Opinion

Alison Frankel

In new Gawker infringement complaint, Tarantino shifts strategy

By Alison Frankel
May 6, 2014

I had high hopes that the case of Tarantino v. Gawker would go down in legal history for establishing precedent on whether a news site is liable for inducing infringement by linking to copyrighted material. But based on the amended complaint filed last week, the film auteur’s suit against the snarky website will hinge on plain old direct infringement — if it survives at all.

In case you’ve forgotten, Tarantino originally sued Gawker and a file uploading service called AnonFiles in January, after a Gawker site linked to AnonFiles’ version of his script for The Hateful Eight, a Western in early production. Gawker said it was just reporting the news: Hollywood was already buzzing about the script because Tarantino had abruptly canceled filming when he discovered it had been leaked to a couple people. Tarantino’s suit claimed that Gawker induced a reader to upload The Hateful Eight script to AnonFiles (and, subsequently, to Scribd), then induced additional acts of infringement by exhorting its millions of readers to click on the links.

That was an untested theory. Contributory infringement in the digital age has mostly been associated with websites that facilitate file sharing, not with online news organizations that routinely link to copyrighted content posted elsewhere. From the beginning of this flap, Gawker has vehemently denied any connection with the anonymous uploader who created a link to Tarantino’s script at AnonFiles and Scribd, so, assuming those statements were true, it looked as if Tarantino’s contributory infringement suit would live or die based on his ability to show that Gawker readers directly violated his rights by clicking on the site’s links to his script. Unless Tarantino could show direct infringement, he couldn’t prove the site had induced any violation of his rights.

In their motion to dismiss the suit, Gawker’s lawyers at Levine Sullivan Koch & Schulz argued that Tarantino’s complaint offered no evidence that anyone actually downloaded his script from AnonFiles or Scribd. U.S. District Judge John Walter of Los Angeles agreed with Gawker. In a minute order on April 22, he dismissed Tarantino’s suit for failing adequately to plead direct infringement. Tarantino’s counsel, Martin Singer of Lavely & Singer, assured Walter that he could easily cure the deficiency in an amended complaint, so the judge agreed to give Tarantino another chance.

The amended complaint Tarantino filed last Thursday suggests that evidence of direct infringement wasn’t so easy to come by after all. The complaint includes new, specific allegations about the date and time of a single download of Tarantino’s script by an anonymous Gawker reader who supposedly clicked on the Scribd link. Tarantino’s assertions about four unnamed downloaders at the AnonFiles site, however, remain unsupported by specific facts. The complaint claims that the script showed up in Google searches only after Gawker posted links to what would otherwise have been an ephemeral and unsearchable upload at AnonFiles. Maybe, but that’s not evidence Gawker induced direct infringement.

Tarantino’s better argument, this time around, is that Gawker directly infringed his copyright on The Hateful Eight –  an accusation he didn’t make in the first complaint. His lawyers claim that the only way to read a file from AnonFiles is to download it, which, according to Tarantino, means a copy of the file was stored on the reader’s computer. That’s direct infringement, Tarantino’s lawyers argue, and Gawker committed it when its reporter accessed Tarantino’s script at AnonFiles. (His evidence that Gawker downloaded the script is that the site referred to the screenplay’s 146 pages.)

Of course, even if Tarantino is right about Gawker’s downloading, Gawker has a strong fair use defense: It was engaged in reporting on a topic of public interest. It also didn’t publish Tarantino’s words, merely a link to them. I’ll certainly be interested to find out what Judge Walter decides about journalists downloading copyrighted material in the course of their reporting.

But not as curious as I was about the question of whether links to copyrighted material induce infringement. I guess we’ll have to wait for a less celebrated pair of litigants to set that precedent.

I reached out to lawyers for both Gawker and Tarantino but didn’t hear back.

(Reporting by Alison Frankel)


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