Refudiated

There’s just something about the combination of insufferable smugness and being dead wrong. When Sarah Palin complained about Gawker (some kind of gossip blog, I gather) publishing excerpts from her new book without permission, Maureen O’Connor (the copyright infringer) turned the smug up to 11:

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.

The two links were to explanations of the fair use doctrine, which O’Connor evidently doesn’t understand nearly so well as she thinks.

There are four factors that a court considers when deciding fair use: the transformative nature of the use, the nature of the copyrighted work, the substantiality of the use, and the use’s economic impact. Gawker does poorly on all four (even the first factor, which is their strongest), but especially on the second. An unpublished work is a very weak case for fair use, since authors have the right to control the first public revelation of their work. (O’Connor would have known this if she actually read either of the links she smugly suggested to Palin.)

The story ends with a delightful smackdown for the smugly ignorant O’Connor: a restraining order from a federal judge.

(Via Ruby Slippers.)

UPDATE (11/25): The judge’s opinion confirms my brief analysis; Gawker’s post did poorly even on the transformation test:

As to the first factor, defendant had not used the copyrighted material to help create something new but has merely copied the material in order to attract viewers to Gawker. See Campbell v. Acuff- Rose Music, 510 U.S. 569, 578-79 (1994). As noted above, defendant essentially engaged in no commentary or discussion.

and loses big on the nature of the copyrighted work test:

As to the second factor, the excerpts used by defendant come from an unpublished work, substantially weakening defendant’s fair use claim.

And now Gawker has given up its fair use claim and is settling the lawsuit. They’ve also updated the page to delete O’Connor’s mockery.

BONUS: Oliver Willis — who was probably right about something once but I have no idea when it might have been — mocks Palin:

sarah palin thinks leaking book excerpts is illegal. sweet jesus, she aint quick.

Uh huh.

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