Trapping Copycats

Jim Robinson describes his Web site (www.freerepublic.com) as a big electronic town hall meeting where members pass around notes and discuss news stories.

But two major news organizations, the Los Angeles Times and The Washington Post, don't want Free Republic's users passing around any of their articles. In September, the newspapers filed a copyright infringement lawsuit to stop Free Republic from copying and posting stories from the Times and the Post, a move that could have lasting implications for the reproduction of copyrighted information on the Internet. Robinson, a computer programmer from Fresno, California, says his defense is the First Amendment and the "fair use" doctrine of copyright law, which allows individuals to use copyrighted works within the context of providing commentary.

But it might not be that simple, says David G. Post, a professor at the Temple University School of Law in Philadelphia. The Free Republic copies may well constitute straightforward copyright infringement. A fair use defense can be tricky, Post says, as the courts look at a number of factors, such as how the articles were used and whether they were transformed significantly. The courts also attempt to determine whether reproductions have caused any reduction in the value of the copyright owner's work.

In the lawsuit the newspapers claim that by posting their articles, Free Republic is siphoning potential business from the newspapers' commercial sites (the Times charges users to download reprints). But as any dedicated cybersurfer will know, the Internet is rife with copies of other people's work. So why pick on Free Republic? "It is a little bit odd that the Post and the Times would be going after a small and insignificant operator like that," Post says.

Whatever the motivation, says Post, any overly broad rulings could have lasting implications for other Internet copyright cases. Particularly at risk may be Web providers such as cybergossip Matt Drudge (www.drudgereport.com), who links his site to wire services and other news outlets. No significant court rulings have dealt with linking.