Monday, November 22, 2010

Palin v. Gawker

Politico's Ben Smith wrote this morning about Gawker's publication of excerpts from Sarah Palin's book, America By Heart, and quotes a number of legal blogs:
Those of use who work every day -- as linkers and linkees -- in the legally unsettled terrain of fair use watch cases like Gawker's posting of pages from Sarah Palin's book, and a judge's order that they take them down, with a great deal of interest.

The Gawker case marks, perhaps, the extreme end of the spectrum, and my brief sampling of legal blogs on the subject this morning suggests that lawyers find it hard to defend.

Writes Eric Johnson:

[M]y initial, very strong, reaction is no, it’s not fair use.

There is actually a U.S. Supreme Court opinion remarkably close on the facts. In Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539 (1985), the high court held that Nation magazine’s unauthorized advance publication of excerpts of Gerald Ford’s soon-to-be-released A Time to Heal: The Autobiography of Gerald R. Ford, did not qualify as fair use.

Smith also quotes from William McGeveran, Garry Wise and William A. Jacobson. I don't know how these attorneys' political views factor into their opinion, if at all.

In closing, Smith quoted Sandra Baron of the Media Law Resource Center. Smith wrote, quoting her, "It is a very troubling aspect of the case where in an instance where theoretically what they’re really seeking is to keep someone from eating their lunch, in fact what they’re getting is a pre-trial prior restraint," she said, suggesting that politicians or other figures could make similar arguments in trying to suppress stories. This seems to me to be a red herring: Palin v. Gawker is a copyright case, not a prior restraint case. If it were a prior restraint issue, the suit would have been brought before Gawker published.

Palingates did much what Gawker did. Why aren't they under the gun? Shallow pockets? Palin considers them to be useful idiots? Likely.

I know of at least one case in which one of this blog's posts was copied into the comments at Palingates in its entirety. That is clearly not fair use; it is theft.


wakeUpAmerica said...

Well, one person's theft is another's free advertising.

Anonymous said...

Well, for one, no U.S. court can tell Palingates to take anything down, as the blog is in Germany. I do not doubt that Ms. Palin finds them to be useful idiots, however.

snowbilly said...

That would be an interesting thing to try, 9:45. Palingates might resist complying with a U.S. judge's order, but a suit can still be brought and damages awarded. Copyright law is internationally recognized.

Anonymous said...

paylins slush fund source@ MoJo.

AKRNC said...

Palingates as "useful idiots"? Have I misunderstood you or were you attempting to insult them for some unknown reason? There was once a time where you listed their blog. There's no reason for insults, why not save them for Palin, she's the one most deserving of them.

snowbilly said...

AKRNC, "useful idiots" may well be Sarah Palin's view of Palingates, that is, she considers them useful to her cause. Why? The personal attacks, rumor mongering, insinuation and innuendo intensifies the ardor of her fans. They contribute to the PAC and defense fund.

While Palingates may have done some good things, like dairygate, those things are tainted and easily discredited by Palingates' tabloidism. The National Enquirer isn't as careless.

Palingates is as prepared to write about American politics as Sarah Palin is to be President.