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v. Nation Enterprises, 471 U.S. 539 (1985) establishes a precedent for this sort of thing (dealing with the then-unpublished memoir by Gerald Ford, A Time to Heal).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 This is where (I think) you could make the argument that fair use doesn't apply because the work is unpublished—except that 17 U.S.C. § 107 actually says, "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."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.)