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Is Gawker A Safe Harbor for Prying Eyes?

Published onFeb 18, 2014
Is Gawker A Safe Harbor for Prying Eyes?

In a time when people are consumed with getting their hands on knowledge and gossip to which others do not have access, various media outlets are in constant competition with one another to provide this kind of material. One of the most popular of these outlets is Gawker, a website designed to capture the “gossip that journalists tell one another privately but won’t put into print.” Since its inception, Gawker has been the subject of much media controversy and many lawsuits filed against them by celebrities. Gawker has been known to release sex tapes, book proposals, and, most recently, movie scripts.

Gawker released a copy of Quentin Tarantino’s “Hateful Eight” script, and despite requests and demands for the script to be taken down, the site has yet to comply. The site has left the script up and available for anonymous download, “promoting itself to the public as the first source to read the entire Screenplay illegally.”

Tarantino has filed suit against Gawker alleging contributory copyright infringement violations. Gawker, however, will likely seek protection under the Digital Millennium Copyright Act (DMCA), which provides ‘safe harbor’ protection for service providers if they meet certain criteria. For claims of contributory copyright infringement, the courts have generally held that the mere ability of a website to be used for infringing activity is not alone sufficient to establish liability. Generally, however, “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may be held liable as a ‘contributory’ infringer.”

In his complaint, Tarantino asserted that Gawker “solicited its readers to provide a copy of the script;” a statement which, if true, could likely disqualify Gawker from obtaining the DMCA safe harbor protection. This suit will likely address these issues, which are similar to those found in the infamous Grokster and Perfect 10 cases, both of which found the website liable for contributory copyright infringement. Despite the likelihood that Gawker will seek protection under the DMCA’s safe harbor, Tarantino asserts that the DMCA was designed to protect against copyright infringements claims such as the one at issue here.

Gawker has also made various defensive statements alleging that Tarantino himself leaked the script because he wanted it released, and that Gawker simply reported what they believed was “news.” While Gawker has in the past admitted some mistakes they’ve made, Gawker editor John Cook does not appear to be backing down from this decision. Gawker founder Nick Denton is generally “unrepentant and argues an unconventional point of view on privacy that will surely keep the Hollywood legal community busy in the years to come.”

Already, Gawker has been involved in releasing what most would consider materials warranting privacy, which has lead to much controversy. The website has released sex tapes involving Hulk Hogan and Rebecca Gayheart, started stories about John Travolta being involved with male lovers, uncovered Manti Te’o’s fake girlfriend, and revealed Toronto’s Mayor Tom Ford smoking crack. In each of these situations, Gawker stood by their decisions to post these private materials to the public, even to the point of defending themselves in pricey litigation. In an interview with both Cook and Denton, The Hollywood Reporter asked them about their views on invading others privacy and Denton responded by saying he believed “the supposed invasion of privacy has incredibly positive effects on society.”

While at this point the suit by Tarantino has yet to be ruled on, it is clear that this will be a battle, especially since Gawker has still refused to take down the script from their site. Upon the release of the script it was rumored that Tarantino subsequently decided he would no longer make the movie, although some sources believe he still may continue with the project despite the leak. Based on interviews with Gawker’s management and their radical privacy views, it doesn’t appear that this will be the last time they are brought to court for claims similar to those now being alleged.

* Samantha Berner is a second year law student at Wake Forest University School of Law. She holds a Bachelor of Arts in Criminology from the University of Florida.

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