Saturday, November 20, 2010

Palin Publisher Sues Gawker Over Alleged Copyright Infringement

This is a brief update on Chris Bird's post yesterday, Did Gawker Violate Sarah Palin's Copyright?

Associated Press reports today that Ms. Palin's publisher, Harper Collins, commenced legal action against Gawker Media yesterday in a Manhatan federal court.

According to AP, the Harper Collins complaint alleges copyright infringement over Gawker's publication of 21 pages of images from the new Palin book prior to the book's official release date:

...The lawsuit asks that Gawker be banned from what it terms "further copyright infringement" and that Gawker deliver the source material to the publisher so it can be destroyed. HarperCollins is also seeking financial damages.

Gawker did not immediately respond to e-mails seeking comment Friday evening, but an item published the day before and titled "Sarah Palin Is Mad at Us for Leaking Pages From Her Book" defended the blog's actions and linked to websites defining the fair use doctrine of copyright law.

The blog was not the first site to publish excerpts from the book, which has been billed as a tribute to American values, but it refused to take them down after receiving a letter demanding that it do so, the lawsuit said. The Associated Press bought a copy of the book ahead of its Nov. 23 release date [emphasis added].

Note the last sentence of the AP excerpt carefully - its inclusion in the article is not accidental - with this commentary from Chris Bird on the U.S. law of fair use in mind:
Under American common-law rules of fair use, publishing excerpts of a work before its publication date actively harms the case for fair use, as you are considered to be obliviating the creator's rights in publication of the work. The best example of this in American caselaw is Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985), which is largely analagous to the Palin/Gawker incident given that both instances involve an unauthorized excerpt of not-yet-published writing by a public political figure - in Harper it was a memoir by Gerald Ford, excerpted without permission by The Nation magazine. In Harper, the publisher won specifically because the Supreme Court determined that a creator's right of first publication was an important right and any fair use defence would have to be extremely compelling to override it.
If advance copies of the publication were already for sale at the time of the November 17th Gawker publication, had the Palin book already been "published," within the meaning of the Harper test described above?

- Garry J. Wise, Toronto
Update: November 21, 2010

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.

1 comment:

Ted said...


Governor Palin is a courageous person, no doubt. In view of her massive following, if she would simply, briefly, tweet about the upcoming case before the US Supreme Court next week, it would change the course of American history.

November 23, 2010 marks a fork in the road for the future of America of more than historic proportions — perhaps on par with events leading to the Civil War. To date, virtually all federal and state courts where actions have been brought seeking decision on the meaning of the Constitution’s Article 2 “natural born citizen” clause as a prerequisite for Barack Obama to be a lawful President and Commander in Chief of the United States (Mr. Obama having been born to a father of British/Kenyan nationality and father not a citizen of the United States), have been shut down, never getting beyond the issue of standing. To date, courts have very strategically (narrowly if not artfully) characterized and applied law and legal procedure steadfastly to prevent the question from ever rising to the merits — this on a host of different types and classes of plaintiffs, causes and defendants — admittedly under the most intensely implicit (if not more) pressure to do the same.

The national media (some say our 4th branch of government) has aided and abetted the avoidance by mischaracterizing this as a “Hawaii birth” a/k/a “birther” issue which is nothing more than a “red herring” in that the issue for Article 2 “natural born citizen” is Mr. Obama’s father. Moreover, the legal community has aided and abetted the avoidance by mischaracterizing the 1898 Supreme Court Case, Wong Kim Arc, which dealt with the meaning of “citizenship”, not the meaning of “natural born citizen” under Article 2.

November 23, 2010 may very well be the last chance for the Judicial Branch realistically to take up the issue, this on a case of legal standing solidly presented by Attorney Apuzzo and Commander Kerchner. If the Court finds no standing here, by a narrow interpretation of the same or otherwise, coming after all the rest of the “no standing” cases, it is doubtfull this important Constitutional issue can and will be resolved in any court of law. The question will nevertheless continue to fester, at tremendous national cost, never to abate, potentially to reach crisis stage, and in any event to undermine the structure of our Constitutional Republic.

It is more than chilling and says volumes that NOT ONE member of Congress will publicly speak on this or, better yet, since the Congress of the United States has more than a vested interest, opine if not as a “friend of the court” at the Supreme Court, in the court of public opinion — BEFORE the Supreme Court convenes on November 23, 2010.

The world is (should be) watching!