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Summary:

Last week, after Sarah Palin’s publisher, HarperCollins, sued Gawker for copyright infringement over publication of 21 pages of leaked text…

Sarah Palin #2
photo: Jeff Geerling / flickr

Last week, after Sarah Palin’s publisher, HarperCollins, sued Gawker for copyright infringement over publication of 21 pages of leaked text from her new book, Politico rounded up several legal bloggers’ views on the case. All of them portend bad news for Gawker. “I haven’t found any lawyers defending the case [for fair use],” one of Politico’s bloggers, Ben Smith, wrote.

But was the blogosphere too quick with its verdict?

Gawker’s response to the suit was fast and familiar: While it took down the post that had the book excerpts, it wrote a second post that mocked Palin, saying: “You may want to take a moment to familiarize yourself with the law,” and linked to two pages with information about the “fair-use” rule in copyright law. The mockery is now gone from that post, after some commenters noted a Supreme Court case, Harper & Row v. Nation Enterprises. In that case, the magazine The Nation was found liable for breaking copyright law, even though it had excerpted (pre-publication) less than 400 words of a 655-page manuscript of Gerald Ford’s memoirs.

But the Nation Enterprises case is different from the Palin case in one key respect: it involved a writer that had objectively been cheated out of a contract; Palin, by contrast, stands to make many millions from her book.

Ordinarily, Gawker‘s cheeky commentary on a political figure of national interest would seem like a classic case of fair use. The post that went up (no longer on Gawker) has commentary interspersed throughout Palin’s text. And even with the parts that weren’t commented on directly-the attribution page, for instance-couldn’t those be a type of commentary in and of themselves? After all, we’re talking about Sarah Palin here, a woman who can actually be parodied by actors reading verbatim transcripts of her words.

(Note: Numerous publications, including The Associated Press, are reporting that Gawker excerpted from 21 of the book’s pages, though Politico and some others say it was actually 14 pages.)

But Gawker was publishing a leak. Is the website’s publication of a negative post prior to the release of the book really so different, legally speaking, than it would have been five days later, after the book had hit store shelves? Unfortunately, yes. Stanford’s Fair Use Project has some details on seven key precedents regarding text-based fair use, including Harper & Row v. Nation Enterprises. The common thread: judges are generally ready to give copyright holders strong remedies when the supposed “fair use” might hurt the copyright holder’s bottom line.

That line of thinking is clearly present in the Nation Enterprises case, even though Ford and his publisher showed clear evidence of losing out financially as a result of the leak. The Nation-which had acquired his manuscript through shadowy means-actually scooped its competitor *Time* Magazine, which had already agreed to pay Ford $25,000 to publish an exclusive pre-publication excerpt. As a result of ,em>The Nation’s scoop, *Time* canceled the contract and refused to pay the half of that fee it hadn’t already handed over.

Lawyers often refer to copyright as being a “basket” of different rights, and the Supreme Court ruled that the Nation had stolen Ford’s “right of first publication, an important marketable subsidiary right.” The fact that an excerpt is published pre-publication isn’t always determinative, but it is a “key” factor “tending to negate a defense of fair use,” the court held in a 6-3 decision.

Other cases of text excerpts that weren’t found to be fair use included books of trivia questions about Seinfeld, and an unauthorized guide to the TV show Twin Peaks — because, in both cases, they were seen to interfere with marketing of the “authorized” versions of such books. In another case, Salinger v. Random House, J.D. Salinger sued and successfully prevented his unpublished letters from being paraphrased in an unauthorized biography.

A showing of economic harm is exactly the kind of evidence that Palin can’t possibly muster here. If anything, the brouhaha over the Gawker excerpt is going to help her bottom line.

What seems to have really swayed judges in previous cases are situations where the copyright holder was going to lose sales in a market. Situations like Palin’s-where a copyright holder is in a prime position to reap all the benefits of a copyright, and anger at leaks is more about a desire for control than a real economic threat-ought to be treated differently.

  1. I think she’s got a strong case. It’s not just about the money. What Gawker did was wrong and they need to be punished so others can see that you can’t break the rules just because you feel like it or you don’t like someone. They put a negative spin on her work so they were trying to inflict damage, plain and simple. This is the type of journalism that needs cleaning up!

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  2. HW13568: In your opinion what Gawker was wrong, but it wasn’t illegal or break any rules. Its all part of the fair use law. Whether it was a positive or negative spin is moot, they were within their rights to publish whatever they want on their website.

    We’ll just have to wait and see how the courts handle this, it will be an interesting case.

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  3. No way does Gawker have a case here. It doesn’t matter how they got it, they published 21 pages. 21 PAGES. That’s a lot more than 400 words. They could have easily just used a couple sentences from what they gathered, but they didn’t. Unfortunately, once there is a precendence (Harper & Row v. Nation Enterprises) it will be very difficult to prove this is any different, especially with that many pages.

    Obviously Gawker probably has good insurance, so they will likely settle here.

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  4. @HW13568, thanks for your comment. while many individuals and companies do want to use copyright to control uses of their content—whether there’s money at stake or not—that idea of control isn’t really the essence of copyright. Copyright is really a kind of “reward” set up by the government as an an incentive for authors. And so in many cases, deciding what is a “fair use” really does boil down to the economic impact.

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  5. @Ian Bell, a fair point—but did you see the post those 21 pages were on? (It was available in Google cache for a while and I kept an HTML file of it.) It was liberally interspersed with commentary, and the pages weren’t big pages. Some of those 21 pages were things like the acknowledgement. The excerpts really didn’t strike me as very long.

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  6. I have to disagree, Joe – I think the judgement in Harper & Row vs Nation is extremely clear, and doesn’t depend heavily on showing actual damage. To pick out one phrase from the judgement: “under ordinary circumstances, the author’s right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use.”

    In fact, although in H&R vs Nation there was direct, attributable damage (of merely $12,500 cancelled serialisation rights), the judgement held that “to negate a claim of fair use, it need only be shown that, if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work”, and – importantly, continues that “The Nation’s liberal use of verbatim excerpts posed substantial potential for damage to the marketability of first serialization rights in the copyrighted work.”

    Note the word “potential”. While in The Nation case there was attributable damage, the court is saying that all that’s required to negate fair use to “potential” damage. Publication of 21 pages, particularly if they are “the juicy bits”, could easily be shown to have “potential” damage.

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