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Quentin Tarantino Vs. Gawker: When Is Linking Illegal For Journalists? 166

Posted by Soulskill
from the when-it-makes-somebody-mad dept.
Hugh Pickens DOT Com writes "Jon Healey writes in the LA Times that a new lawsuit against the Gawker Media site Defamer for linking to an infringing copy of an unreleased screenplay should send chills down the spines of every reporter who writes about copyright issues. Tarantino had kept the script for his ensemble western The Hateful Eight unpublished, but someone obtained a copy and posted it online. In its piece, Defamer quoted only a brief excerpt and a short summary published earlier that day by the Wrap. But it also included two links to the leaked screenplay on a file-sharing site called AnonFiles. In a complaint filed in federal court in Los Angeles, Tarantino's lawyers say they repeatedly asked Gawker Media to remove the links, to no avail. John Cook, Gawker's editor, responded with a post that rebuts the complaint's most damaging allegations, saying Defamer had no involvement whatsoever in the leak or the script's posting online. Cook also quotes Tarantino's comments last week to Deadline Hollywood, in which the filmmaker said he likes having his work online for people to read and review. 'Reporters often assume that providing links to items of public interest is perfectly aboveboard, even if the items themselves aren't. If this case goes to trial, it could help clarify what links simply can't be published legally, regardless of the news value,' writes Healey. 'I'm not arguing that what Gawker did was legal — that's a judge's decision. I'm just saying that there's a journalistic reason for Gawker to do what it did, and those of us who write about copyrights struggle often with the question of how to report what seems newsworthy without crossing a line that's drawn case by case.'"
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Quentin Tarantino Vs. Gawker: When Is Linking Illegal For Journalists?

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  • by c5402dc53929211e1efb (3084201) on Tuesday January 28, 2014 @07:30PM (#46095769)

    who started this idea that a hyperlink is infringement?

    • by tysonedwards (969693) on Tuesday January 28, 2014 @07:32PM (#46095793)
      No one. The current argument is that a hyperlink to infringing work "advocates infringement".
    • by lgw (121541) on Tuesday January 28, 2014 @07:44PM (#46095855) Journal

      Do DMCA takedown requests apply to links to? When I first read about this case, it was snowballing from a refused DMCA takedown request.

      Also, it's important to note that this isn't a link to a torrent tracker for a released film, or any other such "already made public" data. This is a script for an early-phase movie, so the money lost by making it public isn't wrapped up in BS "piracy" numbers. If QT can show real financial losses due to Gawker's inclusion of links, it will actually be an interesting case. If not, then maybe it's just free advertising.

      • by w_dragon (1802458)
        DMCA takedowns apply to sites that host user-created content. It does not apply to content that a site creates itself.
        • by raymorris (2726007) on Tuesday January 28, 2014 @10:49PM (#46096897)

          You've got it backwards. DMCA applies very much to content added by the webmaster. DMCA specifies how a web hosting company ought to respond to complaints of copyright infringement in their servers / datacenter. Some sites with user-generated content have argued that they are effectively hosting the user content.

          If the web host follows the procedure, they are immune from claims of contributory infringement and the like. The process is:

          Copyright owner sends a sworn notice to the host, specifying exactly which content is theirs (infringing).

          Web host chchecks that the NOTICE complies with the law - it's properly signed, etc.

          Web host informs the webmaster and temporarily blocks the content.

          The webmaster may reply saying it's not infringing.
          DMCA specifies this counter-notice should be signed, etc.

          Web host puts the content back upon receipt of proper counter-notice.

          Copyright owner could sue in federal court to try to get it taken down again.

          Webmaster can sue if the original notice is bogus.

          Unfortunately, many people aren't well informed about the counter notice and their right to sue someone who files a bogus notice.

          Note that the web host does not make any judgement as to whether the claim is valid. They have no discretion about taking it down temporarily and putting it back up when they receive a notice under DMCA. Their only decision is whether or not they've actually received a DMCA notice. For example, "Slashdot stole my shit" is not a notice under DMCA. A good friend of mine, and long time customer, won a suit on the basis that the alleged DMCA notice was not in fact a proper notice under DMCA because it didn't specify exactly what was claimed to be infringing.

        • by Charliemopps (1157495) on Tuesday January 28, 2014 @11:18PM (#46097025)

          I used to handle DMCA requests. They apply to anything and everything. You'd think they just apply to actual content, but they also apply to links, torrent files (which are basically just links) and even "activity" (i.e. you get a letter from your ISP for what you supposedly have done with no proof) The whole problem with DMCA is it's so completely vague and nearly impossible to figure out if you're in the right or wrong that the content owners (or even people pretending to be them) can basically make a threat and you have little recourse but to comply or get sued. Even if you win you've spent a lot of money just to keep a link up and usually content owners pockets are very deep.

          Eventually this vagueness will get the law struck down when someone goes so far with it that it reaches a high enough court. But until then we're stuck with this bullshit.

      • Imagine stolenmovies.com charges $5 / month for access. Within the protected member's area of stolenmovies.com, members see a Netflix style interface where they can browse and search for movies. When you actually click "play" to play a movie, it plays a short commercial, then redirects to http://randomhackedmachine.ru/... [randomhackedmachine.ru]

        In that case, stolenmovie.com would be infringing, criminal infringement even. Since the site infringes, one could use a DMCA notice to have it shut down for a day or two.

        On the other hand

        • Obviously this could never happen, because the video from stolenmovies.com would have the evil bit set per RFC3514. Duh.
        • by lgw (121541)

          I love the way you ignore that CNN is a major for-profit corporation (with ads even!). I see no difference in those cases.

          • > I love the way you ignore that CNN is a major for-profit corporation

            Not that it's all that relevant, but in fact I said "CNN's position would be even stronger if they were non-profit".
            Did you miss that part?

            > I see no difference in those cases.

            The law does. The law is that an action (including building a site) for the purpose of profiting from infringement is different from an action undertaken for the purpose of covering the news. Come to think of it, that's a pretty darn good one-sentence summa

            • by lgw (121541)

              It's possible to understand all you said and still disagree with you - don't assume opposition == ignorance.

              The fair use is what QT is arguing: his position is that the story could be covered just fine without including links to the "stolen" script. I find that argument compelling, but it's the court's opinion that matters.

              Gawker is IMO definitely "profiting from infringement" by including the links, unneeded to report the story, to get more eyeballs and ad revenue than the same story with no links.

    • by fermion (181285) on Tuesday January 28, 2014 @08:15PM (#46096027) Homepage Journal
      It is really hard for people who do not understand the workings of the internet to comprehend the consequences. These people simply use the internet with little understanding, or fear it and don't work to leverage it to their advantage. Tarrantino is a wonderful writer and director, but I don't know that has any technical skills or how much he understands what is possible and not possible. He may or may not see that linking is just a citation. This is probably true of a lot of other people.

      My favorite story of this is SMBC, the web comic. The writer of this comic got really, really mad when some right wing religious nuts linked to the comic. I mean threw a real temper tantrum. A lot of allegedly intelligent people also went along with him. What I found funny is that SMBC clearly was using a prepackaged web application, and just like most prepackaged web application for comics, there was instructions right below the comic telling anyone who wanted to how to link to the comic so they could display the comic on their own webpage. Now, if whoever ran the website were technically proficient, or even just knew how to read, they could have adjusted the text so that people could would have to make a copy of it rather than pull it off the server every time, or they could have added a note saying that only certain like minded people were allowed to read the comic, and everyone else was to go away. Likewise, if SMBC did not like deep linking, it is possible to filter requests based on domains. I have worked on custom web servers, and I assure it is non trivial but not difficult.

      So to answer your question, never. Most people are never going to understand the technology.,

    • by minstrelmike (1602771) on Tuesday January 28, 2014 @08:49PM (#46096225)

      who started this idea that a hyperlink is infringement?

      The print media. I believe Time or some similar magazine wanted users to actually visit _their_ site without a wrap around banner from some other aggregating site. (Time has a specific look and feel and red border that is supposed to go with every story).
      Those were the first court cases, providing pop-up links to a story that displayed in your own company's ad-banner window were judged illegal. Of course, that's got nothing to do with Quentin's issue except for the word "hyperlink" so of course it rules the roost as far as the legal community is concerned.

      • Oh, no, it's much older than that.

        Originally, many site owners didn't want links to their website to appear on other websites. They saw that linking as copyright infringement or, in cases of popular articles, encouraging a DoS attack. They posted the information on their websites for the people they wanted to see it and the people they gave the links to and nobody else. This was all before ad revenue became a thing, and before web branding and popularity was important. Before people saw that websites we

    • It isn't infringement but the sharing of URLs can be construed as contributory infringement.

    • In this case, the web site "quoted a brief excerpt and a short summary". So they not only linked to the material - they had a (partial) copy of it as well.

      Fair use - as in a movie review - does not apply here, since it is not a published work. So, link or not, Defamer/Gawker are guilty of copyright infringement.

      • I guarantee you that it was published when they cited it. Maybe not by the original author, but Gawker didn't get it under NDA.
      • "Defamer quoted only a brief excerpt and a short summary published earlier that day by the Wrap."
        They merely quoted some other site's excerpt and summary. Why isn't the Wrap being sued?
        If you tell me where to buy drugs and your experience on them, and I post your dealer's whereabouts and quote your experience, why should I go to jail for drug use?
    • The whole DeCSS trial started it. The first ruling made hyperlinking illegal so everyone here tried to be edgy by posting the URL so it could be copied and pasted instead.

    • by flyneye (84093)

      Could it be as infringing as copying the plots from cheap old novels into screenplays?
      Did anyone pay these authors more than the cost of the book on the shelf?
      Tarantino has a lot of coke filled rational to explain, and it better be good.
      Hmmph, see what happens if we pretend there is such a thing as intellectual property?
      There are no new ideas, everyone is a criminal.
      There are no new inventions, everything is anticipated.
      To continue this way only invites bloodshed.

  • Let's all discuss (Score:5, Interesting)

    by Sean (422) on Tuesday January 28, 2014 @07:31PM (#46095785)

    What the pirates over at TPB are saying. Find those comments here:

    http://thepiratebay.se/torrent... [thepiratebay.se]

    • by fatphil (181876)
      Is that gonna be the new goatse?

      "Oh noes! I've just been tricked into grabing another bloody copy of Tarantino!"

      And maybe you're a MAFIAA plant who needs more members of the public to trample?
      • by MightyMartian (840721) on Tuesday January 28, 2014 @08:30PM (#46096127) Journal

        I enjoy Tarantino films as much as the next red blooded male, but really, what is a Tarantino script:

        1. Introduce quirky archetypal characters.
        2. Gory death scenes cast in a humorous light.
        3. Lots of dialog between quirky archetypal characters.
        4. Absolutely astonishing amount of blood and gore, with lots of humorous hip dialog, so you laugh as someone is shot, stabbed, torn apart, beheaded or otherwise eradicated.
        5. Final dialog scenes, perhaps some gore, but inevitably leading to...
        6. Over the top death and destruction on a scale that makes the mind revolt against what its seeing, with inevitably satisfying catharsis as the Tarantino-esque definition of good triumphs over the difficult to differentiate definition of evil fails.
        7. Close with Morricone score or slightly obscure funky 1970s R&B song.
        8. Profit!!!!!!

        I only hope he doesn't sue me.

        • Re:Let's all discuss (Score:4, Interesting)

          by fatphil (181876) on Tuesday January 28, 2014 @08:55PM (#46096291) Homepage
          You've pretty much nailed it, however what you've almost entirely forgotten is that there have to be a whole load of film references embedded in people's names, place names, settings, vignetes, blocking, scenes, etc. so that the ultra-cool l33t film buffs can say "I particularly liked the Kurosawa-influenced bathing scene in the helicopter", "oh, yes, delightful, in particular with it raining inside at the time - pure Solaris!", "complete with the Ennio's soundtrack - classic!", "Indeed, he's a genius, and he cares so much for us real fans who appreciate all these details". Go suck a tailpipe, he's just recycling, that's all.

          However, I did enjoy the first one *immensely*, and the second one *a lot*, but every subsequent one less than the previous. I've skipped a bunch, but Django was bollocks. Sorry, but it was pure unadulterated shite.
          • Inglorious Basterds was worth it just for Waltz's performance. Django was alright, but the final scene was way out there for even Tarantino.

            My favorites remain Pulp Fiction and Jackie Brown.

        • by mythosaz (572040)

          Simplifying Tarantino to quirky characters discussing of minutiae while the oldies play on the diner jukebox is like saying the Ramones only use three chords on the downbeat.

          • Re: (Score:2, Informative)

            by Anonymous Coward

            Tarantino films are almost always extremely shallow with little to no interesting social commentary. Fans of his like to pretend there's depth because of the overuse of banal references to pop culture. The primary difference between him and Michael Bay is that Bay knows he's making fun, yet ultimately dumb, movies.

        • I enjoy Tarantino films as much as the next red blooded male, but really, what is a Tarantino script:

          Suddenly, a wild lawyer appeared and that poster was never heard from again. Well, anyway. Tarantino hasn't thought things through... or rather, he's stubbornly short sighted and cares only about item 8 on your list. But here's the problem: The moment you take away fair use like this, published or not, copyrighted or not, you pretty much make an end of democracy. What a bold claim! Surely you must be trolling! Except I'm not: How do you think a democracy can exist if the population is illiterate and doesn't

        • by mwvdlee (775178)

          Most movies follow the exact same script.
          The thing that makes Tarantino movies stand out is the quality of the dialog scenes.

    • What the pirates over at TPB are saying. Find those comments here:

      http://thepiratebay.se/torrent... [thepiratebay.se]

      Infringer! Cease and decist!

  • by bazmail (764941) on Tuesday January 28, 2014 @07:31PM (#46095787)
    when it's illegal for everyone else. presumably. there is no special law for journalists. very few journalists kicked up a fuss when Joe public was losing his house because hr linked to copyrighted material. but now that one of their own is in the firing line its a big deal? fuck journalists. where were they when the content mafia took over the nation?
    • by fatphil (181876)
      Where were they? They were working for the massive media conglomerates, presumably. (Some of which are documented here: http://www.freepress.net/ownership/chart , but that's not an exhaustive list.)
  • From what I gather this is a civil issue. Not a criminal issue. Would you post links to Google maps pointing people to houses in your neighbourhood that are not locked? Sure there is some vague journalistic value to posting such links... but there is also an issue of responsibility.

    • by Ichijo (607641)

      Would you post links to Google maps pointing people to houses in your neighbourhood that are not locked?

      A better analogy would be a map of unsecured WiFi access points, because taking advantage of this information does not involve burglary. And yes, wardriving maps exist.

      • by rtb61 (674572)

        A even more accurate analogy, would be pointing out the person who committed a criminal act and proof of it and then the victim suing me for doing so because 'er' 'um' 'er' just because. So gawker provides a link to the site pointing them out to police, lawyers, the victim and the Tarantino throws a hissy fit and tries to sue them.

    • Would you post links to Google maps pointing people to houses in your neighbourhood that are not locked?

      'Unlocked' is one form of 'unprotected'. There was already a Westchester NY newspaper that published a list of houses where the owners were protected with a firearm. The exact inverse of this list is houses where the owners are not protected with a firearm, which makes for easy pickings by home invaders, or even 'just' robbers (no "herd immunity"). So, yeah, there is precedent.

  • by nick_davison (217681) on Tuesday January 28, 2014 @07:42PM (#46095847)

    Tarantino's lawyers are arguing that it wasn't available online - until Gawker offered to pay anyone who leaked a copy.

    It's not illegal to report a murder. It is illegal to say, "I'll pay $10,000 for the exclusive story for the person who kills my wife."

    IANAL and I've no idea whether that analogy holds true for copyright but it's apparently the angle Tarantino's lawyers are pursuing - that it's not the linking so much as the linking to an act they solicited.

    • by QuasiSteve (2042606) on Tuesday January 28, 2014 @07:52PM (#46095897)

      The Dutch 'populist weblog' GeenStijl faced a similar suit from the Dutch edition of Playboy magazine.

      They had linked to an archive that contained leaked pictures of a yet-to-be-published issue, and Playboy initially won in a lower court which sided with them on the suggestion that said linking was effectively publishing,

      GeenStijl appealed, and a higher court found that since Playboy could not prove that the link was absolutely private, GeenStijl could not be seen as the the publishers.
      ( GeenStijl still had to pay a fine because the judge found that just mentioning it would have sufficed for the purposes of press, and posting a part of one of the images breached copyright. )

      This leaves the door open for any news organization (or tabloid magazine) to upload things anonymously, then link to it, and claim innocence. On the up side, it means that you can still link to things and not get sued for it on the basis that you would be seen as the publishing party. In the U.S. there's still the DMCA to contend with, of course.

    • by geekoid (135745)

      Nope.
      It's like saying you will pay $10,000 to whom ever tells you who deep throat is.
      It is in no way like murder.

    • Buying stolen property? Why, I'm sure a media organization of such high repute [wikipedia.org] would never do so!

    • In reading through some of the articles, it sounds like it was available online prior to their article (other sites had reported on it days earlier), but that Gawker both induced infringement by encouraging people to check it out, and also profited from it by billing themselves as the ones to break the story on where the leaked script was located. IANAL, but it seems as if there may be a case there, even if they were not paying people to leak it directly.

    • Surely this offer should be linked to and/or archived; its existence easily verifiable.
  • This is the sort of case that needs to be appealed to the Supreme Court instead of being settled, because there's plenty of uncertainty in prior court precedent as to whether linking to infringing content is itself an infringement (particularly with reference to DMCA takedown requests).

    And then afterwards, Tarantino could write and direct a new movie about the case, which would probably include Ruth Bader Ginsburg mowing down hordes of zombie attorneys in slow motion with an M249.

    • by msauve (701917)
      "Ruth Bader Ginsburg mowing down hordes of zombie attorneys in slow motion with an M249."

      Now, that's fiction.

      She's the justice most opposed to civil rights as affirmed by the 2nd Amendment.
  • by Anonymous Coward on Tuesday January 28, 2014 @07:57PM (#46095933)

    That someone could consider hyper linking infringement or someone could consider gawker journalists.

  • Now everybody spoiler-happy dude will go read the leaked screenplay. The Tarantino effect is just like the Streisand effect, but bloodier...

    • Re: (Score:3, Informative)

      by Anonymous Coward

      Problem here is that Tarantino said he wouldn't make the movie since it leaked from some actor's agent, and that now that it was out, he didn't mind people reading it. So the movie has been reduced to a script, permanently, unless Tarantino changes his mind which seems unlikely.

  • The fact that someone actually questioned the ethics of Gawker is kind of funny. I thought everyone just knew the were the bottom feeders of bad journalism.
  • by dAzED1 (33635) on Tuesday January 28, 2014 @08:59PM (#46096317) Homepage Journal

    " I'm just saying that there's a journalistic reason for Gawker to do what it did"

    Err...what "journalistic reason" could there possibly be for offering a ransom for an illegal activity, then publishing the results of that activity, for the sole purpose of generating adview/click revenue? Aside from gawker not even having any journalistic content, what in the world is the "journalistic reason" for that?

    Now that said, I think there's a moral/ethical reason for creators to willingly do it - and somewhat for the consumers to share it even if it is against the will of the one who created it - but that's because I'm a biased open society guy, and a complete nutjob. I can't though, in all my madness, envision a world/perspective/banana in which there is a "journalistic reason" for this. Someone help me here?

    • You see, someone lost a URL in a bar...

    • by ancientt (569920)

      I'd very much like to see MSN or CNN or even Fox offer a $2000 bounty and protection from identification as a source to anyone who shows that they've successfully accessed mass information on healthcare.gov. I've never been there, but I'm a little concerned that some of my records might be accessed through the site and I don't think the people working on it are placing a high enough priority on security. I'd rather it was done by someone to provide to a news agency that gets publicly reported than someone w

    • Can you prove the ransom existed?
      • by dAzED1 (33635)
        are you serious? That's not even in dispute. They offered a bounty for it - like they have for many other things. Leaks about ipad pre-launch, private photos of celebrities, etc - their entire business model is doing exactly that. Convincing other people to do morally questionable, if not outright illegal, activities - then making profit from ad views from those who come to look at the story. That is the entirety of their business model.
        • Oh, I guess the lack of mentioning it in the summary or TFAs made me think otherwise. The Gawker article quotes The Wrap, who seems to be the real culprit. This also casts doubt. So, yeah, it is in dispute. Regardless what they've done in the past, I'd want hard evidence if the courts are involved.
  • Tarantino was his usual take-my-ball-and-go-home self about the leak.

    He shared the script with a small circle of people, mostly Tarantino regulars (Madsen, Roth), but included the agents of a few people, including Bruce Dern's and Reggie Hudlin's. He pretty much blames someone at CAA for leaking it, and wanted a name on a platter; not getting one, he promised to shelf the film as some sort of punishment.

    • by Scorpinox (479613)

      He's just a guy. A guy who spent a lot of time hand writing a script for a movie, and showed an early, unfinished copy of it to a few people. Now it's out there for people to criticize before it's even done. If I were him, I'd be pretty damn bummed out about it as well -- he's under no obligation to finish his own creative work if he no longer cares about it, and something like this could easily take all the passion out of a project.

      • You know how you keep a secret in a world where information is absolutely trivial to transmit?
  • Regardless of the quality of the web site/newspaper, if the people running it had no fiduciary duty to protect the stock price of this or that studio, I don't think he has a leg to stand on legally.

  • it rocks the boat.

    No, not your little crappy dingy you people reading this are stuck in.

    I am talking about the 1200ft Yacht over there.

    -Hack

  • The best movies I know all come from a book. And most readers are usually the ones who want to see what the book gives on screen (eg LOTR). Thus saying "if the story leaks in a book, nobody will go see it in a theater" is wrong. So, does such leak have a bad impact on the movie success is yet to be proven. With all the media publicity it created (like /.), the leak is probably not so bad for QT (besides, one may wonder why it took Tarantino a week to sue the guy...).
  • by Scorpinox (479613) on Tuesday January 28, 2014 @11:19PM (#46097029)

    What baffles me is how Gawker would think to do this and expect their advertisers not to care. Why would a movie or game company give them any money after they've shown they're willing provide easy links to copyrighted material? Whether or not linking is illegal, advertisers are under no obligation continue supporting them. I sure as hell wouldn't pay to have a banner ad for some peice of media next to a link to a torrent or rapidshare link.

    • Because advertisers are the absolute last people who are going to complain about someone distributing their ads for free....

    • I'm not sure why anyone would be surprised. This is the same company that paid for a stolen iPhone prototype and published a breakdown of its contents before Apple had even announced the device.

  • by SuperDre (982372) on Wednesday January 29, 2014 @05:09AM (#46098207) Homepage
    gawker shouldn't have linked to the script, there was no journalistic reason for it.. What's next, writing an article about childporn and then link to a gazillion sites with childporn? get real.. journalists shouldn't act like they are so naive, links to the real scripts will attract more readers, it has nothing to do with journalism, and everything to do with advertisment/money...

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