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Court of Appeals Docket No. 00-57211 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
LOS ANGELES TIMES, and THE WASHINGTON POST COMPANY and its wholly owned subsidiary, WASHINGTON.NEWSWEEK INTERACTIVE COMPANY,
Plaintiffs-Appellees,
vs.
FREE REPUBLIC, ELECTRONIC ORCHARD, JIM ROBINSON
Defendants-Appellants.
REPLY BRIEF OF APPELLANTS
Appeal from Final Judgment of the United States District Court,
Central District of California (Hon. Margaret M. Morrow)
U. S. Dist. Ct. No. CV-98-7840 MMM (AJWx)
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Brian L. Buckley Law Offices of Brian L. Buckley 11661 San Vicente Blvd., Suite 820 Los Angeles, CA 90049-5116 Telephone: (310) 207-4224 Attorney for Defendants-Appellants |
TABLE OF CONTENTS
I. SUMMARY OF REPLY 1
II. ARGUMENT 4
A. Appellants' Fair Use Defense 4
1. First Fair Use Factor: Purpose and Character of Use 4
a. Free Republic's Use is Both "Transformative" and "Productive" 4
b. Free Republic Is Not "Commercial" Within The Meaning of 17 U.S.C. § 107 8
2. Second Fair Use Factor: The Nature of the Copyrighted Work 10
3. Third Fair Use Factor: The Amount and Substantiality Of
The Portion Used In Relation To The Copyrighted Work
As A Whole 11
a. Full-Text Posting Of Articles Is Necessary for Free Republic's Purpose of Criticism and Comment 11
b. Links to Appellees' websites would be ineffective for
the criticism and comment functions of Free Republic 12
4. Fourth Fair Use Factor: The Effect Of The Use On The
Potential Market For Or Value Of The Copyrighted Work 14
B. The First Amendment As A Separate Defense 17
III. CONCLUSION 19
TABLE OF AUTHORITIES
Cases
Statutes
Secondary Authorities
REQUEST FOR ATTORNEYS FEES
Appellants hereby request attorneys fees for this appeal pursuant to 17 U.S.C. § 505.
Defendants-Appellants Free Republic, Electronic Orchard and Jim Robinson, (hereinafter "Defendants" or "Appellants") hereby reply to the Brief of Appellees,
Los Angeles Times, The Washington Post Company, and Washingtonpost.Newsweek Interactive Company (hereinafter "Plaintiffs" or "Appellees") as follows:
I.
SUMMARY OF REPLY
Appellees' opposition brief is long on ad hominem attack and short on evidentiary citations to the record. Appellees dodge entirely the absence of any evidence in the record supporting their "effect on the market" contentions -- a crucial omission and material disputed fact in this case. In Harper and Row Publishers, Inc. v. Nation Enterprise, 471 U.S. 539, 566, 105 S.Ct. 2218, 2233 (1985), our Supreme Court referred to this impact on the market factor as "undoubtedly the single most important element of fair use."
In recognition of this importance, Appellants submitted extensive evidence to the trial court that freerepublic.com was a poor market substitute for, and did not compete with, Plaintiffs-Appellees' websites latimes.com and washingtonpost.com. This evidence showed that Plaintiffs-Appellees actually benefitted financially from "hits" referred to their websites by the freerepublic.com website. Appellees submitted no evidence to the contrary beyond the conclusory suppositions of their employees -- hardly a sufficient basis for the granting of summary judgment where such material facts are in dispute.
All of the "fair use" factors of 17 U.S.C. § 107 favor appellants:
· First Factor: Purpose and Character of Use
The comments and criticism posted on each Free Republic web page following the initially-posted article do "add something new" and are "transformative" of the original work. Appellees cite no authority holding that the transformative "comments and criticism" cannot follow the original work on the page. In fact, Religious Technology Center v. Netcom On-Line Communication Services, Inc. ["Netcom II"], 923 F. Supp. 1231 (1995) acknowledges that they can follow the original work.
· First Factor (cont.): Purpose and Character of Use
Free Republic is not "commercial" within the meaning of 17 U.S.C. § 107. Even the trial court found Free Republic to be only "minimally commercial"
· Second Factor: Nature of the Copyrighted Work
The posted articles on Free Republic are clearly factual in nature -- not fictional. As the trial court found, this factor favors Appellants.
· Third Factor: Amount and Substantiality Of The Portion Used
Free Republic's stated purpose is to "expose government corruption and bias in the mainstream media." Accusations of bias and omission in Appellees' coverage of public affairs are impossible to authenticate effectively without the full text of the criticized article.
Internet "links" to articles would be impractical and cumbersome and would chill public debate of public affairs and biased media coverage.
· Fourth Factor: Effect On the Market For the Copyrighted Works Appellees failed to proffer any evidence concerning the "effect on the market" factor beyond the unsupported conclusory suppositions of their employees.
· First Amendment As A Separate Affirmative Defense
Appellants' assert their First Amendment rights both as an additional fair use factor and as an independent defense. Appellants contend that, as applied to the facts of this case, their First Amendment rights conflict with and outweigh Appellees' statutory intellectual property rights. Additional weight must be given to First Amendment rights where the speech being expressed concerns important matters of public policy.
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II.
ARGUMENT
A. Appellants' Fair Use Defense
1. First Fair Use Factor: Purpose and Character of Use
a. Free Republic's Use is Both "Transformative" and "Productive"
Appellees treat "transformation" as a necessary condition for a finding in favor of Appellants on the first fair use factor. However, this mischaracterizes the standard. As pointed out in Appellants' opening brief, transformation is simply one way in which a use may be productive. The term 'transformative' apparently originated in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 , 114 S.Ct. 1164, 1171 (1994) where it was used as a proxy for "adding something new." Notwithstanding this distinction, the use on the freerepublic.com site is both productive and transformative.
Each of the relevant web pages on the freerepublic.com site consists of a posted initial article followed by extensive comments and criticism of that posted article. Appellees urge this Court to take an analytical scalpel to the Free Republic web page and excise all of the appended criticism and comments on the page -- focusing only on the initially posted article. This is plainly contraindicated. Nothing in the cases cited by Appellees supports such a method of analysis. Appellees' cases nowhere suggest that transformation of copyrighted material must be interlaced with the copyrighted text. None of the cited authorities suggests that the "comments and criticism" referred to in 17 U.S.C. § 107 cannot follow the copyrighted material. Indeed, none of the cases cited by Appellees for this point involve any added criticism or comment at all. In Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110 (9th Cir. 2000), a spinoff church distributed a 380-page religious text in its entirety without any appended review, criticism or comment; in A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1015 (9th Cir. 2001), an internet service facilitated the transmission and exchange of digital audio copies of copyrighted material without any appended criticism or comment; in Infinity Broadcast v. Kirkwood, 150 F.3d 104 (2nd Cir. 1998), defendant provided telephone dial-up lines which transmitted the entirety of plaintiff's radio broadcasts 24 hours a day.
One of the cases cited and relied upon by the trial court for its finding that Free Republic's use was not transformative was a decision of this Court, Los Angeles News Service v. Reuters, 149 F.3d 987, 993 (9th Cir. 1998). This Court found "Reuters does not explain the footage, edit the content of the footage, or include editorial comment." By contrast, freerepublic.com does include editorial comment and explanation in the appended comments on each web page, and thus the trial court' s reliance on Reuters is perplexing at best.
Adding to its unsound analysis of transformation, the trial court also cites Religious Technology Center v. Netcom On-Line Communication Services, Inc. ["Netcom II"], 923 F. Supp. 1231 (1995), which involved the posting of copyrighted material on an internet (Usenet) posting site similar to Free Republic in that an initial article or comment is posted and can be then viewed and commented upon by other internet users. The defendant in Netcom II also argued that the initial purportedly infringing article was "transformed" by subsequent postings of criticism and comment. However, the Court found, 923 F.Supp. at 1247 that:
"While an entire thread might be considered one composite work authored by all those adding to the thread, there is no evidence in the record that any of Erlich's postings were followed up with further comments or criticism on the works that are excerpted."
By contrast, in the instant case there is an overwhelming amount of additional comments and criticism -- indeed it nearly always exceeds by far the amount of text of the original posting. (ER, 24) Thus Netcom II strongly favors a finding of fair use.
Appellees make both factual and legal attacks on Appellants' "purpose of use" arguments for the first fair use factor, the "purpose and character of use." Under the analysis set forth in American Geophysical Union v. Texaco, Inc., 60 F.3d 913 (2d Cir. 1995), and under the express terms of 17 U.S.C. § 107, Appellants contend that the purpose in posting articles to Free Republic is very different from the news reporting and research purposes of the latimes.com and washingtonpost.com sites. Free Republic's purpose is to allow critical analysis and comment upon matters of important public policy and to expose any bias in reporting upon those matters by mainstream media outlets. Appellants argue that freerepublic.com is a very poor market substitute for any internet user who wishes to obtain current or archived newspaper articles from newspaper sites such as the Los Angeles Times or Washington Post. Such a difference in purpose (and hence market substitutibility) favors a finding of fair use under American Geophysical holding.
To undermine this "difference of purpose" argument of Appellants, Appellees first make the unsupported conclusory assertion that, as a matter of fact, the purposes of Free Republic are the same as Appellees' sites. They offer no evidence or citations to the record in support of this contention. By contrast, Appellants submitted extensive evidence that the sites are poor substitutes. As further (See, Section 4, infra, concerning the Effect on the Market For the Copyrighted Works, for a more extensive discussion of the poor substitutibility of Free Republic.)
Appellees next assert that distinguising the "purpose of use" also fails as a matter of law. In so doing, Appellees mischaracterize the "purpose" factor as a matter of a "defendant's subjective intent." They appear to be saying that as a matter of law, the purpose of the use is irrelevant. If this is what Appellees contend, this position is at odds both with the entire line of fair use cases and with the express terms of 17 U.S.C. § 107 itself ["... the factors to be considered shall include -- (1) the purpose and charactter of the use ...]. See also, American Geophysical, supra, 60 F.3d at 922 [Section II]. The Court in American Geophysical, found against defendants because they were making copies of the original works for the very same purpose for which the works were intended. Free Republic users do not frequent the Free Republic site for the purpose of reading the daily newspaper. They frequent the Free Republic site to comment upon, and view the comments of others upon, various articles concerning government and public policy. Appellees' arguments regarding both the facts and the law of "purpose of use" are not well taken.
b. Free Republic Is Not "Commercial" Within The Meaning of 17 U.S.C. § 107
Free Republic
is a nonprofit politically-oriented internet "bulletin board" website begun by Appellant Jim Robinson as a hobby out of erupting frustration with the censorship on alternative internet sites. Free Republic has no employees. Donations sent by users of the Free Republic site are used solely for expenses in maintaining the site. Robinson takes no salary or other compensation for operation of the site. Free Republic has never sold, rented or otherwise transferred any names, mailing addresses, email addresses, or any other personal information of its registered users to any other company, third party, person or entity of any kind. Neither Free Republic or its owners accept any compensation or donations as a quid pro quo for any advertising, links, or banners on the Free Republic site. Nor has there ever been.Yet Appellees take every opportunity to describe Free Republic as a "for profit" operation and they go on at length bravely arguing that the cite is a veritible Thieves' Den where an underhanded commerce trades for profit on their stolen goods, thus rather detracting from their otherwise magnanimous endorsement that the trial court properly decided the issue of fair use. (Brief of Appellees, p. 9, p. 23)
In stark contrast to Appellees' characterizations, however, even the trial court found that Free Republic is only "minimally commercial." The trial court opined:
"Section 107(1) does not mandate 'a clear-cut choice between two polar characterizations, "commercial" and "non-profit."' Maxtone-Graham, supra, 803 F.2d at 1262. Here, choosing one of these two extremes does not properly reflect the nature of the Free Republic site, or defendants' activities in operating it. Rather, attempting the 'sensitive balancing of interests' required for application of the fair use doctrine (Campbell, supra, 510 U.S. at 584; Sony, supra, 464 U.S. at 455, n. 40), the court finds that the operation of the Free Republic site is only minimally commercial." [Emphasis added.]
For this "minimally commercial" finding, the trial court relied in part on the holding in Marobie-FL, Inc. v. National Assoc. of Fir Equipment Distributors, 983 F. Supp. 1167 (N.D. Ill. 1997). In Marobie, a nonprofit organization placed copyrighted clip art on its website without permission or compensation to the copyright owners. Despite defendant's nonprofit status, the court found that the conduct could still be considered commercial. However, there is an important factual distinction with the instant case. In Marobie, the copyright owner charged a fee for the clipart. In the instant case, Appellees provide the copyrighted articles for free during the initial periods of publication -- much the same as television broadcasts were provided free of charge Sony, supra, 464 U.S. 417 (1984).
Neither the status nor the conduct of Appellants is "commercial" within the meaning of 17 U.S.C. § 107. This factor weighs in favor of Appellants.
2. Second Fair Use Factor: The Nature of the Copyrighted Work
The trial court found that because the posted articles were factual in nature, the second fair use factor weighs in favor of Appellants:
"While plaintiffs' news articles certainly contain expressive elements, they are predominantly factual. Consequently, defendants' fair use claim is stronger than it would be had the works been purely fictional. See Sony, supra, 464 U.S. at 455, n. 40 ("Copying a news broadcast may have a stronger claim to fair use than copying a motion picture"). The court concludes that the second factor weighs in favor of a finding of fair use of the news articles by defendants in this case." [Emphasis added.]
Even Appellees appear resigned to conceding this factor. In their opposition brief, Appellees gamely state: "At the very least, the second factor is neutral -- weighing neither for nor against either of the parties." (Brief of Appellees', p. 27) .
The Supreme Court has held that "In general, fair use is more likely to be found in factual works than in fictional works." Steward v. Abend, 495 U.S. 207, 237, 110 S.Ct. 1750 (1990). Unless Appellees contend that their newspaper articles are works of fiction, they ought concede this factor.
3. Third Fair Use Factor: The Amount and Substantiality Of The Portion Used In Relation To The Copyrighted Work As A Whole
a. Full-Text Posting Of Articles Is Necessary for Free Republic's Purpose of Criticism and Comment
For purposes of analyzing this third fair use factor, "[g]enerally, no more of a work may be taken than is necessary to make the accompanying comment understandable." Supermarket of Homes, Inc. v. San Fernando Valley Board of Realtors, 786 F.2d 1440, 1409 (9th Cir. 1986). The principal purpose of Free Republic is to expose government corruption and bias in the mainstream media. It would be virtually impossible to criticize and expose omissions or bias in a newspaper article without posting the full text of the article. Posters accusing a newspaper of bias based on a mere excerpt would be thought guilty of bias themselves. How could accusations of bias ever be justified without posting the full text of the biased article? Appellees provide no satisfactory answer. Appellees' analogy of a critic posting an entire motion picture to his own website is disingenuous. Motion pictures are clearly creative expression. Factual articles involving important public policy concerns are entitled to more secure and, indeed, statutorily expressed, moorings in the fair use safe harbor.
b. Links to Appellees' websites would be ineffective for the criticism and comment functions of Free Republic
Plaintiffs-Appellees have suggested that Free Republic could accomplish its purpose by requiring "links" to the relevant articles rather then posting the full text of the article itself. However, this is impracticable and would chill free and open political discussion. Consider the steps a freerepublic.com user would have to execute to decide whether he or she even wants to post a comment. Links to articles on Appellees' web sites expire after one or two weeks. Even before the link "expires" moving back and forth between sites can be cumbersome. After the link to the article expires, the linked articles are only available by doing a search in Appellees' archives. Even a cursory view of the archive search pages for Appellees' sites shows how cumbersome it would be even to locate the subject article. After locating the article, and before a user may view it, a user has then to register with the latimes.com or washingtonpost.com site before being able to access the article by paying a fee by credit card. As part of the registration process, any responsible user would first review the User Registration and Membership Agreements and Privacy Policies. This agreements are complicated and expose users to various kinds of legal liability. Navigating through such a bewildering array of archive search pages and legal agreements would seem likely to discourage many potential posters. After all, they haven't yet seen the article being commented upon. They would have to undertake all that effort and make payment to the very mainstream newspaper whose coverage they are criticizing. Such a requirement would have a chilling effect on free and open political debate and criticism of mainstream media outlets.
4. Fourth Fair Use Factor: The Effect Of The Use On The Potential Market For Or Value Of The Copyrighted Work
In Harper and Row Publishers, Inc. v. Nation Enterprise, 471 U.S. 539, 566, 105 S.Ct. 2218, 2233 (1985), our Supreme Court referred to the "effect on the market" factor as "undoubtedly the single most important element of fair use." In recognition of this importance, Defendants-Appellants retained internet expert Richard L. Stout and submitted evidence to the trial court showing that:
(1) The freerepublic.com is a poor market substitute for Appellees' web sites; and
(2) Appellees' web sites actually benefitted from additional advertising revenue generated from "hits" referred to their web sites by the freerepublic.com web site.
By contrast, Plaintiffs-Appellees submitted no credible evidence to contradict this evidence. The only evidence Appellees submitted to show a detrimental effect on the market are the following unsupported conclusory statements of Appellees:
Washington Post employee, Eric Koefoot, submitted a declaration with the following unsupported and conclusory statements:
" 21. Defendants' republication of articles from The Washington Post over the Internet, where as many as 200 million users have ready access to them, creates a ready substitute for our works.
" 22 For every person who views an article from The Washington Post on Free Republic, for example, washingtonpost.com loses a potential 'hit' or 'page view." When this happens, overall traffic volume goes down, and advertising on the washingtonpost.com website loses value. In addition, because people will not pay to view on washingtonpost.com the same articles that they can view for free on Free Republic, Washingtonpost.Newsweek Interactive Company also loses the ability to charge for its archived articles. These infringing practices likewise diminish the value of washingtonpost.com content to licensees.
" 23. Defendants' infringing activities enable readers to evade our archive fees, divert valuable traffic away from our site, and reduce actual and potential advertising and licensing revenue."
These conclusory paragraphs consist of the entire body of evidence submitted by Appellees in support of their "effect on the market" contentions.
The "effect on the market" fair use factor was an important factor in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 104 S.Ct. 774 (1984) (considering the effect of "time-shifting" of television programs using Sony video recorders). The Supreme Court noted, 464 U.S. at 451:
"A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work. Actual present harm need not be shown; such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it necessary to show with certainty that future harm will result. What is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists. If the intended use is for commercial gain, that likelihood may be presumed. But if it is for a noncommercial purpose, the likelihood must be demonstrated. In this case, respondents failed to carry their burden with regard to home time-shifting." [Underline added.]
Not only did Plaintiffs-Appellees herein also fail to carry their burden, they submitted essentially no evidence at all concerning this material disputed fact The absence of evidence on this crucial factor is hardly sufficient to justify the granting of summary judgment by the trial court.
Appellees repeatedly cite the Supreme Court's holding in Harper & Row Publishers, Inc. v. Nation Enterprise, 471 U.S. 539 105 S.Ct. 2218 (1985). However, this case is readily distinguished. In Harper & Row, the defendant deprived Harper & Row of the right of first publication by publishing the "heart" of President Ford's memoirs before Harper & Row did. In the instant case, articles are posted on the freerepublic.com site after publication by Appellees. Free Republic is not depriving Appellees of the right of first publication.
In Sony, supra, 464 U.S. 417 (1984), the Supreme Court found that the wholesale copying of entire television broadcasts was a fair use because it essentially consisted of "time-shifting" of the broadcasts which were made available, initially, free of charge to the public. One can see here a direct parallel to the instant case. Appellees' websites latimes.com and washingtonpost.com make their articles available free of charge for one week and two weeks respectively. They have the right of first publication. The posting of one of these articles onto the Free Republic site for discussion has the same effect as the "time-shifting" in the Sony case.
B. The First Amendment As A Separate Defense
"Congress shall make no law ... abridging the freedom of speech, or of the press ..." Appellants have asserted the First Amendment both as an additional nonstatutory factor to be considered in evaluating their fair use defense, and as a separate affirmative defense. Appellants have cited Prof. Nimmer's observations concerning the tensions between copyright law and the First Amendment.
Appellants do not seek to undermine the entire copyright statutory scheme. Appellants do not even go so far as to urge that the First Amendment trumps the copyright statute. Rather, Appellants contend that First Amendment considerations as applied to this case are in conflict with and outweigh copyright considerations.
Our Supreme court, of late, has held that First Amendment considerations sometimes trump the private statutory rights individuals -- whether they be private property, intellectual property or privacy. Of particular note, is the Supreme Court's recent holding in Bartnicki v. Vopper, __ U.S. __, 121 S.Ct. 1753 (2001). In Bartnicki, the Court held that an individual who lawfully received a tape recording of a cellular telephone conversation concerning matter of public concern from unknown third party who had recorded it in violation of federal and Pennsylvania wiretap acts, and the media outlet which broadcast tape after lawfully receiving it from that individual, could not be held liable under the acts' prohibition of intentional disclosure of contents of illegally intercepted communications. The Court held that the First Amendment interest in publishing matters of public importance as applied outweighed conversants' statutory privacy rights. In New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), the Supreme Court upheld the press' right to publish information of great public concern obtained from documents stolen by a third party.
Depending upon whose ox is being gored, it appears that even Appellees believe that First Amendment considerations may outweigh the provisions of the Copyright statute. In an amicus brief filed by the Tribune Company, the parent company of the Los Angeles Times, in a somewhat well-publicized case involving a parody of "Gone With The Wind," the Tribune Company argued:
"Article I, section 8 of the Constitution makes no mention of remedies or injunctions. The remedies contained in the Copyright Act are statutorily created and should never be allowed to trump First Amendment Protection. In short, although copyright law is grounded in the Constitution, it certainly is not inconsistent with the Act's purpose to apply First Amendment procedural protections to statutory remedies Congress created to effectuate that purpose."
"[S]peech concerning public affairs is more than self-expression; it is the essence of self-government ..." Garrison v. Louisiana, 379 U.S. 64, 774-75 (1964). Free Republic provides an important forum for the public to exercise their free speech right to criticize their government and the media's coverage of it. This tips the balance in favor of Appellants.
III.
CONCLUSION
In Harper and Row Publishers, Inc. v. Nation Enterprise, 471 U.S. 539, 566, 105 S.Ct. 2218, 2233 (1985), our Supreme Court referred to the "effect on the market" factor as "undoubtedly the single most important element of fair use." Consequently, the granting of summary judgment on fair use requires sufficient evidence in the record to evaluate this material and disputed fact. Appellees submitted no credible evidence to contradict the extensive evidence for this factor submitted by Appellants. The absence of evidence concerning this factor alone is sufficient to reverse the trial court's granting of summary judgment.
As to the remaining fair use factors, the court in Maxtone-Graham, supra, 803 F.2d 1253, pointed out that a fair use determination "often requires a complex and subtle evaluation of numerous mixed issues of fact and law." Such is the instant case. Free Republic provides an important free speech forum concerning the actions of our government and biases in the mainstream media's coverage of our government. The evidence shows a market benefit to Appellees' sites resulting from the operation of Free Republic. Appellees' remedy, if such be needed, lies not with this Court but with Congress, which has plainly authorized the very speech enjoined by the district court at the request of Appellants, self-described "champions of the First Amendment."
Appellants respectfully request that this Court find that the use of Appellees' material is a fair use within the meaning of 17 U.S.C. § 107. In the alternative, Appellants request that the matter be reversed and remanded for trial.
Dated: June 18, 2001
Respectfully submitted,
Brian L. Buckley
Attorney for defendants-appellants
Free Republic, Jim Robinson and
Electronic Orchard
Certificate of Compliance Pursuant to Fed.R.App. 32(a)(7)(C)
and Circuit Rule 32-1 for Case Number 00-57211
I certify that: (check appropriate option(s))
__1. Pursuant to Fed. R. App. P. 32 (a)(7)(C) and Ninth Circuit Rule 32-1, the attached apening/answering/reply/cross-appeal brief is
4, 793 words (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words; reply briefs must not exceed 7,000 words),
or is
__2. The attached brief is not subject to the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because
q This brief complies with Fed. R. App. P. 32(a)(1)-(7) and is a principal brief of no more than 30 pages or a reply brief of no more than 15 pages;
q This brief complies with a page or size-volume limitation established by separate court order dated ________________ and is
q Proportionately spaced, has a typeface of 14 points or more and contains __________ words,
or is
q Monospaced, has 10.5 or fewer characters per inch and contains _______ pages or __________ words or _________ lines of text.
Dated: June 18, 2001
Brian L. Buckley
Attorney for Defendants-Appellants
PROOF OF SERVICE
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 11661 San Vicente Blvd., Suite 820, Los Angeles, CA 90049-5116.
On June 18, 2001 I served the document(s) described as:
REPLY BRIEF OF APPELLANTS'
on the interested parties in this action by sealing said documents in an envelope or box and serving:
|
Rex S. Heinke, Esq. Jessica Weisel, Esq. GREINES, MARTIN, STEIN & RICHLAND 9601 Wilshire Boulevard, Suite 544 Beverly Hills, CA 90210-5215 |
Office of the Clerk U. S. Court of Appeals Post Office Box 193939 San Francisco, CA 94119-3939
|
( ) Personal Service: I personally delivered said document(s) to the foregoing address.
( XX ) By Mail: I am readily familiar with the procedures of my office for the pickup and deposit of United States mail. I either personally deposited, or caused to be deposited, on the date stated above an envelope or box addressed as stated above, with postage fully prepaid, containing the foregoing document(s), into a collection facility of the United States Postal Service located in Los Angeles, California.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on June 18, 2001 at Los Angeles, California.
Print Name Signature
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Thanks for the update.
Brian, thank you for all this work.
It's been my honor, I assure you.
Do you have a link to the LAT/WP's brief?
Thanks, Jean. We are going to win this thing. The first amendment guarantees our rights to free assembly and freedom to criticize the out of control government and its primary accomplice, the liberally biased media.
Thank you Brian and Bryan. Helluva good job!
We win.
L.A. Times / Washington Post v. Free Republic - LAT/WP Ninth Circuit Brief
Never had any doubts. Thank you, Brian!
Thank you Brian.
bttt
Thank you, sir. Must've missed it when you initially posted it.
Did anyone file, or ask to file, an amicus brief in this matter?
Thanks.
L
I, The Honorable truth_eagle, do hereby find the Defendants-Appellants not guilty, and hence find that the plaintiffs are entitled to NO RELIEF WHATSOEVER. Furthermore, I also find that the plaintiffs, their agents and attorneys, should all be sent to Singapore for caning.
As So Ordered!
Hey, I read it all---and I'm convinced!!
;-)
Still prayin'!!
FReegards..TH
BTTT
Big Bump to the top!
Good argument. I read through quickly.
In my opinion the case is decided on this issue:
3. Third Fair Use Factor: The Amount and Substantiality Of The Portion Used In Relation To The Copyrighted Work As A Whole
You made a good argument for it. What is next on the schedule?
Thank you, Jim and Brian.
We win.
From your mouth to G-ds ear.
In consequence of the fragility of the Appellee's argument, and pursuant to an ajudication with credibility under our system of law, the Appellate Court finds as follows:
1) The Appellees are hereby instructed by the Court to extricate their crania from their rectal sphincters; and
2) Appellees shall remit, within 90 calendar days from today, a sum of $1 million (one million) dollars U.S. to Mr. Jim Robinson, owner and operator of freerepublic.com and Electronic Orchard; and
3) That Appellees shall remit to the law offices of Brian Buckley, counsel for the Appellant, the sum of $1 million dollars U.S. as payment for legal fees incurred in defense of this matter; and
4) Appellees shall never again within the mortal frame bring any action, harrassment, or complaint against freerepublic, Mr. Robinson, Mr. Buckley, or any of the other good guys. Appellees should return to their burrows and continue to crank out moderately absorbent boot-stuffers until such time as the free marketplace dissolves their utility entirely and they join the ranks of their bankrupt brethren.
So ordered this 21st day of June, A.D. 2001.
Just as a sidebar, Brian, this passage -- they go on at length bravely arguing that the cite is a veritible Thieves' Den is misspelled. It should read "... the SITE is a VERITABLE Thieves' Den ..." Not that it in any way affects the power of the argument. But I know how picky judges can be.
Good show, old man. Jolly good show!
Since I don't legalese, I'm depending upon the "we win" comments to be encouraged!
Viva JimRob, FR, and Clarity!
"But I know how picky judges can be."
Hey, not to worry. We left out several large sections of our brief in what we actually filed. They don't need the full text to undertand our arguments, do they?
Yes, the Southeastern LegalFoundation, based in Atlanta, filed an Amicus brief several weeks ago. Their motion to have it accepted is pending. Regards.
They don't need the full text to undertand our arguments, do they?
Are you kidding? If these guys are half as dense as the trial court, they'll need sock puppets!
Never trust the 9th circuit court!
The SLF brief is here. Southeastern Legal Foundation's Amicus Brief in Support of Free Republic.
Brian, this is a very nice brief. Very tight, focused and persuasive. Let us know when they set oral argument.
Thank you. Unfortunately, we had a few typos and the usual this and that but as I said earlier we only actually filed excerpts of our Reply Brief, figuring that should be enough for the court to make a reasonable assessment of our reply. Regards to you , Sir!
Margaret Morrow was the trial judge? There's a woman who had a reputation as a ultra-liberal Democrat "hack" even before Clinton "elevated" her to the bench, and even among members of the ultra-liberal Democrat California State Bar. There are some cases where you don't even have to consider the facts or the law---you just look at the judge and you know how the case is going to turn out. FR got a really bad break when it drew Morrow as the judge. That, or there was some "Norma Holloway-Johnson"-style case assignment going on....
"Unless Appellees contend that their newspaper articles are works of fiction, they ought concede this factor."
ROTFLMAO That's what I’ve been saying all along. ;~))
Great job Brian! I think you have a winner.
If , at any time since its inception ,Free Republic could , would have been considered a commercial enterprise by the Court of Appeals, would that assumption have a bearing on their decision?
Be careful Clarity, or you might wind up giving lawyers a good name Excellent job! I hope you wind up on the bench one day!
Thanks for your personal courage, and vision JimRob. Seeing the risks you have taken to preserve the first-amendment(and the others)makes me proud to be a member of this forum!
Bump!
I don't know how else to say it, Brian--but "Thank You!" We all are immensely grateful for your tremendous effort!
I don't know how else to say it, Brian--but "Thank You!" We all are immensely grateful for your tremendous effort!
I am no legal eagle, but it looks good. Thanks both of you.
Eschoir down, just the LAla Times and the comPost to go. Here's hoping.
We win.
Is this the end of it or could it be taken to a higher court? How this turns out affects a lot more than FR.
WarHawk42
Someone posted the fact tha CommonDreams.org (a leftwing site) posts LA Times/Wash Post stuff. Do you know anything about that? Do they have an agreement? Have they been sued?
Wow, all this over yesterdays news. It's not like they even post exclusives the majority of the time, or anything remotely like an "opus" (apologies to Berke Breathed). Should have been dismissed with predjudice to begin with.
Bump and kudos Bryan and Brian! And an EAGLE's up! to Jim Robinson!
It is transparent to all of us that the plaintiff's case is a sham, an attempt to destroy criticism. This is a war between conservatives/individualists and liberals/socialists. The plaintiff's action demonstrates how arrogantly they regard the 1st Amendment. It only applies to their speech, and their press. When they are criticized and commented upon so effectually as here, they cannot and will not tolerate it. They are out to destroy Jim Robinson and Free Republic...the old fashioned way: They want to take all of his money. I note that after reading the Plaintiff's reply brief carefully, that NOWHERE could they cite a single copyright 'infringement' by Jim Robinson's entity Electronic Orchard.
This is the big-money socialist's jihad to defend their power...by attempting to crush dissent, by 'upping the ante'. They do this by making the litigation so costly, and also the damages, which were purportedly statutory, in fact, punitive and destructive...which would break any non-wealthy person. They mean to shut Free Republic down.
I personally do not trust the 9th Circuit, although the legal issues clearly do show there was fair use. Even were Free Republic, as so vitriolically asserted, 'for profit' and 'commercial.' They make a big deal out of the lack of the organizational pre-requisites to being a tax-exempt non-profit, and completely ignore the facts of the day-to-day non-profit operation, analogizing to Napster. They directly bring your veracity to task on this issue, and gain as much damage to the defendant's credibility thereby as they can. I fear this kind of elitist class-war diatribe...in a legal brief of all places, may find a sympathetic ear in the 9th Circuit. Indeed, that is what the Left is hoping...that this will be their Napster case, to shut down dissent.
However, it should be noted that Commercial speech is also protected under the 1st Amendment. This is separate from the statutory protections of copyright. Logically, fair use can still be for profit, i.e., where magazines are sold for profit, but contain copies of articles, photographs, etc. they comment upon or criticize.
If we lose in the 9th circuit, I do think that we must appeal to the U.S. Supreme Court on this, we simply CAN NOT lose this case, too much is at stake.
BTTT
I'm pleased by your use of Bartnicki v. Vopper. This argument may not win at the Ninth Circuit level. Especially after the way the Supreme Court has been treating them, those judges are likely to be reluctant to nullify a law. But I think this is a winning argument at the SCOTUS level.
As for the fair use arguments, I'm not enough of a copyright expert to have an opinion. If you have the copyright law right, the Ninth Circuit could find for you on that basis. Then it would be interesting to see if the plaintiffs are dumb enough to appeal to the Supreme Court and risk having a nationwide precedent set against them.
Fantastic work, Brian! Can the liberals on the 9th afford to let the USSC hear this anytime soon? Correct me if I'm wrong, but it almost seems a foregone conclusion that they will send it back to Morrow with instructions to reconsider along new lines, prolonging litigation until the next appeal to the 9th, "and so on infinitum." It would seem that their object is to break our back with time and expense, not to court a disastrous ruling by the Supremes.
BUMP BUMP and BUMP again!
My guess off the cuff is that it would be better for "liberals" to decide this one.
Thanks for the link. I missed it. It focuses on the long pass 1st amendment claim trumping the copyright law as currently interpreted argument.
Thank you, sir.
Bump for our legal defense fund.
Bumpity bump!
Here is the heart of the problem...
The comments and criticism posted on each Free Republic web page following the initially-posted article do "add something new" and are "transformative" of the original work.
Yea, they show how biased the LA Times, Washington Post, Newsweek are and they don't like it. I'm sure I am stating the obvious, but these powerful media outlets don't like their manipulation of the news being exposed.
This is about power and they don't want the regular people to have it.
I haven't read thru everything, but another argument for 3b could be that we want to archieve different revisions of the same article as the sites update or issue "corrections."
Go get em!!
Bump to read tomorrow morning (It's 12:19 over here on the Leftist (read: east) Coast). Looks like great stuff.
However, could someone please clarify exactly what "Electronic Orchard" is or does? Perhaps I aught to know this, but unfortunately I do not.
Electronic Orchard was my old programming and website development company. I shut it down a couple years ago because FR was consuming all of my time.
The Times and the Post, with a straight face, argue that FR has the same purpose, not a different purpose, in posting their materials on our site as they have for posting it on their own sites.
If that were true, then we should see dozens, even hundreds, of readers' comments on the WP/LAT sites referencing the articles in fulfillment of the criticism purpose.
The reality of course is that the reply button is essential to FR's mission. Without it, transformation would be impossible and our users would depart. Indeed, one way of looking at this picture is to observe that Transformation (of media reports through criticism and commentary) is FR's mission. If that purpose could not be fulfilled, the FR diaspora would begin at once.
And of course that is what they seek.
And of course that is what they seek.
Since they so bald-facedly lie about JRs & Free Republic's motivations, would it have been improper to TELL THE COURT OF APPEALS the TRUTH in your brief about THEIR motivations? I know, it would be impolitic to do so, as it would force them into an 'us vs. them' kind of show-down, and we know how the Florida Supreme Court reacted to that...but if Liberty is to mean anything at all in this country...wide latitude for political dissent HAS to be afforded.
"Have they been sued?"
No, they didn't call for the Bill CLinton's impeachment.
"...wide latitude for political dissent HAS to be afforded."
The founders agreed with you and the Congress agrees with you. The Ninth Circuit will agree with you, too.
Boy to I ever like that publishing conversation obtained by illegal wiretapping and publication of copyrighted material stolen by a third party. That's a hoot. They've got to do some dancin' to get around that. I'm not even thinking SCOTUS.
"The reality of course is that the reply button is essential to FR's mission..."
And the reality of the reply button to the Wash Post is a "popup" which last week out of no-where appeared while perusing their pages on the 'net.
"Hey You " , it said, -[actually it said that I was randomly selected to answer questions of a poll they were conducting to "improve their pages with content to be of interest of readers such as myself".
So I started to check-mark the appropriate boxes of what applied to me as a reader...
Well , whaddayuhknow , -what products would you buy? What is your education? How much do you earn? are you single? how old are you? were interspersed in this random poll.
Question: Would the motivation of the Wash Post on the internet in considering itself as a commercial vehicle in the marketplace for its advertisers, claim that the competition of a Free Republic also be considered by the courts to be guilty of unfair competition because it is actually a commercial site or vehicle posing as a forum ,and thus should be sued for copyright infringement for the products [editorial content] that they pay for and FR doesn't?
Direct and to the point. Very impressive! I do have one question. Why would FR not also argue that the WP obtains much of its factual information via "unnamed government sources". If much of what they report, or even a portion is based on a "government benefit" not available to all citizens, could it not be argued that the WP is, in effect, serves as a government public relations conduit?
Yes. If the LAT/WP (et al) post to their websites for the same reasons we post to ours, then I'm sure that we'd already be well on the way to a totally reformed restored constitutionally limited government. They have virtually unlimited budgets and access to tens of millions of readers as compared to our very limited budget and the tens of thousands of freedom loving individuals who have stumbled onto Free Republic over the last few years. The notion that the tiny FR represents "unfair" competition to the giant multi-billion dollar news conglomerates is ludicrous. FR is not a news agency. We are a discussion group. We do not compete with news agencies. We provide no commercially viable news content. We have no professional reporters or editors, production staff nor plant and equipment. It is a tiny grass roots operation of volunteers - not a massive publicly traded corporation. We simply discuss and critique the news as presented by the media. And our discussion most definitely transforms the news article to a news discussion. The articles are brought to Free Republic by individual citizens who desire to expose government abuse, fraud or expose media bias. These people are not doing this for commercial gain or profit. They are doing it because they fear losing their freedom and they fear that the LAT/WP is doing exactly opposite what our founders had in mind for a free press. This is not commercial activity. This is purely political and falls squarely within the realm of free speech.
Our activities are exactly those our founders envisioned when they established this great Republic. An informed citizenry is the guarantor of liberty and free speech is essential to these endeavors. Our founders understood this and feared that a powerful central government would attempt to undo what they had brought forth, thus they wrote into the Constitution the severe restrictions on the powers of government and guaranteed the maximum amount of freedom to the people and their sovereign states. We must fight to preserve our Constitution and ensure that our free speech is never curtailed.
Given that the 9th circuit is the most Liberal circuit in the nation and FR is a Conservative site, how much real hope is there that you can prevail?
This question is best answered by people who have experience with the courts. I do not. I can only pray that the court is true to the constitution. I also understand that if the court rules against us, then we will have opportunity to petition the Supreme Court. When it comes to the constitutional issues of individual right to free speech and benefit to the public vs corporate interests I think they will tend to favor the people and the first amendment.
When it comes to the constitutional issues of individual right to free speech and benefit to the public vs corporate interests I think they will tend to favor the people and the first amendment.
I can only pray that you are right. I have had occasion to do a great deal of research on another subject and a lot of precedent set by the 9th circuit leads me to believe that this case will be decided in the USSC. However, that could be the best of all worlds when it comes to the free exchange of information. I am wishing you all the luck in the world.
I just realized something:
According to the suit the LA Times and the Washington Post have submitted, there are OTHERS who should be included in the suit who are not.
There are a number of TELEVISION shows that place said article cutouts on the Television screen. Granted, the most evident is C-SPAN, but they have completed their non-profit organization papers, but there are also several comedy shows, local, and national news broadcasts that do the same thing.
Usually when exposing a false news report. Can we use it?
Very, very nicely done. I do hope the Ninth does the right and constitutional thing. It would also be too sweet if not only did you kick the clymers' *sses, but you also got a substantial fee award. *fingers crossed/prayers sent/knocking on wood/salt over the left shoulder/rubbing Bhudda's tummy*
A most compelling set of arguments! Fingers crossed that the justices hear the voice of reason...
Thanks to all of you for your hard work in keeping free speech alive on the Internet.
I haven't read thru everything, but another argument for 3b could be that we want to archieve different revisions of the same article as the sites update or issue "corrections." 53 Posted on 06/21/2001 20:31:57 PDT by ironman
I remember a thread that specifically did that, where we had copies of a newspaper story that had the wording changed after the first edition and had to re-run some of the papers. They were, in effect, issuing a correction without having to label it as such. It seems it was either about the election, or the pardons, or the silverware.........one of the last scandals. Anyone else remember that?? It might make a good argument at trial.
I looked at the LA Times and WA Post web sites and jotted everything down I could that was posted by their loyal readers about this subject. Here it is:
"_______________________________________"
That's the entire text. I hope they don't sue over it's use:)
one more time
I don't think the WP's motivation is particularlyy germane to the legal issues. It's just a question of whether FR has infringed a copyright.
Gasp! I hope that was just an excerpt of the blank you found.
Yea, that's all of it. I can see that their readers are very concerned about this litigation. There is a rumor that their readers have been making signs and they will be "LAPPING" or "WAPPING" the FreeRepublic offices real soon. I've seen some of their signs. The most popular, which I suppose you could describe as their "Sore Loserman" is:
"___________"
Pretty powerful, eh? :)
VERY powerful. Especially the "_____" part. Gives me goosebumps.
I remember a thread that specifically did that, where we had copies of a newspaper story that had the wording changed after the first edition and had to re-run some of the papers.
THIS THREAD is not what you seek, but it is relevant: The word 'rapist' censored from George Will's column
My favorite quote from the entire story is in the response by George Will himself, published a few days after public pressure (from FR and talk show host Hugh Hewitt) caused the LA Times to print an "editor's note" (not "apology" or "correction"):
George Will: "Clarity might have been served..." (I would like to think that he was talking about OUR Clarity!)
HERE IT IS! (Perhaps. This is about a NEW YORK Times article.)
clinton lies in Times Pardongate apologia/Times lets clinton replace lies with deceptive statements
Posted on 02/18/2001 14:49:44 PST by Mia T
"I don't think the WP's motivation is particularly germane to the legal issues."
Well, Peter Falk [Columbo] never thought so.
For example ,he would always stop at the door just as the suspect sighed with relief thinking that Columbo was about to leave the room ,but who would then pause, turn around ,and as an afterthought would tell the suspect-
"Oh, by the way, I have a germane question for you."
Motivation also comes to mind, when in the old days a gal was invited to look at my etchings...
Wow, Jim, Where Did You Find Such A Smart Attorney? What An EXCELLENT Brief! Being a retired detective, I know good briefs when I see them. LOL (I've been waiting for years to use that one)
Good work! Don't worry - typos happen ... For oral argument:
Which parts of the LAT/WP briefs should be omitted? Which parts of their supporting case law should be ignored? Maybe they should only be able to cite references that occur on the first page of their supporting case law.
Kinda of a smarta$$ approach but maybe you can soften it abit for the AppCt. Go FR!
Query:
The public's ability to freely criticize the press is just as important as the press's ability to criticize the government. The public's ability to criticize the press serves as a check on bias in the media. Should the mainstream press become biased (as some believe they in fact are), it undermines the entire purpose of the First Amendment's guarantee of freedom of the press.
If the press is biased in favor of party in power, then the press cannot serve as an effective check on government and preserving our liberty. Thus, someone needs to serve as a check on the press while the press is serving as a check on the government.
Who serves as a check on the press? The public? How? Through free communication re bias in media reporting. And how could THIS be done if the full text cannot be posted?
It's true that private intellectual property rights may give way. But if our system of checks and balances on the government breaks down, there won't be any copyrights to enforce anyway.
What do you think?
LOL. Yeah, or maybe the WP/LAT can just link the 9th Circuit to their Opposition Brief. Afterall, that "would not be cumbersome."
I think you nailed it. I believe that we are doing exactly as the founders intended with the first amendment. Liberty can only survive as long as the people are fully informed. When the press takes the side of ever increasing government power, then tyranny will soon follow.
Shine a light on the rotting corpse. EeeWww They just hate that.
I think you've got the horns of a conundrum. This can be argued as a case of free speech versus free press, or free speech versus property rights. The latter is probably a loser; I can't trespass on your property to make a speech. But the first argument, essentially the one you've framed, could be a winner. Especially when you stress that the freedom of the press is in no way abridged by FR's posting of the articles. And certainly, your point about "chilling the debate" is well taken. Quotes and snips taken out of context are worse than meaningless, and render the "fair use" provisions of free press useless.
This could be a course to pursue.
Don't you think the motivation of the plaintiffs, the Washington Post and the LA Times, is relevant to the First Amendment argument if a large part of that motivation was to prevent criticism of the Clinton White House and the establishment media?
Way to go Jim Robinson!!!!
Eaker
If the Ninth Circuit were to remand more than once, I think that would be grounds for seeking review by the U.S. Supreme Court. But you're right, I think, about at least one remand. The SCOTUS would be unlikely to step in after a single remand, so it probably would be unwise to seek their intervention until after a second remand.
If the press is biased in favor of party in power, then the press cannot serve as an effective check on government and preserving our liberty.
The weakness in the argument is the assumption that there is something monolithic called "the press." I think the assumption is that one part of the press will be all too happy to point out the transgressions and bias of another part, and tend by representing competing factions to be at each other's throats. It is a fundamental tenant of Madison's theory of pluralism.
Now I know it is the fashion in these here parts to assume that the press is by and large a liberal wolf pack, but I don't think that argument is going to fly. In any event, it is less true today than it was 20 years ago with the rise of the internet and cable. Now one can zip over to Fox News any time of the day or night to get his or her fix of biased coverage from the right, and to a lesser extent from Brian Williams. In short, more flowers are in fact blooming, and over time the press is becoming less of a liberal oligopoly, assuming it ever was one.
Ditto. I have not posted for some time now, but still lurk every day. I am proud of the work that both you and the SLF have done on these briefs.
Given the political bent of the 9th Circuit, I fear that you will be repeating these arguments for the Supremes by year end. I hope that I'm wrong.
However, carpe diem and enjoy the fruits of your labors!
"Appellees next assert that distinguising the "purpose of use" also fails as a matter of law. In so doing, Appellees mischaracterize the "purpose" factor as a matter of a "defendant's subjective intent." They appear to be saying that as a matter of law, the purpose of the use is irrelevant. If this is what Appellees contend, this position is at odds both with the entire line of fair use cases and with the express terms of 17 U.S.C. § 107 itself...
If that doesn't convince a judge, nothing will. I mean, I haven't a clue what it means, so it must be good...
You've done marvelous work here. I especially enjoy the way you've pushed Kate & Co. a**-backwards on this business of FR as a commercial enterprise. Ok, so they dug that grave, but you didn't stop there: you flamed that corpse.
This, of course, stands alone:
"Unless Appellees contend that their newspaper articles are works of fiction, they ought concede this factor."
My dad just won a case by quoting from Alice in Wonderland, the bit about "Sentence first, trial later..." You've out-done him here. Marvelous.
"Appellants do not seek to undermine the entire copyright statutory scheme. Appellants do not even go so far as to urge that the First Amendment trumps the copyright statute. Rather, Appellants contend that First Amendment considerations as applied to this case are in conflict with and outweigh copyright considerations."
Nicollo smiles. (As does George Mason.)
Oh, and sublime that, your use of "New York Times" and the Tribune case on the movie parody.
"'[S]peech concerning public affairs is more than self-expression; it is the essence of self-government ...' Garrison v. Louisiana, 379 U.S. 64, 774-75 (1964). Free Republic provides an important forum for the public to exercise their free speech right to criticize their government and the media's coverage of it. This tips the balance in favor of Appellants."
I only disagree in that the scale is not merely tipped, it has gone verticle.
You forgot to add that part about plaintiffs paying defendant's legal fees. That would be for the 10,543 pizzas delivered to San Vicente Blvd, and 40% of $50 trillion to be recovered from American tax payers duped by plaintiffs into voting for Democrats.
Your query, post no. 84:
FR, the Fifth Estate!
Thanks, aristeides. This sounds about right to me. I expect the WP/LAT will drop their suit entirely just before adverse judgment. By then, a similar liberal media entity will have filed suit against FR. Perhaps the NYT. And so on.
By Jove, I think he's got it!!
That's the one I was thinking of, exactly. If we can't reprint the entire article, then how could we spot a change that they slip in a later edition. With the digital age we live in, things like a paper trail are becoming a thing of the past. FR is one way to help create that trail.
Thanks, RonDog for hunting that down, and thanks Clarity and Jim R. for working to help protect our 1st Amendment rights.
I ran across a great quote in a training the other day that I thought was awesome:
"For every thousand hacking at the leaves of evil, there is one striking at the root." Henry David Thoreau
I believe that we are doing exactly as the founders intended with the first amendment. Liberty can only survive as long as the people are fully informed.
Thank you both for your efforts on behalf of the Republic - let alone this site. It is an incredible task.
Regards,
TS
Who is hearing, or deciding on whether to hear, this appeal? What is their background?
Should we be prepared for the necessity to take this all the way to SCOTUS? Or is there a good chance of fairness at the appeals level?
Jim used to do software for agricultural businesses in this area, hence the "orchard" part of the business name.
I believe there will be a panel of judges selected to hear the appeal. I do not know the procedure of how the judges are selected or how they determine whether or not to consider an appeal. This is a question for Brian or someone familiar with the court system. I have read that the 9th Circuit Court of Appeals is a liberal court. Whether this is good or bad for us I do not know. Free Speech is a primary issue for liberals. Hopefully the court will recognize that this IS a free speech issue disguised as alleged copyright infringement. I have heard many people say that this case will probably end up in the Supreme Court. I know that if we lose, we will definitely petition the Supremes. And the LAT/WP will probably do the same if they lose. We pray the the appeals court and the Supreme Court will both uphold the Constitution and the Bill of Rights. Our individual rights to free speech is far more important to the preservation of Liberty and the longevity of the Republic than is copyright monopoly protection on newspaper articles for multi-billion dollar corporate conglomerates. The first amendment amends the copyright clause in the favor of the people. The Congress shall make NO law... abridging the right of the people to free speech and free assembly.
"The weakness in the argument is the assumption that there is something monolithic called "the press."
LOL. I really couldn't think of a better way to describe the press' support for Bill Clinton in the face of unmistakeable perjury, which of course he himself finally admitted on his last day in office. It was monolithic.
"I have heard many people say that this case will probably end up in the Supreme Court. I know that if we lose, we will definitely petition the Supremes. And the LAT/WP will probably do the same if they lose."
They wouldn't appeal, for they have nothing to lose. There is no financial loss, there is no future loss. They lose nothing but face, and given that they have at least two of those, no big deal.
What if WP/LAT lose? So what, they have to put up with FR? Others won't sue? If they win, they gain nothing. If they lose, they lose nothing. They know this, which explains their intellectually lazy defense. If they were to lose and appeal to the highest court, it would be a motion, nothing more.
The absurdity of this case is highlighted in Clarity's deconstruction of their supposed financial losses. Outside of money, what principle have they stood for? Copyright defends no interest but money -- not necessarily a bad thing; but set against the American expirement, do we truly wish to sell liberty so cheap?
I'm not saying they will win; I don't know one way or the other. But I do know that the fight is on our side. FR is fighting the fight. God bless ya, JimRob!
Actually, we have asked for attorneys' fees. In fact, we considered seeking sanctions for some of the LAT/WP's particularly egregious misrepresentations about the evidence in the record, but on reflection we felt the Court will be able to sort out the verifiable facts and if it feels it has been misled, it can do something about it or not, as it chooses.
Your encouragement and kind words are very gratifying. Regards.
I think the spin of "the press," (are you including Fox etc,?) was that perjury about sex was not an impeachable offense, not that they supported the act (of perjury to make sure we have "clarity" on the issue). It think that was Barney Franks' position, as it were as well, who does tend to be rather candid. LOL. Whatever "the press" was doing, I think the "impeach Clinton" views were not a tree falling in an empty forest.
In any event, I missed that argument in your brief as to exhibit "A" of the monolith. That was probably a good move.
They wouldn't appeal,
Except for the issue of precedent. This case is about distinguishing the copyright law precedents in the free wheeling context of the internet. Make no mistake about it. And I suspect that companies take that issue very seriously. The Napster affair comes to mind.
"...some of the LAT/WP's particularly egregious misrepresentations..."
Comeon, Clarity, don't be shy, you've told it like it is so far, don't hold back now... how bout "some of the LAT/WP's wretched, spineless, cowardly, unmanly lies..."
Actually, you've most effectively appealed to the Court's reasonableness as regard the opposition's lies: always the best strategy.
"The weakness in the argument is the assumption that there is something monolithic called "the press."
92 Posted on 06/22/2001 16:21:58 PDT by Torie
"I think the spin of "the press," (are you including Fox etc,?) was that perjury about sex was not an impeachable offense...."
105 Posted on 06/23/2001 20:29:17 PDT by Torie
***************
LOL. I do hope our brief has other, similar "weaknesses," or that the Ninth Circuit, if it sees any, can be brought around as quickly as you. Regards.
Don't tell me that you actually believe they've lost money over FR. Please??
WP/LAT have proven no monetary loss, thus no harmuful precedent is possible.
Excuse me, but I see nothing in their arguement that defends any principle other than their supposedly irrevocable right to recieve money in exchange for the public airing of their opinions.
Could they prove monetary loss in another situation they will have lost no precedent from this case, for they have suffered no monetary damages from FR.
Nice move. You must be a lawyer, the way you massage words for your own arguementative purposes. LOL. You may not care to acknowledge it, but I have been exercising self restraint, against my natural impulses, perhaps in honor of your uncle once removed, or whatever he is. :)
Ah monetary loss. The evil press empire may have been a bit cavalier on that point, perhaps. I'm no copyright lawyer, but does that mean you can copy and disseminate material with insouciance if you can show that the recipients would not have bought the original article? Good question.
That's a good point and if the oral argument presents the right opportunity, we will certainly bring this up. Frankly, I think the full text issue will be won or lost on other grounds, but I do agree with you that this consideration works in our favor.
Great Thoreau quote, by the way. Thank you!
Clarity, may I?
Torie, "you must be a loser, the way you massage words to cover stupid argument."
Or are you counsel for Kate & Co.?
If so, cut me a royalty check for the hours you've billed them... their attorneys get what, $560/ hour?... for your excursion here at Liberty Central, that'd be quite something. Speaking of monetary rewards.
Oh, and if you'd like to bring into this argument any uncles, cousins, ex-wives, or former partners of mine, PISS OFF. Same goes to your useless and cowardly attack (is that what is was supposed to be??) on Clarity.
I can appreciate your annoyance, but I don't catch the "cowardly" bit. I'm right here, up close, for you to flame, to your heart's content. I really do have mixed emotions about this case. If I were an activist judge, I'm not sure how I would rule. And no, no one is paying me alas.
If I had any idea what that means, I would have an idea what that means. I gather it was written hastily, perhaps im keeping with your assesssment that a "weakness" in a particular argument is its assumption that the press is monolithic, followed by your "correction" of my answering example of its monolithic character by offering your own example of its monolithic characteristic.
As for self-restraint, should I be alarmed that at any moment you might abandon it and clue us in on even more "weaknesses?" Or perhaps bring my family into the discussion?
Well I already brought your family up, but then I thought that was out there. If that was inappropriate, I apologize. As for my "out of my field" legal views, I have shared those with you. They could certainly be wrong, and if they are, that's great. In time, we shall see how it plays out. Of course, judges can be wrong too, in fact IMO they often are. So the debate will continue regardless.
"Of course, judges can be wrong too, in fact IMO they often are."
Well, here we agree of course. So, if our arguments are weak, here's to the Ninth Circuit getting it wrong!
LOL. I think I'm going to shut up for awhile. :)
Appellees' opposition brief is long on ad hominem attack and short on evidentiary citations . . .
Ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha . . . cough (gotta quit smoking) . . . . ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha, ha . . .
"Ah monetary loss. The evil press empire may have been a bit cavalier on that point, perhaps. I'm no copyright lawyer, but does that mean you can copy and disseminate material with insouciance if you can show that the recipients would not have bought the original article? Good question."
I see, you're a defender of property rights. Good enough. King George III wants you to take every insurgent publication and burn it on his behalf. Or pay him $1.25 per view at the town hall as compensation for archived material that nobody would have looked at other than if some rebel hadn't nailed it to the church door in refutation of the King's stupid ideas.
Maybe we should have a grand unified theory of a rewrite of the copyright laws. I'm not sure where to begin. But it may be a worthy task. Or we could try to delineate where the 1st amendment trumps it. I'm a bit disappointed that there are not more amicus briefs in this case. It surprises me actually, in my relative naivete.
Good point about there being few amicus briefs (how lawyerly of you!)
I'd say this is the case because the mainstream wishes to avoid the issue.
"I'm no copyright lawyer, but does that mean you can copy and disseminate material with insouciance if you can show that the recipients would not have bought the original article? Good question."
No, Torie, it's not really a good question and it betrays an incomplete grasp of the fair use exception in the copyright statute. With respect to the hypothetical issue you raise, the context for an analytical answer is expressed by the fourth fair use factor, the effect of the use on the potential market for or value of the copyrighted work. Thus, if "the recipients would not have bought the original article," this suggests little or no effect on the market, thus tilting toward fair use, but other factors could as easily overwhelm the fact you have hypothesized and still bring the fourth factor into the copyright holder's column.
But even then, the other three factors must also be analyzed before any sound prediction could be made regarding fair use. Regards.
He's EVERYWHERE, don't you know. Well, not quite.
If we prevail in the Ninth Circuit, it is reasonable to predict a FLOOD of USSC amicus briefs from the content providers of the world. Otherwise, fuhgettaboutit.
It is a lonely job taking on Big Media, and they start, for the most part, with great sympathy from the average person, to whom the fair use exception may as well be Greek. These are people who are dismissive of the plain language of something if they themselves don't agree with it. If a sign in front of a basket of candy on the counter says, "Help youself," and I take the basket and all the candy, they think I made a mistake.
But I didn't write the sign, and I didn't write the fair use exception, which nowhere prohibits full text use. Indeed, under ordinary rules of statutory construction, it must be assumed full text posting was never intended to be unlawful since the 3rd factor (the amount and substantiality of the portion used in relation to the copyrighted work as a whole) itself does not say so and since the third factor in any case is only a part of the necessary review.
I was also thinking of their 'proof' offered by one employee that that when FR posts the entire article on its website, that traffic for LAT/WP's websites would go down, hence their ad revenue goes down. I guess they have no problem with people going to the public library and viewing old newspaper articles (more than 1-2 weeks old), instead of going to their websites? Why aren't they going after the libraries also??
(This is assuming that libraries are still having newspaper articles microfiched, or otherwise archived for research purposes. In this digital age, I'm not sure of the technological direction libraries are going to with regard to this)
I believe libraries have to pay for microfische files. I heard that somewhere recently and was astounded, but I think it mostly is due to the cost of putting the information in that form.
This brief is clear and excellent. May it strike fear into the hearts of our enemies, and may the Circuit smite them.
One thought: IANAL, but is it case law that prevented you from addressing Third Fair Use Factor (that's The Amount and Substantiality Of The Portion Used In Relation To The Copyrighted Work As A Whole for those who didn't read the brief) in this manner:
"On a typical day prior to the court order, FR members presented 31 stories from Appellees' works. These amounted to 72,087 words. On that day the Appellees works' taken as a whole comprised 1,854 discrete stories and four million plus words... FR therefore posted a nominal X% of appellees works, the Washington Post and LA Times.(these numbers are entirely notional -- I made them up, and we wouldn't know what they actually were without reviewing the archives, if they exist. I would be very surprized if they didn't strongly favour us, though). I can see some counters that they might use to that argument, which I won't recount here in public, but it seems to me it might have swayed the appeals court even more if they saw what a nominal, expendable portion of FR the appellee's content actually was.Looking at it another way, these posts were 31 of 240 original stories and 72,000 of 1.5 million original words posted in FR during that same 24 hour period, again a nominal Y%.
And a third and fourth method of analysis looks at the individual threads including comment... the appellees' content was only 35% of the individual word count cumulatively in the threads based on appellees' content; and only Z%, a trivial number, of the total word count posted on FR that day."
Just wondering why I didn't see that argument either here in appeals or in the trial court... maybe it just wasn't time yet. Well, that's all; I'll now retire from practicing law without a licence (and someone will point out the glaring gap in my education here, I'll bet).
d.o.l.
Criminal Number 18F
The public's ability to freely criticize the press is just as important as the press's ability to criticize the government. The public's ability to criticize the press serves as a check on bias in the media. Should the mainstream press become biased (as some believe they in fact are), it undermines the entire purpose of the First Amendment's guarantee of freedom of the press.
Please don't sue me for the use of your words above (grin).
The press is in fact, has constituted itself as, a fourth and extraconstitutional branch of government that works for the people against government, for the government against the people, or for, or against, both, according to its own motivations and as it sees fit. No constitution nor law restrains it nor does any entity counter, check or balance it.
The internet enabled common people to overcome the enormous barriers of entry to participation in communication on a par with the media oligopoly. In effect it gives the people (and agile elements in the government) a chance to counter the prevailing biases of that extraconstitutional and unchecked power center.
d.o.l.
Criminal Number 18F
"No constitution nor law restrains it nor does any entity counter, check or balance it."
I'm not sure how you mean this. If you meant it in the sense the press plainly, routinely, and matter of factly gets away with its frank behavior - in the same sense that no constitution nor law restrained Bill Clinton nor did any entity counter, check or balance Bill Clinton, say - then of course I agree.
And if you meant that the Constitution also does not enjoin the press, I agree with that too.
But if you mean that nothing in the Constitution gives us recourse when an unrestrained press coalesces and then, in effect, merges with the government to become its compensated pawn, I do not agree. In this rather overblown hypothetical, it would seem the various privileges (the "newsgatherer's" privilege, for example) conferred on the press ought to be revoked and that the scrutiny the rest of us can give to their activities, provided our own first amendment rights are vigorously guarded, might (not to say will) set things right.
FR is a medium for that scrutiny. Regards.
We did make that argument in the trial court and so technically it can still be made since it is in the record that is before the Ninth Circuit. The WP and LAT countered that each individual article is itself copyrighted.
Does the SCOTUS ruling today have any impact on your case? It specifically dealt with changes to copyright laws in this new digital age.
From the TWP/LA Times brief, and my thoughts:
Despite Defendants' assertions to the contrary (DB at p. 26), Plaintiffs have never sought any relief that would restrict the First Amendment rights of Free Republic. Plaintiffs neither seek to dictate what Defendants can or cannot say, nor claim any monopoly on the facts contained in their news articles.
FWIW, I do note an interesting internal contradiction in Appellee's argument, FWIW. Appellee argues they have no monopoly over the facts contained in their news articles, yet base their entire argument that wholesale copying of their articles in forbidden under Title 17, USC. Yet, this would suggest that Appellee has portions of his news article that are not factual, the very point Appellent is trying to make to the court (i.e., that news reporting by these organizations is biased and needs to be exposed). Moreover, Appellee must now concede by virtue of his brief that they are no longer in the "news" business, but in the fiction business, for to be news, the article must convey facts. But the brief presupposes that portions of the article are fact, and some portions are not. How is the unenlighted reader of these articles supposed to ascertain which is which? The simple answer is that they cannot - and if it were to come to light such were the case (i.e., that "news" articles purveyed information that was not factual), then the Washington Post and other newspapers participating in such activities would either be totally out of business, or they would of necessity have to recharacterize their efforts as one of novel writing. But since I presume that the Washington Post continues a desire to remain in business as a news organization, then what it purveys to the public is, in fact facts. That being true, then there are no portions that are not fact, so Appellee's argument is falacious.
Moreover, I find it interesting that Appellee argues that individual articles are "copyrighted" on their website. True they display the circle-c copyright identifier, but then that connotes a level of protection that does not appear resident in their newspaper. Individual items are not stamped with the copyright symbol, only the entire newspaper. Moreover, based on the thought I presented above, the copyright - based on Appellee's argument - would extent only to the organization of articles within the newspaper, the logo, placement of advertising, size of the presentation, and so on. It would also, in my way of thinking, seem to cover the types of articles presented, thus covering the work as a whole not the individual articles. So what seems to be argued is that a higher level of protection affords certain articles merely by placement on the website, as opposed to their appearance in the print edition.
Final thought - Appellee argues extensively about archiving, and how FreeRepublic's archive deprives them of revenue. Well, suppose I opted to collect hard copy versions of their newspapers for a period of time, and that these papers were not purchased by me, but that I retreived them out of recycling bins in Washington, DC (don't laugh, I know people who do this rather than pay the quarter). Now I go further and I make these articles available for perusal by others - and I took the trouble to make an index. Under the argument presented by Appellee, I would have committed a violation of Title 17, USC (Copyright Act). Yet that notion is silly. Here, Appellee offers their material at a simple cost - FREE. You don't even have to pay the quarter. Now if I print the material on my printer, and allow others to read it, have I committed a Copyright violation? Most people would say no. Yet it is exactly the same notion as saving all of the print versions of the newspaper. Now, take it one step further - I create a virtual copy of the paper, which it what occurs here. The same truth should still hold - I've merely opened up my living room to a larger community, but I am still sharing what I saved. And I am asking for no renumeration.
Now I would admit I would have a different view if the Washington Post had a pay site - but only slightly different. At that juncture I would hope whomsoever originally pulled the article paid for it. But since the Post operates their site at the time of the news event for free, the point is moot.
Again - FWIW.
Bless you.
I'm impressed, but not surprised to find that you do really good work -- tight but thorough.
No impact. Today's decision did not in any way implicate fair use. But we now know the USSC can just say no to Big Media, and that's comforting.
"Plaintiffs neither seek to dictate what Defendants can or cannot say."
They love saying this, but of course it is rather ridiculous. There are certain things they did not want us to say and they sought and obtained an injunction barring us from saying those exact things.
The line we must not cross? The scary words we must not say? Theirs.
Thank you!
They love saying this, but of course it is rather ridiculous.
It is a wonderful sounding but, in the end, hollow piece of rhetoric. While in the narrow sense it is true that they cannot, and do not, intend to prohibit our choice of words that we might use in response to a given set of circumstances, they do intend very much to control the circumstances. What they do not want to concede, but must, is that by controlling the circumstances surrounding our speech, they are indeed controlling what we say.
Hypocrites.
"While in the narrow sense it is true that they cannot, and do not, intend to prohibit our choice of words that we might use in response to a given set of circumstances...."
No, this is not true at all. They explicitly intend to prohibit our choice of words. And they sought and obtained an injunction literally prohibiting us from saying very specific things on our forum. We could choose to say those very specific things, but we would have to violate the injunction.
These are people for whom the 1st amendment is EVERYTHING, except when it's not.
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.
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