The Leak of Frank Bailey's Book

We hope that Frank Bailey's book, tentatively titled "Blind Allegiance to Sarah Palin: A Memoir of Our Tumultuous Years," will be published. The book is very much an Alaskan story, albeit with national implications should Palin choose to run for national office, so it's important that it be published. There is some doubt, now, however, that it will ever be published.

Ken Morris has posted "Say it Ain’t So, Joe! Co-Author of Leaked Palin Book Speaks Out" at Mudflats. The post includes a letter sent to Joe McGinniss, author of Rogue: Searching for the Real Sarah Palin, which is scheduled to be published on September 20, 2011. The letter accuses McGinniss of two things: 1) Infringing the authors' copyright and 2) Impairing the manuscript's marketability by disseminating it.

We posted an excerpt of the original of Alaska Dispatch's current story about the leak, as well as links to articles where recipients of the manuscript had commented on or quoted from the manuscript. Our only quote from the manuscript, which was attributed to Sarah Palin in the manuscript, was taken from Alaska Dispatch's initial story about the leak. We have reconsidered our use of the quote after reviewing Alaska Dispatch's response to a legal firm representing the manuscript's co-authors. Our quote of the remark attributed to Sarah Palin and our excerpt from Alaska Dispatch's original article have been removed.

Update: There is quite an amusing post -- a laugh-out-loud post -- at the blog of 'a German attorney who will identify himself only as “Patrick.”' He claims to have received a cease and desist letter and treats it very cavalierly, for an attorney. They claim to have removed some things that they claim were obtained from other news outlets, but they have retained quotes from the manuscript's e-mails; e-mails they apparently thought might support their opinions about Trig Palin's birth, but may not. I write "they," because although the response appears to be signed by "Kathleen," the response is preceeded by "Therefore, we inevitably have to give a reply." I seem to recall, from Shakespeare, "'tis but the breath of an unfeed lawyer," and something else -- not from Shakespeare -- something about a fool and a client ... oh, yes, "A man who is his own lawyer has a fool for a client."

Update: Wonkette has a humorous treatment of the leak, too, at "Leaked Book SHOCKER: Sarah Palin Is Terrible."

Update: A voice from the back seat asks, "Are we there yet?" If you'd like to read about another angle to the manuscript leak story, palingates has posted "Frank Bailey and Sarah Palin's e-mails." If you'd like something different, about a breakthrough in another Palin story, see Malia Litman's "The Anchorage Police Admit Misstatements!" If you're fed-up with all things Palin, you may be able to find something else to read by scrolling down the sidebar, on the left.

Another Palin Failin'

This morning, Palin tweeted, "Inexplicable: I recently won in court to stop my book "America by Heart" from being leaked,but US Govt can't stop Wikileaks' treasonous act?"

It is not inexplicable. Palin's case was a copyright case; Wikileaks, if the government had attempted to stop publication, would have been a prior restraint case. When Daniel Ellsberg leaked the Pentagon Papers to a newspaper -- something that occurred during Palin's lifetime -- the Supreme Court ruled that the government could not exercise prior restraint to prevent publication of the papers.

Is it any wonder that Republicans have told her to "sit down and shut up," even "stay in Alaska?" This latest tweet confirms Peggy Noonan's belief that Sarah Palin is out of her depth in a shallow pool.

David Corn of Mother Jones has a story explaining Palin's latest gaffe. ABC's The Note has a story, too.

Peggy Noonan's Wall Street Journal article, "A Farewell to Harms," was written shortly after Palin quit the governorship.

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.