So, Gawker got sued again—this time by HarperCollins, for publishing excerpts from “America By Heart,” Sarah Palin’s latest contribution to the annals of American thought. The book doesn’t come out until tomorrow, but Gawker posted segments of it last week, mostly in order to make fun of them. Some people got upset! On Saturday, a federal judge granted a temporary restraining order against Gawker. So the page with the excerpts from the book is down.
So what’s going on here? Does Gawker have a First Amendment right to excerpt Sarah Palin’s book and make fun of it? Or can Sarah Palin use her powers under copyright law to stop them? The answer is, depends! The copyright clause of the Constitution does not always get along well with the First Amendment. When they find themselves in a conflict, we go to the judges, and the judges now use something called the Fair Use Doctrine to mediate it.
Judges invented the Fair Use Doctrine a long time ago because they noticed a natural tension between free speech and the right to keep your own expression on lockdown. Congress eventually agreed this was a good idea and they passed it into law during the bicentennial. Here’s how it works. Someone borrows part of something made by someone else, for their own creative thing, but without getting permission, and then there’s a lawsuit. A judge examines the particular use in the light of four factors, easily phrased as questions. One, what is the purpose of the use? Two, what is the “nature” of the copyrighted work? Three, how much material was used in relation to the whole? Four, might the unauthorized use have a harmful effect on the market for the copyrighted work?
Then the judge takes all the answers to these questions and weighs them against each other. They call this a balancing test, but it’s not like balancing a see-saw. It’s more like balancing a dinner plate on the pointy end of a nail. Because some answers mean more than others in one situation and less in another, and sometimes a judge will just introduce a new idea into the equation, totally on her own. Fair use is one of the most subjective laws on the books. It’s impossible to predict which way the dinner plate is going to tip.
Lawyers don’t like uncertainty. It makes them queasy because it creates risk. If a lawyer at a traditional media company makes a decision that relies on the fair use doctrine and the company gets sued, the lawyer gets fired. Gawker, on the other hand, has a rather high tolerance for risk. They have their own calculus for whether getting sued is worth it, whether the cost of fighting off a lawsuit is worth the new eyeballs the offending post may bring. Here, probably not worth it. And the odds are that Gawker will settle this lawsuit, because they’re in the making money business and not the litigating on principle business.
But that shouldn’t stop us from the fun sport of legal speculation as to whether Gawker would win if this case went to trial, and to the appellate courts, and to the Supreme Court! I always secretly wish they do this with one of their legal issues. The People vs. Larry Flynt is a great movie and could use a sequel. So let’s call this Gawker Media Court Battle Fan (Non)Fiction if you like.
Here’s what Gawker would be up against. Twenty-five years ago a remarkably similar case ended up before the Supreme Court. It was brought by Harper & Row (one-half of the conglomerate now suing Gawker) and it concerned the memoirs of Gerald Ford, another former half-term executive official with a sordid reputation. Harper & Row sold some exclusive excerpts to Time Magazine, which Time planned to run a week before the book hit shelves. However, The Nation got a hold of the book, and with the admitted goal of scooping Time, they ran an article featuring quotes from the most salacious part of Ford’s memoirs, the part where he discusses the resignation of Richard Nixon and Ford’s decision to pardon him. Time refused to pay Harper & Row for what was no longer an exclusive, and Harper & Row sued The Nation.
The Court sided with Harper & Row, and found The Nation’s article to be copyright infringement not protected by fair use. The thing that weighed most heavily, they felt, was the unpublished nature of Ford’s memoir. An author’s right to control the method and timing of publication, and really the choice whether to publish or not, this is something the Court found sacred, and I bet many of the writers who read this will agree. That consideration outweighed any First Amendment interest in pushing someone’s private words out there into the world, even if they’re a person of interest. The matter was choice.
Obviously the information in Ford’s memoir was newsworthy, especially the stories of the last days of the Nixon administration from the perspective of the man to succeed him, and the thought process behind how in hell could anyone pardon the former president. The Court said, sure, this was central to First Amendment values, as spreading news is a favored purpose. But, they said, The Nation had another purpose, a purpose they considered nefarious, one that balanced out the more noble goal of news reporting. “The Nation,” said the Court, “went beyond simply reporting information and actively sought to exploit the headline value of its infringement, making a ‘news event’ out of its unauthorized first publication of a noted figure's copyrighted expression.” This supposed “impropriety” of The Nation’s conduct weighed against its free speech claim.
Exploiting the headline value of something is kind of central to the Gawker business model. Gawker is regularly accused of all manner of ethical breaches, whether it’s because they post a photo of Brett Favre’s alleged penis or an alleged encounter with Christine O’Donnell’s vagina, or whether it’s because they practice checkbook journalism as a matter of course. But regardless of your feelings about this, if you believe in the sanctity of the First Amendment, that at its heart it commands the government to keep its hands off the press, the Court’s reasoning in the Harper & Row case should give you pause. They’re saying that the Freedom of the Press is reserved for journalists who are polite. You may think that journalism should have a code of conduct, but I bet you’re not terribly comfortable with idea of the government setting that code. And there’s no better test for that than Nick Denton saying as much to the Supreme Court.
And the truth of the matter is Gawker has a better case than The Nation did. The Nation offered little commentary on the Ford memoirs; Gawker called Sarah Palin out for all kinds of bullshit. The Courts prefer not to use copyright law to stifle criticism, and you know the reason she asked HarperCollins to sue was because she has a thin skin. If she didn’t want the pages out there, why would she put her own excerpts on her Facebook page? Also, nobody was financially harmed by Gawker’s publication of the Palin stuff. The market for the work was not harmed, not like it was with Ford’s book, when Harper & Row lost licensing revenue due to The Nation’s scoop. The market was arguably even improved, as the publicity this case will bring may help sell more copies. The unpublished nature of Palin’s book is a problem, from Gawker’s legal perspective, but fair use is a balancing test, and the commentary and other factors might just outweigh that.
It’s impossible to tell, and that, for most people, would be reason alone to settle. But I can’t get past that “impropriety” thing, that a precedent exists for the Court to pass judgement on Gawker’s visigoth manners. At the hearing on November 30, the plaintiff’s attorney will say, “Look at all these terrible things Gawker does,” solely to press the advantage of the Harper & Row mandate that distasteful behavior somehow makes a journalist less qualified for fair use protection. Like it or not, Gawker stands for something, something that Sarah Palin claims to stand for but just doesn’t quite get. I hope, if the hearing results in further action, that Gawker defends, and appeals, and appeals again.
Eric Spiegelman is still technically a lawyer.