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Quentin Tarantino Files Copyright Infringement Suit Against Gawker

By Shane Wax

On January 22nd, Gawker Media LLC (Gawker), the popular media and entertainment gossip and news website, published a blog entry about the unauthorized leak of the script for Quentin Tarantino's next film, "The Hateful Eight," and his exasperated response. Tarantino had decided that he would no longer proceed with the film. The next day, Gawker posted links to third party websites where anonymous individuals had uploaded a copy of the leaked a script. A week later, Tarantino's lawyers hastily filed a lawsuit against Gawker Media and 10 Doe defendants in U.S. District Court in Los Angeles. Gawker responded to the lawsuit in yet another blog entry, claiming that it shared the links to the leaked scripts "because it was news."

The complaint in Tarantino v. Gawker Media, No. 14-cv-00603 (C.D. Cal.) alleges that the Doe defendants infringed Tarantino's right to reproduction, distribution and display of the script by illegally uploading the script to one of two websites. It further alleges that Gawker contributed to this infringement of Tarantino's copyrights by encouraging or inducing the upload.

However, what did Gawker actually do? For one, it did not upload the script itself. Rather, Gawker learned that the script was uploaded by anonymous third parties to other websites, and then provided its readers with links to those webpages. Gawker's alleged contribution stems from a statement on the first blog entry telling readers, "if anyone would like to name names or leak the script to us, please do so." While the complaint tries to claim that Gawker acted as the "first source" to offer the links, Gawker never claimed to be the exclusive or first source in either blog entry. In fact, it offered two separate links where users could find the leaked script.

Tarantino's main challenge will be the binding legal precedent set by the Ninth Circuit in the Perfect 10 cases. Those cases adopted the "server test," a rule which requires that a website maintains the copyrighted content on its own server to be held liable for public display.

While Tarantino's lawyers, perhaps aware of this precedent, are not alleging that Gawker is directly infringing the copyright attached to the script, it is unclear to what impact that holding will have on the contributory infringement claim.

Another notable decision that may pose both a challenge and a boon to Tarantino's legal team is the Seventh Circuit's 2012 decision in Flava Works v. Gunter. There, Judge Posner implicitly adopted the server test to find that the website owner could not be held directly liable for the digital performance of copyrighted videos that were framed within the website, i.e., accessible through links. As may be relevant to Tarantino, Judge Posner concluded that linking to copyrighted content could not give rise to contributory liability because there was no evidence that this conduct had an "effect on the amount of infringement" occurring. In other words, a website that allows its members to link to copyrighted material does not necessarily cause people to unlawfully upload the copyrighted content in the first place.

Importantly, however, Judge Posner also wrote that if a website "invited people to post copyrighted videos on the Internet without authorization," it could be held liable for inducement. This is more or less what Tarantino alleges, and what the Seventh Circuit found noticeably absent in Flava Works. It is therefore plausible that the outcome of this case could depend upon whether the court finds that Gawker's passive invitation encouraged the infringement.

A copy of the Complaint can be found here: http://msnbcmedia.msn.com/i/TODAY/Entertainment/_ENT%20archive%20and%20storage/PDFs/TarantinoVGawker.pdf

The Gawker webpage that lead to the lawsuit can be found here:

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