Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.
In Federal Court today in Los Angeles, Clinton appointee Judge Margaret Morrow issued a preliminary ruling in favor of the Plaintiffs, LAT/WP on Plaintiffs motion for a Partial Summary Judgment. Her ruling was contained in a 25 page summary issued to attorneys prior to hearing oral arguments on the motion.
FReepers should not be alarmed, FR is no immediate danger of being shut down. The Plaintiffs motion was solely for a preliminary ruling on FR's "Fair Use Exemption" argument, one of several at our disposal. Contrary to what you may have read or heard the site will continue running as it has and no changes are being contemplated.
In making her ruling Judge Morrow sided with FR on one of four nonexclusive factors to be considered in determining "Fair Use and with the Plaintiffs on three. Following is a brief summary of each.
1. "The Purpose and Character of the Use.... and whether such use is of a commercial nature or is for nonprofit educational purposes."
On this point the Judge disregarded our arguments that FR is provided solely as a vehicle for citizens to educate and inform themselves on issues of public importance and that by that nature the work being copied is transformative into a new and different work due to the attached commentary and analysis. Instead, she cited our T-shirt sales, requests for donations and the commercial nature of e-orchard as evidence that we are a "commercial" entity and had the effect of promoting the organization.
2. "The Nature of the Copyrighted Work".
At issue here is whether the piece being used is of factual nature, as in a newspaper, as opposed to a novel or work of serious research. the Judge sided with FR.
3. "The amount and substantiality of the portion used in relation to the copyrighted work as a whole".
Here the judge ruled against FR and agreeing with the Plaintiffs that FR could post links or provide summaries as opposed to full and complete articles and hence, was not essential to the needs of FR. FR never contested that full articles were copied but that the individual articles comprised a small part, a "portion", of the full copyrighted entity which is the whole paper. Additionally, the Judge disagreed that their was significant transformation of the articles via the added comments and went on further to claim that many articles, when posted, contain little if any comment. She asserted that at that point, prior to comments being added that an infringement occurs.
4. "Effect of the Use on the Potential Market For or value of the Copyrighted Work."
Although the Plaintiffs provided no evidence that their revenues are diminished by the actions of copying articles to FR and even though FR presented evidence to the contrary including that FR actually diverts additional hits to their site, the Judge ruled against FR on the assumption that future activity of this nature by FR and others MAY impact the demand for their copyrighted works.
Additionally, the Judge refused FR's First Amendment argument stating that the copying of the articles to FR was not essential to expressing opinions and criticism by participants. I would like to add that Brian and Jim as well as Connie and I feel that our argument and position is strong and will prevail at trial or appeal. We feel the Judge made some errors in her ruling and are addressing those issues as we speak. We would like to thank all of you for your strong support in this matter and hope you find this effort is worth fighting for as we do! A special thanks to Brian and his team for all the hard work and effort! We will be here until we see Judge Thomas get a crack at it!
I will be around for a while to answer any questions. Brian said he would also drop by later.
I would like to add that although the Judge dismissed our SJM and found for the Plaintiffs that she herself pointed out other "grey area" arguments that would benefit FR at trial and outside this specific PSJM.
Bump
No questions, Bob, but I have a copy of the Washington Times containing an ad which I helped pay for.
Though they are not involved in this suit, I would point out that they never would have received a dime in either advertising or purchase of their newspaper if it weren't for FR.
Perhaps the LAT/WP would like to run a few ads sponsored by those of us who appreciate FR. I'd be equally happy to pay for an ad in their paper, and buy a few copies!
What's next?
The judge certainly was a weak sister. As the old commercial used to say, "Where's the BEEF"
She doesn't stand a prayer of having her position upheld.
No harm. No Foul.
revision - they never would have received a dime from me in either advertising or purchase of their newspaper if it weren't for FR.
Bob,
In all the years I published newspapers, I worked under the assumption that as long as I credit the copied article to the original publisher, that I was OK. Is this judge disageeing with that?
As an example, I once took an editorial written by a local paper that dealt with the Brady bill, back when it was still a bill, in publishing their entire editorial, I mentioned that I had called the editor who wrote the piece and he had told me that he had not read the Brady Bill.
Now, this judge is telling you that even if you credit the original publisher or source, you can't reprint in it completley?
Does this ruling mean that from now on that only excerpts of articles can be posted?
Bummer, if you can't rip apart a Washington Post article, who's can you?
Being a Clinton appointee, I guess this judge wouldn't care that the plainstiffs are just ticked off that FR has exposed them as liars and frauds, and are just trying to muzzle the truth about them?!?
Ed in NJ
In Federal Court today in Los Angeles, Clinton appointee Judge Margaret Morrow....
Sorry, but I will never feel comfortable with any ruling of a Clinton-appointed judge. In fact, anyone who is appointed to any office by Clinton I automatically regard as the lowest scum.
Prepare for trial.
What, first the ruling, then the hearing?
Who is this judge, the Queen of Hearts?
This issue deals with volume. Your one copy may not have been a gig deal but thousands come to FR to participate (we send thousands of hits to there sites), however, if next year there are 1000 FR-like sites...
There issue isn't absolutely aimed at FR, it's concerned about future actions of this kind by multiple sites.
In all the years I published newspapers, I worked under the assumption that as long as I credit the copied article to the original publisher, that I was OK.
This is, and always has been, a common practice. If the judge believes this constitutes an offense, then every newspaper publisher in the country would be liable to action by the courts.
Well, I just made a post on the other thread predicting a loss, which was superseded by your post in about 4 minutes after I completed mine. How's that for timing? :)
As I noted in the other post, it seems to me that the Achilles heel of FR's case is why the copy and paste rather than the link? I mused that maybe a line could be drawn between where you can link, and where you can't, but I suspect that that may involve some heavy legal lifting to get there.
It's a pity FR couldn't have shorn itself of its de minimus commerical activity a long time ago. For the judge to rule against FR on that one is to miss the forest though the trees, but the point I think is that FR could have taken prophylactic activity to have avoided losing on the point even in the eyes of the most jaundiced judge, and didn't. (On the other hand, even if FR were deemed non commercial, it appears based on existing precedents discussed in the points and authorities posted at this site, that it would have lost anyway.
What are FR's other arguments, or has FR not had to tip its hand on those, so alas we must along with the P's be kept in suspense at present?
Good luck with the case. It would be neat if David could celebrate the new millennium by once again slaying Goliath.
No Dale. This was a prelminary ruling on part of our defense. A jury will decide that fate.
This is, and always has been, a common practice. If the judge believes this constitutes an offense, then every newspaper publisher in the country would be liable to action by the courts.
My point exactly
Kinda figured the judge would see it the plaintiffs' way. But that's what appeals courts are for. How many times was Judge Susan Weber Wright overruled in the Paula Jones case ?
BobJ This is close to what you expected right!
The option to link has always been available. However, it was decided early on that linking would remove some of the essential nature of FR and we felt we were within our rights to do so.
Also, regarding the commercial aspects of the ruling, the judge felt the very action of asking for donations made us commercial because if furthered the interests of the site. Consequently, unless JR pays all the bills himself we would never be able to jump that hurdle.
I think we need to start considering some contingency plans. Naturally, if this logic holds until the bitter end, FR is going to stop functioning as it does now...within sight of the Clinton Reich and its Ministry of Propaganda. We will need to go underground, somehow. Everyone should think about how that might be done. I have some ideas, but I don't think this is the place to air them. Everyone DO start thinking about it.
"First the ruling...?"
Essentially she said "I've heard enough". I don't know if it is that unusual. Ask Clarity.
In the news and publishing industry, it is standard practice to 1) seek permission to publish anything more than a short portion of the work of others or 2) just publish a short portion, which IS the amount allowed by copyright law. Whole staffs exist to GRANT those permissions. If necessary for purposes of expediency, those who wish to quote simply use a short excerpt and then summarize the remainder.
Therefore, when you see whole articles or other copyrighted material reprinted, permission has probably been sought and granted (at least that's the industry standard).
No CK. I felt the Judge would issue no ruling and if she did it would be in our favor. But then again, I "ain't no 'torney".
I saw a conference on C-Span about copyrights and the Internet and one speaker made the point that even if copyrights were violated, a financial loss would have to be proven by the plantiffs. In other words, even if it were the case that WP/LA Times' copyrights were violated, it would be incumbent upon them to prove that their business was decreased. If anything, it has helped because some people might buy a newspaper after seeing articles on FR.
In view of Rodney Stich's statement in Defrauding America that half of all federal judges have been bribed by the CIA, this decision is of no surprise.
to claim that many articles, when posted, contain little if any comment.
She must be referring to my posts. They usually just sit there.
On the brighter side, the Omsk Daily Potato has never sued Free Republic!
Click here for phase I contingency...
Don't worry Physicist, FR isn't going anywhere. We will continue operating as we have.
Contingency plans for any eventuality are being worked out.
"unless JR pays all the bills himself we would never be able to jump that hurdle."
Doesn't the IRS code allow up to $10,000 per year as a gift that is non taxable and non reportable. It seems to me that if the "donations" were designated specifically as gifts it would solve that problem as all expenses would then be paid from JRs personal funds.
We will need to go underground, somehow. Everyone should think about how that might be done. I have some ideas, but I don't think this is the place to air them. Everyone DO start thinking about it.
Agree with you here Physicist. It is well known that posts to the FR forum contribute to hits on these news sites. What is behind their motivation in this lawsuit? It is about much more than copyright infrigement, make no mistake.
Perhaps the LAT/WP would like to run a few ads sponsored by those of us who appreciate FR. I'd be equally happy to pay for an ad in their paper, and buy a few copies!
I'll second that idea!
The SOLE purpose of a hearing on an MSJ is to determine if there are any facts in dispute. If there are, the MSJ cannot be granted, and the suit moves to trial. At trial, ALL facts are fair game. All this means is that the suit survives until trial. Of course, the LA/WP has nothing to gain by going to trial and neither does FR. The judge sorta said "Why don't you folks just settle this...?"
I believe this is, and always has been, a vindictive attempt by two of the most liberal newspapers in America to shut down debate and silence the conservative voice plain and simple. Their efforts have nothing to do with protecting revenues as proved by the evidence that they actually make more money because of the interest and notoriety they gain as a result of freepers showcasing their articles. They just want to shut out honest debate.
These two newspapers wield enormous influence via quasi-monopolistic power in their ink-and-paper communities and even nationally which they can and do use to control the agenda. The Internet scares them because it is such a great leveler. They're just two other websites among hundreds of thousands out here in cyberland.
I see this as a call to action, not a surrender or defeat. Statistics prove that conservatives are far more Internet savvy and computer literate than liberals. We must use that head start and our superior skills to redefine the the way news is presented and debated in this country ands shake the damnable liberal media power elite to its Clinton-loving core!
In hindsight this may well become the "victory" that the LA times and Washington Post will desperately wish they could undo.
Maybe we should just stop going there for a while?
How will this rulling affect our friends at luciane.com who are doing the same thing, without the wonderful rough and tumble of our fine family of disruptors?
A finding of no damages may precipitate a ruling against any monetary awards, however, the copyright holder still has the right to protect their properties even if no present value can be determined because the judge may take into consideration possible "future" potential.
Oh, c'mon man. The ruling at most makes us post a link instead of the article. Does it make sense to call for TEOFRAWKI? :)
With all due respect to Clarity I sure am glad you "aint no torney"! You seem to be too nice a fellow! :-))
Taking each point separately:
1. Aren't non-profit organizations required to file a tax form establishing their status? Aren't even non-profit organizations allowed to engage in some commercial activities to offset the cost of their operations? It couldn't be too hard to prove that Free Republic Inc. has never shown a profit, t-shirt sales, donations, and bake sales notwithstanding. In fact, if the burden is on the plaintiffs, I would think them hard-pressed to prove that FR is a commercial venture.
2. 'Nuff said.
3. This is probably the most compelling argument against us. Since all the contents of a newspaper are copyrighted, we can't claim that taking only a smattering of articles from a particular edition avoids infringement. As to the substantial transformation of the material, I'd have to agree with the judge that putting the articles in a different context does not transform them in the informative or commercial sense. I'm afraid she's got us there. No problem. We can just post summaries of the articles, then finish the posting with a link, and a strong admonition to avoid giving the source any hits, if they are hostile to FR. By the way, I would think that newsmax and some of the other online news services would be very interested in this ruling.
4. To the degree FR archives these threads and makes them available for future reference, it probably does adversely impact revenues for the originators of the material. A lot of these papers sell access to their archives, and FR is cutting into that business. I can still see FR serving as an abstracting clearinghouse, with the summaries being archived.
I think you guys deserve a standing ovation for taking on these Goliaths. And I hope that Internet free speech advocates will take note of the erosion of this medium that follows a successful case against Free Republic. I believe the pet phrase is "a chilling effect."
Hats off to you Bob, to Clarity, to Connie, to Brian, and especially to James and John Robinson, who endure the slings and arrows so that we don't have to.
The outcome of this case will have important effects on Lucianne.com and other news discussion boards, where similar article pasting occurs. However, I notice that they prominently display a "Link to original article" hypertext link at the top of the article.
How does this practice fit into the mix of copywrite rules?
Also, once something is given away free, in the public domain of the Internet,how can someone continue to reserve "ownership" status to what would seem to be "public free speech?"
Were free speech issues addressed by the judge's ruling?
Possibly. But the fact the donations were requested "en situ" was a determining factor as well as the FReepStuff site being linked from the main page.
Underground? I don't think that will ever be necessary. The rules on how to post an article will be the final fix (a link with a brief summary) if necessary (IMHO,most likely) .
Not entirely. The Plaintiff motion was for "Partial" Summary Judgement, not a request to have the case dismissed.
Maybe we should just stop going there for a while?
YES!
No more hits from me ;)
I agree with you. Requiring login before accessing the articles forums, would make it a "club" or organization, seemingly out of the tangled rules of copywrite regulations.
But I'm sure that would be a strain on the server and visitors.
Gee what do you suppose the motivation was behind these lawsuits..?
(photo courtesy of Uncle Bill)
L.com cuts articles off at 500 words and provides a link. Their problem is many of their articles are less than 500 words.
Thanks CK, Brian can revert to "shark" mode on a moment's notice! BTW - How's the ticker?
The T-shirt and donation requests came AFTER the suit was threatened if I remember correctly.
BTW the FreeRepublic Christian Site is always open for bizness.
I have to agree with your posts 32 & 48. How can anyone rejoice over this decision? Oh well, we shall go on.
Dianne (Bwana's wife)
Would this ruling also affect a program like 'Washington Journal' on C-span? They do basically the same thing as Free Republic only they do it orally. They also sell many things.
Tickers fine. Thks for asking! It sure was nice to meet all of you at the Fl Freep!
Are you still leaning against the fence laughing?
Dianne
Close all the public librarys or make them remove all newspapers and copy machines.
Instead, she cited our T-shirt sales, requests for donations and the commercial nature of e-orchard as evidence that we are a "commercial" entity and had the effect of promoting the organization.
Wow, I guess this means that churches, high schools and other organizations are commercial entities as well. GeeWiz, T-Shirt sales make you a commercial entity?
As for donations, no one solicits donations except we Freepers ourselves, and that's just to offset the cost of running the site.
Oh, BTW, just how much of an article can be posted before it's "in it's entirity"?
If I read an article and re-write it according to my understanding of what the author is saying and it turns out that only a few of the words are different is that infringing on copyright? If the papers publish an article about my life do I have the right to sue them for infringing on my life, after all, other than God, I'm the author of my life.
These people had better be careful, they're about to put themselves out of business. Let's all send notification to the library of congress that we are, as of now, copyrighting our lives.
1. There are some misconceptions about non-profits. A designation of non profit is merely as tax status. The same laws that may keep a for profit corporation from engaging in certain activities also prohibit a non-profit from engaging in them. Whether you show a profit or not is immaterial the point is whether you are enaging in a "commercial" activity.
3. Not true. They only copyright the entire edition. However, case law supports individual copyrights on smaller portions of entire works if the portion is in itself a work of it's own.
4. I dount they make any money off their archives but that does not stop them from making the argument that they "may" be able to make money off them in the future.
Thanks for the kudos! However it all goes to BRIAN aka Clarity.
The judge is a Clinton appointee. Let's hope for appeal. What does this mean currently for the 'net? Anyway, best to you and yours.
Dianne
Well, here's my take on all this..
The Judge says that the Item is in violation the moment it is posted without comments.. Yet, She Ignores the fact the 99.9% of the posters here (Including myself) either change the Headline to read differently (Mostly to allow for a better understanding of what the article is all about) or add a comment before posting. Thus changing and/or modifying the work itself.
Also, Nowhere on the site, has Jim posted a link to buy freeper stuff, Those posts for donations are posted by individual users themselves.. Nor has there been any commercial advertisements on the site.. So how can this be a "Commercial Enterprise"?? Also, since she says that since the site itself is located on the Orchard Servers that this also makes it a Commercial Site..
Does this mean that if your website is hosted on a server not owned by yourself, that even if your are registered and licensened as a "Non-Profit" group you are classified as Commercial in the eyes of the law??
Since when is the Judge an Expert in Clarivoiance?? How can she see the future without expert testimony?? How does she know whether or not in 10-15 years the LAT may lose money for their work.. Did she do or order a Case Study on this point?? Or is it just her opinion..
"We will be here until we see Judge Thomas get a crack at it! "
By Judge Thomas, you are speaking about Clarence Thomas of the US Supreme Court??
It is my opinion L.com is in the boat even thought they may be sitting up high on the bow. I also don't beleive the link has much importance if the entire article is posted.
The Plaintiffs don't beleive they are giving it away free since they derive advertising revenue from their banner ads and relevent marketing data from their visitors computers.
"In hindsight this may well become the "victory" that the LA times and Washington Post will desperately wish they could undo."
Spot on, Kevin. The judge said some things in court today that SCREAM for appeal... and then we won't be dealing with a Clinton appointed judge who was endorsed by the LA Times when Sen. Specter kept her from being seated on the bench for two years for judicial activism.
Thanks for the kind words, IJ.
Hey, Bob! Thanks for the post! The plot thickens!
I was there in the courtroom today. This judge is not a mental giant. Nothing she said could be remotely considered as having been given any serious forthought.
"Also, once something is given away free, in the public domain of the Internet,how can someone continue to reserve "ownership" status to what would seem to be "public free speech?" "
Actually, The Copyright laws address this very issue.. Basically it says that even if a work is in the "Public Domain" the original owner still holds Copyright to the work itself. It's the same as if you posted a Story of your invention and you posted it to every single News Group and website in the world, that work is still yours unless you tell everyone that it is in the "Public Domain" and you give permission for everyone to do what they want with it.. But even then, you still hold Copyright.
Now some say that you need to put the word "Copyright" on an article to claim ownership, that was true till about 10 years ago when the Copyright laws were changed.. The Idea being that the work is your's no matter what, you don't have to put a "stamp" on it to claim that right, it is inherent in the work itself, not the label.
I'm not sure how much bearing that has since those activities were engaged in under the FR LLC (which is named in the suit) before the trial.
BTW - I expect YOU to head the FR Christians SUBCOMMITTEE when we get sub organizations organized!
Can TCA be my second?
"Instead, she cited our T-shirt sales, requests for donations and the commercial nature of e-orchard as evidence that we are a "commercial" entity and had the effect of promoting the organization. Wow, I guess this means that churches, high schools and other organizations are commercial entities as well."
As a matter of fact, it does!
"As for donations, no one solicits donations except we Freepers ourselves, and that's just to offset the cost of running the site."
Yes, but the requests were made ON this site. Also, the fact we only request enough to pay for costs (we don't, always) was immaterial. Apparently, generating any kind of revenue that is linked with the site was a no-no. We could request them off site but we wouldn't be able to use the mail list JR has. There may ways around this and keeping ot the letter of the law.
"Oh, BTW, just how much of an article can be posted before it's "in it's entirity"?"
I don't think anyone knows. Each case seems to handled separately. My reading of it would suggest you could use that portion that allows you to make your analysis, no more.
"If I read an article and re-write it according to my understanding of what the author is saying and it turns out that only a few of the words are different is that infringing on copyright?"
I would say yes. There has to be a significant "transformation" from the original. In our opinion, the "signficant" replies accomplished this requirement.
"If the papers publish an article about my life do I have the right to sue them for infringing on my life, after all, other than God, I'm the author of my life."
I don't think that one would fly in Judge Morrow's court ;- }.
Nice work, Bob. Thank you for summarizing the situation. As you put it, she sided with the Plaintiffs on three out four of the traditional fair use factors. If she'd gone 2-2, who knows?
One area where a review has great promise is her erroneous application of the transformation doctrine. She effectively agreed with us that transformation occurs by virtue of the comments and replies that are added to articles. However, she said, the articles are first posted without any such transformation. I said that by her logic, transformation could never take place because the content taken will always start out untransformed. This is an area where we are hoping she can still be persuaded, since it is likely that the Ninth Circuit wil reverse on this point, if necessary.
In the meanwhile, FR will keep on keepin' on. When Jim Robinson agrees to criticize Big Media only according to its terms, everyone in hell can get out their iceskates. FR rules.
The Internet scares them because it is such a great leveler. They're just two other websites among hundreds of thousands out here in cyberland."
Please see my thread
"The Washington Post Company Reports Third Quarter Earnings"
which addressed this point. The best I can tell, the Post is losing HUGE money on the internet.
Hehe...
Hi Connie!
As far as an appeal, cross your fingers, the 9th Circuit is no piece of cake, it's overrun with liberals.
When Jim Robinson agrees to criticize Big Media only according to its terms, everyone in hell can get out their iceskates. FR rules.
Ha! Go Clarity :)
Good. They need to lose MORE money!!!
Instead of stifling FR, they should have sought a cooperative arrangement with Jim Robinson, perhaps to include a freeper-friendly ad or two with each cut-and-pasted article--with FR and the paper splitting the revenue. What a bunch of idjits.
I was so ticked off I went to the WP site, copied a portion of an article lambasting Bush for some piddly thing or another, ran it through babelfish into French and back into English again. In this way I would change the text into a copyright-inoffensive form. Unfortunately, as you can see, it needs work:
"The bush of Texas Gov. George W yesterday defended his incapacity to name four foreign starters in a play of noise, to say the Americans will elect a president based on more fundamental attributes. **time-out** the " America understand that a type know not the name of each starter foreign simple, " have say the bush, the forerunner presidential republican, in a interview record on tape air on ABC' S " this week " the " people make their choice base at the time of judgement, base on the vision, base on the philosophy " The vice-president spindle and of some other rival have attack the bush, which hold a degree of student prepare a licence university of Yale and a schoolmaster d' école of business of Harvard, to be defective in knowledge basic of politics foreign. The bush yesterday described such a critic like " the policy of Washington of old man-model. They like to make countryside, belittling the other person. I like to take my time, when I speak to a comrade like you, speaking about it Q . . . .",
"The Judge says that the Item is in violation the moment it is posted without comments.. Yet, She Ignores the fact the 99.9% of the posters here (Including myself) either change the Headline to read differently (Mostly to allow for a better understanding of what the article is all about) or add a comment before posting. Thus changing and/or modifying the work itself."
I'm not sure the headline thingy would fly and to be honest, I disapprove of such activity. I beleive her position was that the article could get posted and copied BEFORE any transformation takes place, if at all. That issue could be countered by requiring posted articles to be accompanied by a 50-100 word summary.
"Also, Nowhere on the site, has Jim posted a link to buy freeper stuff, Those posts for donations are posted by individual users themselves.. Nor has there been any commercial advertisements on the site.. So how can this be a "Commercial Enterprise"?? Also, since she says that since the site itself is located on the Orchard Servers that this also makes it a Commercial Site."
There is a FReepstuff link on the front page. Regarding the commercial advertisements, quite some time ago JR had a banner link for a golf vacation. It was a quid pro qou thingy and he received no renumeration, however, it didn't stop the Plaintiffs from painting it as so. Also, JR did use to have a blurb and link about e-orchard and it's services. All these items worked against us. Most have been rectified.
"Does this mean that if your website is hosted on a server not owned by yourself, that even if your are registered and licensened as a "Non-Profit" group you are classified as Commercial in the eyes of the law??"
Yes. If you generate any type of revenue internally it appears you are classified as commercial.
"Since when is the Judge an Expert in Clarivoiance?? How can she see the future without expert testimony?? How does she know whether or not in 10-15 years the LAT may lose money for their work.. Did she do or order a Case Study on this point?? Or is it just her opinion.."
It was just her opinion. Unfortunately, it was the one that counted.
"By Judge Thomas, you are speaking about Clarence Thomas of the US Supreme Court??"
The one and only.
When an individual posts an article or portions of an article they are expressing an understanding or "sense" of the issue. There is no financial benefit of any kind for the individual that posted the article. There is absolutely no incentive withstanding the individual's desire to express the views they hold on the issue at hand.
As an architect, I cannot claim an idea as my own. No matter how I present that idea on paper or electronically, it is not protected under the existing copyright laws. The plaintiff cannot claim ownership of an opinion or fact by merely packaging it and putting it on display. I see this as no different than if someone had taken a picture of a building I designed to post for display on an architectural forum. In addition, one would even be able to replicate the building design, style, materials or dimensions without restriction. I do not own the ideas, I just packaged them...
Plagiarism is wrong because one assumes ownership of another's idea. Copyright infringement is wrong because one aims to profit from another's sacrifice. Posting articles with the sole intent to express or reinforce an "idea" is freedom of speech.
One final question to ponder. Why is it that a journalist can record statements or facts without restriction and then place restrictions on their use by simply publishing them?
3. "The amount and substantiality of the portion used in relation to the copyrighted work as a whole".
Here the judge ruled against FR and agreeing with the Plaintiffs that FR could post links or provide summaries as opposed to full and complete articles and hence, was not essential to the needs of FR. FR never contested that full articles were copied but that the individual articles comprised a small part, a "portion", of the full copyrighted entity which is the whole paper. Additionally, the Judge disagreed that their was significant transformation of the articles via the added comments and went on further to claim that many articles, when posted, contain little if any comment. She asserted that at that point, prior to comments being added that an infringement occurs.
Not unreasonable but their argument shoots the next issue down.
4. "Effect of the Use on the Potential Market For or value of the Copyrighted Work."
Although the Plaintiffs provided no evidence that their revenues are diminished by the actions of copying articles to FR and even though FR presented evidence to the contrary including that FR actually diverts additional hits to their site, the Judge ruled against FR on the assumption that future activity of this nature by FR and others MAY impact the demand for their copyrighted works.
Additionally, the Judge refused FR's First Amendment argument stating that the copying of the articles to FR was not essential to expressing opinions and criticism by participants. I would like to add that Brian and Jim as well as Connie and I feel that our argument and position is strong and will prevail at trial or appeal. We feel the Judge made some errors in her ruling and are addressing those issues as we speak. We would like to thank all of you for your strong support in this matter and hope you find this effort is worth fighting for as we do! A special thanks to Brian and his team for all the hard work and effort! We will be here until we see Judge Thomas get a crack at it!
I will be around for a while to answer any questions. Brian said he would also drop by later.
Questions?
I believe one issue was a loss of revenue generated from archived material. Evidently the Judge did not draw a proper nexus between a link and it being archived. The Plaintiffs' argument is disingenuous. On one hand they say a link with a summary of the article is ok, but on the other, they say they are losing revenues from people not going to the site's archives.
How many links on this site are still active but archived on the newspaper's web site? The Plaintiffs have shot themselves in the foot on this whole case. By having links on other sites, you don't have to subscribe to the news site. What a joke. The Plaintiffs' case will fall apart in the trial. Don't let them escape their remarks. Go "gunning with both barrels blazing" and make them feel like the defendant.
BTW - The Plaintiffs don't have to show they will make money, just that they will lose revenue.
As I noted in the other post, it seems to me that the Achilles heel of FR's case is why the copy and paste rather than the link?
There are a zillion examples where the links die after a day. For example, the Washington Times doesn't have archives. Same goes for pics/images.
Bob J--thanks for the report. I think we should apply as a right wing extremist religious cult....whenever I can't access FR, I call out to my Maker.
Thanks JimR., BobJ AND ESPECIALLY CLARIY....If all lawyers were like you...think how wonderful and free this country would be today.... (Thanks JimR's wife too! hope you all had a comfortable trip)
"I believe one issue was a loss of revenue generated from archived material. Evidently the Judge did not draw a proper nexus between a link and it being archived. The Plaintiffs' argument is disingenuous. On one hand they say a link with a summary of the article is ok, but on the other, they say they are losing revenues from people not going to the site's archives."
They argued they would lose revenue from both, from ad and marketing revenue by peopel not going to their daily site and from their archives because people would have no need to pay for it if they could access it for free on FR.
"How many links on this site are still active but archived on the newspaper's web site?"
Very few.
"The Plaintiffs have shot themselves in the foot on this whole case. By having links on other sites, you don't have to subscribe to the news site. What a joke."
Thelinks seemto go away after a few days and you are forced toaccess their archives and pay a fee for each article acessed.
"The Plaintiffs' case will fall apart in the trial."
We think so!
"Don't let them escape their remarks. Go "gunning with both barrels blazing" and make them feel like the defendant."
We may not make them feel like the defendants but Brian will certainly make the feel like they need Depends....(sorry..hehe)
Hi Clarity
It looks like the good judge was really reaching for a way to rule for the plaintiffs. On (1) to hold that the purpose and character of the use are commercial because of purely ad hoc solicitations for funds to cover operating expenses is just absurd in light of the record. A dead giveaway that very little is going to break your way in her mind. On (3) her transformation analysis is also absurd, as you point out, and as the record demonstrates. And on no. (4) she likewise disregarded the total absence of evidence of damage, the direct and unrebutted evidence of commercial benefit to plaintiffs from FR and adopted an entirely hypothetical damage scenario to find in favor of plaintiffs. That takes work and imagination and a fixed goal in mind.
Good luck in the 9th Circuit.
I find the archive argument a lttle strange. Some of the newspaper links that I have linked to are still current on this site. However, you would have to go to newspaper's site archives to retrieve the article.
On my own site, I have links to articles that are years old but are still active. A person can go to the link and retrieve the article unless the newspaper changes the link or dumps it from their site. I haven't check the LA/WP to see if they change the original link or dump them. I assume they don't. I wish you guys well.
ROFL! Beautiful. Now we know that it really is monkees who create WP articles... they haven't hit on Shakespeare yet, unfortunately.
Thanks for the clarifications. I'm still not convinced about the level of copyright, but I guess it's irrelevant to this issue.
It also occurs to me that one of the reasons Mr. Robinson has avoided making this a membership site is that he had to avoid any appearance of it being a commercial venture. If that accusation is to be made despite his best efforts, then why not go all the way? If FR is forced to forego posting entire articles, then it clears the way for it to become a full-fledged money-making organization, supported by dues from its members.
I bet Free Republic would be overflowing with cash if it went to "for-profit" status. I know how much FR means to me, and there are a lot of other FReepers who feel the same way, and could probably afford to contribute something every month to sustain the site.
Think of it. Twenty thousand members, each kicking in $10 a month (on average). I think Mr. Robinson could probably cover the bar tab on $200K a month gross. Frankly, I'd pay considerably more than $10 a month, if it ever came to that. Heck, with the right amount of revenue, Free Republic could hire its own reporters and gather the news itself. It's already got the biggest group of "stringers" in the world.
This whole case is somewhat ironic. It seems to me back in the the P Classic days that one of the reasons why Jim Robinson started this site was because of a similar fight with Prodigy. There were other reasons, but it seemed the main emphais was board monitors were yanking notes posted that contained verbatim newspaper or newsletter articles. They, the board monitors on behalf of Prodigy, cited concern over whether the orginal copyright holder could file legal action against Prodigy for verbatim articles being posted. A number of posters were very angry and again if memory serves correctly, Jim was one of the ones that decided to do something.....thus Free Republic. It's too bad that P Classic died and the access to those old archives are probably no longer available. The back and forth between P members and monitors was extremely intense and interesting.
A couple thoughts:
1. "The Purpose and Character of the Use.... and whether such use is of a commercial nature or is for nonprofit educational purposes"
The Judge's [sic] ruling on this one is specious. I thought everyone is getting rich off the web... What happened to FR.com? Should have hired Madison Avenue, I guess, then T-shirt sales wouldn't be necessary. BTW, When's the IPO?
3. "The amount and substantiality of the portion used in relation to the copyrighted work as a whole"
The FR argument is valid and should not have been disregarded by the Judge [sic]. By the Post's daily subscription price of $0.25, the value of each article is minuscule (what, $.000025 per article: does that help with a settlement offer?). Ludicrous to claim otherwise. Also, claims to value of "back issue" fees is equally inane, as the material is readily available at public libraries, against which the value of "back issue" research will always be mitigated, i.e., at what price ($1.50/ article) does it become cheaper to simply go to the public library to copy the article?
As Clarity noted, a posting has to start out somewhere. The very intent of soliciting comment by posting in the first place demonstrates the " significant transformation," the Judge [sic] failed to see (just because she tripped over it doesn't mean its not there?).
Along similar lines, the judge might wish to consider the order, exactly, upon which the angels are stacked on head of the pin.
No. 4 needs no mention. Gone. As for "the Judge refused FR's First Amendment argument stating that the copying of the articles to FR was not essential to expressing opinions and criticism by participants."
... it's clear the judge didn't bother to log on to FR. Get the jurors to try it, and they'll understand. I can just see the courtroom now - with a huge projected screen of a live FR post and the jurors getting excited, bent out of shape, furious, inspired and otherwise psyched about FR.
Good luck!
"Unfortunately, as you can see, it needs work:"
LOL!
Nicely said. Yes, she got it backwards. She feels that if an entity conducts commercial activity to sustain itself, then it is effectively out of luck with respect to factor #1. This is just not so.
One must consider proportionality. What is the relative ratio of such "commerciality" to the entity's overall operation? In FR's case, even if one accepts the Plaintiffs' outlandish description of FR's "commerciality," the extent of what FR does that is utterly unrelated to such commercialty is overwhelming, probably over 95%.
And, of course, the focus is on the use, not the user. The use (of plaintiffs' content) is not made in order to assist in the "commerciality" of the site. She tried, but she got it wrong. We'll turn it around. Regards.
"We'll turn it around. Regards."
You betcha! prbfhe
I'm watching my Cowboys! hehe
FWIW, the judge sounds like a total idiot.
Based on the cases cited by the P's, it doesn't seem that using copyrighted material for a public non commercial purpose "cleanses" the otherwise infringing act.
FWIW, here's what I posted 4 minutes before the this thread hit the lights:
This is a truly fascinating case. I've always wondered what the parameters of the "fair use" doctrine were, and now I'm getting some "as it happens" education on the subject.
I dunno. It seems that the Newpapers have a pretty strong case. The only part that seems weak to me is the bit about FR being a commerical site. I don't think the judge will buy that one, if only because FR to the extent commercial could become totally non commercial in a flash, and then the whole exercise starts again.
I doubt if it will be enough though to win on the commercial issue alone. The American Geophysical Union v. Texaco, Inc., 60 F.3d 913, 922 (2d Cir. 1994) (photocopying scientific articles for purpose of "research in the sciences [which] might well serve a broader public purpose" is not a fair use) case which you cited seems pretty on point to me. You can't copy wholesale even for a non commercial public purpose. The distinction of photos and scientific versus polticial and copy and paste is a distinction without a difference to me and I don't think persuasive, unless the bar for establishing infringement of political discourse is set higher than for other kinds of discourse based on existing case law. But no such case law was cited, so I assume it does not exist.
Finally, just why HAVE these articles been copied and pasted when they could have been linked, which would still allow viewing and posting commentary thereon (albeit with more inconvenience)? Of course, after a while, links go stale. I wonder if a possible place to draw a legal line is to require linkage and ban copying where where you CAN link, and if, and only if you can't, then you may copy and paste. Of course, there is presumably no legal precedent to draw such a line, since before the internet infringement was all about copying, with no means otherwise available of effecting linkage in lieu of copying. If I were a judge though, I might stuggle to develop such a precedent. It might take some legal gymnastics manipulating existing precedents to get there however. Not that that proves to be an insurmountable barrier for some judges. :)
Anyway, I guess we will know soon enough whether I'm all wet or clairvoyant. Win or lose, I wish the best to the FR good guys.
28 Posted on 11/08/1999 16:15:16 PST by Torie [ Reply | Private Reply | To 15 | Top | Last ]
Italics off
I'll take the 9th over the Morrow! hehe
Out Italians!
You have to want them to leave.
LOLOLOL!
You pretty much have it by the tail concerning just exactly "what" is copyrighted and when. The problem here is that the WarshPost came over and wrote it on pieces of paper, or hard drive or memory that I own- not them!
Your typical writer when using other people's writing instruments, paper, press, printer, services, etc. may well end up with the copyright under the law, but without a property interest in that copyright.
As far as I am concerned, when I hit the WarshPost URL and the image shows up on my computer, they just cut me into the action. I have a property interest in the deal.
It is a simple matter for the WarshPost to turn their switch off on their server so that I am unable to see their material. The fact that they did not simply means that they want to provide me with that property interest. Until that is decided, this case is not finished.
I beleive her position was that the article could get posted and copied BEFORE any transformation takes place, if at all. That issue could be countered by requiring posted articles to be accompanied by a 50-100 word summary.
It's kind of fun to spout legal opinions on the fly with only the thinest veneer of knowledge, almost all of which has been obtained from this site in the last week. But it won't be the first time I have done that, or the last. :)
With that in mind, I don't think copying and pasting an article, and then typing a few sentences opining about it or summarizing it, will cut it. That's not transmormation, that's addition. It doesn't pass the smell test; it's a loser.
What you need to do is write some original prose summarizing or characterizing the article, maybe using some quotes, and then post the link. That of course takes a lot more work and intellectual energy than simply copying and pasting, and thus the conundrum.
Again, I'm just going on instinct here, but at this juncture of my sojourn on this mortal coil, I think I have gained some insight as to how the blacked robed ones operate.
So I have a question for Clarity.
More and more I have the ability, while at the WashingtonPost, (naturally provided by them) to "e-mail this article / story to a friend" with a click-of-the-mouse, neatly packaged at the article, by W-P.
Therefore, IF W-P offers, indeed encourages, such distribution of their material, AND it is obvious "e-mail" can be an entire distribution list of "X" addresses......
Then how is that different from sending the article to F.R.? The difference is simply the distribution method, or the "presentation" at the other end, is it not?
Don't they undermine their own argument, by actively providing a means to accomplish automatically, what Freepers do, manually?
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This waaaaar ain't over!
Idea: How different were the WP/LAT articles from the press releases the WH gave them in the first place? If those printed articles are in essence the same, then they cannot hold a copyright to 'em anyway.
We all know those writers cannot link two words together on thier own without a roadmap. Why not use it aginst 'em?
They can do what they like with their own property. The question here is whether the material is "fair use" or not.
Integral to that is whether or not FR uses the material for "educational" and "public discussion" purposes. I'd love to see the ole Kate G. up on the stand trying to claim that the Post's articles and opinion pieces were purely commercial in nature, not part of national and public debate. They can't have it both ways.
The judge [sic] favored FR in this regard, but contradicted herself on other rulings; No matter how the Post cuts it, news articles and opinion of issues of public import is far different from fiction, entertainment, movies, etc., which have definitive commercial intent. Advertising constitues the entire and sole commercial portion of a newspaper. News and other articles are what attracts readers; advertisers merely pay for the privelege to be viewed by those readers. The readers are not there for the ads but the news and public issues content (classifieds, a large portion of newspaper revenues are far different from news and opinion: imagine a website dedicated to comment on classified ads... not).
The commercial content of news articles can be measured solely by the subscription price which is the direct fee paid by readers for exposure to them. But this fee, particularly on a per article basis is so miniscule as to be non existent.
All other issues are smoke screens for the plaintiffs.
Contingency plan?
a) Get to know your neighbor.b) Pray and take you stand if they come to get you.
c) If you slip out the back, join the underground (JimRob has the master list, so be friendly to JimRob (Bob J too, cuz he's watchin' you)
d) Invent a secret a code.
e) Buy and learn to operate a ham radio for backup emergency (in case you need to call me and ask about the origin of the world etc.)
AOL an indespensible litigant maybe ? This is from 1998. My how a web site can change in a couple of years.
Your analysis seems to have been right on so far.
It appears they decided to make us the example.
Also, regarding the commercial aspects of the ruling, the judge felt the very action of asking for donations made us commercial because if furthered the interests of the site. Consequently, unless JR pays all the bills himself we would never be able to jump that hurdle.
I find that strange, we support a non-profit organization, they ask for donations all the time, and is still considered non-profit, is there a difference on that score, between Canada and the US.
"Idea: How different were the WP/LAT articles from the press releases the WH gave them in the first place?" They had permission to reprint.
According to Judge Morrow your Canadein non-profit would be considered a commercial enterprise and they would not be allowed to post full LAT/WP articles on their website.
Wait. This is all Bill Gates' fault.
First of all, this copy and paste thing has gotten way out of hand, and I do believe he is to blame for all of us poor prols having access to the internet to begin with!!
Secondly, it is very dangerous that all of us could download some truth that might slip out of the mouth of someone spouting off to the omnipresent mediatrons and get mentioned or posted by accident. Like those pesky eyewitnesses to TWA 800 that won't go away.
What is behind their motivation in this lawsuit? It is about much more than copyrightinfrigement, make no mistake.
Clinton fans, and Clinton probably asked them to do it.
The outcome of this case will have important effects on Lucianne.com and other news discussion boards, where similar article pasting occurs. However, I notice that they prominently display a "Link to original article" hypertext link at the top of the article.
But Lucianne.com still posts the whole article, so the link doesn't mean much.
Jeepers! I've missed all the excitement around here. I do hope y'all are not worried about this decision.
We were hoping for better from this particular judge, but - Jeepers! - one of the things we do here is track this kind of stuff. Remember what we've uncovered already on decisions made by Judges Friedman, Robertson and Howard. And remember what we have uncovered on conventional media bias by the likes of WP and LAT.
IMHO - if Free Republic weren't making a difference, who would bother suing or who would be settling what appears to be fact issues ahead of a jury trial? This much opposition makes it all the more important to me that we renew our commitment to the Free Republic goals of exposing crime and corruption and media bias....
The entire legal system is one of lawyers, by lawyers, for lawyers. Every case is predestined to go through trial, appeal, and appeal to the supreme court. Not until the lawyers have taken as much money as they can get will the thing be decided. So it's no news to me and it won't be news to me, until the supreme court has ruled.
Now, if the money runs out, or the lawyers don't stand to profit from a long drawn out case, then look for a reasonably quick settlement.
This country will never be trully free again, until law is outlawed as a profession, or lawyers are banned from holding offices in the legislative process or in the judicial branch of government.
"...unless the bar for establishing infringement of political discourse is set higher than for other kinds of discourse based on existing case law. But no such case law was cited, so I assume it does not exist."
This case may well establish that case law. Yes indeed, "political discourse" is of a far different nature. These are discussions about political ideas, not scientific theories, especially those with commercial applications or consequenec (Texaco, etc.). Protection of free "political discourse" is the fundamental purpose of the 1st Amendment.
This case is tremendously important.
Proof that an article can be linked to the WP that no longer is active on their site. So much for their archives.
Hey Washinton Post: Cha-ching, that will be 25 cents please for the link. It appears they decided to make us the example. You're damn straight they are trying. Go kick their arse out of court. Good luck and God Bless.
As is to be expected from a Kkklinton placed justice; no brains, no justice.
Unless you are putting forth WP's rancid rantings as your own work product (who in his right or left mind would want to do that!), as long as they are properly cited and the authorship/publisher is acknowledged you have done nothing wrong.
Good grief! What have we come to, indeed!
Through FreeRepublic, I have learned of the existnece of news sources that I wouldn't have known about otherwise. Those news sources have benefitted from this, and FreeRepublic has actually provided a service to them, free of charge.
Let the Jury hear it! Bet the results would come out in favor of FR!
I don't think anyone knows. Each case seems to handled separately. My reading of it would suggest you could use that portion that allows you to make your analysis, no more.
But in that case, the papers could claim, it was taken out of context.
In all the years I published newspapers, I worked under the assumption that as long as I credit the copied article to the original publisher, that I was OK. Is this judge disageeing with that?
-------------------------------------------
I've been a professional writer/analyst on and off for 20 years. That means people pay me up to $1,000 a piece to research and write about various areas. I must get paid for what I do the same way as people here get paid for what they do.
This thing about "fair use" is nothing but little kid bullcrap. If a person quotes a writing in its entirity or near-entirety, it is stealing.
People who hire me do so to create interest and sales in their site or magazine or whatever. When somebody steals my work to use for their own purposes it means readers don't need to come to my employers site or magazine to read my work, and it is subtractive from their purpose. It also costs me money because I can't sell my work when people are stealing it and giving it away for free.
I've had people collect my work and publish as a loose leaf book to be offered as public domain without telling me so as to "get the word out." Such people are undercutting my income.
There are people who hail themselves as "free traders" or exponents of free enterprise who brag about their incomes, but have little conscience about stealing from other people if the effort of those other people is the written word and analysis. I can well understand some of the law suits being brought against internet sites. If someone is putting the work into writing, it changes their view on what fair use is.
In no cases should copywrited information be copied in toto from other sites and be posted here. An introduction should be used and a link given. The people at the JWR have tird to say this as politely as possible because they were getting chewed to pieces.
I don't understand why this site's address and domain has to be in CA. While it is said that it is nearly impossible to bring these kind of suits to bare in NV or FL. Why sit around and be a target for these marxists? MOVE OUT.
oh Cal, I'm now a campaign chairman for Don Bell for congress today.
Quote Of The Day by jfreimuthsr
This is a bit off target but I just saw this on SlashDot!
And it relates to the Media borrowing items from their Site!!
Mainstream Media on Slashdot and Microsoft
Posted by CmdrTaco on Monday November 08, @12:22PM EST
from the what-they-think-we-think dept.
Its happened before, but with the recent MS happenings, MacWeek, MSNBC and to a certain extent Wired have written stories based largely on Slashdot comments:
Specifically those that appeared on Microsoft Addresses World, Instant Legal Analysis and Microsoft==Monopoly.
The mainstream media now thinks that picking a few comments from a thread on Slashdot is a story (of course they often don't properly credit or link them).
More interesting is that by picking a few extreme comments, or poking fun of "Anonymous Coward" that they somehow have the pulse of Slashdot as a whole.
Regardless, they are watching, its fascinating to see what they think we think.
Even if this goes all the way to the supreme court and we lose, we can set up again in another country. Then it can start all over again and if we lose , just go to another country again. We can keep this in litigation for at least a hundred years if need be! LAT/WP: Give it up you nazi bastards, its a fight you cannot possibly win, the net is bigger than you and your facist puppetmaster Clinton!
Don't they undermine their own argument, by actively providing a means to accomplish automatically, what Freepers do, manually?
Excellent point!
One area where a review has great promise is her erroneous application of the transformation doctrine. She effectively agreed with us that transformation occurs by virtue of the comments and replies that are added to articles. However, she said, the articles are first posted without any such transformation. I said that by her logic, transformation could never take place because the content taken will always start out untransformed.
But this almost never happens. FreeRepublic's posting software provides a field labelled "Your Comments:". I've only rarely seen this field go unused. By the judge's logic, IF this field is used in a given posting, then the posting is sanitized w.r.t. copyright law. If an article has been posted without an initial comment, then technically it was in violation at the time it was posted, but that argument is moot if comments have since been added. We could offer to settle the matter by deleting all WP/LAT articles from the archives to which no comments have ever been appended, and by furthermore making the "Your Comments:" field a required field.
If actual analysis is required in the "Your Comments:" field, FR could add a set of radio buttons where the user would select a comment to be added between the article and the "Your Comments:" field. The user could select from: "I agree with this opinion", "I disagree with this opinion", "I thought this was interesting", "There ought to be a law against this", "This is an outrage!", "I advocate a Second Amendment solution to this problem", etc, etc. The poster would have to choose one, however, so no article would ever be posted without an analytical comment.
Excellent! Good luck on the campaign!
"This much opposition makes it all the more important to me that we renew our commitment to the Free Republic goals of exposing crime and corruption and media bias...."
AMEN, A-G!
In the meanwhile, FR will keep on keepin' on. When Jim Robinson agrees to criticize Big Media only according to its terms, everyone in hell can get out their iceskates. FR rules.
Hmmm....
What's this big handbasket, and why're we all in it?
Just goes to show, that FR is worrying some people, we are getting under their skin, so we must be put down.......humanely ofcourse.
But we will prevail........ somehow.
One final question to ponder. Why is it that a journalist can record statements or facts without restriction and then place restrictions on their use by simply publishing them?
Well, if one were being cynical, one could say:
Because the work is an "invention," containing original "thoughts" by the "author."
How about a Cray II in a semi-truck with a satellite uplink? (Inside joke for the tinfoil crowd)
However, it was decided early on that linking would remove some of the essential nature of FR and we felt we were within our rights to do so.
Links are bad. Links get stale. Links get moved. Links go away. In order to show the lies, you must document the lies. If I were you, this would be non-negotiable, as it is the essential nature of the site.
BTTT
In the news and publishing industry, it is standard practice to 1) seek permission to publish anything more than a short portion of the work of others or 2) just publish a short portion, which IS the amount allowed by copyright law. Whole staffs exist to GRANT those permissions. If necessary for purposes of expediency, those who wish to quote simply use a short excerpt and then summarize the remainder.
Therefore, when you see whole articles or other copyrighted material reprinted, permission has probably been sought and granted (at least that's the industry standard).
Thank heaven somebody pointed this out. You do have to ask permission. It is their property (intellectual propoerty) if they copyright it.
Thank you, CAL! Reading comprehension seldom being 100%, if the FReepers start summarizing the WP/LAT articles here, IMHO they'll probably complain next that they have been misrepresented.... LOL!
LOL, especially given your namesake's primary work (copying others' writings). Regards.
If the Washington Post is claiming that the writing in their articles are "creative" in nature, and not a mere recitation of the facts with an analysis, that would also make their articles "fiction"? That being the case, maybe they have a point. I would love to be the person cross-examining witnesses about the "creative efforts" contained in the WP/LAT. A laugh-a-minute.
On a more serious note, what about these factors:
1. What is the likelyhood that anyone reading the WP on-line would actually be in a position to purchase from WP advertisers?
2. Could the argument be made that since the WP does not put its entire paper on line, that the small portion that is available is merely a method of advertising for subscriptions? In sales this is called a puppy dog close. Let them have it for a short time with the option to bring it back betting they never do. If not, why do they not charge to access their site? When I registered for their site, a assumed they would share my email address by selling it to potential advertisers, even though they did not tell me that.
3. What is the WP doing about other sites that post their articles, if anything? If they are not as agressively going after other sites, does the equal protection clause kick in? Also seems like they are attempting to stifle free political speech. The only thing that gets posted on FR from the WP is political in nature. How much advertising is on the editorial page anyway?
4. I assume the burden is on the WP to prove actual damages, not vague "potential". Is this true? Chances are they will never make any money on this venture. Look at all the commercial web sites that exist today, Amazon, Priceline, etc. They are all losing money now and will probably continue to lose money in the forseeable future. Investors in these online businesses may be struct with "gold fever".
5. If the WP has not provided any facts related to actual damages (other than potential), doesn't that mean they have failed to state a claim?
6. If Free Republic is merely a bulletin board and JimRob gives posters a fairly free reign on postings, wouldn't the WP's claim be against those individuals, rather than Free Republic? Obviously, the WP would have huge jurisdictional problems if that were the case. Certainly there could be no claim that would individually exceed the $75,000 threshhold for federal jurisdiction and I assume because most hard copies of the WP are sold through distributors, the WP may have difficulty in making a claim against those individuals, especially if the WP does not sell copies of their papers in the area in which the poster lives. The WP would have a hard time proving those individuals were depriving them of revenue.
7. It would seem to be a real stretch that articles related to politics can construed to be creative works subject to copyright. I can see that the format, layout, design, and appearance of a paper could be copyrighted, but not the facts in the paper.
8. Obviously, the WP/LAT are provided with insider information from the Clinton Administration that is unavailable elsewhere through the well-known "reliable sources". Assuming that is the case, there must be some law that prevents a non-governmental organization from copyrighting the content obtained from tax-payer paid government sources, especially if the author does not do much in the way of a thoughtful,creative, and critical analysis of the information. Seems to me that on that basis the posters on FR might have a greater claim to copyright of their writing than the WP. Wouldn't these off-the-record interviews with the alleged "reliable sources within the administration" (an oxymoron if I ever saw one) be properly considered government press releases. The fact that the press release was made to just one individual publication is irrelevant in my mind, and probably a jury's. If not, then the WP is a government controlled press, much like TASS of the former Soviet Union. Restating government provided information can hardly be construed to be original material or information subject to copyright.
9. No reasonable person could conclude that the Free Republic are violating copyright laws related to the WP's property. We all pretty much assume that they are merely a mouthpiece of the Clinton Administration and virtually all comments are directly related to the information from the "reliable sources", with an occasional remark as to their favored position (the one where knee-pads make it more comforatable, espacially when in the position for as long as it has been maintained by the WP).
10. How can the WP claim ownership of information from government sources, even if they are the only source for that particular information? If they claim they are not, then what impact what that have on the privacy of sources by journalists? Does a government source even have the right to privacy related to information given to the press.
I suppose the hopes of Freepers in the summary judgement motion were a bit misplaced, especially given the burden required to grant a motion for summary judgement. The judge was probably correct in not granting it on the basis that all facts have to consrued in favor of the non-moving party, and of course this rarely results in a summary judgement even when the opposing party has a very weak case. Still, this is only the beginning and the burden of proof is still on the plaintiff and that burden is very heavy in this case.
Free Republic could not ask for better representation than that provided by Clarity.
To all: There are certain to be many highs and lows in the future. Some battles will be lost and some will be won, but we must remain convinced that ultimately there will be victory.
In the immortal words of the greatest man of the 20th Century(Ronald Reagan was a close second), Winston Churchill, "Never(pause for emphisis), Never (pause),Never (pause), Never (pause), Never (pause), Never (pause), GIVE UP." This was the entire content of a speech given to a graduating class after WW II somewhere on the east coast.
Does anyone else wonder how "Washington Post" and "Intellectual Property" are even remotely related?
Jim,
I spent most of today talking to lawyers and editors and the such, they, to a man, were astounded by the judges decision and don't believe for a moment that it will stand on appeal.
They also mentioned that a ruling like that would tie up and possibly eliminate the small newspapers, radio stations and tv stations, all live by using the stuff of others and the rule has always been "use whatever you want, just give us credit".
The Lord Jesus be with you Jim,
Bob
A quick net search found this - you might be interested:
For Immediate Release ---October 29, 1997
Contact: John Cox or Ben Dupuy --- (202) 224-4124
Senator Jeff Sessions Opposes Margaret Morrow's Nomination To Be U.S. District JudgeSenator Sessions Opposes Judicial Activism
(Washington, DC) Senator Jeff Sessions (R-AL) and Senator John Ashcroft (R-MO) announced today that they will oppose Margaret Morrow's nomination for a federal judgeship because of her demonstrated support for judicial activism. Morrow, a California trial lawyer, was nominated by President Clinton to sit on the U.S. District Court in Los Angeles. The two senators, along with representatives from some of the more than 100 grass roots groups opposed to Morrow's nomination, held a press conference this morning outside of the Senate to display the broad-based opposition to her nomination.
"I am firmly opposed to Margaret Morrow's nomination for one reason, and one reason only — she is a judicial activist," said Sessions. "She appears to believe that laws should be made by appointed judges, rather than by elected state legislatures and Congress, and that flies in the face of what the Founding Fathers intended. As senators, we are charged with the duty to advise and consent on the president's nominees. In my opinion, as a federal judge, Margaret Morrow will not respect a judge's constitutional responsibility to interpret the law."
Senators Sessions and Ashcroft, along with Charles Grassley (R-IA), Strom Thurmond (R-SC), and John Kyl (R-AZ), voted against Morrow's nomination when the Senate Judiciary Committee voted 13-5 on June 12 to send her nomination to the full Senate.
Sounds like at least five (5) Senators saw a big problem when she was nominated. So VERY sorry you drew her!
It's kind of fun to spout legal opinions on the fly with only the thinest veneer of knowledge
A fundamental supposition of Common Law, distinquished from Case Law, or Legislation or Official Orders is that a sane and literate man over 21, perhaps even a landowner, is a "legitmate" source of legal opinions.
There are nuances and refinements of law, sure that require more than a common man's expertise, but we all can develop a more proper respect for Common Law -- Case and Legislative law is on our time a morass and delusional.
We post like one may do with an article on a bulletin board in a classroom or township hall or even a barroom wall. In that circustance the article is removed from its context -- it is stripped of the commercials and advertisements before it was cutout it did have. We are not unlike that "usage".
What th' Hell kinda lowyer ar you anyways? I been lookin' for you in the new phone books which, by the way, arrived at the gas station today to much fanfare and rejoicin', and yer not even listed.
I did call Clair Tee. Gave her a piece of my mind. Unfortunately she had caller ID. The cops arrived at the station this evening and warned me an' Elwin, the mechanic, about herassin' phone calls. Yer a fake!
Brother, I have missed you. Recent tensions en famille may have upset some relations. But how can we be family if we're not dysfuntional from time to me? That's what I'm always sayin'.
Recent tensions en famille may have upset some relations.
It would help some if you could learn the color code in this area. . . . no doubt about it.
Whereas Pink is nice, it does convey a certain Commie overtone. . . BIG MISTAKE!
Bold Fuchsia is the REAL her. Pinko-Commie She is not!
If you could just get Her color right it wouldn't matter wheather or not Jr. called for Slick's impeachment.
to claim that many articles, when posted, contain little if any comment.
She must be referring to my posts. They usually just sit there. On the brighter side, the Omsk Daily Potato has never sued Free Republic!
Shhhh ... Struwwelpeter! The eyes of the Potato are EVERYWHERE.
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