The Other McCain

"One should either write ruthlessly what one believes to be the truth, or else shut up." — Arthur Koestler

EXCLUSIVE: Copy of Restraining Order in Palin vs. Gawker Copyright Lawsuit

Posted on | November 20, 2010 | 27 Comments

Click here to see the order by U.S. District Judge Thomas P. Griesa (PDF).

UPDATE: Background from Associated Press:

A federal judge on Saturday ordered Gawker Media to pull leaked pages of Sarah Palin’s forthcoming book “America by Heart: Reflections on Family, Faith and Flag” from its blog.
The injunction prohibits Gawker from “continuing to distribute, publish or otherwise transmit pages from the book” pending a hearing on Nov. 30.
HarperCollins Publishers had sued Gawker after it published images on Nov. 17 from Palin’s book before its release next week. . . .

Read the rest. A source familiar with the case e-mails:

The judge found probable cause that Gawker violated copyright and ordered Gawker to pull the leaked pages and appear in court to defend themselves and explain why this wasn’t a violation of copyright and why the leaked pages shouldn’t be permanently removed. This temporary restraining order prevents Gawker from potentially further violating copyright by keeping the pages up until the court date. Date set for Nov. 30th. This is a huge victory for HarperCollins’ lawyers.

UPDATE II: Remember that when Palin complained via Twitter about Gawker’s unauthorized excerpts, Gawker’s Maureen O’Connor presumed to lecture the former Alaska governor about copyright law.

Hey, Maureen, how’s that workin’ out for ya, sweetheart?

UPDATE III: Palin has offered her own “sneak peek” at her new book on Facebook. And let me see if I can explain — for the benefit of Maureen O’Connor and anyone else who doesn’t get it — why the judge issued that injunction. Politico reports:

Gawker’s scoop, “Sarah Palin’s New Book: Leaked Excerpts” . . . included 14 images of partial pages from the book, scheduled for publication Tuesday. . . .
The disputed Gawker post began: “Well, look what popped up five days early: leaks from Sarah Palin’s forthcoming memoir/manifesto, America By Heart, in which the reality TV matriarch rants against ‘talent deprived’ reality TV stars, lauds daughter Bristol’s chastity, and celebrates not aborting Trig. . . . The book is currently in distribution centers, awaiting its official release on Tuesday. We got our hands on some of the pages . . . Here’s an annotated guide to our favorite parts, featuring rants against the media and new material about Bristol and Levi.”

Your first clue: “14 images of partial pages.” To quote or paraphrase a book — even without authorization, five days prior to the book’s release date — yeah, you might get away with that. But publishing page-scans online? See you in court, buddy.

Something else: In any fair-use situation — which is what we’re talking about here — it’s important to think about your potential liability and who you might be going up against if you should have to defend yourself in court. 

It’s one thing if you’re running some piddling little personal blog and you’re pushing the limits of “fair use” against some low-rent outfit with a minor book or article by an obscure author.

It’s another thing altogether when you’re running a major commercial Web site and you’re going up against a gigantic company like Harper Collins that has invested a  million bucks in a big-name author for an expected bestseller they’re counting on to make 2010 a profitable year for them.

This is about incentives, you see. Palin’s publisher has a huge interest in protecting this product — not to mention the consideration of keeping their author happy — and Harper Collins can afford the legal costs of pushing a court case a lot more than Gawker Media LLC can.

Even if Gawker could ultimately win the case, Harper Collins could make it a very expensive victory — and any Web site editor in the future who thinks it would be cute to attempt similar shenanigans will have to keep that in mind.

Now a Memeorandum thread.

UPDATE IV: “Did Gawker read those fair use links they suggested Sarah Palin read?”

UPDATE V: Welcome, Instapundit readers! I asked Professor Reynolds if he ever considered becoming a federal judge. He said, “Bah. Federal judge from law professor? Why take a demotion?”

Yeah, but what about the cocaine and lap dances?


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