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Sunday, November 21, 2010

Sarah, Now You Get To Give Gawker A TSA Screening

I'll leave it to others to analyze the legal grounds for the TRO obtained by Sarah Palin and her publisher against the execrable people at Gawker.

These are, after all, the same people who went after Meg Whitman's kids and bragged about it, who ran the "one-night stand" hit piece on Christine O'Donnell and bragged about it, and who created and spread the rumor of your supposed boob-job and bragged about it.

And they bragged when they stole a partial copy of your book, and they dared you and taunted you to do something about it, and you did.

But please don't stop there.  Your TRO is the equivalent of a routine metal detector screening.  You found the box-cutter, and confiscated it.  Good so far, but not enough.

You need to have your lawyers give the people at Gawker a full nude-body scan and junk fondling.

Uncover the networks, Sarah.  For all of our benefit and amusement.

It's called discovery.  In a litigation your lawyers are entitled to e-mails, and all Gawker's internal documents regarding not only this theft, but you.  Because you will want to prove that their intent was to harm you and damage you, so everything they ever have written off-the-record, everyone with whom they ever have communicated about you, every strategy they have employed to take you down, now is fair game.

And your lawyers also get to take depositions under oath of the people at Gawker, and to subpoena for testimony others who may have relevant evidence as to the issue in the case.  The Palingate people would be a good start.

Gawker has given you an opening large enough to drive a truck through.  Please go there, if not for yourself, then for all the conservative women who have been targeted by Gawker and the other Gawkers out there.

And money will not be an issue.  If your publisher will not foot the bill (do they want your next book, or not?), you could raise millions overnight for the legal fees.

There is a reason they don't have lawyers act as TSA screeners.  TSA screeners have consciences, lawyers do not.[*]

Oh, one last request.  Please have your lawyers take pictures.

[* see my comment below]

Update 11-22-2010 - I didn't have a copy of the Complaint at the time of this post, but it now is available.  The Complaint is brought in the name only of the publisher HarperCollins, and as I suspected, puts intent in issue by claiming willful violation of the copyright laws and seeks punitive damages. 

While the current plaintiff only is HarperCollins, I would think Palin would have some input if not control over the terms of the lawsuit and could insist on HarperCollins taking a hard line; additionally, Palin may have her own claims, which she could pursue, such as unauthorized use of her name for commercial purposes without permission.  This situation clearly is distinguishable from post-publication commentary on a book.
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  1. Intent is not an element of copyright infringement, so any requests along these lines would be laughed out of court.

    On the other hand, copyright law only protects "The United States copyright law protects "original works of authorship." So Gawker can now demand all notes, e-mails, correspondence, etc. that show she actually wrote the book she is claiming as her own original work.

  2. Mr. Jacobson, you are in dire need of a fan club! This posting was music to my ears and heart!

  3. @Timothy. They are asserting fair use and you are assuming copyright infringement is her only claim .

  4. So were Gawker's files to include e-mails from representatives of the liberal media, we could see another journo-list expose? Man, would THAT be sweet!

  5. Professor, oh so right! I pay a retainer to my legal council annually. I do it with pleasure. Not because he defends me in court (only once) but because he keeps me out of court.

    I sat in an initial meeting with him a long time ago on a contract dispute. His number one line was -- "Its your right to sue of course. But I think you will find that discovery and the depositions will be like having a root canal. We have it on good authority....". They later dropped any pretense and he garnered his billage from the opposing firm.

    How familiar your suggeston is.

  6. I saw this one coming, I happen to find copyright law really interesting. I am not a lawyer though, but I am glad to see the Patterico link backed up my assessment.

    You have to love it when the smug get it handed to them. Memo to Maureen O'Connor: There's a big splotch of something that looks like egg on your face.

    You are so right about the discovery here. In one case I followed closely, every email and even seemingly innocent internet posting was subject to discovery. Gawker is going to wish this was as painless as a TSA screening.

  7. @Timothy

    I my be wrong, but I assumed that even if an credited ghost writer is used, the book is still considered your work. At least that is what I was told by Barack Obama and Bill Ayers....

  8. There is a reason they don't have lawyers act as TSA screeners. TSA screeners have consciences, lawyers do not.

    Um no, lawyers have something to lose, TSA drones do not.

  9. TSA screeners have consciences, lawyers do not.

    That's not true of YOU, is it Professor?! Say it ain't so!

    Excellent post!! I hope Mr. Van Flein (Palin's lawyer) communicates with the publishers on this. How sweet it will be!

  10. Can I hear an Amen?
    Please, please, PLEASE Sarah use the opening this has afforded.
    Where do I send my check?
    They want to bring it, we need to finish it.
    Let's rumble.

  11. she could finance the suit by charging us to read the transcripts of what are likely to be the most hilarious depositions in memory.

  12. @DINORightMarie -- I can tell that this statement may be misunderstood, and that's my fault for some snark. The point simply is that while TSA agents may cut you a break because they feel sorry for you, lawyers have a duty of zealous representation and it shouldn't matter whether they feel sorry for the opposing client so long as the lawyers are acting ethically and legally.

  13. Right on, William! It burned my unscreened posterior when I saw the tweets and posts following Palin's "Isn't this illegal?" tweet. Those morons now have egg on their faces given the fact that the judge ordered Gawker to pull down the images of Palin's book.

    These dopey libs think that Palin is some trailor trash redneck trying to run for president. There are lawyers, writers, professional people, hard working blue collars, teachers, housewives, cubicle workers... you name the profession big or small and she has an army.

    It's the liberals who try to use fiction to direct a narrative that will naturally play itself in reality with a final ending... their demise.

    Go Sarah! Fight the bastards. And win.

  14. Oh, and it also frosted my unscreened junk, too.

  15. Timothy, even if Sarah had a ghostwriter, the manuscript would be a work made for hire and the person doing the hiring would hold the copyright.

    While it's true that intent isn't an element of copyright infringement, it is an element of intentional infliction of emotional distress and of defamation.

    Discovery is broad and generally requires production of all documents that could lead to admissible evidence.

  16. The problem I have posted elsewhere is this, as far as the Palingates people are concerned: they hide behind the firewall of German Law.

    Palingates' servers, afaik, are in Germany. The site is overseas precisely to avoid American legal scrutiny. They have American correspondents, but the core of their personnel are in Germany.

    I've always supposed them to be a Soros front, but having no proof, could not say for sure where they came from.

  17. Professor, it's wonderful that now Gov Palin has an army of professionals to help her out with issues and give her advices, such as yourself. She is absolutely right: talents are not just confined to DC. We find talented and ethical people across the USA. And when Gov Palin taps to that vast resources, the left will go bonker. Great post!

  18. Desperate for American attention, this is the claim which Palingates makes fot itself:

    "The truth is of course, as we have mentioned many times, that only Regina, Kathleen and I are Europeans.

    Apart from that Palingates has to offer:

    1) Several dedicated guest posters: 100% Americans
    2) A highly experienced research team: 100% Americans
    3) Great contacts in Alaska: 100% Americans [Andree McCleod, for example]
    4) A fantastic, devoted readership: Almost 100% Americans

    We are not a European blog in the full meaning of the word. We don't deal with European issues, but with American issues. We have only a handful of European readers, but thousands of regular American readers. Maybe we should be more insistent in the future regarding the "European" label, because it's misleading."


  19. Palin won't go for this. BUT why can't we? Forget Palin, is there any way we can buy out her rights to the book and pursue the litigation ourselves? Or buy it from HarperCollins? That way she doesn't have to futz with it and we could do a civic duty for the good of the community, no? Has a publisher ever assigned just the right to sue to a creditor? I would donate or buy a share of this enterprise, put me down for $1k or more if we can make some money on this.