Comments on: Why Gawker May Have A Strong Legal Case In Its Fight With Palin

By: Ian Betteridge

Ian Betteridge — Tue, 23 Nov 2010 21:51:00 +0000

I have to disagree, Joe – I think the judgement in Harper & Row vs Nation is extremely clear, and doesn’t depend heavily on showing actual damage. To pick out one phrase from the judgement: “under ordinary circumstances, the author’s right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use.”

In fact, although in H&R vs Nation there was direct, attributable damage (of merely $12,500 cancelled serialisation rights), the judgement held that “to negate a claim of fair use, it need only be shown that, if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work”, and – importantly, continues that “The Nation’s liberal use of verbatim excerpts posed substantial potential for damage to the marketability of first serialization rights in the copyrighted work.”

Note the word “potential”. While in The Nation case there was attributable damage, the court is saying that all that’s required to negate fair use to “potential” damage. Publication of 21 pages, particularly if they are “the juicy bits”, could easily be shown to have “potential” damage.

By: Joe Mullin

Joe Mullin — Tue, 23 Nov 2010 21:07:51 +0000

@Ian Bell, a fair point—but did you see the post those 21 pages were on? (It was available in Google cache for a while and I kept an HTML file of it.) It was liberally interspersed with commentary, and the pages weren’t big pages. Some of those 21 pages were things like the acknowledgement. The excerpts really didn’t strike me as very long.

By: Joe Mullin

Joe Mullin — Tue, 23 Nov 2010 21:05:25 +0000

@HW13568, thanks for your comment. while many individuals and companies do want to use copyright to control uses of their content—whether there’s money at stake or not—that idea of control isn’t really the essence of copyright. Copyright is really a kind of “reward” set up by the government as an an incentive for authors. And so in many cases, deciding what is a “fair use” really does boil down to the economic impact.

By: Ian Bell

Ian Bell — Tue, 23 Nov 2010 19:56:29 +0000

No way does Gawker have a case here. It doesn’t matter how they got it, they published 21 pages. 21 PAGES. That’s a lot more than 400 words. They could have easily just used a couple sentences from what they gathered, but they didn’t. Unfortunately, once there is a precendence (Harper & Row v. Nation Enterprises) it will be very difficult to prove this is any different, especially with that many pages.

Obviously Gawker probably has good insurance, so they will likely settle here.

By: Guy

Guy — Tue, 23 Nov 2010 18:42:24 +0000

HW13568: In your opinion what Gawker was wrong, but it wasn’t illegal or break any rules. Its all part of the fair use law. Whether it was a positive or negative spin is moot, they were within their rights to publish whatever they want on their website.

We’ll just have to wait and see how the courts handle this, it will be an interesting case.

By: HW13568

HW13568 — Tue, 23 Nov 2010 18:18:19 +0000

I think she’s got a strong case. It’s not just about the money. What Gawker did was wrong and they need to be punished so others can see that you can’t break the rules just because you feel like it or you don’t like someone. They put a negative spin on her work so they were trying to inflict damage, plain and simple. This is the type of journalism that needs cleaning up!