Advanced Copyright Issues on the Internet - Fenwick & West LLP

copying enhanced the defendants’ ability to solicit donations and generate goodwill for theirwebsite operation and other businesses of the website operator. 101The second fair use factor (nature of the copyrighted work) favored the defendants,because the copied news articles were predominantly factual in nature. 102 The third fair usefactor (amount and substantiality of the portion used in relation to the copyrighted work as awhole) favored the plaintiffs, because in many cases exact copies of the entire article were madeand the court had previously found that copying of the entire article was not necessary tocomment on it. 103 Finally, the fourth fair use factor (effect of the use on the potential market foror value of the copyrighted work) favored the plaintiffs, because the court found that theavailability of complete copies of the articles on the Free Republic site fulfilled at least to someextent demand for the original works and diminished the plaintiffs’ ability to sell and licensetheir articles. 104 On balance, then, the court concluded that the defendants could not establish afair use defense. 105The court also rejected the defendants’ First Amendment defense on the ground that thedefendants had failed to show that copying entire news articles was essential to convey theopinions and criticisms of visitors to the site. The court noted that visitors’ critiques could beattached to a summary of the article, or Free Republic could have provided a link to theplaintiffs’ websites where the articles could be found. 106The parties subsequently settled the case, pursuant to which the court entered a stipulatedfinal judgment enjoining the defendants from copying, posting, uploading, downloading,distributing or archiving any of the plaintiffs’ works, or encouraging others to do so, or operatingany website or other online service that accomplished or permitted any of the foregoing, exceptas otherwise permitted by the plaintiffs in writing or by the fair use doctrine. The defendantsagreed to pay $1,000,000 in statutory damages for past infringing acts. 107(h) The MP3.com CasesIn 2000, the Recording Industry Association of America, Inc. (RIAA), on behalf of 10 ofits members, filed a complaint in federal court in the Southern District of New York for willful101102103104105106107Id. at 1464-66.Id. at 1467.Id. at 1468.Id. at 1470-71. The court rejected the defendants’ argument that its site was increasing hits to the plaintiffs’sites through referrals off its own site, noting that the defendants had not addressed how many hits to theplaintiffs’ sites were diverted away as a consequence of the posting of articles to the Free Republic. The courtalso cited several cases rejecting the argument that a use is fair because it increases demand for the plaintiff’scopyrighted work. Id. at 1471.Id. at 1472.Id. at 1472-73.Los Angeles Times v. Free Republic, 56 U.S.P.Q. 2d 1862 (C.D. Cal. 2000).- 37 -