Did Gawker Step in it?

On January 23rd, an early draft of Quentin Tarantino’s 146-page script for The Hateful Eight was leaked online. An irate Tarantino has since pulled the plug on his ensemble Western and filed a copyright suit against Gawker Media[1] for allegedly facilitating the screenplay’s dissemination on its Defamer blog. The Defamer entry, “Here is the Leaked Quentin Tarantino Hateful Eight Script,” contains click-thru links to download the script that is being hosted on AnonFiles.com, among other file-hosting websites. Tarantino has also filed suit against AnonFiles.com for hosting the file and other Doe defendants.

 

Leaks of early scripts have become a problem in Hollywood. Watermarking scripts is now common practice, while other studios use Mission Impossible-like software (“This message will self destruct five seconds”) to combat the problem. Some, like Christopher Nolan[2], even go so far as to require actors to read the script in the confines of his home. Tarantino failed to take any of the aforementioned measures that have become so commonplace in the industry, a fact that may come up at trial. He shared the script with six people and suspects that CAA agents may be the source of the leak. In all likelihood, the source of the leak will never be identified because the script was never watermarked.

 Tarantino’s Complaint alleges contributory infringement, a form of liability in which someone not directly infringing is making contributions to the infringing acts of others. Here, the allegation is that Gawker, while not being the direct infringer (they are not hosting the script itself), is contributing to the infringement of the script by providing click-thru links to download the script on file-hosting sites like Anonfiles.com. Under a contributory infringement theory, “one who knowingly induces, causes, or materially contributes to copyright infringement, by another but who has not committed or participated in the infringing acts himself, may be held liable as a contributory infringer if he had knowledge, or reason to know of the infringement.” (See e.g., Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 545 US 913 (2005); Sony Corp. v. Universal City Studios, Inc., 464 US 417 (1984)[3]).

 Tarantino, as the owner of the copyright, has the exclusive right to authorize the distribution of his screenplay. Gawker’s many references to the script as “leaked” in its blog entry seems to be an admission that Gawker understood that dissemination of the work was unauthorized. Tarantino would argue that Gawker knew, or should have known, that the download links would direct readers to commit an infringement of his copyright.

 John Cook, Gawker editor, publicly responded to the lawsuit via the Gawker blog, propounding that “Gawker did not leak…the script,” that Tarantino “deliberately turned the leak into a story,” that Tarantino “wanted The Hateful Eight to be published on the internet,” that “Gawker had nothing to do with the appearance of…the script on the internet,” and that “Gawker published a link to the script because it was news.”

 Tarantino’s lawsuit asserts that “Rather than merely publishing a news story reporting that Plaintiff’s [Tarantino] screenplay may have been circulating in Hollywood without his permission, Gawker Media crossed the journalistic line by promoting itself to the public as the first source to read the entire screenplay illegally.” According to the Complaint, there were repeated demands for the removal of the click-thru links and DMCA (Digital Millennium Copyright Act) notices of copyright infringement that have gone unheeded.

 Gawker’s primary defense will seemingly be “fair use.” The script leak was newsworthy, and because it was newsworthy, providing download links to the script was part of Gawker’s due diligence to its readership. It is important to note that the contributory infringement theory is generally only seen in cases involving file-sharing software and search engines—venues that serve as directories to copyrighted material. This is an important distinction that Gawker will want to illustrate. “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.”[4]

 The counter to this argument is that Gawker did not have to point readers to the script in full. Instead of linking to the screenplay in its entirety, Gawker could have simply run excerpts from the script. This would not have ensured a “fair use” defense, but the argument is definitely stronger than the situation at hand. Additionally, Gawker may have destroyed their “safe-harbor[5] protections for copyright infringement liability when they ignored the repeated DMCA takedown notices.

 Depending on the outcome of this potential litigation, a court decision could have long-lasting effects on Hollywood’s relationship with those who partake in the digital theft of copyrighted intellectual property. A decision in favor of Tarantino would not only be a major coup for Hollywood studios, but would also serve as a cautionary tale to bloggers thinking about linking to copyrighted works.

 In regards to Gawker, Tarantino is seeking actual damages, statutory damages, punitive damages attorney’s fees, costs of the suit, and a permanent and preliminary injunction to enjoin Gawker from making the screenplay available for download. At the end of the day, Gawker may have already won even if they “lose.” In an age where business is generated by clicks and views, publicity from Tarantino’s copyright suit against Gawker will undoubtedly drive traffic to their family of websites. Gawker already generates approximately 40 million visitors a month[6]

 Special thanks to Michael T. Arase, Esq. for writing this post!!

 


[1] Gawker Media is home to popular blogs like Deadspin, Lifehacker, Gizmodo, Jezebel, io9, Kotaku, and Jalopnik.

[2] Director of notable films like Memento, Inception, The Dark Knight, and The Dark Knight Rises.

[3] Grokster held that producers of technology who promote the ease of infringing on copyrights can be sued for inducing copyright infringement committed by their users; Sony held that manufacturers of home video recording machines could not be liable for contributory copyright infringement for the potential uses by its purchasers, because the devices were sold for legitimate purposes and had substantial non-infringing uses. Personal use of the machines to record broadcast television programs for later viewing constituted fair use (9th Cir. reversed).

[4] http://gawker.com/quentin-tarantino-sues-gawker-over-link-to-script-he-wa-1510095159

[5] DMCA Title II, the Online Copyright Infringement Liability Limitation Act (“OCILLA”), creates a safe harbor for online service providers against copyright infringement liability, provided they meet specific requirements. OSPs must adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to alleged infringing material (or remove such material from their systems) when they receive notification of an infringement claim from a copyright holder or the copyright holder’s agent. (http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act)

[6] https://www.quantcast.com/gawker.com

 

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