , and is located in Southern California...
firm of Akin, Gump, Strauss, Hauer & Feld
Akin Gump Strauss Hauer & Feld
Akin Gump Strauss Hauer & Feld LLP is a law firm founded in Dallas, Texas, in 1945 by Robert Strauss and Richard Gump. The firm now numbers more than 800 attorneys and advisers in the United States, Europe, the Middle East and Asia...
. Free Republic were represented by the now-disbarred attorney Brian Langford Buckley and the Newport Beach
Newport Beach, California
Newport Beach, incorporated in 1906, is a city in Orange County, California, south of downtown Santa Ana. The population was 85,186 at the 2010 census.The city's median family income and property values consistently place high in national rankings...
-based David Flyer.
Free Republic responded to the suit by raising an affirmative defense
Affirmative defense
A defendant offers an affirmative defense when responding to a plaintiff's claim in common law jurisdictions, or, more familiarly, in criminal law. Essentially, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. ...
of fair use. The plaintiffs moved for partial summary adjudication on defendants' fair use defense on October 4, 1999, and cross-filed for summary judgment
Summary judgment
In law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case....
citing a First Amendment defense on October 19 under seal. Judge Margaret M. Morrow
Margaret M. Morrow
Margaret Mary Morrow is a United States federal judge, serving on the United States District Court for the Central District of California.She was born in Columbus, Nebraska . She received an A.B. cum laude from Bryn Mawr College in 1971. She received a J.D...
issued a preliminary ruling on November 8, 1999 rejecting the "fair use" argument. On April 4, 2000, Morrow issued an order granting partial summary judgment to the plaintiffs and denying the defendant's motion for summary judgment. In this opinion, Morrow set out the federal standard for fair use of copyrighted materials, which has been the basis of authority in all subsequent litigation.
Plaintiff filed for summary judgment on the remaining issues of permanent injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
and damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
on June 5, 2000. The defendants failed to file any opposition to the plaintiff's second motion for summary judgment and claiming they had not been served
Service of process
Service of process is the procedure employed to give legal notice to a person of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal...
, but that the point did not matter as they "did not oppose the relief
Legal remedy
A legal remedy is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes some other court order to impose its will....
being requested."
The defendants waived their remaining defenses and stipulated
Stipulation
In the law of the United States, a stipulation is an agreement made between opposing parties prior to a pending hearing or trial. For example, both parties might stipulate to certain facts, and therefore not have to argue those facts in court. After the stipulation is entered into, it is...
to the entry of final judgment in district court with a stay on execution, preserving their right to appeal to the United States Court of Appeals for the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
only on fair use and First Amendment grounds. The stipulation that defendants agreed to on November 16, 2000, gave plaintiffs a permanent injunction against posting full-text versions of copyrighted materials, ordered archived articles be removed, and awarded the plaintiffs $1 million in damages, but no attorney's fee
Attorney's fee
Attorney's fee is a chiefly United States term for compensation for legal services performed by an attorney for a client, in or out of court. It may be an hourly, flat-rate or contingent fee. Attorney fees are separate from fines, compensatory and punitive damages, and from court costs in a...
s. Robinson claimed to be judgment-proof, saying "Practically speaking, we were already bankrupt
Bankruptcy
Bankruptcy is a legal status of an insolvent person or an organisation, that is, one that cannot repay the debts owed to creditors. In most jurisdictions bankruptcy is imposed by a court order, often initiated by the debtor....
long before any of this got started. We just did not have, and still do not have any assets to protect..."
Appeal
Brian Langford Buckley filed the defendant's appeal to the Ninth Circuit Court of Appeals on December 15, 2001. The appellant's opening brief was filed April 20, the appellee's brief was filed May 31, and the appellant's reply was filed June 25. On September 1, the Defendant's attorney was declared inactive by the State Bar of CaliforniaState Bar of California
The State Bar of California is California's official bar association. It is responsible for managing the admission of lawyers to the practice of law, investigating complaints of professional misconduct, and prescribing appropriate discipline...
due to noncompliance with Minimum Continuing Legal Education
Continuing Legal Education
Continuing legal education is professional education of lawyers that takes place after their initial admission to the bar. In many states in the United States, CLE participation is required of attorneys to maintain their license to practice law...
(MCLE) requirements. He was therefore declared not eligible to practice law. Buckley and Robinson later clashed publicly regarding related legal matters, and Buckley was banned from Free Republic. On October 5, the defendants notified the court of appeals of their substitution of counsel.
The parties then began negotiating a settlement. The parties ultimately agreed that in return for Defendants dropping their appeal and agreeing to both endorse the Stipulation for Entry of Amended Final Judgment containing the Permanent Injunction Order and link to it on the Free Republic homepage, the defendants would only be jointly and severally liable
Joint and several liability
Where two or more persons are liable in respect of the same liability, in most common law legal systems they may either be:* jointly liable, or* severally liable, or* jointly and severally liable.-Joint liability:...
to the newspapers for $5,000 each, which was not described as damages or legal fees, and the Court found that plaintiffs had "no 'adequate legal remedy' other than a permanent injunction to protect them against further acts of copyright infringements by the three named defendants."
Robinson announced the decision to drop the appeal and begin excerpting and linking articles on June 19, 2002, saying "Well, my fingers are not cold and dead and my keyboard has not been ripped away." Thousands of threads were subsequently deleted from the archives as Times and Post articles were purged. Free Republic has complied with other post-litigation requests from other copyright owners such as USA Today
USA Today
USA Today is a national American daily newspaper published by the Gannett Company. It was founded by Al Neuharth. The newspaper vies with The Wall Street Journal for the position of having the widest circulation of any newspaper in the United States, something it previously held since 2003...
to excerpt and link.