Gawker's Past May Have Played Into Judge's Ruling On Palin Book

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Less than one week after a federal judge ordered Gawker to temporarily remove excerpts of Sarah Palin's "America By Heart," the site agreed to keep the material down for good to settle a copyright infringement lawsuit filed by book publisher HarperCollins. Financial terms were not disclosed.

The dispute between the companies began last week, when Gawker posted images of 21 pages of the book in advance of its Tuesday release date. HarperCollins demanded that Gawker take down the pages; Gawker refused, following which HarperCollins sued for copyright infringement.

Shortly before an emergency hearing on Saturday, Gawker removed some of the material, but left up images of 12 pages. cache version of the site shows that one or two sentences of commentary accompanied most of the images.

At the conclusion of Saturday's hearing, U.S. District Court Judge Thomas Griesa in New York entered a temporary restraining order directing Gawker to remove the material.

In a written opinion, made available this week, Griesa ruled that Gawker had not made fair use of the book passages. He wrote that the blog had not "used the copyrighted material to help create something new but has merely copied the material in order to attract viewers to Gawker."

Among other factors, Griesa wrote that Gawker "engaged in no commentary or discussion" and that "the copyrighted material was placed alongside links to advertisements."

"The more visitors Gawker receives because of the posting of the copyrighted material, the more attractive it becomes to potential advertisers on the site and, again, the more compensation defendant can ask of those advertisers."

Also key to his ruling was that the book had not yet been published, which often weighs against findings of fair use.

Griesa's decision draws on a 1986 Supreme Court ruling that The Nation infringed copyright by running an excerpt of fewer than 400 words of a biography about former president Gerald Ford before the book hit the stores.

Legal experts say they're not surprised by the ruling, given the prior case involving The Nation. "I think Gawker had an uphill battle since it merely published images of 21 full pages without significant commentary," says cyberlaw expert Venkat Balasubramani of Seattle. "If it would have written an article about the substance of the excerpt without quoting from the book it could have made a stronger first use argument."

He adds that judges tend to decide fair use questions based on the equities of the situation. For that reason, Gawker's history of paying for scoops, or publishing material like a sex tape made by celebrity couple Eric Dane and Rebecca Gayheart, might have played a role in the judge's decision.

Santa Clara University law professor Eric Goldman also says that Gawker's reputation for publishing gossip likely hurt its case in court. "The court can't ignore that it's Gawker," he says. "Gawker's' whole stock in trade is posting things that people don't want published and getting traffic."

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