"Fair use" vs. foul play

Newspapers win their copyright battle against FreeRepublic.com, but does the ruling threaten their investigative reporting?

Published November 10, 1999 5:00PM (EST)

On Monday a federal court in Los Angeles enjoined Jim Robinson, the operator of a Web site called FreeRepublic.com, from posting articles copied from the Washington Post and the Los Angeles Times, the Times reported on Tuesday. Robinson, a right-wing activist, had set up FreeRepublic.com as a forum for other conservatives to comment on the news. To lubricate the discussion, users of his Web site resorted to the simple expedient of copying articles more or less wholesale from major publications and putting them on his site with a request for reader comments.

FreeRepublic.com reprints the stories with a boilerplate disclaimer that
the works are copyrighted and used under the "fair use" provisions of
copyright law.

Judge Margaret Morrow clearly disagreed with Robinson's contention, and no wonder. There is no "fair use" provision in copyright law that lets you reprint entire articles, no matter how much discussion they are intended to spur. As a writer, I was all set to cheer the decision: The notion that somebody could take my words and simply redistribute them on the Web without my permission or my publishers' was not one that I found appealing.

So I sat down to write about FreeRepublic.com with the idea that what Robinson was doing was a flagrant abuse of the power that the Web puts in the hands of the independent publisher. I also had the idea that I would compare what Robinson was doing -- copying and illegally reprinting work that other people had written -- with the work of Robert Lane, the operator of Blue Oval News, a Web site devoted to news about Ford cars and the Ford Motor Co.

I wanted to write about Blue Oval News because the site, unlike FreeRepublic.com, represented what was best about independent news on the Internet. By developing a powerful network of contacts inside Ford, Lane has broken a series of important stories about the automaker -- stories that would make any reporter proud. Relying in part on internal Ford documents, Lane showed how Ford sold fancy sports cars with defective engines. Lane also uncovered documents showing that an upcoming Ford engine was unlikely to meet government emission standards.

Ford had tried to shut down Blue Oval News, but the site was back in operation, full of more exposis than ever. I thought, gee, what a neat contrast: Robert Lane does some great investigative reporting and wins his court case; Jim Robinson just reprints others' work and loses. Sometimes the courts do work exactly the way they're supposed to.

Except that I didn't count on one thing. While a judge had upheld Lane's right to publish stories based on internal Ford documents, she prohibited him from publishing the documents themselves. Lane has since had to remove Ford's documents from his site. Without them, his investigation loses a surprising amount of its edge. Investigative stories, to be effective, need to give readers a lot of information. It is important to include as much documentation as possible so that readers know that they are getting the full story and nothing is being taken out of context. When I read an investigative piece like Lane's story about Ford's emission problems, I want to see the documents.

Unfortunately, however, I can't, because Ford has used the copyright law as a club to prevent Lane from publishing them. These are internal reports, and Ford has no economic reason not to let Lane publish them -- it's not like illegally reprinting a book that Ford hopes to sell. And Ford certainly cannot keep Lane from revealing the crucial information in the documents; he can paraphrase them as much as he wants.

Ford really has only one reason to block the publication of these documents: The company's lawyers know, just as Lane knows and I know, that actually showing readers the documentation helps Lane draw a very convincing picture of embarrassing problems at the automaker. So Ford is using copyright law for one purpose only: to minimize bad press.

That story should give the Washington Post and the Los Angeles Times some pause, and should make media organizations think seriously about the purposes of copyright law. This is not the first time that these issues have come up -- the Church of Scientology has tried similar arguments to keep opponents from revealing its bizarre religious documents. It is upsetting that the same principles that can be used to protect the rights of writers and publishers to their hard-earned work can be used by a big corporation to draw a veil over its mismanagement.

That, however, is exactly the case. The interests of a major newspaper in protecting its work are real. It is understandable that the Los Angeles Times and the Washington Post should be concerned when someone copies their work and gives it away on his Web site. But the very same newspapers also will have an interest in making sure that the copyright laws are not used as a club against their own investigative reporting.

It might be worthwhile for us to start thinking about how copyright law can not only protect legitimate economic interest, but increase, rather than reduce, the amount of information that gets into the hands of ordinary readers.

By Mark Gimein

Mark Gimein is a staff writer for Salon Technology.

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