Did Gawker read those fair use links they suggested Sarah Palin read? UPDATED- Judge orders Gawker to pull pages

UPDATE: Via Palin TV Judge orders Gawker to pull pages 
11/22 - Linked today by Human Events thanks to John Hayward aka Doc Zero for the link!
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I saw this lawsuit coming a mile away.  Sarah Palin expressed concern that excerpts of her new book were posted on the pernicious pages of Gawker before her book hit the market this coming Tuesday.  Far from taking the concern of a copyright holder seriously, Gawker did what they do best and mocked her concern:

[Sarah: If you're reading this—and if you are, welcome!—you may want to take a moment to familiarize yourself with the law. Try starting here or here. Or skip the totally boring reading and call one of your lawyers. They'll walk you through it.]

So let's go there since Gawker has kindly invited us to familiarize ourselves with the law, shall we?  The first link goes to Wikipedia which actually does a reasonably good job summarizing the complexities of the fair use exception to copyright law.  Since she linked it, I have to wonder if Gawker's writer Maureen O'Connor took a moment to familiarize herself with the law?  It seems to me the answer would have to be no.

In the opening passage explaining "fair use" Wikipedia notes:

Fair use, a limitation and exception to the exclusive right granted by copyright law to the author of a creative work, is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders. Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, non-licensed citation or incorporation of copyrighted material in another author's work under a four-factor balancing test.

Ms. O'Connor may have read just that far and figured she was offering plenty of commentary and criticism on Sarah Palin's unreleased book America by Heart : Reflections on Family, Faith, and Flag.  No need to worry right?  Not exactly.  If we venture on the second link Ms. O'Connor cheerfully supplies we find this nasty warning in the opening paragraph: "Unfortunately, the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court."  So it seems that Sarah Palin skipped the boring reading part and did what Ms. O'Connor and Gawker should have done, called a lawyer. Exercising her exclusive right to her original expression, which is provided in the Constitution, Palin and her publisher are now going to walk Gawker through a lesson on the murky nature of the fair use exception.

Fair use is an affirmative defense, meaning the burden will rest upon Gawker to prove their use of Sarah Palin's work (that has not yet hit the market) was fair.   Stanford law outlines the four factors and explains each in detail at the links:

1. The Transformative Factor: The Purpose and Character of Your Use
2. The Nature of the Copyrighted Work
3. The Amount and Substantiality of the Portion Taken
4. The Effect of the Use Upon the Potential Market

Fair use is based on common law so the judge will use case law as precedent when weighing the four factors. There is a lot of case law to consider but a key case that seems relevant here is Harper & Row V. Nation Enterprises.  Wikipedia summarizes: "Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985)[1], was a United States Supreme Court decision that determined that fair use is not a defense to the appropriation of work by a famous political figure simply because of the public interest in learning of that political figure's account of an historic event. 

Moreover, there are key findings in the Harper & Row ruling that point to problems Gawker will encounter in mounting a case for fair use and gives a sense how the four factors are applied:

(d) Taking into account the four factors enumerated in § 107 as especially relevant in determining fair use leads to the conclusion that the use in question here was not fair. (i) The fact that news reporting was the general purpose of The Nation's use is simply one factor. While The Nation had every right to be the first to publish the information, it went beyond simply reporting uncopyrightable information and actively sought to exploit the headline value of its infringement, making a "news event" out of its unauthorized first publication. The fact that the publication was commercial, as opposed to nonprofit, is a separate factor tending to weigh against a finding of fair use. Fair use presupposes good faith. The Nation's unauthorized use of the undisseminated manuscript had not merely the incidental effect, but the intended purpose, of supplanting the copyright holders' commercially valuable right of first publication. (ii) While there may be a greater need to disseminate works of fact than works of fiction, The Nation's taking of copyrighted expression exceeded that necessary to disseminate the facts, and infringed the copyright holders' interests in confidentiality and creative control over the first public appearance of the work. (iii) Although the verbatim quotes in question were an insubstantial portion of the Ford manuscript, they qualitatively embodied Mr. Ford's distinctive expression, and played a key role in the infringing article. (iv)

The fact that Sarah Palin's book has not yet made its public appearance weighs heavily in favor of Sarah Palin.  Gawker published photographic copies of pages of the book, well beyond what might have been deemed necessary for criticism or commentary, for the sole purpose of allowing their readers to Gawk at them and mock them.  Gawker took Sarah Palin's original copyrighted expression when they could have substituted their own words to express the ideas contained in the book but who would gawk at that?  They also appear to have been either too lazy or so blatantly antagonistic they didn't even bother to whittle down the amount copied to a key phrase or sentence here or there.  Again, they just wanted the reader to gawk at 21 pages of Palin's work before it had a chance to hit the market.

Some have argued that Gawker's use of Palin's protected expression does nothing to undercut the marketability of the book. The Harper & Row case involved a cancellation of a contract with Time Magazine that effectively took $12,500 from the pocket of the author, former President Gerald Ford, and the publisher. There is no such cancelled contract here but we read in the Supreme Court decision a cancelled contract was not the only loss considered:

More important, 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. Here, The Nation's liberal use of verbatim excerpts posed substantial potential for damage to the marketability of first serialization rights in the copyrighted work.

So how widespread might Gawker's use become?  Gawker posted the pages on November 17, 2010.  This was also their highest traffic day this week:

The number of people who saw the pages since Wednesday is fairly easily determined.  There will be an expert or two who would be willing to testify what a couple million Gawkers might do to sales of Palin's book.

The costs to Gawker for infringing on Palin's work don't stop there:

The legal penalties for copyright infringement are:

Infringer pays the actual dollar amount of damages and profits.
The law provides a range from $200 to $150,000 for each work infringed.
Infringer pays for all attorneys fees and court costs.
The Court can issue an injunction to stop the infringing acts.
The Court can impound the illegal works.
The infringer can go to jail.

That is starting to look like a pretty expensive day poking fun at Sarah Palin.  As I write this however, the greatest evidence that Ms. O'Connor didn't read the links she provided or take her own advice and contact a lawyer, suddenly comes to light.  Gawker has just now reduced the copied material significantly.  I am guessing a lawyer saw a whole heap of trouble Ms. O'Connor and Gawker did not.  It doesn't pay to skip the boring reading or the call to the lawyer does it Ms. O'Connor?

Related:
Hot Air  notes Palin exercised her exclusive right to post an excerpt from her own book on Facebook.  Skip Gawker and go read her there.

UPDATE: The AP reports:

NEW YORK — A federal judge on Saturday ordered Gawker Media to pull leaked pages of Sarah Palin's forthcoming book "America by Heart: Reflections on Family, Faith and Flag" from its blog.

The injunction prohibits Gawker from "continuing to distribute, publish or otherwise transmit pages from the book" pending a hearing on Nov. 30.

That the judge issued the injunction does not necessarily mean Palin will prevail, but it does prove that Palin had a substantial case that merits a hearing.  An injunction is issued to prevent further damage to the copyright holder.  I tend to side with those who are exercising a fair use claim as a general rule.  It is often the copyright holder who uses the law to silence critics or more importantly carve out larger niches for their work in the marketplace.  Nevertheless, I see no reason to give Gawker the benefit of the doubt here; their infringement  seems egregious, lazy and blatantly stupid.

UPDATE II:  The Other McCain has an exclusive copy of the restraining order - Also an email from a source familiar with the case noting this was a big win for Harper Collins attorneys.


Many many thanks to Jim Treacher at the Daily Caller for linking this post and to Stacy McCain whose link here made this post visible.  Welcome Daily Caller Readers and The Other McCain readers too!


More to come on Memeorandum
Thanks to Anne Leary for linking
Internet Scofflaw links with "Refudiated"
NewsRealBlog in the headlines
The Slatest at Slate links too
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