Monday, November 22nd, 2010

Sarah Palin and Gawker to Debate Freedom and the Constitution

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.

26 Comments / Post A Comment

KarenUhOh (#19)

Fascinating, but how do we obtain a permanent injunction against Sarah's red white and boo-hoo trash being published ever?

'Jim' 'Treacher' (#6,928)

Don't buy her books.

BadUncle (#153)

Temporary restraining order? Insert conservative diatribe about activist judges here!

Abe Sauer (#148)

Fascinating. I am far more interested in fair use though as it pertains to content (instead of timing). While I haven't seen the post, is is safe to assume that had the content been published AFTER the release, there would be no issues with fair use? As opposed to, say, fair use when it comes "excerpting" something that really just leaves out all the articles.

BadUncle (#153)

Palin's initial response – in a tweet – was a whine about being quoted "out of context." Gawker had posted scans of the entire pages in which she was quoted. Given that it seems to be about her thin skin, I think she still would have sued.

Abe Sauer (#148)

Well, that's totally possible. Though I bet if that were the case, a Palin lawyer (who is on call 24/7 just to answer the question "Can I sue them?!) may have advised her not to, where in this case he/she advised, maybe even based on the Ford case, to go ahead. How many have quoted her "out of context" before and not been sued? They are legion. Context aside, I'm more interested in fair use as it relates to total content. For example, what if Gawker (or anyone) runs extended excerpts of all the juiciest bits of the book (with little or no analysis) thus making buying the book pointless….?

Abe Sauer (#148)

Indeed, if Palin were truly worried about the "context" of use, wouldn't she also be suing/CADing Gawker TV's post of her killing fish with a mace?

Polly Peachum (#8,145)

"what if Gawker (or anyone) runs extended excerpts of all the juiciest bits of the book (with little or no analysis) thus making buying the book pointless….?"

I think that's the more interesting question.

ericspiegelman (#3,421)

Re juiciest bits, that's what the third factor intends to measure. The Nation only took 300 words from a 700-page memoir, and that was enough to be copyright infringement. But there were other factors that tipped the balance. If Gawker reprinted the heart of Sarah Palin's book, but did so to call bullshit, there's some validation there. Is there enough, I don't know. But this is a funny law.

Polly Peachum (#8,145)

Lotsa laws iz funny. As a lawyer ("technically"), I'm sure you know that. :-)

From what you wrote, it sounds like Gawker went over the line. The pre-publication status of the material aggravates whatever they did.

KarenUhOh (#19)

I don't think Sarah Palin has juicy bits anymore.

ericspiegelman (#3,421)

Well, technically ever time you quote something you're relying on fair use. It's just that after publication, you have a better fair use case, and had Gawker waited until Wednesday to do their post they probably would have had such a good fair use case that HarperCollins wouldn't have bothered to sue at all.

Polly Peachum (#8,145)

And I think they probably should have waited. It sounds like they jumped the gun purely for their own financial benefit — they got more site views. There's no elevated argument available about the public interest. They wanted to be first on someone else's dime.

Everything I know about this case comes from what you wrote, btw. I hate Palin, and at the moment, I'm off Gawker.
When Gawker is good … and when it's bad ….

kneetoe (#1,881)

Also, other media just purchased pre-publication copies of the book and used those.

Polly Peachum (#8,145)

"But I can’t get past that “impropriety” thing …."
I think you're hung up on a word. From what you've said, The Nation wasn't found liable for a breach of etiquette, like using the wrong fork at a fancy dinner. It appropriated someone's unpublished material mainly to gain an advantage over a competitor. And it happened at the expense of the writer. (BTW, Ford was disliked for pardoning Nixon, but "sordid"? No.)
This account confirms my opinion that high-minded, non-profit organizations (or whatever The Nation is) can be just as bad as everyone else. When they can take a shot, they do. Fire was returned.
"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."
If the Fair Use Doctrine cases permit courts to look at the background of an alleged violator in order to determine motive, then Gawker's reputation would be relevant. But I'm sure Gawker has retained superb counsel who will argue for the exclusion of irrelevant or unnecessarily prejudicial evidence.
I also don't know how you can determine that Gawker's disclosures have increased the value of Palin's book. Did an economic expert for Gawker put in a report already?

coryballs (#4,647)

I'm still left wondering what the distinction is that made Gawker's actions run against the law. That they raised the value of Palin's work is speculation, but no more so than the assertion that it was lowered. The Nation, in the precedent, entirely devalued the exclusive rights of publishing excerpts of Ford's memoirs by beating Time to it. I don't see a parallel in Gawker's case. I've no doubt they acted how and when they did in order to make their post as newsworthy as possible. It's underhanded, but their commentary seems to be what it would've been, regardless of timing. I can't see Palin making a definitive case for harm being caused by Gawker. Again, her thin skin seems to be the strongest motivation for her action.

Polly Peachum (#8,145)

Again, all I know is what I've read here, but it may come down to a battle of the economic experts (if it gets that far).

Polly Peachum (#8,145)

"Again, her thin skin seems to be the strongest motivation for her action."

I have no doubt. But she appears to have a colorable claim.

ShanghaiLil (#260)

In the old days (say, two years ago), one could handily have produced evidence that no one reading or commenting on Gawker would have bought the book anyway, so no financial harm done.

Less so today. And Gawker is the poorer for it.

I had no idea she had a book out until I read this article. So Gawker's publishing excerpts and the Awl's analysis of said publication did raise this member of the public's awareness of it's existence. Still won't buy it though.

ericspiegelman (#3,421)

So, I've decided on a better analogy than a dinner plate on a nail. This is more what I'm talking about:

I've heard that's Madonna's favorite game!

Lockheed Ventura (#5,536)

This really isn't very complicated. In fact, I would go so far as to say this is a rare example of an "easy" fair use case. The second I saw the posting on Gawker, I thought to myself, "these morons are going to be sued".

Gawker printed at least 10 or more pages that were pulled directly from the book! Literally in the same page formatting of the book! MORONS! One of the factors considered in a fair use case, is the amount of the taking and whether the alleged infringer only took the amount needed from the work necessary for fair use purposes. Did Gawker take only what was necessary to make their fair use protected commentary? No, they published whole pages. Case closed.

I also think it is relevant that the work in question is not yet published and thus the publication by Gawker undermines the economic interests of Palin and her publisher. Publishers often publish excerpts of books in magazines or newspapers as a form of promotion of the work. Excerpts of unpublished books can also be licensed to magazines or newspapers for a fee. If Gawker's publishing of whole pages was legal, then publishers would lose the income from publishing "excerpts" of books. Alternatively, if printing 10 to 20 whole pages was "fair use" then a few blogs could easily publish whole books if each simply posted ten pages, thus completely bankrupting the publishing industry.

Also, I think it is perfectly legitimate to consider the "impropriety" thing as it is consistent with the legal concept of unclean hands. If an otherwise innocent landlord fails to provide heat for a week because of a broken boiler, he should be treated differently than the case of a convicted slum lord who consistently fails to provide heat. The fact that Gawker's publishing policy is a near psychopathic desire to maximize hits, undermines the argument that they take their journalistic responsibility seriously. They just print whatever shit gets "hits" and deal with the consequences later.

Gawker is not a journalistic enterprise that takes issues such as privacy or copyright seriously. It is a blog run by 23 year olds on ritalin highs who don't think the law applies to them. If they had even a remotest training in journalism, they would know not to simply post whole pages from an unpublished book.

Gawker should not pursue this case through appeal, it is a loser all the way. Denton might pursue it just because it makes for a good story and pits Gawker against a woman that Lefties love to hate. Might be a fun ride, but it won't change the legal outcome.

Polly Peachum (#8,145)

I won't buy it either. But I have to say, when the New York Times Sunday Mag, the New Yorker, or New York Magazine publish extensive excerpts of a book I'm lost as a purchaser, unless it's something about which I'm obsessed.

barnhouse (#1,326)

I loved this post btw. More please.

Mick Music (#233,413)

I'd like Sarah just fine if she didn't talk so mean.

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