Quentin Tarantino Might Win Against Gawker, Thanks To The Supreme Court

Yesterday, Quentin Tarantino filed a copyright infringement lawsuit against Gawker for distributing copies of his script The Hateful Eight. Here’s the original Gawker post, here’s The Hollywood Reporter on the basics (with the complaint), and here’s Gawker’s reply.

The case is simple enough: Gawker encouraged readers to find the script, someone posted it to AnonFiles.com, someone (perhaps the same person?) emailed a link to Gawker, Gawker posted that link on its website. Tarantino, represented by Martin Singer (whose hyperbolic threats have graced this blog before), alleges direct copyright infringement against AnonFiles.com because it hosted the files and contributory infringement against Gawker because it “induced, solicited, encouraged, caused or materially contributed to the infringing conduct.”

If you’re not clear what “contributory” infringement is, take heart. The claim doesn’t come from the old common law, like most civil causes of action. The claim also wasn’t created by Congress through a statute; the Copyright Act only covers direct infringement claims against the actual party distributing the copyrighted work. Rather, the Supreme Court took the Copyright Act and then decided to expand it using common law doctrines relating to conspiracy claims and vicarious liability.

It was a rare instance of the Supreme Court interpreting a statute to expand liability than to restrict it. Look at the last 30 years of, say, antitrust or RICO or class action law, and you’ll see an entirely different trend, with the Supreme Court reaching for any justification to rule against the plaintiff and for the defendant. Then again, in those cases, the plaintiff is a consumer and the defendant a large corporation, and in copyright infringement cases, it’s often the opposite. So it goes.

Even the eminent Judge Richard Posner, writing for a unanimous Seventh Circuit panel in 2012, had trouble figuring out what the term meant: 

A typical, and typically unhelpful, definition of “contributory infringer” is “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.” Gershwin Publishing Corp. v. Columbia Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971). Such a one “may be held liable as a ‘contributory’ infringer.” Id. But does “may be held liable” mean that a person who fits the definition of “contributory infringer” may nevertheless not be a contributory infringer after all? And what exactly does “materially contribute” mean? And how does one materially contribute to something without causing or inducing it? And how does “cause” differ from “induce”?

Brevity is the soul of wit and tediousness its limbs and outward flourishes. We therefore prefer the succinct definition of contributory infringement in Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693, 706 (2d Cir. 1998): “personal conduct that encourages or assists the infringement.” See also Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1172 (9th Cir. 2007).

Flava Works, Inc. v. Gunter, 689 F. 3d 754 (7th Cir. 2012). In that case, the Seventh Circuit vacated an injunction that a film production company had obtained against a social bookmarking site that linked users to videos, including (naturally) the plaintiff’s copyright videos.

The Hateful Eight situation is a bit different — Gawker requested links to a particular copyrighted work, received one, and then posted that link on its site. I suppose this could, under the rule Posner preferred, constitute “personal conduct that encourages or assists the infringement.”

We could have a long debate back and forth as to whether or not it does, but that would just show the whole problem with “contributory” infringement in the first place: it doesn’t draw clear boundaries for liability. That’s why Lawrence Lessig said back in 2005 that, thanks to the Supreme Court’s Grokster decision, which held a file sharing service liable for contributory infringement, “It might take 10 years of litigation to get a clear sense of this. That’s 10 years of chilled innovation.”

But then comes the other problem: does Gawker have a First Amendment right to link to a newsworthy script? They sure think so, and so their reply asserts “Gawker published a link to the script because it was news,” with a bit more description. I’m not so sure about that. Most every time the First Amendment defense has been raised in response to a copyright infringement case, it has failed, thanks to Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985). I don’t see, for example, how Gawker has a better First Amendment argument than the defendant in Monge v. Maya Magazines, Inc., 688 F.3d 1164 (9th Cir. 2012), which published previously unpublished photos of a celebrity couple’s clandestine wedding.

Should Tarantino have a claim against Gawker? That’s a question for Congress, but they haven’t seemed interested in these issues since even before the Grokster case nearly 10 years ago.

[Update: Anna Gallegos at LXBN has a post with some more discussion on the issue, which in turn references a 2013 Southern District of New York opinion noting, “As a matter of law, sending an email containing a hyperlink to a site facilitating the sale of a copyrighted work does not itself constitute copyright infringement,” and holding a defendant who emailed a link not liable as a matter of law. Yet, see footnote 11:

 To be sure, “[a]lthough hyperlinking per se does not constitute direct copyright infringement because there is no copying . . . in some instances there may be a tenable claim of contributory infringement or vicarious liability.” Online Policy Grp. v. Diebold, Inc., 337 F. Supp. 2d 1195, 1202 (N.D. Cal. 2004). In this case, however, plaintiffs did not bring claims in their FAC for contributory infringement. Nor, for that matter, did they articulate such a theory in their briefs in support of summary judgment.

The case thus doesn’t tell us much about contributor infringement liability, as that theory was not raised.]