Once upon a time, you could count on conservatives to defend the sanctity of property rights -- and on the ostensibly liberal media to take an absolutist stand on behalf of free expression. But new technologies have a way of scrambling old orthodoxies.
Consider the case of the lawsuit recently filed by the Washington Post and the Los Angeles Times against the operator of a Web site called Free Republic. Free Republic is a right-wing bulletin board where Clinton-haters go to bond; it features hundreds of discussion topics with titles like "Do we dare call it treason?" and "Billy caught lying again." As such, it's similar to many other conservative political Web sites.
But one practice that's common among Free Republic denizens, who like to call themselves "FReepers," is something you don't often find on other bulletin boards: Free Republic's discussions are full of the complete texts of other sites' news articles, cut and pasted from the original Web pages into archived postings on the Free Republic boards. Often, the re-posted articles are grabbed in raw HTML format -- which means that they're formatted exactly as they originally appeared, sometimes even including the original graphics. (Full disclosure: Salon articles have on occasion received this treatment from Free Republic, and we have protested to its webmaster.)
This practice is what has brought down the wrath of the two newspapers, who have sued Free Republic for copyright infringement. Free Republic says its postings are legal under the concept of the "fair use" exemption from copyright rules -- which allows the limited reuse of copyrighted material for purposes like criticism and comment.
Who's right? Is this a case of "big boys" picking on a plucky grass-roots operation, as Matt Drudge would have it? Or are the newspapers just cracking down on a flagrant violation of the law? The Free Republic suit has significance that goes beyond the immediate emotions of this scandal-stoked moment. The law always lags behind technology, and the rules that govern copyright today have yet to establish clear lines of legality for use and reuse of material on the Web -- so cases like this are likely to have a major impact in shaping the medium's future.
Free Republic's webmaster, Jim Robinson, a Fresno, Calif., retired software executive, has posted a barnburning editorial on his home page that quotes the First Amendment and then argues: "Any man, corporation or government entity who wants to challenge our right to discuss news accounts (copyrighted or not) of public policy issues or political events or of government corruption, etc., in our non-commercial, not-for-profit, public electronic townhall forum should first examine each and every word of the First Amendment above and then tell us which words they don't understand."
You go, Jim! Robinson is right that First Amendment protections apply most strongly to political speech, which is definitely what Free Republic traffics in -- and that fair use claims are bolstered by his site's noncommercial nature. On the other hand, nobody is trying to stop the FReepers from "discussing" news accounts. The issue is whether they can republish them in their entirety.
Here's where a close look at the fair use standard -- courtesy of the legal encyclopedia on Nolo Press' Web site -- helps. Nolo lists several tests for determining whether a use is a "fair use." Free Republic fails most of them.
One test is, "Are you just copying or creating something new?" Though the FReepers do sometimes comment on and criticize the stories they post, they don't "transform" the articles in any significant way. Consider this re-post of a Jan. 24, 1998, Washington Post article about Lucianne Goldberg by Howard Kurtz and David Streitfeld -- duplicated on the Free Republic site down to the Post's copyright line. The sum total of commentary on the piece consists of a single post from one Free Republic member that reads: "Hey Kurtz, you lickspittle!!! You left out the part where Georgie Stephanopoulus [sic] tried to shout down Bill Kristol!"
Another test that Free Republic fails is "The more you take, the less fair your use is likely to be." A random dip into the Free Republic boards shows that they are chock-full of stories copied from all over the Web.
But the killer test here is the one that says, "Don't compete with the source you're copying from" -- don't "impair the market" for the original work. This is undoubtedly where the newspaper lawyers will be building their case -- since Web surfers reading the stories on the Free Republic site will not be visiting the newspapers' own sites to do so.
Both the Post and the Times are now charging small fees for access to their archived stories. I think that's a bad strategy, and I doubt either company will ever make much money this way. But I have no doubt that Free Republic, by hosting a kind of do-it-yourself archive of news stories copied from the newspaper Web sites, is brazenly ripping these companies off.
Free Republic and its lawyer have charged that they're being sued because of their political bent. The site certainly takes a dim view of the mainstream media as, in Robinson's words, a "liberal propaganda machine whose goal is to continue the expansion of a collective state and to control every aspect of our lives and fortunes."
But I don't think the Post and the Times give a hoot where Robinson falls on the political spectrum; they're just protecting their property. And if you look deeper into the motivations in this dispute, they've got a point.
The glaringly obvious question here is, "Why don't the FReepers just link?" The Web is a uniquely flexible medium for people who want to do lots of line-by-line close critiques of news stories -- which is what Free Republic says it's up to in its quest to root out "the socialist government propaganda slant on the news." On the Web, you don't have to photocopy or republish; links do the job without infringing on anyone's copyright. (It's true that links to current stories in the Washington Post and the L.A. Times expire after a couple of weeks, when the newspapers move the articles into their pay-per-view archives; but that would still give the commentators on Free Republic's fast-moving boards plenty of time to dissect them for bias.)
My hunch about what's really going on here is that the folks at Free Republic hate the "liberal media" so blindly that they don't want to contribute to the traffic on the newspapers' sites. If they link to a media site, they contribute to that site's traffic, which helps that site sell ads and possibly even make some money. Why help your enemies make a buck when you can violate their copyrights instead? And so the FReepers betray one of the most fundamental principles of conservative thought -- the protection of property rights -- rather than add a few clicks to the L.A. Times' and Washington Post's totals.