A court would apply the four factor fair use analysis to determine whether such a use is fair. In Los Angeles Times v. Free Republic, the court found that such a use was minimally -- or not at all -- transformative, since the article ultimately served the same purpose as the original copyrighted work. The initial posting of the article was a verbatim copy of the original with no added commentary or criticism and therefore did not transform the work at all. Although it is often a fair use to copy excerpts of a copyrighted work for the purpose of criticism or commentary, the copying may not exceed the extent necessary to serve that purpose. In this case, the court found that only a summary and not a complete verbatim copy of the work was necessary for the purpose of commentary and criticism.

The court also found that although the website solicited donations and advertised the services of another website, the overall nature of the website was non-commercial and benefited the public by promoting discussion of the issues presented in the articles on the website. However, the court found that the nontransformative character of the copying outweighed the consideration of its minimally commercial nature.

Finally, and most importantly, the court found that posting entire news articles on the website had an adverse market effect on the copyright owners.

A federal district court in California recently considered a such case (Los Angeles Times v. Free Republic) and the “fair use” defense was all but useless against a copyright infringement claim. Free Republic is a bulletin board website whose members use the site to post copies of news articles to which they add commentary concerning media coverage of current events, as well as their views on omissions and biases they see in the articles. Members often post the entire text of new articles, including verbatim copies of articles from the Los Angeles Times and Washington Post websites, and both newspapers sued Free Republic and its owners for copyright infringement. In a partial summary judgment ruling, the Free Republic Court held that the defendants’ fair use defense failed.

The fact that the newspaper articles were republished in their entirety also weighed heavily against the fair use defense. Where media criticism is concerned, one can well understand a critic arguing that an offending article must be viewed in its entirety to assess the context and any subtle bias of the author. But the Court was unmoved by that argument, and it held that the Free Republic had failed to show how full-text copying was essential to its discussion forum. The Court implied that posting summaries of the articles or providing a link to the newspapers’ websites where the full articles could be read were alternatives that Free Republic should have employed. Finally, because the availability of the papers’ articles in full text on the Free Republic site fulfilled at least some demand for the original works on the papers’ own websites, and because widespread copying of this type would have a deleterious effect on the papers’ markets, the fourth factor weighed against the fair use defense.