COLUMN-Tarantino's face-off with Gawker: Frankel

Tue Jan 28, 2014 3:36pm EST

(The opinions expressed here are those of Alison Frankel, a columnist for Reuters.)

By Alison Frankel

NEW YORK Jan 28 (Reuters) - I don't usually cover the same cases as TMZ and Entertainment Weekly, but Quentin Tarantino's copyright complaint against Gawker, filed Monday in federal court in Los Angeles, could well turn out to be one of those extremely rare celebrity suits that end up being more important for the legal principles they establish than for the name in the caption.

Believe it or not, the prickly filmmaker's suit against the snarky website raises apparently unprecedented questions about whether a news organization contributes to copyright infringement when it knowingly links, without elaboration, to copyrighted material.

In case you've somehow managed to avoid the case so far, here are the mostly undisputed facts. Tarantino is the author of a screenplay for a Western titled "The Hateful Eight." Earlier this month, when Tarantino found out that a draft of the script had leaked, albeit narrowly, he abruptly stopped working on the film.

The filmmaker told the website Deadline Hollywood that he was depressed by the unknown leaker's betrayal, although he also said, according to Deadline, "I am not talking out of both sides of my mouth, because I do like the fact that everyone eventually posts it, gets it and reviews it on the net.... Frankly, I wouldn't want it any other way. I like the fact that people like my shit, and that they go out of their way to find it and read it."

"146 PAGES OF PURE TARANTINO"

Gawker Media's Defamer site reported the flap on Jan. 22, in a post that ended with a casual invitation: "If anyone would like to name names or leak the script to us, please do so at tips@defamer.com."

Someone took Defamer up on the offer and tipped the site that the script was posted at Anonfiles.com. On Jan. 23, Defamer published a post entitled, "Here Is the Leaked Quentin Tarantino Hateful Eight Script," which provided a link to the purported screenplay at Anonfiles. (The post was later amended to add a second link at Scribd.com; both links are now disabled.)

Defamer also quoted a summary of the script from Badass Digest, which had posted the first two pages of the screenplay. The Defamer post concluded, "For better or worse, the document is 146 pages of pure Tarantino. Enjoy!"

Tarantino's lawyers notified all of the sites with links to the screenplay of copyright infringement and demanded that they take down the script. When Gawker refused to remove its links, Tarantino and his counsel at Lavely & Singer sued the site for contributory infringement, accusing Gawker both of inciting someone to create a link to the screenplay at Anonfiles.com and of alerting its readership to the link's existence. (Tarantino's complaint also accuses Anonfiles of direct infringement for failing to respond quickly enough to the filmmaker's notice of a violation.)

A defiant Gawker posted its response to Tarantino late Monday afternoon. The site's editor, John Cook, argued that Tarantino had turned "The Hateful Eight" into a news story by telling Deadline Hollywood about the leaked screenplay - in a conversation in which he said that he likes when people comment on his scripts on the Internet.

No one at Gawker or Defamer encouraged anyone to create a link to the script, Cook said, or even knows how Anonfiles obtained it. According to Gawker, Defamer published a link to the script because people in Hollywood were talking about the contents of the screenplay.

"Contributory infringement is a legal theory that has traditionally been deployed against file-sharing sites and search engines - venues that explicitly exist as directories to copyrighted content," the Gawker post said. "Gawker and Defamer are news sites, and our publication of the link was clearly connected to our goal of informing readers about things they care about."

WAS IT FAIR USE?

Cook is entirely correct that there's scant precedent on contributory infringement by a news organization, according to two copyright lawyers I spoke with on Tuesday. That's why this case raises interesting questions: Will Tarantino be able to show any connection between Gawker and the anonymous uploader from Anonfiles? If not, the infringing acts Gawker allegedly contributed to are those of its readers who clicked on Defamer's links to the screenplay. And according to Joseph Gratz of Durie Tangri, who frequently represents defendants in contributory infringement litigation, Gawker may be able to show that its readers were making fair use of Tarantino's script. And if Tarantino can't show direct infringement, Gratz said, his claim of contributory infringement can't survive.

Both Gratz and Kevin May of Neal Gerber Eisenberg, who successfully represented a social bookmarking site in a 2012 contributory infringement case at the 7th Circuit Court of Appeals, told me they'd never before seen a suit over a link in a news story. "It's a super weird situation," Gratz said.

Most contributory infringement cases, by contrast, involve file-sharing sites, hosting sites or search engines accused of providing users with access to copyrighted materials. Typically, defendants argue that they didn't know they were hosting infringing material, since knowledge is one of the two prongs of the test for contributory infringement.

Gawker may be planning to claim that because Tarantino told Deadline Hollywood he welcomes comments from online readers, Defamer didn't realize it was defying his wishes when it linked to his script.

"The argument would be that his statement created an implied license or waiver," Gratz told me. "Gawker could say, 'At the time we posted, we had every reason to think it was okay.'"

That defense, however, runs into problems because Gawker left up live links after Tarantino notified it of copyright infringement (at least according to Tarantino; the links in Defamer's post now lead to those dead ends at Anonfiles and Scribd).

"ENJOY!"

So that leaves Gawker to argue that it didn't contribute to infringement because there was, to quote Gratz, "no actionable act of direct infringement." If Tarantino comes up with evidence that the anonymous uploader of the script was acting at Gawker's behest, Gawker has problems.

But if we take Gawker editor Cook at his word and assume that there's no connection between his site and the Anonfiles uploader, the case will turn on whether Gawker readers infringed Tarantino's copyright when they accessed the screenplay through Gawker's link, or whether they were making fair use of copyrighted material.

Cook's response to Tarantino presages Gawker's fair use defense by highlighting the news value of the screenplay, which was purportedly the talk of Hollywood.

"Does clicking on the Tarantino script add to the dissemination of knowledge and learning? You can at least make an argument for that," Gratz said.

He also doesn't think much of Tarantino's contention that posting the screenplay wasn't fair use because it will cost the filmmaker revenues, in the form of a publisher's advance and royalties on "The Hateful Eight" script in book form.

On the other hand, fair use usually involves some kind of transformation of or commentary on the copyrighted material. Here, Gawker didn't provide editorial context for the link to the "Hateful Eight" screenplay, except to say that it's "pure Tarantino." (Its suggestion that readers "Enjoy!" the script doesn't help fair use arguments either.) Courts may not be eager to extend contributory infringement to news organizations, May told me, but "this is a close call."

Tarantino counsel Martin Singer of Lavely & Singer didn't immediately respond to a message I left with his assistant. Gawker editor John Cook said in an email that he can't comment beyond Gawker's posted response. (Reporting by Alison Frankel; Editing by Ted Botha)

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