Wednesday, November 24, 2010

Settlement reached in Palin V Gawker

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Days after Sarah Palin and her publisher Harper Collins scored a major win  over the mean team at Gawker, we learn a settlement has been reached.   Alas, there won't be a TSA screening  for Gawker at the hands of Sarah Palin any time soon.  While some may be disappointed the attorneys at Harper Collins won't get to rifle through the junk in Gawker's trunk, this is still a major victory for team Palin.

Reading between the lines of the statements by both sides, we can piece together key pieces of the settlement between the parties.  Gawker has agreed to keep the infringing material off its website and will not post the material at any time in the future.  Erin Crum, a spokesperson for Harper Collins gives us insight why Gawker readily agreed to this point:
Ms. Crum said that a federal judge said that Gawker had published a “substantial portion of the book” and that it had “not used the copyrighted material to help create something new but has merely copied the material in order to attract viewers.” 
The judge was obviously well acquainted with the findings of Harper & Row V Nation Enterprises.  The language reported by Crum sounds remarkably similar to words used by Justice O'Connor when she wrote of The Nation, "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."  

Crum points out the judge said Gawker had not used the material to create something new.   In a famous 1994 Supreme Court ruling found the transformative nature of the use to be a chief indicator of fair use.  Justice Souter wrote, "The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use."   I am going to go way out on a limb here an guess the judge was unlikely to be persuaded that gawking gave new meaning or expression to Palin's book.  Gawker was going to lose.

Crum declined to comment whether there had been any financial settlement had been reached.  Does anyone ever disclose terms of a financial settlement?  There was probably some financial settlement.

Compare and Contrast the wealth of information weighing in favor of Palin and Harper Collins vs the meager but belligerent spin from Gawker:
Remy Stern, editor in chief of Gawker, said in an email: “HarperCollins’ decision to file suit against us and seek a temporary restraining order generated a good deal of press for Ms. Palin’s book in advance of its publication. Now that the book is out and destined to appear on the bestseller list, we’re pleased that Harper Collins proposed settling this case as is, this avoiding lengthy litigation for both sides.”
So maybe Gawker thought Palin was going to have a hard time showing the infringement undercut the marketability of her book.  Palin's book is going to do very well but there was a case to be made a couple million gawkers gawking at nearly 10% of Palin's book online for free was going to cut into some sales.  Note however, Stern makes a point of mentioning Harper Collins proposed settling the case as if going to trial was going to be a bigger loser for Palin than it would be for Gawker.  It would certainly be expensive for both.  Perhaps Palin found having her rights as an author protected while Gawker ended up covered with egg a nice outcome.  That Maureen O'Connor wagged her sorry finger in Sarah Palin's face only to have it turned on herself likely added a sense of emotional victory as well.

While an extensive probing of Gawker's junk might have provided further embarrassment to an organization that richly deserves it, Palin and her publisher would have been open to charges they were using her copyright to bully a bully.  Unlike the many copyright holders who abuse their copyright to extract a settlement when they have no reasonable claim, Palin's original question "Isn't that illegal" has been answered with conviction.

She protected her constitutionally afforded right as well she should.  She may have gone further than most in sheltering those who believe fair use is a right worth protecting as well.   Bill McGeveran, a law professor at the University of Minnesota, notes fair use is "fragile enough as it is."  Protracted litigation might have served the purpose of undermining its legitimacy further:
As with illegal music downloaders who try to stretch fair use to cover outright piracy, extravagant claims of fair use for large-scale leaks of significant chunks of a book risk undermining the perceived legitimacy of those rights.
Though McGeveran appears to be no fan of Palin, he laid blame for that potential outcome at Gawker's doorstep.  While I would love to have seen Gawker probed in a way they so richly deserve, there does come a point when winning a battle leads to losing the war.  As with all things Palin, the media attention generated during a battle between her and Gawker would be astounding.  McGeveran concern is a legitimate one I am afraid.

Settling the case so soon after the judge issued the injunction may serve to underscore the point sites like Gawker and Palingate can't use someone's unreleased book to generate page hits for their pitiful websites.  As copyright expert Ron Coleman wrote, "[h]ating someone doesn't mean you can infringe her copyright." This is a huge victory particularly when the left feels perfectly entitled to probe Palin's uterus so why should they stop to consider they are not entitled to her book as well.   I would add that is was particularly satisfying to see mean girl Maureen O'Connor get schooled by a woman she believed was her intellectual inferior.  All in all, that's not a bad days work for Sarah Palin.
Linked by The Other McCain - Thanks!

UPDATE : Via Memeorandum
Galleycat has the full statement from Harper Collins. Judge Grisea read Gawker the copyright infringement riot act it seems:
On Saturday afternoon, Judge Thomas Griesa of the US District Court in Manhattan entered a temporary restraining order against Gawker. In an opinion issued yesterday, Judge Grisea stated that “the purpose of the copyright law is to prevent the kind of copying that has taken place here.” Judge Grisea’s opinion also said that Gawker “published what amounts to a substantial portion of the book” but “essentially engaged in no commentary or discussion”, and that it had “not used the copyrighted material to help create something new but has merely copied the material in order to attract viewers.” Immediately after the hearing, Gawker removed the offending pages from its web site as the Judge ordered.
Read the rest as they say.  I hope Maureen O'Connor has taken a moment to read those links she asked Sarah Palin to read.  If she hasn't, Judge Grisea seems perfectly willing to walk her through it.

Also blogging: Cubachi at Hot Air and cross-posted at

Heh, Jim Treacher delivers a shpanking commenting on Gawker's meager yet belligerent spin:

That’s right, sweeties, you meant to do that. To help her sell books. Because if there’s one thing Gawker is good at, it’s selling books. Oh wait no never mind.

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