Go Away, Sarah Palin - Tom Chapin

A welcome bit of comic relief in song:

(via Andrew Sullivan)

- Garry J. Wise, Toronto

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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?

Interesting.

- Garry J. Wise, Toronto

Update: November 21, 2010

Associated Press reports:

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.

- GJW

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Did Gawker Violate Sarah Palin's Copyright?

Noted gossip/news website Gawker posted photographic excerpts from Sarah Palin's new book, America By Heart, on Wednesday. On Thursday, Palin complained on Twitter. Gawker's response was to snarkily refer to fair use rights regarding copyrighted works and suggest that one of her lawyers would "walk [her] through it."

Unfortunately for Gawker, they're very likely in the wrong.

Fair use under American statutory and caselaw covers many uses, and if Palin's book were already a published work Gawker's republication of parts of it would be more defensible as an act of fair use. The purpose of their republication of the work was clearly informational with editorial comment, as Gawker would likely be recognized in any lawsuit as a journalistic enterprise and the piece was one of critical opinion, albeit one with a fair amount of brevity. However, the amount republished - twenty-six pages - is certainly towards the large end for a fair use argument, given that it is nearly ten percent of the original work's 304 pages. Further, Gawker's critical comment is restricted to brief and meanspirited summaries of Palin's writing, so the purpose of its use is questionable.

All of that, however, is possibly irrelevant given that Palin's book is not yet technically a published work, since a book is not considered to be published until its release date. 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.

(It's worth noting that the online fair use summary Gawker linked to when they sarcastically mocked Palin's legal knowledge actually refers to this case specifically in discussing when something is and is not fair use.)

Interestingly, were this incident to occur in Canada, fair dealing (the Commonwealth equivalent of fair use) a finding of fair dealing might be more likely, given that under Canadian caselaw - specifically CCH Canadian Ltd. v. Law Society of Upper Canada, which sets out most of the modern common-law rules for fair dealing in a Canadian context - excerpts from an unpublished work are more likely to be considered fair than excerpts from a published work, given that an unauthorized reproduction could potentially lead to a wider public dissemination of the work, which is ostensibly one of the goals of creation in the first place. This is one of the major differences between Canadian and American law on fair use/fair dealing.

- Christopher Bird, Toronto

Update: November 20, 2010

See today's update on this story: Palin Publisher Sues Gawker Over Alleged Copyright Infringement

- GJW

November 22, 2010 - Welcome Politico readers.

- GJW

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Shorter David Frum

Bristol and Levi broke up (again) because of same-sex marriage:

The harm feared from same-sex marriage has already arrived: Whether same-sex marriage is accepted or not, opposite-sex marriage as a norm and expectation has already collapsed.

The Bush speechwriter has once again left me speechless, as he apparently pines for the days when propriety alone would have forced a shotgun wedding upon this highly publicized, ill-fated couple.

- Garry J. Wise, Toronto

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Oy...

... JewsForSarah.com

'Nuff said.

- Garry J. Wise, Toronto

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Palin Panned by Times TV Critic

New York Times arts blogger Alessandra Stanley didn't think much of the debut of Sarah Palin's Fox News show, Real American Stories:

Sarah Palin didn’t reload, she retreated into canned television formula...

The stories were inspirational. The show was not.

Ouch.

- Garry J. Wise, Toronto

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Countdown's "Cacaphony of Crazy"

MSNBC's Keith Olbermann reviews the year of Palin:

And for those following the Palin grandchild custody shenanigans currently playing out in Alaska, pleadings filed by Levi Johnston in support of his successful motion to open the process are here.

- Garry J. Wise, Toronto

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Palin Tells Canada to Ditch Public Health Care

Oh my...

Sarah Palin inadvertently stepped into Canadian politics earlier this week when she told the crew of a CBC comedy show that America's northern neighbor should "reform its health care system and let the private sector take over" the country's medical services.

Comedian Mary Walsh of the comedy show This Hour Has 22 Minutes, a sort of Canadian Daily Show, stormed a recent Palin book-signing in Columbus, Ohio, and said to the former Alaska governor: "I just wanted to ask you if you have any words of encouragement for Canadian conservatives who have worked so hard to try to diminish the kind of socialized medicine we have up there."

- Garry J. Wise, Toronto

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"Going Rogue" - A Tribute

In honour of the naming of Sarah Palin's upcoming memoir, "Going Rogue - An American Life" we will rerun a classic blast from the past:

Meanwhile, even the hawkish tabloid, the New York Post, acknowledges that Ms. Palin's ambitious plans for the lecture circuit are hitting some speed bumps:

Palin's bookers are said to be asking for $100,000 per speech, but an industry expert tells Page Six: "The big lecture buyers in the US are paralyzed with fear about booking her, basically because they think she is a blithering idiot."

..."Palin is so uninteresting to so many groups -- unless they are interested in moose hunting," said our insider. "What does she have to say? She can't even describe what she reads."

- Garry J. Wise, Toronto

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Good Grief: President Hannity?

Is Sean Hannity considering a run for the White House in 2012?

Talk-show host Sean Hannity, a vocal opponent of Barack Obama's policies, said today he would not rule out a bid for the presidency in 2012.

If so, a candidate will actually have emerged who will, by comparison. render Sarah Palin the better option.

I did not think it possible

- Garry J. Wise, Toronto

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Quotable

Balloon Juice on Sarah Palin and her conservative boosters:

Nothing annoys me more than the conservative myth that to be an ordinary American you have to be a moron. Although it’s probably just a corollary of the myth that to be an ordinary American you have to be conservative.

- Garry J. Wise, Toronto

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On Palin (Again)

This week's must read: It Came from Wasilla, Todd Purdum's Vanity Fair article on Sarah Palin.

- Garry J. Wise, Toronto

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Greenwald on Palin on Free Speech

Salon's Glenn Greewald, on the Republican V.P. nominee's recent musings about the First Amendment:

...so dumb that it hurts.

Mr. Greenwald is, perhaps, the leading legal voice of the U.S. progressive movement.

- Garry J. Wise, Toronto

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Palin - Plumber 2012

Three words that must never again be spoken...

- Garry J. Wise, Toronto

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Palin As President?

The website, that is.

Have fun.

- Garry J. Wise, Toronto

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Anchorage Newspaper Endorses Obama Candidacy

AP has the update on the endorsement of Anchorage, Alaska's largest newspaper, the Anchorage Daily News:

"Gov. Palin's nomination clearly alters the landscape for Alaskans as we survey this race for the presidency — but it does not overwhelm all other judgment. The election, after all is said and down, is not about Sarah Palin, and our sober view is that her running mate, Sen. John McCain, is the wrong choice for president at this critical time for our nation," the paper said.

The full editorial is here: Obama for president - Palin's rise captivates us but nation needs a steady hand.

The newspaper's views couldn't be more clear:

Sen. McCain describes himself as a maverick, by which he seems to mean that he spent 25 years trying unsuccessfully to persuade his own party to follow his bipartisan, centrist lead. Sadly, maverick John McCain didn't show up for the campaign. Instead we have candidate McCain, who embraces the extreme Republican orthodoxy he once resisted and cynically asks Americans to buy for another four years.

...Gov. Palin has shown the country why she has been so successful in her young political career. Passionate, charismatic and indefatigable, she draws huge crowds and sows excitement in her wake. She has made it clear she's a force to be reckoned with, and you can be sure politicians and political professionals across the country have taken note. Her future, in Alaska and on the national stage, seems certain to be played out in the limelight.

Yet despite her formidable gifts, few who have worked closely with the governor would argue she is truly ready to assume command of the most important, powerful nation on earth. To step in and juggle the demands of an economic meltdown, two deadly wars and a deteriorating climate crisis would stretch the governor beyond her range. Like picking Sen. McCain for president, putting her one 72-year-old heartbeat from the leadership of the free world is just too risky at this time.

- Garry J. Wise, Toronto

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Palin v. McCain: "She is a Diva..." "Every Man for Himself..."

According to various reports, a fierce battle between the camps of the two Republican nominees is very publicly rising to the surface:

Kevin Drum:

LET THE DEFENESTRATIONS BEGIN....Politico reports on what's going on behind the scenes in Republican circles:

With despair rising even among many of John McCain’s own advisers, influential Republicans inside and outside his campaign are engaged in an intense round of blame-casting and rear-covering — much of it virtually conceding that an Election Day rout is likely.

....“If you really want to see what ‘going negative’ is in politics, just watch the back-stabbing and blame game that we’re starting to see,” said Mark McKinnon, the ad man who left the campaign after McCain wrapped up the GOP primary. “And there’s one common theme: Everyone who wasn’t part of the campaign could have done better.”

“The cake is baked,” agreed a former McCain strategist. “We’re entering the finger-pointing and positioning-for-history part of the campaign. It’s every man for himself now.”

The Politico report establishes the theme - senior Republicans "echoing" opposition attacks while blaming other senior Republicans for "echoing" opposition attacks:

A senior Republican strategist, speaking with authority about the view of the party’s establishment, issued a wide-ranging critique of the McCain high command: “Lashing out at past Republican Congresses, … echoing your opponent's attacks on you instead of attacking your opponent, and spending 150,000 hard dollars on designer clothes when congressional Republicans are struggling for money, and when your senior campaign staff are blaming each other for the loss in The New York Times [Magazine] 10 days before the election, you’re not doing much to energize your supporters.

Think Progress:

The Politico reports that tensions between the Palin and McCain camps are increasing in the waning days of the campaign. Palin reportedly “has decided increasingly to disregard the advice of the former Bush aides tasked to handle her,” blaming “her handlers for a botched rollout and a tarnished public image.” A McCain campaign source unloads on Palin in an interview with CNN:

“She is a diva. She takes no advice from anyone,” said this McCain adviser, “she does not have any relationships of trust with any of us, her family or anyone else. Also she is playing for her own future and sees herself as the next leader of the party. Remember: divas trust only unto themselves as they see themselves as the beginning and end of all wisdom.”

“I think she’d like to go more rogue,” a Republican source said of Palin.

Huffington Post via TPM:

Now one of John McCain's actual advisers has switched sides:Charles Fried, a professor at Harvard Law School, has long been one of the most important conservative thinkers in the United States. Under President Reagan, he served, with great distinction, as Solicitor General of the United States. Since then, he has been prominently associated with several Republican leaders and candidates, most recently John McCain, for whom he expressed his enthusiastic support in January.

This week, Fried announced that he has voted for Obama-Biden by absentee ballot. In his letter to Trevor Potter, the General Counsel to the McCain-Palin campaign, he asked that his name be removed from the several campaign-related committees on which he serves. In that letter, he said that chief among the reasons for his decision "is the choice of Sarah Palin at a time of deep national crisis."

You might have expected they'd wait at least until November 4th to point fingers and air their dirty political laundry.

They haven't lost yet, after all.

- Garry J. Wise, Toronto

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AP: Sarah Palin Charged Alaska for Kids' Expenses

I'm not too sure what to make of this Associated Press story:

ANCHORAGE, Alaska – Gov. Sarah Palin charged the state for her children to travel with her, including to events where they were not invited, and later amended expense reports to specify that they were on official business.

The charges included costs for hotel and commercial flights for three daughters to join Palin to watch their father in a snowmobile race, and a trip to New York, where the governor attended a five-hour conference and stayed with 17-year-old Bristol for five days and four nights in a luxury hotel.

In all, Palin has charged the state $21,012 for her three daughters' 64 one-way and 12 round-trip commercial flights since she took office in December 2006. In some other cases, she has charged the state for hotel rooms for the girls.

Alaska law does not specifically address expenses for a governor's children. The law allows for payment of expenses for anyone conducting official state business.

Is this just good, old-fashioned investigative journalism?

Or yet another chapter in one of the messiest, meanest, attack-laden elections I can recall?

And by the way, I'm getting really weary of hearing Republicans spouting the political theories of Joe the Plumber, as if he was the leader of their party.

The gimmicky, unrelenting reliance on the colourful Mr. Wurzelbacher as the McCain-Palin mascot does little to bring dignity or depth to a campaign sorely lacking in both.

- Garry J. Wise, Toronto

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Sarah Palin and Tina Fey on SNL

Video is here.

- Garry J. Wise, Toronto

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Video: Anti Obama Racism Spills Over

More of the ugly underbelly, in this video from a Sarah Palin rally in Johnstown, Pennsylvania:

(h/t: TPM)

- Garry J. Wise, Toronto

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