Gawker head Nick Denton

Sarah Palin‘s publisher, Rupert Murdoch, has sued Gawker for showing photos of the 21 pages from Palin’s forthcoming book, America By Heart: Reflections on Family, Faith and Flag last week. As writer (and former publisher) Paul Carr notes in an astute commentary, “It wasn’t long before Palin, spotting another opportunity to pose as the victim of a conspiracy by members of the media establishment, raced to Twitter and wrote, “Isn’t that illegal?”

According to an Associated Press wire report, a spokesman for Murdoch’s henchmen and -women at HarperCollins “contends it is,” and has demanded that Gawker be banned from “further copyright infringement” and forced to “deliver the source material to the publisher so it can be destroyed.” In addition, the company seeks financial damages.

As the AP report notes, however, Gawker “was not the first site to publish excerpts from the book … but it refused to take them down after receiving a letter demanding that it do so, the lawsuit said. The Associated Press bought a copy of the book ahead of its Nov. 23 release date.”

As a Mediaite story reports, “Gawker replied in predictable style, mocking Palin’s Twitter account, welcoming her to the site, and suggesting she ‘read the law.’ Oh, and they have also not removed the leaked pages, though by Tuesday the excerpts will be legally available.”

Except by late yesterday Gawker had taken the mockery out of the report, and taken down its original post showing the pages from Palin’s book.

However the first website to post excerpts from the book — an Alaskan blog called Palingates — has refused to take down the excerpts it posted despite a demand to do so from HarperCollins.

Both Palingates and Gawker cited the doctrine of American copyright law known as “fair use.” As a Wikipedia entry defines it, fair use “allows limited use of copyrighted material without requiring permission from the rights holders. Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship.”

But as University of Minnesota law professor Bill McGeveran notes in a Capital story, there is precedent saying maybe fair use doesn’t cover this situation:

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.

As McGeveran goes on to observe Gawker’s exhibiting of 21 pages from Palin’s book “goes much further” than the 300-400 words quoted by The Nation, and he sees their case as so weak that …

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.

But at the Awl, another attorney, Eric Spiegelman, has another opinion:

And the truth of the matter is Gawker has a better case than The Nation did. The Nation offered little commentary on the Ford memoirs; Gawker called Sarah Palin out for all kinds of bullshit. The Courts prefer not to use copyright law to stifle criticism, and you know the reason she asked HarperCollins to sue was because she has a thin skin. If she didn’t want the pages out there, why would she put her own excerpts on her Facebook page? Also, nobody was financially harmed by Gawker’s publication of the Palin stuff. The market for the work was not harmed, not like it was with Ford’s book, when Harper & Row lost licensing revenue due to The Nation’s scoop. The market was arguably even improved, as the publicity this case will bring may help sell more copies. The unpublished nature of Palin’s book is a problem, from Gawker’s legal perspective, but fair use is a balancing test, and the commentary and other factors might just outweigh that.

It’s impossible to tell, and that, for most people, would be reason alone to settle. But I can’t get past that “impropriety” thing, that a precedent exists for the Court to pass judgement on Gawker’s visigoth manners. At the hearing on November 30, the plaintiff’s attorney will say, “Look at all these terrible things Gawker does,” solely to press the advantage of the Harper & Row mandate that distasteful behavior somehow makes a journalist less qualified for fair use protection. Like it or not, Gawker stands for something, something that Sarah Palin claims to stand for but just doesn’t quite get. I hope, if the hearing results in further action, that Gawker defends, and appeals, and appeals again.