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L.A.Times v. Free Republic - No. CV 98-7840 MMM (AJWx), 2000 U.S. Dist. LEXIS 5669 (C.D. Cal. Mar. 31, 2000)

Rule:

In a copyright infringement action, whether a substantial portion of the infringing work was copied verbatim from the copyrighted work is a relevant question, for it may reveal a dearth of transformative character or purpose under the first factor of the fair use defense, 17 U.S.C.S. § 107, or a greater likelihood of market harm under the fourth; a work composed primarily of an original, particularly its heart, with little added or changed, is more likely to be a merely superseding use, fulfilling demand for the original.

Facts:

Plaintiffs Los Angeles Times and The Washington Post Company publish newspapers in print and online versions. Defendant Free Republic is a "bulletin board" website whose members use the site to post news articles to which they add remarks or commentary. Other visitors to the site then read the articles and add their comments. For the most part, Free Republic members post the entire text of articles in which they are interested; among these are verbatim copies of articles from the Los Angeles Times and Washington Post websites. Plaintiffs' complaint alleges that the unauthorized copying and posting of the articles on the Free Republic site constitutes copyright infringement.

Free Republic have now moved for summary judgment. They assert that the copying of news articles onto their website is protected by the fair use doctrine. Los Angeles Times and The Washington Post Company have filed a cross-motion for partial summary judgment, arguing that Free Republic may not invoke fair use as a defense.

Issue:

In plaintiff newspapers' copyright infringement suit alleging defendant electronic bulletin board's unauthorized copying and posting of plaintiffs' news articles, where defendant invoked fair use as a defense, was it necessary to copy, verbatim, the articles of Los Angeles Times and The Washington Post Company articles to achieve Free Republic’s critical purpose?

Answer:

No

Conclusion:

The Court held that Los Angeles Times and The Washington Post Company demonstrated their attempts to exploit the market for viewing their articles online, for selling copies of archived articles, and for licensing others to display or sell the articles; the availability of verbatim copies on Free Republic’s website potentially interfered with these markets. Because the copying was verbatim, encompassed large numbers of articles, and occurred on an almost daily basis, evidence supported finding that Free Republic engaged in extensive, systematic copying of Los Angeles Times’ and The Washington Post Company’s works. Although the character of Free Republic’s website was non-commercial, they did not demonstrate that verbatim copying of Los Angeles Times’ and The Washington Post Company’s articles was necessary to achieve their critical purpose. Accordingly, the Court granted plaintiffs' motion for summary adjudication with respect to fair use.

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