I did some digging and found FR's previous fair use arguments for full articles didn't fly in court. Of course fair use is determined on a per-article basis, but a safe bet would be to assume none of them are fair use in this case. But even for full articles, they seem to have been effectively covered under pre-DMCA law -- the DMCA was new back then.
Under the DMCA, and using the YouTube precedent, the procedure should be that FR has no off-limits publications, and those publications must send a properly-formed DMCA takedown notice whenever one of their articles is posted in a way that they view is infringing. The DMCA addressed the issue of site owners having to be the content police by specifically stating that they are NOT. The YouTube decision reinforced this. The copyright holders must be the content police, with the site owners only complying with lawful takedown requests.
I do remember some sites coming after us but letting DUmmieland and other lefty sites still post full articles.
Copyright does allow for selective enforcement.
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