This time the liberals are right

By Gord Gekko
web posted December 1998

A battle began in September, one which is pitting two of America's largest newspapers against a popular web site. The two papers, the Los Angeles Times and the Washington Post, filed a copyright infringement lawsuit against the unashamedly conservative Free Republic claiming that the web site has reprinted hundreds of their stories without permission.

Web site operator Jim Robinson, a retired software executive, sees it differently, however, stating that all he's doing is making "fair use" of the articles to allow commentary by the web site's visitors.

At the heart of the issue is the web site's policy of allowing the posting stories from newspapers across the United States about current political events in its many forums. Frequent visitors to Free Republic -- or FReepers as they are known -- post stories from newspapers about topics ranging from Whitewater to national identity cards and begin commenting on perceived media bias or just the way that some stories are reported.

And there lies the difference of opinions between the Times, the Post and Robinson. The papers charge in their lawsuit that Robinson is violating their copyrights by reprinting entire stories, causing them to loose customers since their archives are only available if one pays, while Robinson says that the activities taking place on his web site is covered under copyright law and freedom of speech.

So is Robinson protected under copyright laws? At first glance he might be able to make a decent case for himself. U.S. law currently has no predefined legal criteria for how much and when a person can legitimately copied under fair use provisions, that is, how much can be used and quoted without receiving the copyright holder's permission. There also often times seems to be no stronger argument in court than that of freedom of speech. Despite that, the case against Robinson seems pretty strong.

Though are no legal criteria, there are four genuinely accepted factors when determining whether something has been copied legally.

The first factor is the purpose and nature of the use. If something has been copied for teaching and is distributed without charge, then the copy can usually be considered to be fair use. The law, however, usually looks to see whether the copying is spontaneous and is for temporary use.

The nature of the copyrighted work also comes into play. If a work is fictional, then fair use sometimes stands up, but since the material posted on Free Republic is factual in nature -- newspapers stories -- then it may be fair game for FReepers to post least on the surface. Subjective descriptions, as I can testify to as a paid journalist, do go into writing news stories and may be a point against Robinson.

Also important is how much of the work has been copied. If the copied part of a story is only a small part of the whole, then it could be considered fair use. This will also likely work against Robinson since FReepers often post the stories in raw HTML format, formatted exactly they originally appeared on the original web site, sometimes even with the original graphics.

Most important of all, though, is the effect the copying has on the potential market value for the work. In the 1985 case Harper and Row v. Nation Enterprises, the U.S. Supreme Court stated that this is "undoubtedly the single most important element of fair use." If the use of the material impacts the market for the work, then it is far less likely to be considered fair use. Considering that hundreds visit the web site every day to read the articles and the commentary by other visitors, the Times and Post can make a reasonable claim that the economic value of their work has been hurt, especially since they charge for access to their on-line archives.

Though Robinson can legitimately claim that he makes no money from the web site, his argument that what he's doing is legal largely falls flat on his face. The fact of the matter is that FReepers may be costing the two big newspapers a little bit of money.

Besides the issue of copyright, the lawsuit spotlights an interesting contradiction: it used to be that conservatives would fight vociferously for property rights while the old guard media could always be counted on to argue on the side of freedom of expression. Technology has often made strange bedfellows, enemies out of former allies, and reversed the positions of many people.

As much as I hate it, I have to agree with the position of Salon's Scott Rosenberg who wrote in an October 9 piece about the lawsuit, "My hunch about what's really going on here is that the folks at Free Republic hate the 'liberal media' so blindly that they don't want to contribute to the traffic on the newspapers' sites. If they link to a media site, they contribute to that site's traffic, which helps that site sell ads and possibly even make some money."

"Why help your enemies make a buck when you can violate their copyrights instead? And so the FReepers betray one of the most fundamental principles of conservative thought -- the protection of property rights -- rather than add a few clicks to the L.A. Times' and Washington Post's totals," he concludes.

And rightly so. Property rights is an important issue for conservatives and not to be taken lightly or dismissed when it suits us.

Conservatives are more than eager to jump down a government's throat when, for example, an agency like the EPA declares some mole endangered and forces a rancher to stop enjoying their property. It's hypocritical to attack a government agency for infringing on property rights, but to support a conservative doing the same exact thing.

It's also an affront to a rational mind to call for political or economic freedom while at the same time infringing on someone's property rights. As Ayn Rand pointed out in For the New Intellectual, property rights and free minds are corollaries. One cannot have one without the other and infringing on one necessarily means infringing on the other. The Times and Post's reporting may be garbage, but it is their garbage.

Though FReepers are performing a valuable service by making the media accountable for bias or genuine mistakes in reporting, the web site is going about it in the wrong -- and probably illegal -- way.

There is no reason why FReepers cannot quote particularly objectionable segments of stories or provide links to those they think are particularly egregious. It would still provide them with an opportunity to debate media bias or incompetence and it would protect the legitimate rights of the newspapers.

And no one can be declared a hypocrite under that system.

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