Washingtonpost.com Stops Online Infringer; Damage Award Followed

It sounded like a good idea at the time.

Allow registered visitors to post news articles from any newspaper, add their comments and invite other users to comment on the articles.

And why isn’t that a "fair use?" It is for the sake of criticism and comment, one of the recognized reasons for the "fair use" doctrine in copyright law.

A federal trial court in Los Angeles ruled that the practice of posting entire articles from the LA Times or the Washington Post on the Web site "freerepublic.com" did not meet the four tests for the fair use exception.

The Web site company and its owner were ordered to pay $1 million to the two plaintiff newspaper companies and to take certain steps on the Web site that were to have been completed last month.

"Fair use" appears in the copyright law as a "limitation" on the copyright owner’s exclusive rights to his/her original work.

If works are copied for the purpose of news reporting, criticism, comment, teaching or the like, the use is not a copyright infringement, depending on four factors: the type of use, the nature of the work, the amount copied and the impact on the market for the work.

The court said freerepublic.com lost the fair use defense for these reasons:

• Freerepublic.com subscribers copied rather than linked to the newspaper Web sites and generally copied entire articles.

One purpose of this was to avoid archives fees. And even though freerepublic.com was offering its Web site as an unprofitable (but not non-profit) public service, nonetheless, users’ copies of news articles enhanced the attractiveness of freerepublic.com.

• Freerepublic.com argued that the entire newspaper edition was the "work" in question, thus to copy one article was to copy only a small piece. The court ruled against this argument and held that to copy one article is to copy an entire work.

• The court found that the use of copies on the freerepublic.com site "has the potential" of reducing the number of times that readers visit the publishers’ Web sites and pay for access to their archives. It also could reduce the incentive for news libraries to pay for licenses for the articles.

Visit the site, freerepublic.com, to read its notice about this outcome, to read the court’s discussion and final order, all posted in response to the court’s order.