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Gawker is asking a California federal judge to reject a lawsuit filed by Quentin Tarantino over a leak of the director’s unproduced script Hateful Eight.
Tarantino is suing Gawker for contributory copyright infringement in connection with Gawker’s Defamer blog linking to the 146-page script under a post titled, “?Here Is the Leaked Quentin Tarantino Hateful Eight Script.” The lawsuit says that Gawker “crossed the journalistic line by promoting itself to the public as the first source to read the entire Screenplay illegally.”
But according to Gawker’s motion to dismiss filed on Monday (read here), merely reading a screenplay isn’t an infringing act and a claim for contributory infringement can’t exist in the absence of direct infringement.
“Here, the Complaint does no more than raise the possibility that some member of the public who accessed plaintiff’s script using Gawker’s link subsequently violated Tarantino’s rights by committing an infringement,” say Gawker’s lawyers. “Because plaintiff did not allege any facts showing that an infringing act actually was undertaken by a third party — merely accessing the script by clicking on the link is legally insufficient — plaintiff did not state a claim for contributory infringement.”
Gawker asserts that even if Tarantino could state such a claim, the website’s linking to “source material” is protected as fair use.
“Gawker’s challenged use was transformative and for the statutorily favored purpose of reporting news,” the motion continues. “Gawker did not ‘scoop’ plaintiff’s right of first publication as the script was online prior to Gawker’s links, and Tarantino himself set in motion the circumstances by which the script circulated. Gawker made minimal use of the script — it reproduced no part of it but merely linked to another publication. Gawker’s use was, at most, incidentally commercial and did not usurp the primary market for and purpose of the script: to make a movie.”
The lawsuit figures to continue the legal discussion addressed by adult entertainment publisher Perfect 10’s lawsuits against various entities for indexing, linking to and providing thumbnail images of its nude photos. In those lawsuits, an appeals court rejected any direct copyright infringement claim but left open the possibility of contributory liability if a defendant had knowledge of another’s infringing materials and materially contributes to or induces that infringement.
Tarantino’s lawyers are making the case for inducement by saying that Gawker provided direct links for downloading and “brazenly encourages” its visitors to read Hateful Eight with the invitation to “Enjoy!”
Gawker believes that falls short, saying that Tarantino “provides no facts showing that anyone actually clicked the links in Gawker’s report, let alone engaged in an act of infringement by, for example, making or distributing copies of the script.”
Then Gawker attempts to raise an issue that some copyright experts have danced around over the years.
“Indeed, assuming that some Gawker readers did click the links and view the script, plaintiff does not plead that any of them actually saved or otherwise made a copy — as opposed to just ‘read[ing] the screenplay’ as Gawker was ‘encouraging’ them to do. But simply viewing a copy of allegedly infringing work on one’s own computer does not constitute direct infringement.”
As for why its post was transformative, Gawker posits that its “reporting presented the screenplay in the context of reporting the news of its leak and Tarantino’s reaction to the leak.”
Gawker is being represented by Robert Penchina.
Tarantino’s lawyers weren’t immediately available for comment. It’s worth noting that the lawsuit doesn’t merely target Gawker. The complaint also names as a defendant Anonfiles.com, the site that hosted the script, as well as anonymous John Does.
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