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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. Palin’s book will hit stores on Nov. 23.

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.

In response, Palin tweeted, “Isn’t that illegal?”

Gawker defended its action in a post Thursday titled “Sarah Palin is Mad at Us for Leaking Pages From Her Book” and addressed a message to “Sarah” telling her to read pages about fair use under copyright law. “Or skip the totally boring reading and call one of your lawyers,” the post said. “They’ll walk you through it.”

I’ll go a step further and save Sarah and everyone else the trouble of contacting a lawyer…Gawker’s posting of the pages was almost certainly a fair use.  “Fair use” is a limitation and exception to a copyright, the exclusive right to the author of a creative work.  The posting of excerpts for book reviews is an accepted practice and has been since at least 1961. The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations.”

There are four factors to be considered in determining whether or not a particular infringing use is “fair”:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work.

Gawker may be considered to have a commercial interest in publishing the excerpts, via increased web traffic, ad sales, etc. However, they can claim an equally strong, if not greater, interest in criticism, comment, news reporting, teaching, scholarship or research (all “fair use” purposes). I wasn’t able to view the excerpts prior to their removal via the injunction but I understand it was not a substantial portion of the book. If anything, prior leaks only seem to enhance book sales. Would anyone be surprised if someone close to Palin’s camp was responsible for leaking the excerpts?

Presumably, it’s the nature of the “leak” prior to the book being on sale that has bothered Palin. But that’s also a common practice and most publishers consider it welcome free advertising leading into a big book launch. The next hearing is November 30, a week after the book release, so this may be a moot point by that time.

Sarah Palin’s main gripe may actually be with the excerpts being taken “out-of-context.” However, that wouldn’t be a copyright action, it would be an action for something like fraudulent misrepresentation (“If a statement of fact is made but the representor fails to include information which would significantly alter the interpretation of this fact, then a misrepresentation may have occurred.”). The Complaint isn’t available on PACER yet so I’m not sure what else it includes. Somebody send me a copy if you have it.

Copyright law has been abused in many ways by many industries recently, but hopefully this post will at least help restore sanity to the realm of book reviews.

[Update 11/23/10: I’ve been able to review the Complaint now. It’s available over on The Trademark Blog. Gawker posted 21 full pages from Palin’s book and that is almost certainly more substantial copying than you’d see in a typical review. Indeed, it may shift the fair use analysis over to Palin/HarperCollins. However, it also makes Palin’s comment of “out-of-context” seem silly…how do you take 21 full pages out of context?

The Complaint also dwells on Gawker’s own use of the word “leaked” as an admission of wilful infringement, probably poor word choice in retrospect and a lesson that newspapers learned long ago. We’ll see how this plays out once the book is released. Expect a mini-battle over revealing the source of the leak and, should it go that far, some data showing that the leak actually helped sales.]

Source: Associated Press