The U.S. District Court in New York City ordered Gawker Media Saturday to remove excerpts of former U.S. vice presidential candidate and Alaska Gov. Sarah Palin’s forthcoming book from its website pending a hearing next week regarding a lawsuit filed by the book’s publisher, HarperCollins, according to court documents.
Gawker published images of several pages from advance copies of Palin’s "America By Heart: Reflections on Family, Faith and Flag." The New York Times has reported the web site published at least a dozen pages, and the Associated Press reported 21.
Palin questioned the legality of the excerpt’s publication in a Twitter message posted Thursday, writing, “The publishing world is LEAKING out-of-context excerpts of my book w/out my permission? Isn't that illegal?”
Saturday’s ruling enjoins Gawker from publishing excerpts from the book until a hearing scheduled for Nov. 30, seven days after the book’s release on Nov. 23.
Although it has complied with the court's order, Gawker has defended the publication of the excerpts as a "fair use" under copyright law.
Eugene Volokh, a professor at UCLA School of Law who specializes in First Amendment law, recognized similarities between this case and Harper & Row Inc. v. Nation Enterprises, in which the U.S. Supreme Court found that The Nation magazine’s publication of excerpts from former president Gerald Ford’s memoir, which had not yet been published, was not considered fair use.
As in Harper & Row, Gawker’s use of the excerpts may not be protected because it was published in a for-profit medium and could interfere with the market for licensed excerpts, for which the book’s publisher should be paid, Volokh said.
Essential to the argument is whether Gawker used the work in a transformative way. If the excerpts were published as part of a review or used for critique and commentary, it might be considered fair use under copyright law, Volokh said.
Another issue in the case is the temporary restraining order placed on Gawker pending the Nov. 30 hearing, which functions as a prior restraint on publication.
“Just as you can’t preliminarily enjoin publication of a libel, you shouldn’t be able to preliminarily enjoin the publication of alleged copyright infringement,” Volokh said.