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Scene 2: Gawker demands the lawsuit be dismissed.
Now it’s time for Scene 3: Tarantino’s retort.
Tarantino’s lawyers say that Gawker “contrived the very ‘news story’ that it now seeks to hide behind.”
That would be a Jan. 23 post on Gawker’s Defamer blog headlined, “?Here Is the Leaked Quentin Tarantino Hateful Eight Script,” which included a link to a third-party website hosting the 146-page script.
In response to the lawsuit, Gawker asserted that Tarantino himself “set in motion the circumstances by which the script circulated,” that its post about the leaking was a fair news report and that there could be no contributory infringement without direct infringement. Or as Gawker’s lawyers put it in a March 10 motion to dismiss, “Simply viewing a copy of allegedly infringing work on one’s own computer does not constitute direct infringement.”
On Monday, Tarantino filed his opposition.
The director’s latest legal papers paint the Defamer story as a “fabricated” one.
That the Screenplay had merely leaked to a limited number of individuals within the confines of Hollywood was by that point already old news, having already been reported by Gawker and various other news outlets. Gawker solicited and obtained a theretofore publicly unknown link to an anonymous download site that was storing and distributing to users infringing PDF copies of the complete copyrighted Screenplay. Gawker then fabricated another, new “story” that the script had been made publicly available online solely so that Gawker could then trumpet to the world without impunity exactly where on the Internet the infringement was taking place.
Then comes an analogy intended to show that Gawker has crossed the journalistic line:
Gawker could just as effectively have reported the fact that the script was leaked and available on a file upload site without including any specific links to the infringing copy, just as a newspaper can report that a film piracy ring in, e.g., downtown Los Angeles, has obtained and is selling pirated DVDs of a not-yet-released theatrical motion picture without instructing exactly how, where and when readers can illegally buy their own pirated copy.
As to the issue of whether valid claims are made for underlying direct copyright infringement, Tarantino points out that John Doe defendants are listed as defendants in his lawsuit. According to Tarantino’s lawyers, Gawker is attempting to “construct a proverbial straw man” by focusing attention on unknown users who accessed the linked screenplay.
That is not Tarantino’s only claim or theory of direct infringement in this case, but one of multiple co-existing theories and pled claims. Instead, by his First Claim for Relief, he clearly contends that the Doe defendants directly infringed his Section 106 rights by reproducing, distributing and displaying unauthorized copies of the Screenplay to such Internet users.
In other words, Tarantino is clearly trying to connect Gawker’s actions with whoever is responsible for putting up the script on AnonFiles.com. But the plaintiff isn’t ignoring the issue of whether Gawker’s readers committed direct copyright infringement. Perhaps they did, says the director.
Crucially, infringing copies of Tarantino’s Screenplay at issue in this case were made available to Internet users via AnonFiles.com only in a PDF format, which by definition cannot be viewed on screen without first being completely downloaded by the computer. Downloading a complete, unauthorized copy of a work constitutes infringement.
Tarantino is being represented by attorneys Marty Singer, Evan Spiegel and Henry Self, who go on to say in the court documents that Gawker was “fully aware” that the screenplay was subject to copyright and that the files downloaded off of Anonfiles would be unauthorized. The lawyers add that Gawker has kept the link up despite having been served with DMCA takedown notices. The opposition brief also says it is premature to analyze Gawker’s potential “fair use” defense but nevertheless presents some arguments in rebuttal, including reference to a 1985 Supreme Court decision concerning The Nation magazine’s excerpting of former President Gerald Ford’s unpublished manuscript. Other cases that come up are the Sony Betamax decision and another high court ruling involving 2 Live Crew’s use of “Pretty Woman.” Worth reading. Here’s the full brief by Tarantino’s lawyers. Enjoy!
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