Palin v. Gawker: This won’t end well for ‘fair use’

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Sarah Palin's new book. ()
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Last week, Gawker posted images of 21 pages from a leaked manuscript of Sarah Palin's forthcoming book, America By Heart: Reflections on Family, Faith and Flag.

You won't find them there now, because as part of an ongoing legal battle initiated by her publisher, HarperCollins, a judge over the weekend awarded a temporary restraining order compelling Gawker to take down the post while the merits of the case are decided.

Palin is enjoying this.

"Isn’t that illegal?” she posted to Twitter last week.

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Gawker, never unwilling to do battle with a powerful, big name, responded directly to Palin, in a post entitled “Sarah Palin Is Mad at Us for Leaking Pages From Her Book," writing, “you may want to take a moment to familiarize yourself with the law,” or call a lawyer. 

The Gawker rejoinder linked to two online descriptions of copyright’s fair use doctrine, one on Wikipedia and one from Stanford University’s Library.

The problem is that, even according to those descriptions, Palin was right.

The key precedent is a 1985 Supreme Court decision called Harper & Row v. Nation Enterprises. This isn’t some obscure little decision from one insignificant judge. This is a bedrock Supreme Court case defining the parameters of fair use, taught in every introductory copyright course. (It’s discussed in both of the articles Gawker linked.)

The Nation had published a story based on a leaked manuscript of former president Gerald Ford’s autobiography. The article reproduced a total of 300-400 words of quotations from Ford’s book, mostly about his decision to pardon Richard Nixon. The quotes made up 13 percent of the total article. Represented by First Amendment legend Floyd Abrams, The Nation relied on a fair-use defense. It lost.

The Supreme Court emphasized that fair-use rights are very weak when coming up against copyright in a work that hasn’t been published yet. “In ordinary circumstances,” the 6-3 majority wrote, author’s rights in unpublished work “will outweigh a claim of fair use.”

The Nation specifically argued the great newsworthiness of the Nixon pardon—presumably greater than Palin’s ruminations about "American Idol" and "Murphy Brown"—and the court emphatically rejected the argument. And when The Nation suggested that a few hundred words wasn’t very much out of a whole book, the court was unimpressed, emphasizing in part that the entire magazine article was built around these “generous verbatim excerpts.”

Gawker’s post goes much further, offering just a few comments linking together photographic images of entire pages from Palin’s unpublished book.

Sure, such online leaks of book manuscripts are becoming common, but that alone doesn’t make them legal. They are seldom challenged, often because publishers figure the publicity is valuable. Apparently Mama Grizzly does not need any free plugs from Gawker.

The collateral damage of a protracted fight may cause some real headaches for all of us. As with illegal music downloaders who try to stretch fair use to cover outright piracy, extravagant claims of fair use for large-scale leaks of significant chunks of a book risk undermining the perceived legitimacy of those rights.

Fair use is fragile enough as it is. And if you are sick of hearing Sarah Palin decry the arrogance of the media that covers her, then you’d rather deny her the satisfaction of being right.

Bill McGeveran is a law professor at the University of Minnesota and brother of Capital co-founder Tom McGeveran.