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.
[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.
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