Monday, November 22, 2010

Unfair Use

In case you haven't been on the Interwebz in a few days, mes auteurs, here's the scoop: Gawker published an excerpt of Sarah Palin's forthcoming book, America By Heart, and Mama Grizzly got super mad. She had a judge issue an order for Gawker to take down the leaked pages, and now Palin and Gawker, llc will face off in court on November 30th.

Now, according to Ben Smith of Politico, it does look like Gawker may have been in the wrong: apparently Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539 (1985) establishes a precedent for this sort of thing (dealing with the then-unpublished memoir by Gerald Ford, A Time to Heal). It even seems that Palin could use the avenue of discovery to retaliate against the "lamestream media" that has been "criticizing her" for so long.

The thing is, meine Autoren, after having read the four-balance test of fair use under Title 17 of the United States Code, I really don't see why Gawker's use of Palin's words doesn't fall under the protection of fair use. (Disclaimer: I am not a lawyer.) The four-balance test for fair use basically asks these questions:

1. What's the purpose of the use? This seems, to me, to fall under news reporting/criticism, which is protected.

2. What's the nature of the copyrighted work? This is where (I think) you could make the argument that fair use doesn't apply because the work is unpublished—except that 17 U.S.C. § 107 actually says, "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

3. How much of the work was reproduced? In this case, a few pages out of a 304-page book. No biggie.

4. Will reproducing this work hurt the market for the book? I can't see how it would; if anything, it will add to Palin's exposure and increase her sales, potentially with an audience who generally finds her insufferable (i.e. most people who read Gawker).

It seems to me that Gawker should be able to print those excerpted pages with or without Palin's permission, and I don't really see why they should lose their case next month. Then again, the precedent of Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539 does sort of complicate things, so I may not have all the facts here.

What do you think, mes amis? (Particularly you lawyers in the audience.)


  1. I don't think it should be permitted although I don't know the law on this issue. If it is allowable to reproduce only "a few pages" for the purpose of criticism then all of a sudden every fiction author out there is potentially exposed to having the last three pages of an unreleased book show up on review sites. It wouldn't necessarily hurt their sales but it does seem like a pretty big violation of their rights to have the grand finale up for general consumption, for free, without the backdrop of the entire story.

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  3. all of a sudden every fiction author out there is potentially exposed to having the last three pages of an unreleased book show up on review sites

    Except that would hit point 4, hurting the book in market.

  4. Fair use, in no uncertain terms, is not a violation of rights. It is a point of exploitation for corporations and those with large funds to take money from others by crying "foul," or those with a political agenda to halt the flow of criticism.

    And no one's using "fair use" in a conspiracy to spoil the ending to any particular work on the market today by printing the last several pages. That, it would seem, falls under "would reproducing the work hurt the market for the book?" -- making it a moot point. You are already protected by the law.

    This is a problem of perception: the idea that fair use is somehow a violation, instead of a legally supported right we all may take part in.
    I'm not a lawyer either; but a very difficult teacher put me through hundreds of hours reading court cases for ethics in law.

  5. I'm not a lawyer, but I think Sarah Palin is a scary lunatic so I hope she loses.

  6. I hope Gawker wins, because I don't want corporations to gut fair use.

  7. I agree that it sounds like fair use, which should absolutely be protected. But is anyone here surprised that Palin doesn't have a clue?

  8. I didn't see the excerpt in question, so it's hard for me to say for sure. But it doesn't sound like publishing a few *pages* of a book would fall under "fair use". You don't reproduce a thousand words of some one else's text for the purpose of "reporting" or "criticism". You do it to attract eyeballs to your site without having to produce your own text. If the excerpt covered a complete scene, for example, I'd say it was totally out of line.

  9. Gawker was completely out of line. I can't believe writers are applauding this. But knowing that *most* of them are liberals and simply hate Sarah Palin clues me into what's really happening here.

    Corporations "gutting" fair use? Give me a break.

  10. I didn't see the excerpt so I can't really say, but if they were just putting up several pages without incorporating them into some sort of commentary, it doesn't seem like this would fall under reporting/criticism. If it were just snippets or even paragraph-sized excerpts woven into a review or something similar, it'd be a much more clear-cut case of fair use. But I think Palin may have a case here.

    (Librarian-in-training, not a lawyer.)

  11. Miss Sharp might have hit the nerve in question. Although I am not sure because I am a liberal I would automatically hate the Grizzly Mama. I think conservatives should "dislike" (hate being far too strong) her as well. She is the worst example of a public person, an opportunist and a dangerous politician (and I use that word loosely).

    Legalities aside, Gawker played into her hands and gave her another excuse to get free publicity.

  12. Ms Trite says:
    If you don’t want people to see your ass then close the bathroom curtain. If plump cheeks are what you are proud of leave it open for a tease.
    Palin loves this kind of kah kah publicity.
    Someone needs to snap her bottom with a towel.

    I’m neither blue or red…sort of a nice shade of…old lady lilac.

  13. I think Ms. Laughtin and Rowyn have a point. (I didn't see the excerpt) If it were just clips here and there, I could see fair use, but if it was hundreds of words just copy and pasted into the article it seems it was meant to be malevolent. Or at least an effort to stir up controversy.

    I'm also neither blue or red. :D

  14. This isn't even a close call. You can't just lift copyrighted content and publish it on your own site (or any other medium.) A few sentences might constitute fair use, but definitely not a full page... much less pages.

    For those distracted by the Mama Grizzly red herring, try substituting "Fox News" for Gawker and "Jonathan Franzen's upcoming novel FREEDOM" for AMERICA BY HEART.

    Do ya think Franzen and his publisher might get "super mad"?

    Would you spring to the defense of Fox News?

  15. I don't think it was "a few pages". I didn't see it, but I understand it was 24 pages, which is well over 5% of the book, which I find significant. I understand the way "fair use" works is that you can quote a few (under 10) SENTENCES, not pages. Basically, what you would need to quote in order to write a thorough criticism of a work. That's normally what "fair use" entails. Gawker didn't intend any criticism, they used this excerpt to increase their own profits at the expense of Ms Palin and her publisher, and they also reduced the value of any "first serial" ("first" means pre-publication) that the publisher may have sold to a magazine, who could potentially sue to have their expense returned. The Harper & Row case that they cite - it was over 10 pages and I believe H&R eventually won. It'll sure be interesting to see how this plays out!

  16. Doesn't really matter whether is ends up being fair use or not. It's definitely free publicity for Palin. Speaking as a lawyer now, "you can get sued by anyone, for anything. The question is can you afford to defend yourself."

    And another of my favorites: Beware of a client who's suing on principle and paying by the hour. He'll never believe that the principle is worth it in the end.