FreeRepublic Case in Appelate Court Next Week

An anonymous reader submits: "ETHER ZONE is running this article about the court case between the Los Angeles Times / Washington Post and FreeRepublic, LLC, which hosts the conservative politcal forum FreeRepublic. On Monday, February 11, the 9th District Circuit Court of Appeals in San Francisco will convene to hear oral arguments in the ongoing copyright case. At issue is the propensity of FreeRepublic.com and its owner, Jim Robinson, to allow the posting of whole-length articles from news organizations nationwide onto his server--a policy the Post and Times, respectively, assert infringe upon the intellectual property rights of both the news corporations and of individual writers."

Comments

This is what they are complainign about !!!

[Anonymous Coward]

THE BELL TOLLS FOR FREE REPUBLIC FORUM

By: Todd Fahey
Monday, February 4, 2002 (Zone-wire)

On February 11, the 9th District Circuit Court of Appeals, San Francisco, Ca, will convene to hear oral arguments in re: Washington Post and Los Angeles Times v. FreeRepublic.com LLC (a limited liability corporation), in what is perhaps the most important 1st amendment case of the new millennium.

At issue is the propensity of FreeRepublic.com and its owner, Jim Robinson, to allow the posting
of whole-length articles from news organizations nationwide onto his server--a policy the Post and Times, respectively, assert infringe upon the intellectual property rights of both the news corporations and of individual writers. (In contrast, the Lucianne.com forum limits article contributions to the first 100 words, satisfying "Fair Use" provisions of copyright law). At stake is a tort complaint of $1,000,000 lodged against Mr. Robinson, and the very future of FreeRepublic.com.

In simple terms--as the Supreme Court and the nation's top mediation agency have refused FreeRepublic's case--a judgement against FreeRepublic.com in the coming months by the 9th Circuit will spell an Error 404 message for a Web site that is credited by many news organizations as ushering in President George W. Bush over Al Gore.

Mr. Robinson's defense rests on his weak claim that Free Republic operates under "Fair Use" provisions of the copyright law as an educational resource and is therefore immunized from respecting the intellectual property rights of others. Attorney Brian Buckley, for FreeRepublic.com, offered to a lower court that, "The political views expressed by the majority of participants are congruent with the goal of rooting out corruption in government, though no censorship is made and all views are permitted." (Emphasis added)

Further, Mr. Buckley presented to the U.S. District Court, Central District of California:

"Defendant Free Republic (freerepublic.com) is a not-for-profit politically-conservative internet web site begun as a hobby by defendant Jim Robinson ("Robinson"), a disabled wheel-chair bound victim of Muscular Dystrophy. Free Republic is a "bulletin board" type of internet site which allows visitors to the site to "post" articles and commentary to the site which can be read and commented upon by other visitors to the site. Robinson created Free Republic in 1996 out of shear [sic] frustration. He was dissatisfied with the current Presidential administration (the "Clinton Administration") and with the "mainstream" media coverage of its policies and activities. Robinson was frustrated with the inability on other internet sites and alternative forums to engage in a completely free and open discussion of news and politics -- especially by dissenters to the current Presidential Administration's policies and activities and dissenters to the "mainstream" media coverage of same. Before creating Free Republic, Robinson frequented other internet discussion sites and was frustrated by their censorship and restrictions on free statement of ideas.

Already in the computer consulting business, Robinson saw the need to create an alternative forum which would allow open discussion of news and politics -- and allow open discussion of the "mainstream" media coverage of same. Thus was born Free Republic." (Emphasis added)

(Verbatim transcript of FR's unsuccessful lower-court ruling may be found at: Tech Law Journal )

For many months, FreeRepublic served as "an online gathering place for independent, grass-roots conservatism on the web. We're working to roll back decades of governmental largesse, to root out political fraud and corruption, and to champion causes which further conservatism in America" (front page mission statement; www.freerepublic.com). Lately, however--dating back to the GOP primary Presidential campaigns---it appears to many that the "independent, grassroots conservatism" emphasis has been replaced by a rank-and-file boostership for the Republican National Committee and all that President Bush sees fit to offer for the nation--an increasingly liberal (Big Government) vision, in the eyes of many "grassroots conservatives."

To wit:

Posters last month, attempting to bring to light nefarious events relative to the CIA's MK-Ultra mind control experiments, and also the galling push of certain members of the Bush cabinet to usher in a National I.D. card, were rebuffed wholesale by Mr. Robinson. Threads were pulled summarily, and those posting the articles saw their accounts banned instantly. Mr. Robinson offered the following explanations:

"Lots of grumbling lately about deleted posts. Well, my friends, the simple truth is the game has changed. We are now at war. We have been attacked by a vicious cold-blooded force of international terrorists who want to destroy our nation, our freedom and our way of life. There is no doubt about this. Knowing this, I am alarmed to read some of the stuff that has been posted to FR in the last few days. This is not the time to raise doubts about our leaders. This is not the time to raise conspiracy theories. This is not the time to second guess our intelligence agencies. This is war. This is survival of our way of life. We must unite behind our Commander-in-chief and do all we possibly can to support him and our war efforts. We do not have a choice in this matter." (relevant thread)

To FR poster "jazzfanaticus," Mr. Robinson stated directly:

Date: Wed, 02 Jan 2002 02:50:39 -0800 From: "Jim Robinson" Organization: Free Republic To: "Larry McDonald" Subject: Re: What Are You Scared Of?

"Those who are coming in here to post a bunch of propaganda to smear Bush or otherwise harm the war effort are going to be deleted."

The 9th District Court will, of course, judge the case on many merits. But with no noticeable papers filed by counsel toward next week's hearing, and with a central part of FR's legal strategy decimated (the "educational resource" and "censorship-free clause," as it were), the future of FreeRepublic.com would appear bleak, indeed.

Mail this article to a friend(s) in two clicks!

Published in the February 4, 2002 issue of Ether Zone.
Copyright © 1997 - 2002 Ether Zone.

We invite your comments on this article in our forum!

Two URLs

[Anonymous Coward]

http://www.whatreallyhappened.com/jimrob.html
http://www.whatreallyhappened.com/jimrob2.html

What is Free

[ThePilgrim]

Having read what Jim Robinson is aleged to have posted. It would seem he has the same mind set as those he claimes to dispise.

He claims that Free Republic was set up in order to allow people to report and discuss the issues of the day with out hinderence. Then as soon as the USA gets one terrorist attack he supends the rules and declairs that decent will no longer be tolerated.

Comming from the other side of the Pond, yes I am British, this smacks of the knee jurk reactisonism we have come to expect only from our politishions.

If Jim was in the UK I'd say he was gunning for a knighthood, do you have an equivalent over there?

Any way I think he'll loose this one on the grounds that he has cencerd some of the posts so his argument about not being able to cencer others don't stand up.

Of cause when G. doublya Bush gets to hear about this he might want to do somthing to help.

Watch this space.

Re:What is Free

[JCMay]

Decent [sic] will no longer be tolerated? I suppose that only indecent posts will be allowed to stay. Trolls, links to goatse.cx, that kind of thing.

Isn't that called Slashdot?

I think you meant dissent.

Re:What is Free

[ThePilgrim]

Yep, you are right.

Wher's the spelling nazi when I need him

Re:What is Free

[Anonymous Coward]

If Jim was in the UK I'd say he was gunning for a knighthood, do you have an equivalent over there?

We had to kick your ass to see to it that we DON'T have an equivalent.

Re:What is Free

[JCMay]

I was really hoping for a (+1, Funny), but oh well. I wasn't trying to be pedantic. At least, not too much :)

Re:What is Free

[Anonymous Coward]

just a question? how do you 'read what Jim Robinson has alleged to have posted' [sic]? my guess

- you have no idea where this site is
- you have never read anything there
- you are having a knee-jerk reaction to the appurtenance 'conservative' the original post labeled him as
- you voted for AlGore at least once last election
- you miss the open sewer that was Clinton

like I said, just guessing

Re:What is Free

[Anonymous Coward]

FR used to be a wonderful site that enjoyed a sturdy core of erudite, thoughtful, passionate, and often very witty participants. For several years during Clinton's reign of degenerate terror, it was one of the few respites a political dissenter could call home.

And then, the Supreme Court, realizing that Clinton/Gore had exhausted and were exhausting an increasingly large number of average citizens' patience and therefore didn't have much juice left in them to accomplish the NWO's power-mad agenda, picked Duhbya to take the presidential prize. Wise folks. Duhbya has done more damage to the Constitution and lawful/accountable government in one year than the charismatic Clinton managed in eight!

But the Freepers, exhausted by and fearful of resurgent Clintonism, got with the program immediately. Criticism of Bush was incrementally being deleted long before 9-11, poster police were assigned to monitor and delete, and a very loud my-Israel-right-or-wrong contingent joined up in force (kinda like the Zionist Trotskyites crossed the aisle to be reborn as wingless birds known as "neo-conservatives" in 1980 when Reagan's election sounded a triumph for grass roots conservativism, thus requiring their destructive presence amid constitutional footsoldiers.)

Almost immediately, the site became a parody of its former self, adding a nightly Bush pin-up thread for distaff freeper lonelyhearts and a daily "Pray for George W. Bush" thread. After 9-11, freeper commentary segued effortlessly into an unreadable mish-mash of ignorant, murderous bellicosity celebrating the new American fascism Bush intends to take global.

Jim Robinson, an old soldier, mistook all the shouting for healthy patriotism instead of the cheap, thoughtless jingoism it is. Mostly the really stinky tripe is coming from no-doubt overweight middle-aged folks with nothing better to do than ride FR dawn to dusk, shouting about all the "towel heads" they intend our military to slaughter while stoutly defending the ultimate welfare/warfare state, our ward Israel. In response to a deleted post recalling that Duhbya's granddaddy, Prescott Bush, had his businesses (IG Farben, etc.) shut down by Congress in 1942 under the Trading with the Enemy Act, Jim Robinson penned a little jewel of a slavish post, "Why I am glad George W. Bush is my president" or something closely like. A true low point was thus finally reached with FR's founder hailing the new, jug-eared, bow-legged American Caesar, a man who apparently can't wash those old "Rawhide" scripts out of his cranial equipment.

Thoughtful people, who objected to the eviseration of the Constitution through Bush's cheap grabs of citizens' privacy, and of public powers rightly belonging to either the legislature or the judiciary, were booted off the board. The few who remain are consistently shouted down, so others can continue their bloodcurdling screams.

And so what was once an uncensored venue for lively commentary, investigation, and analysis - a source of pride to conservatives - has now become an embarrassment to any thinking human being regardless of politics. If the site gets the ax, well, there won't be much to mourn other than the still great collection of to-the-second news articles constantly posted. In its current degenerate state, the narrow-chested, pea-brained tripe FR delivers up mostly inspires nothing more than an involuntary cringe.

(BTW, you may be onto something with the knighthood line - JR got an award from some recognized group somewhere this past year, so you know - he's gotta hold up his part of the deal, Duhbya forever!)

Re:What is Free

[Anonymous Coward]

Clinton's reign of political terror? What, for getting a blowjob? Did he have secret intern deathsquads going around giving other politicians blowjobs too?

Re:What is Free

[kindbud]

Curious spelling in a few places ("knee jurk"? "politishions"?) but no matter...

If Jim was in the UK I'd say he was gunning for a knighthood, do you have an equivalent over there?

Appearing on the Tonight Show.

non-fair use and non-fair editorial policy?

[rw2]

(Disclaimer, I run poliglut.com and am therefore somewhat in competition with FR (I say somewhat because he's conservative and we don't play favorites))

The fair use thing is pretty obvious IMHO. He violated the standard and should be held accountable.

What really bugs me though is that he ran his site nominally on a free speech platform and now not only deletes aritcles, but bans users who's opinions he disagrees with. (We don't do that at poliglut and I don't even *like* half our users ;-))

Re:non-fair use and non-fair editorial policy?

[Anonymous Coward]

so, if you give away your copy of a newspaper after you read it, you should be taken to court? heaven forfend you ask others to comment on it.

p.s. You would be deleting users too if you had the racist Demo trolls who bring their DNC crap to FreeRepublic (see the 'Brit' guy above). I have been reading at FR for 4 years, and the orchestrated abuse against the site is astounding.

Re:non-fair use and non-fair editorial policy?

[Anonymous Coward]

With all due respect, Mr. Robinson created FreeRepublic as a conservative forum, which it undoubtedly is. It was never a free speech forum, since there was always editorial control and posts of all sort could and would be removed. Mr. Fahey at Etherzone has his knickers in a twist because he was booted off Free Republic. A hint of his worldview is given in the EtherZone screed:
Posters last month, attempting to bring to light nefarious events relative to the CIA's MK-Ultra mind control experiments.

Kudos to you if you have thick enough skin to permit anyone to post anything you want on poliglut. Had any goat sex posts lately? Or MK-Ultra tinfoil beanies?

Re:non-fair use and non-fair editorial policy?

[ChristTrekker]

I don't know why he can't just link to the stories like every other news/discussion site does. Linking clearly doesn't violate copyright. (If you don't want your stuff being seen/linked, don't put it on the web.)

I wonder if it would be any different if he kept a local copy of the story to link to just in case the original site took theirs down. Would it make any difference if he made it available only because the original source no longer did? If that's not legal, caching search engines like Google are in trouble. I realize that's a pretty fine line to walk. After all, if you have a local copy "just in case", how much different is it to just use that to begin with (as long as you're citing the source and giving due credit)? Unless it's not really about fair use of the material but instead lost ad revenue because of decreased traffic to the original...

I've never participated at FR so I don't know how they run things, and I don't know the specifics of this situation. Personally I think the community moderation model for discussion weblogs is better than editorial censorship.

FR is wrong here

[L-Train8]

Right-wing nutcase or not, the principal of this case seems to be firmly established, and Mr. Robinson is in the wrong. Linking to articles or quoting small relevant portions is the simple way around this problem. If someone were to mirror the FR site in its entirety, but include some of the anti-government commentary Mr. Robinson is so busily deleting, you can bet he would take steps similar to those taken by the LA Times and the Washignton Post.

Even free speech champion /. knows this sort of thing is not allowed.

Re:FR is wrong here

[Anonymous Coward]

Here is the reason why Free Republic should win this case. This is the Summary of Argument section of the Amicus Brief filed by the Southeastern Legal Foundation urging reversal:

Informed political discourse among ordinary citizens is a vital ingredient of self government. The framers recognition of this fact inspired the First Amendment and the Supreme Courts constant vigilance in protecting free expression from all manner of encroachment. The importance of free expression is such that it normally trumps lesser legal rights when they come into conflict. As an example, libel law was extensively rewritten in New York Times Co. v. Sullivan 376 U.S. 254, 84 S.Ct. 710 (1964) to insure that free expression had sufficient breathing room and was not stifled or deterred by fear of liability or the expense or uncertainty of proving the defense of truth. The present case illustrates the principle that copyright law infringes First Amendment rights in the same way that libel law did prior to the protections enunciated in Sullivan. The speech which occurs on FreeRepublic.com is entitled to the highest possible degree of constitutional protection because it is a near perfect example of a process that the framers clearly recognized was essential to the survival of their novo ordo seclorum: the free and rapid exchange of information, news and commentary among a politically informed yeoman citizenry. Yet Free Republic has suffered a $1 million copyright judgment, a certain death sentence, in favor of media conglomerates that have suffered no economic injury and who in fact have enjoyed an economic benefit from the allegedly infringing activity. The judgment proves that the defenses available to Free Republic under copyright law suffer the same defect as did the defenses available to the New York Times in the Sullivan case. They are too expensive and too uncertain to provide the necessary breathing space for the unfettered exercise of core First Amendment freedoms upon which our form of government necessarily depends. Under such circumstances, rights in whose name free expression would be so sharply curtailed must yield. The judgment below should be reversed in order to protect freedom of expression, and the tension between copyright law and the First Amendment should be expressly and emphatically resolved in favor of free expression where, as here, core First Amendment rights are directly harmed.

The point is simple. The First Amendment interests threatened by this copyright enforcement action are more important than the copyright interests that are protected by enforcement.

As the parent company of the LA Times (one of the plaintiffs against Free Republic) said in an Amicus Brief in the "The Wind Done Gone" copyright case in the 11th Circuit,

This case strikes at the very core of the First Amendment and illustrates the dangers inherent in placing property rights above free speech protections. ... [T]he injunction was issued solely on the basis of possible harm to the copyright holder's pecuniary interest, without due consideration of the significant First Amendment principles that value speech over money.

The giant media conglomerates only feel this way when it is someone else's ox that is being gored.

Free Republic has made a meaningful difference in political discourse in this country, especially during the dark ages of the Clinton Administration. It was a force for impeachment, and was credited by House Impeachment Managers as being such. In this regard, the plaintiff newspapers were pro-Clinton in many respects, editorially and coverage-wise. They filed the suit in the run-up to impeachment, when their coverage was being regularly and convincingly criticized on FreeRepublic as pro-Clinton drivel.

Anybody remember the "Sore Loserman" posters that devastatingly mocked the "Gore Lieberman" campaign logo during the War of Florida? They originated on and were propagated through Free Republic.

Finally, that posts are yanked or users banned is completely irrelevant. Editing does not operate to waive one's right to free speech.
You lose if Free Republic loses.

I like the Free Republic.

[Anonymous Coward]

The Free Republic is good. I think that everyone should read the Free Republic web page. Someday I hope to be a Freeper too.

Free Republic

[SW6906]

Could someone explain to me the difference between what takes place at Free Republic and my taking a newspaper article, cutting it out, posting it on a bulletin board and then standing around with my friends discussing it? What is the difference between what takes place at Free Republic and a teacher taking an article out of a paper and bringing it to her class and the class discussing it?

Where does this end? If Free Republic were for profit, it would be a different thing, but it is not. It is nothing more than the digital age equivalent of people gathering around a water cooler reading, sharing and discussing the morning paper.

Lastly, if Free Republic is forced to only post a portion of the article, then the article is lost when the source (inevitibly) moves the article or goes off the Internet. Then, the discussion archive becomes nearly useless.

I can't stick around, I'll check back later for replies.....

Re:Free Republic

[Qrlx]

taking a newspaper article, cutting it out, posting it on a bulletin board

Single use. If you cut out the article and put it on the bulletin board, then you gave away your legally-obtained copy of the article, and you'll notice that it's not in your paper anymore. If you Xerox (TM diluted) the article and post in on the bulleting board, that's technically a no-no and that's what Free Republic does.

teacher taking an article out of a paper and bringing it to her class

Again, single use, and also that copywright laws make specific exceptions for academic uses. (This was one of the big challenges to the DMCA, that it violates "fair use" because you can't excerpt from a DVD without first DeCSS-ing it. Not getting it, the judge said "rent the VHS," apparently not realizing that much DVD content isn't on the VHS. But anyway...)

So why go after Free Republic? The "gather 'round the water cooler" analogy has a hard time reconciling:
1. There's only so much room on the bulletin board next to the water cooler. On the Internet, there are hardly such constraints. So the amount of "piracy" is potentially much greated
2. At the water cooler, the potential audience is your co-workers. On the Internet the potential audience is millions of people. So the damage from "piracy" is potentially millions of lost customers.

Interesting, I bet the courts will determine that it's okay to link to the article but not copy its contents. That's pretty much goes against what the courts decided in the 2600 case, where linking was the big no-no. I suppose there's a subtle legal difference depending what you're linking to: If it's "legit" content, you can put in the http: and if it's "circumvention device" then you can't.

On one point I agree, that the "digital age" makes all of these issues extremely unclear and will ultimately force a paradigm shift regarding copywright and IP. Like any revolution, it will take a while, and there will be plenty of resistance, esp. from the monied interests.

--I think I spelled copywright wrong.

Re:Free Republic

[lawyamike]

This is exactly the point ...

The difference between sharing an article on the Internet with a community of friends and sharing an article around the water cooler is the same difference as that between sharing an MP3 file on the Internet with a community of friends and sharing it on a cassette.

I can't think of a principled distinction.

Censorship in America these days

[Anonymous Coward]

Censorship has been encouraged by American government leaders since the attack on New York:

"[Bill Maher's statements are] reminders to all Americans that they need to watch what they say, watch what they do. This is not a time for remarks like that; there never is."
-- Ari Fleischer, White House Press Secretary, September 26, 2001

"To those who pit Americans against immigrants, and citizens against non-citizens; to those who scare peace-loving people with phantoms of lost liberty; my message is this: Your tactics only aid terrorists - for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends. They encourage people of good will to remain silent in the face of evil. "
-- John Ashcroft, Attorney General, December 6, 2001

The question would appear to be not why has Jim Robinson obeyed his government's wishes and refused to give a sounding board to people who spread anti-American disinformation (like how the CIA planned the terrorist attacks), but why other sites like Slashdot haven't followed the government's lead and censored similar material.

In fact, Slashdot does censor material -- proactively, by choosing at most 1% of the submissions it receives for article status. Free Republic allows all registered users to post articles to its site; "censorship" occurs later if a browsing moderator chooses to remove an existing thread. I have yet to see a "How the CIA planned the terrorist attacks" thread on Slashdot, and in fact /. barely covered the war on Afghanistan at all, much to the joy of some. Censorship is burned into the DNA here; it comes more awkwardly and controversially to a site like Free Republic. (The Ether Zone article's author, Fahey, used to post as TBF on Free Republic but was banned.)

If the owner of a site decides he doesn't want to use his money to pay for serving and storing anti-Semitic and anti-American diatribes, he should be able to do so. I don't think many here would disagree with this.