Snark Fail: Gawker Mocks Sarah Palin for Her Supposedly Stupid, Yet Ultimately Correct Legal Position
Almost daily, it seems, some liberal moron criticizes Sarah Palin for being stupid — and then gets shown up. To take one recent and memorable example, she was taken apart for telling Tea Partiers to “Party like it’s 1773.” Stupid Sarah Palin! The Declaration of Independence was signed in 1776! Except that, er, the Boston Tea Party (which inspired the Tea Party movement) occurred in . . . 1773.
With that as background, relish this gem from Gawker:
Did you catch the excerpt we posted yesterday from Sarah Palin’s new book? Sarah did. She tweets with rage: “The publishing world is LEAKING out-of-context excerpts of my book w/out my permission? Isn’t that illegal?”
[Sarah: If you’re reading this—and if you are, welcome!—you may want to take a moment to familiarize yourself with the law. Try starting here or here. Or skip the totally boring reading and call one of your lawyers. They’ll walk you through it.]
By now, you’ve guessed the punchline. Palin’s publisher Harper Collins sued Gawker, and a judge pretty much instantaneously ordered Gawker to pull down the excerpts. Next comes the part where Gawker pays monetary damages.
Hey Gawker legal geniuses: if you’re reading this — and if you are, welcome! — you may want to take a moment to actually read the links you posted. Here is one quote you might have found instructive, had you bothered to click on your own links:
[Y]ou will have a stronger case of fair use if the material copied is from a published work than an unpublished work. The scope of fair use is narrower for unpublished works because an author has the right to control the first public appearance of his expression.
Sarah Palin’s book comes out Tuesday. The fact that it is (as of yet) unpublished, is a huge factor against you. In fact, the case that immediately sprang to mind when I read your idiotic snark was the famous case where the Nation published excerpts from Gerald Ford’s unpublished memoirs. Was that case mentioned in the links you gave Ms. Palin? Oddly enough, it was!
Not a fair use. The Nation magazine published excerpts from ex-President Gerald Ford’s unpublished memoirs. The publication in The Nation was made several weeks prior to the date of serialization of Mr. Ford’s book in another magazine. Important factors: The Nation’s copying seriously damaged the marketability of Mr. Ford ‘s serialization rights. (Harper & Row v. Nation Enters., 471 U.S. 539 (1985).)
Finally, there is the asshole factor — another point mentioned in one of your links:
When you review fair use cases, you may find that they sometimes seem to contradict one another or conflict with the rules expressed in this chapter. Fair use involves subjective judgments and are often affected by factors such as a judge or jury ‘s personal sense of right or wrong. Despite the fact that the Supreme Court has indicated that offensiveness is not a fair use factor, you should be aware that a morally offended judge or jury may rationalize its decision against fair use.
Somehow, a bunch of snark mocking a correct legal position — and snidely advising the correct party to consult a lawyer if reading is too hard — seems to fail the “don’t be offensive” test. But maybe that’s just me.