article.^104 Finally, the court noted that the Free Republic site was a for-profit site, for which the
copying enhanced the defendants’ ability to solicit donations and generate goodwill for their
website operation and other businesses of the website operator.^105
The second fair use factor (nature of the copyrighted work) favored the defendants,
because the copied news articles were predominantly factual in nature.^106 The third fair use
factor (amount and substantiality of the portion used in relation to the copyrighted work as a
whole) favored the plaintiffs, because in many cases exact copies of the entire article were made
and the court had previously found that copying of the entire article was not necessary to
comment on it.^107 Finally, the fourth fair use factor (effect of the use on the potential market for
or value of the copyrighted work) favored the plaintiffs, because the court found that the
availability of complete copies of the articles on the Free Republic site fulfilled at least to some
extent demand for the original works and diminished the plaintiffs’ ability to sell and license
their articles.^108 On balance, then, the court concluded that the defendants could not establish a
fair use defense.^109
The court also rejected the defendants’ First Amendment defense on the ground that the
defendants had failed to show that copying entire news articles was essential to convey the
opinions and criticisms of visitors to the site. The court noted that visitors’ critiques could be
attached to a summary of the article, or Free Republic could have provided a link to the
plaintiffs’ websites where the articles could be found.^110
The parties subsequently settled the case, pursuant to which the court entered a stipulated
final judgment enjoining the defendants from copying, posting, uploading, downloading,
distributing or archiving any of the plaintiffs’ works, or encouraging others to do so, or operating
any website or other online service that accomplished or permitted any of the foregoing, except
as otherwise permitted by the plaintiffs in writing or by the fair use doctrine. The defendants
agreed to pay $1,000,000 in statutory damages for past infringing acts.^111
(^104) Id. at 1461 & 1463-64. The most telling fact on the latter point was that the Free Republic provided a hypertext
link to Jewish World Review’s website at its request, and asked that Free Republic visitors no longer copy the
publication’s articles verbatim. Id. at 1463.
(^105) Id. at 1464-66.
(^106) Id. at 1467.
(^107) Id. at 1468.
(^108) 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 the
plaintiffs’ sites were diverted away as a consequence of the posting of articles to the Free Republic. The court
also cited several cases rejecting the argument that a use is fair because it increases demand for the plaintiff’s
copyrighted work. Id. at 1471.
(^109) Id. at 1472.
(^110) Id. at 1472-73.
(^111) Los Angeles Times v. Free Republic, 56 U.S.P.Q. 2d 1862 (C.D. Cal. 2000).