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Analysis: Experts question whether Net content will enjoy copyright protection

Lawyers and lawmakers are making strides to reverse the Internet's epidemic pirating of software, music and written work.The bill approved by the House of Representatives Monday is designed to integrate the provisions of two international treaties -- including criminal penalties for pirating work -- adopted by the World Intellectual Property Organization in 1996.
Written by Martha Stone, Contributor
Lawyers and lawmakers are making strides to reverse the Internet's epidemic pirating of software, music and written work.

The bill approved by the House of Representatives Monday is designed to integrate the provisions of two international treaties -- including criminal penalties for pirating work -- adopted by the World Intellectual Property Organization in 1996. It is expected to be signed into law by President Clinton. Meanwhile, the latest celebrated example of alleged copyright infringement on the Web has lawyers hoping for a resolution to a dogging legal question: Whether Internet content should enjoy the same copyright protection as other media.

Net raising new legal questions
"In one sense we think ... copyright law is copyright law," said Rex Heinke, partner in Gibson, Dunn & Crutcher, Los Angeles, who is representing the Los Angeles Times and Washington Post in L.A. Times vs. FreeRepublic.com. "Just because you're on the Internet doesn't mean you're free from copyright law."

The Internet's unique attributes, particularly its ability to publish quickly and widely, and its use of technologies such as frames, opens up new areas of law.

The lawsuit, filed earlier this month in federal court in Los Angeles, attempts to answer some important questions about political forums' ability to copy articles wholesale from other publications under fair use, and whether users posting entire articles on FreeRepublic makes them or the site's owners liable for infringement.

Fair use allows the use of copyrighted materials to be republished in limited chunks, and in educational and other noncommercial environments in their entirety.

Legal eagles are hoping that the lawsuit will set a precedent by which lawyers can base arguments about electronically copying articles from site to site.

Free-speech snit
The Times and Washington Post sued ultra-conservative political forum site FreeRepublic.com, saying that site violates copyright law by taking articles from the online and print newspapers and posting them in their entirety on the forum site for discussion purposes. Other media companies may join the lawsuit, Heinke said.



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Jim Robinson, owner of Fresno, Calif.-based FreeRepublic, denies any copyright infringement, saying his First Amendment right to free speech supersedes any guarantee of copyright protection -- a right he intends to defend all the way to the Supreme Court, if necessary.

"We're a political forum. People post opinions and views, just like the framers of the Constitution. This is the basis for our entire Republic, and the basis for our entire operation," Robinson said.

But Heinrich, who represents the media companies, says the FreeRepublic's story posting and archiving diverts traffic from the news sites, and causes the newspapers to lose traffic, advertising revenue and archive traffic.

"Why should anyone buy from us if they can get it for free?" Heinke said, referring to users purchasing archived articles after their original appearance. "We're not talking about somebody who is quoting out of one article. We're talking about a Web site that on a consistent long-term basis is allowing its viewers to post entire articles and archiving them."

Robinson scoffs at the notion that not-for-profit FreeRepublic is taking away business from the media giants. "They are a multibillion-dollar corporation. We're not taking money from them."

"They may feel they have targeted the right legal principal, with an established rule of law. They made a monstrous error because lack of funds will not be a problem for us," said Brian L. Buckley, FreeRepublic's Los Angeles-based attorney, who has agreed to take the case pro bono.

Heinke likens the FreeRepublic's practices to photocopying articles and posting them to a non-electronic bulletin board, and then placing them in a box to save for future use, adding there wouldn't be any question that the practice would constitute copyright infringement.



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