The Southern District of New York granted a preliminary injunction this week enjoining Gawker.com from publishing excerpts of former Alaska Governor Sarah Palin’s as-yet-unpublished new book. (See order here.) The court’s order confirms that Ms. Palin’s copyright infringement case against Gawker has a likelihood of success on the merits or, at the very least, that Gawker will be spending a great deal of money in attorney’s fees as it attempts to assert the Fair Use Defense.
This ruling serves to remind us (and hopefully Gawker) that the Copyright Fair Use Defense is, in fact, an affirmative defense — not an exception — to copyright infringement. Earlier last week, Gawker writer Maureen O’Connor responded to Palin’s concerns about copyright infringement with the following:
[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.]
Gawker seems to have overlooked a very important point in the above links. Namely, that Fair Use is an affirmative defense, which means that the burden remains on the alleged copyright infringer to prove that posting excerpts of the copyrighted work falls into the Fair Use defense. Said Fair Use assertion requires proof and, therefore, no small amount of litigation before it is decided whether or not the allegedly improper use in fact warrants the defense.
A note to magazine publishers: The Fair Use defense will only preempt litigation insofar as small publishers might not want to spend the money to litigate the issue. Large publishers, like HarperCollins (Sarah Palin’s publisher), will probably decide to force the issue in court. If the publisher can afford to force the issue, you should be ready to pay your share of litigation expense to prove your point.
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