The Other McCain

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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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Category: Books, Culture, Sarah Palin

Comments

  • Pingback: Ruby Slippers: Did Gawker read those fair use links they suggested Sarah Palin read?

  • http://www.facebook.com/profile.php?id=1436370143 Peggy Keller

    This is silly. Palingates is the one who leaked the book and Gawker ran with it from them. Why isn’t Harper Collins suing Palingates, since many of the news-stories are actually directly quoting them. It’s because that would open Palin to discovery

  • http://twitter.com/RubySlipperblog Mary Sue

    @Peggy Keller
    I imagine the reason they aren’t suing Palingates, yet, is because they were at least willing to remove some of the material when they sent them a takedown notice. They also added a lot more bullshit (for lack of a better word) so they werent’ showcasing Palin’s original expression before it was published. Gawker blatantly refused and seemed to be asking Palin to sue. She took them up on it.

    I bet Palingates gets their page yanked if they are not wise enough to take it down before they are forced.

  • http://waxingerratic.wordpress.com/ ECM

    First off, nobody has ever heard of “Palingates”, so that explains why HC isn’t going after them, i.e. they got no money and they got no reach.

    Second of all, how the hell would someone engaging in copyright infringement against Harper-Collins open up Palin to “discovery”??

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  • http://twitter.com/RubySlipperblog Mary Sue

    Tell Mrs. Other McCain to look the other way while I give you a big kiss for linking my post. Thanks so much

  • Brian

    Discovery is not an open ended fishing expedition; it must be relevant to a claim or defense. So only issues such as, e.g., whether Palin or Harper Collins gave permission to publish the work would be discoverable by the defense in a copyright case. The Peggy Keller character seems to think Excitable Andy could get in on the action and try to prove is Trig Trutherism.

  • Brian

    Discovery is not an open ended fishing expedition; it must be relevant to a claim or defense. So only issues such as, e.g., whether Palin or Harper Collins gave permission to publish the work would be discoverable by the defense in a copyright case. The Peggy Keller character seems to think Excitable Andy could get in on the action and try to prove is Trig Trutherism.

  • http://wyblog.us/blog Chris Wysocki

    So if the COICA Internet Censorship and Copyright Bill was actually enacted would Eric Holder pull the DNS record for gawker.com? That is the purpose of the law, isn’t it? To cut off copyright infringers from the internet?

    As much as I oppose this stupid law it still would be epic if a libtard site like Gawker was it’s first scalp.

  • Beto

    Aww, Peggy heard it on Law and Order or The Good Wife and thinks it’s the legal bugbear waiting for all republican plaintiffs.

  • Anonymous

    Why go after the Pig Palace?

    They are behind the firewall of German Law. Palingates is located in Germany and is, in all likelihood, a Soros fronted site. Why bother with them since they have no “structure” behind them and are a virtual corporation. Attacking Palingates is akin to filing a lawsuit against a Boston Cream pie.

    Gawker Media, LLC, on the other hand, had fools for editors, and let their hatred for Palin expose them to legal liability in the worst way.

  • http://pointofagun.blogspot.com/ Dave C

    There are the normal rules and then there are the rules people use when dealing with Sarah Palin.. Then are shocked when they find out that the law helps to protect people equally.

  • Earl

    So far, anyhow….

    “Ve haff our methods!!”

  • nathan hale

    They were the vehicle that Kernell used to distribute the emails he stole
    from her site

  • http://profiles.yahoo.com/u/EU5DQWQTTHTPO4A4ZYSL3AAV2U Adjoran

    Gawker was the only site which refused to take down the pages when presented with a demand letter. All the others who were notified removed enough of the material to satisfy the publisher.

    Big publishing houses have full-time legal departments, much of whose time is spent protecting copyrights. It would take a pretty big and tough case to cause them to have to bring in outside counsel, so the only cost to Harper-Collins was likely the postage on the letters and the filing fees.

    In fact, it wouldn’t be unusual in such a case, if the publisher succeeds, to have legal fees awarded. Given their lawyers are already on salary, they could show a profit on the deal.

    The sweetest part is the snide and condescending post directed at Palin over copyright blowing up in their smug faces. You can’t buy that stuff on the open market.

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  • Anonymous

    Gov. Sarah Palin & Harper-Collins smack down sleaze-site ‘Gawker’ and win major intellectual property rights victory for artists everywhere. Now for punitive damages…

  • Corkyboyd

    Palin could have had the Gawker site taken down and let Gawker argue to put it back up. That would have cost them far more.

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  • 4rcane

    I think Harper could put a good case that Gawker knew the law and still violated it anyway, by showing that Gawker even provided links to the law. The only defense Gawker can claim is to plea stupidity for not reading their own link

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