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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.