Quentin Tarantino Loses Big In Trying To Paint Gawker As A Copyright Infringer
from the nice-try,-quentin dept
We didn't write about this case when it came out because it just seemed so ridiculous, but filmmaker Quentin Tarantino sued Gawker Media earlier this year for linking to a script he had apparently been working on. There had been a bunch of media coverage over the fact that his script for The Hateful Eight leaked, and was being shared around Hollywood, though not online. Gawker then asked anyone if they'd seen a copy, leading to a followup post which included a link to the newly leaked script.Tarantino argued that by soliciting from the public a copy of the script and then subsequently linking to it, Gawker was guilty of contributory infringement. Thankfully, a federal court that actually understands copyright law has quickly disabused Tarantino of that bizarre interpretation of copyright law, granting Gawker's motion to dismiss. The big problem: at no point anywhere in the process above, did Tarantino's lawyer show how Gawker's actions resulted in anyone infringing on anyone's copyright. That makes it quite hard to pin "contributory infringement" when there's no direct infringement in the first place:
However, nowhere in these paragraphs or anywhere else in the Complaint does Plaintiff allege a single act of direct infringement committed by any member of the general public that would support Plaintiff’s claim for contributory infringement. Instead, Plaintiff merely speculates that some direct infringement must have taken place. For example, Plaintiff’s Complaint fails to allege the identity of a single third-party infringer, the date, the time, or the details of a single instance of third-party infringement, or, more importantly, how Defendant allegedly caused, induced, or materially contributed to the infringement by those third partiesIn a footnote, the court further notes that even if Tarantino's lawyers could dredge up some example of direct infringement based on someone reading the script, the lawsuit still wouldn't make any sense:
Even if Plaintiff alleged that individuals accessed the links contained in Defendant’s article in order to read Plaintiff’s script, such an allegation would still not support Plaintiff’s contributory infringement claim against Defendant. Simply viewing a copy of allegedly infringing work on one’s own computer does not constitute the direct infringement necessary to support Plaintiff’s contributory infringement claim. See Perfect 10, Inc., 508 F.3d at 1169 (where alleged primary infringers merely view pages containing infringing images, but do not “store[] infringing images on their computers,” there is no infringement). In addition, based on the allegations of the Complaint, there can be little doubt that Plaintiff has a strong claim for direct infringement against Doe 1, a/k/a AnonFiles.com. However, Plaintiff has not alleged and it is highly unlikely that Plaintiff will be able to plead facts demonstrating that Defendant somehow induced, caused, or materially contributed to the infringing conduct by publishing a link to the screenplay after it was wrongfully posted on AnonFiles.com.The court notes that Gawker spent a lot of effort explaining why this is fair use but notes that, "albeit persuasive and potentially dispositive," it doesn't even need to bother with that argument since there's no infringement to defend against fair use here anyway.
Once again, it seems like people who grow up totally immersed in a world of copyright maximalism automatically leap to the conclusion that "something I don't like" must be an infringement of copyright. Thankfully, the law (mostly) doesn't work that way.
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Filed Under: contributory infringement, copyright, direct infringement, quentin tarantino, scripts, the hateful eight
Companies: gawker media
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Not that they aren't trying to make it work that way eh?
We humans tend to think we are entitled to something at some point in our lives. We all do. But copyright takes it to comical hyperbolic levels.
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Isn't this the same type of argument that the DOJ has tried with Dajaz1 and others? That contributory infringement and conspiracy to commit contributory infringement MUST have occurred without the burden of having to prove that any direct infringement actually happened.
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I love his work, and think that there's enough originality, style and uniqueness in his work to make it his own. But, in the absence of somebody plagiarising his work or it's both hard to see any damage and hard to not to see him as something of a hypocrite. Even in that case, he should go after the plagiarist, or maybe the person who gave the script away, not the site that posted a link.
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Re:
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Re: Re:
Tell that to the publishers, labels and studios that go after others for the slightest resemblance to a distinctive element of the works that they have obtained the copyright on. Also if what you said was true, then fan-fiction would be more widely circulated.
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Re: copyright covers expression of ideas, not the ideas themselves
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Re: Re: copyright covers expression of ideas, not the ideas themselves
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Re:
okay, sure am glad someone is covering *that* underserved genre... *snicker*
2. ? so he's not making the movie 'cause the script was read by about .00001% of the population ? ? ?
i don't get it...
HOW MANY movies are made based on books which i bet a FAR GREATER percentage of the movie-going public has already read ? ? ?
3. i guess he's said (petulantly enough) that he is going to re-write the script 2-3 times and *maybe* still make the movie...
lucky us...
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So Hollywood lost on piracy again...
The lesson here: copyright does nothing in creating new works, stifles innovation, and anyone using it wants to promote censorship to control what others can do or say for nothing more than a sense of entitlement.
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Re: So Hollywood lost on piracy again...
All it does is bruise the egos of people who think what they're doing is so important that it must be kept secret, and Tarantino has never lacked ego.
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Re: Re: So Hollywood lost on piracy again...
Movie scripts leaking in no way 'harm' a movie's ability to make money, quite likely the opposite in fact.
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Case Law - 2nd liability without direct infringement
“To Do” vs. “To Authorize”
November 06, 2012 · Devlin Hartline
In his influential copyright treatise, Nimmer posits that a “far more perplexing question is whether direct infringement must even exist in order for third-party liability to arise.”...
A few district courts have disagreed with Nimmer and found that the right “to authorize” stands alone.
ITSI T.V. Productions, Inc. v. California Auth. of Racing Fairs
Curb v. MCA Records, Inc
Expediters Int’l of Washington, Inc. v. Direct Line Cargo Mgmt. Services, Inc
16.Thomas v. Pansy Ellen Products, Inc.,
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Actually...
But if Mega did the same thing as Gawker, Kim Dotcom would have been extradited to the US already.
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'unpublished' - right of first publication
This involves the 'Right of First Publication' also.
An 'offer' to distribute 'copies' of an 'unpublished' work without the 'consent' of the copyright owner could very well have been interpreted as infringement of the exclusive right to 'distribute.'
Publication (Coppyright circular)
The 1976 Copyright Act defines publication as “distribution
of copies or phonorecords of a work to the public by sale or
other transfer of ownership, or by rental, lease, or lending.”
An offering to distribute copies or phonorecords to a group
of persons for purposes of further distribution, public performance,or public display also constitutes publication.
The following do not constitute publication: printing or
reproducing copies in other ways, performing or displaying a
work publicly, or sending copies to the Copyright Office.
- - - -
“‘[P]ublication occurs when by consent of the copyright owner, the original or tangible copies of a work are sold, leased, loaned, given away, or otherwise made available to the general public ....’” Bartok v. Boosey & Hawkes, Inc., 523 F.2d 941, 945 (2d Cir. 1975) (quoting M. Nimmer, The Law of Copyright, § 49, at 194-95 (1974)).
- - - -
See case law on 'limited publication.'
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Tarantino's next script?
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Re:
Culture is built on copying, therefore copying is fine. Tarantino is just being a dick.
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I disagree
How can you apply that same argument for a news site that generates its own content? This is not mere user generated possibly infringing content. It is content the news site generates and cannot fall under the same provisions that protect other sites that host user content. They can report on the infringement but should not be allowed to point others to infringe.
Unless the script is somehow completely legal, and I do not see that argument being put forward, then shouldn't it be infringing of a news site to post links to where to get it? By this same argument you can have the New York Times post links to all illegal music and movies online and claim that "Hey its a news story". I would find it hard to believe if news sites had the right to tell people Joe Smith on the corner of Main and 41st is selling stolen goods: Go ahead and try his stuff ("read it online") but do not buy it ("download it yourself").
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Re: I disagree
It's because they attack the thing with the loudest voice (and deepest pocket) rather than the person or website actually hosting the infringing content. That's why they complain about Google.
Their thinking is that there's a mainstream that supposed to be responsible and business like and share amongst each other and ignore the rest of the internet. Movie studios will do business with a mainstream site like Netflix and an Apple, and everyone else is an infringer.
This is why it's hard for new businesses and startups, and why we always end up with only 4-5 sites where all the content is located. The only way to play in their game is to bring a LOT of money to the table and play by the rules they dictate.
I might add that the MPAA and RIAA have often put out lists of websites that host infringing content. That's far worse than what Gawker did.
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Re: I disagree
Nobody is making the same argument at all. The argument for Gawker is not a safe haven argument, it's much simpler: that Gawker is simply innocent.
Gawker did not generate the content in question. Nor did they induce or ask anyone else to do it on their behalf. Nor did they host it or ask anyone to host it. Gawker just reported reported about its existence.
Tarantino should have lost this. Gawker did not engage in any copyright infringement at all, not even contributory.
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Re: Re: I disagree
No they didn't. Techdirt just reported the existence. Gawker told people where to go to read it. The judge stated two things:
1) QT did not allege anyone actually downloaded it via that link. He sent that part back to QT to fix.
2) But then he says even if QT did prove the download that it would not be infringement because Perfect 10 allows you to view things that might infringe.
I believe the judge is wrong as my understanding is the Perfect 10 ruling allows a site to show links to items that may or may not infringe. And it allows for a user to view the something that may or may not infringe does actually exists (IE a picture of the illegal script). I also believe that ruling allows you to have on your screen images of infringing content and not hold you liable for infringement due to the transformative case. (IE a page of thumbnails does not mean you actually downloaded all the files the thumbnails refer to)
But I don't see the Perfect 10 ruling saying you can direct people to something you state is illegal (and the judge does believe there is a case against someone for hosting illegal content so he is not even questioning that aspect of the script). Nor does the Perfect 10 ruling state the user can further use that link to infringing content and not be liable for it; as the act of clicking on the link implies your intent to download or view it. So Gawker should not be able to wash their hands of contributory infringement based on that ruling. So far the judge IS allowing this. But I disagree....
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Re: Re: Re: I disagree
I'm not seeing how that difference is important. If a newspaper reports about a drug house, would they be guilty of "contributory drug dealing" by publishing the address of the house?
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Re: I disagree
My response was first going to be this:
Of course not. I could not go to said house and get free drugs could I? I could go there and see the drug house which is how I believe the Perfect 10 ruling should fit into this. The script link does provide you the means to get the "free drugs" not just view that the script does exist in some form (Perfect 10 case ruling). They may or may not be legally allowed to do this link but I certainly can see a difference.
But now I am thinking of this:
If a newspaper reported the police raided a drug house at 123 Main street then they are guilty of nothing. I would question the legality of a newspaper publishing an article saying the police are ignoring a known drug seller and you can find them to purchase your own drugs at 123 Main Street. Moreover in Gawker you don't even need to worry about the police nor leave your house to get the "drugs". Just click this link and viola... Certainly sounds like a case for contributing...
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Re: Re: I disagree
The existence of such an author would depend on the newspaper, but since our media is mostly center-right, you'd probably find a screaming article headline like this:
Drugs On Main St. But Cops Do Nothing!
Officers look on as dealers sell crack near junior school
You're most likely to find it in the Daily Mail, awash with references to political correctness gone mad and reminiscent of the "raid" on the pot-using blind guy's house in a certain episode of The Simpsons. Something something racially sensitive and boom goes the dynamite. Amirite?
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Re: Re: Re: I disagree
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Re: Re: Re: I disagree
I get what you are arguing here concerning the Perfect 10 ruling and this case, although I'm not sure I agree with it 100%. Linking and contributory copyright infringement is still a kind of fuzzy area of copyright law.
But, even if what you say holds true, I don't believe it's really applicable in this case. The majority of Gawker's defense was Fair Use, which the court didn't rule on at this point (IE: no contributory infringement means a Fair Use defense is not needed). But the Court itself hints that the Fair Use argument would probably win on it's own merit with this comment:
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Re: I disagree
I also do not think Fair Use applies to things that are stolen. As someone else mentioned the rules of First Publication should apply and as QT never published it it is just stolen. Can you parody or transform a stolen work? Maybe but doubtful. But Gawker didn't do anything...
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Re: Re: I disagree
Yes, I was quoting the judge saying that the Fair Use defense was "persuasive" and "dispositive", which implies it would likely win and settle this case.
They did not do anything with the script (transform, parody, critique etc). They just said here is something stolen and go read it yourself.
They were reporting on it, which is a valid Fair Use defense and always has been.
I also do not think Fair Use applies to things that are stolen.
Of course not, but this case isn't about theft, it's about infringement.
As someone else mentioned the rules of First Publication should apply and as QT never published it it is just stolen.
It wasn't stolen, it was copied. But even so, if your logic is to be believed then all of the news outlets reporting on and displaying the Snowden documents would be breaking the law. They are not.
Can you parody or transform a stolen work? Maybe but doubtful. But Gawker didn't do anything...
A Fair Use defense for reporting on something newsworthy doesn't need to parody or transform the work, not sure why you think it would. It would be kind of silly if the news organizations had to "change" the original documents they are reporting on.
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Re: I disagree
Government documents are not copyrightable if I remember correctly. In any case, I would say for whistleblowers that for the person doing it of course it is theft which is why you need whistleblower laws in the first place. The news sites can report on "whistleblower" documents they receive because they did not entice the person to steal them. They have to be very careful in this lest they get in trouble for helping in the crime. Just because a news organization is protected in using these "stolen" documents does not mean the documents themselves are magically made legal for everyone else to have in their possession.
Given that Gawker is also a news site how is Snowden different than the Gawker case? The Guardian and Washington Post et al use the Snowden documents to create original news stories using the documents as source material (essentially a transformation of the document besides the first amendment rights that reporters have). Unlike Gawker they do not publish news such as "some guy stole all these NSA documents. ha ha. Go here to read them". And that is essentially what Gawker did. Gawker reported the fact of the script theft which is legal but then told everyone where to get it which got them into court. I see that as much different then the Snowden situation. Additionally no news organization has ever pointed out where we can download the Snowden documents as Gawker did the QT script.
This thread is getting away from the point I had which is I think the judge misread Perfect 10.
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Re: Re: I disagree
Copying is not theft. Please stop pretending that it is, you're confusing yourself.
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Simply viewing a copy of allegedly infringing work on one’s own computer does not constitute the direct infringement necessary to support Plaintiff’s contributory infringement claim. See Perfect 10, Inc., 508 F.3d at 1169 (where alleged primary infringers merely view pages containing infringing images, but do not “store[] infringing images on their computers,” there is no infringement)
I can stream a movie and its not copyright infringment?
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Re:
I do not understand how the judge in QT's case got from a thumbnail style link on a search page being non-infringement to a news site saying "go here to find stolen material. We know it's stolen as we just did an article on it". How are the two situations comparable? Google's search of Perfect 10 pictures does not know if a particular image is infringing. But Gawker sure as hell knew...
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Re: Re:
Gawker knew the content was being published against the wishes of the author and right holder and the right of first publication was thwarted.
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Re: Re: Re:
This case is being complicated by the idea that authors have the right to control their work after it has left their hands. That's not just absurd, it's unenforceable. The best they can hope for is the illusion of control.
Copyright is a monopoly privilege, not a property right. No copyright was violated as the script itself is being shared around; nobody is making money from it and it's not been made into a film yet. If the script was being sold or made into a film without consulting Tarantino, he'd have a claim then. As it is, he doesn't. Neither his actual earnings nor his potential earnings have been demonstrably affected, though this may have inadvertently drummed up some publicity. From his point of view, that can only be a good thing.
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