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n early 2014 Quentin Tarantino publicly stated that his unproduced script The Hateful Eight was leaked and he would no longer be making the movie.1 On January 22, 2014, Gawker Media (“Gawker”), an Internet media outlet specializing in pop culture news, published a post reporting the leak’s occurrence and Tarantino’s subsequent reaction on its Defamer blog.2 At the end of the post, Gawker solicited readers for access to the script.3 The next day, Gawker posted a follow-up titled, “Here Is the Leaked Quentin Tarantino Hateful Eight Script,” with several hyperlinks, three of which directed readers to one of two websites hosting anonymously posted, unauthorized copies of Tarantino’s leaked script.4 Gawker encouraged readers to click on the hyperlinks in order to read the script but did not otherwise ask its readers to copy or distribute the leaked scripts.5
On January 27, 2014, Tarantino filed a complaint against Gawker in the Western Division of the United States District Court for the Central District of California, alleging that Gawker contributorily infringed Tarantino’s copyright.6 The complaint alleged that Tarantino’s camp filed two Digital Millennium Copyright Act (“DMCA”) takedown notices of infringement to Gawker, requesting removal of the hyperlinks.7 The media site refused to comply with the takedown notice and did not remove the hyperlinks.8
Gawker moved to dismiss the case, arguing that Tarantino’s complaint did not allege that a third party had directly infringed Tarantino’s copyright, a crucial element for proving contributory copyright infringement.9 Gawker continued that, even if he did prove a third party’s direct infringement, their hyperlinks were part of a news report constituting fair use under the Copyright Act of 1976 (“Copyright Act”).10 The judge agreed, granting Gawker’s motion to dismiss but allowing Tarantino to file an amended complaint alleging contributory infringement.11 The judge declined to evaluate Gawker’s fair use defense because it felt the argument was “premature,” but hinted that it would ultimately prevail.12
Tarantino filed an amended lawsuit, this time claiming Gawker both contributorily and directly infringed his copyright by posting hyperlinks to unauthorized copies of his script.13 Tarantino also made sure to specifically allege that at least one anonymous person downloaded the script after clicking Gawker’s hyperlink, but did not offer any concrete factual support.14 Before Gawker could respond to the amended complaint, Tarantino filed a notice for voluntary dismissal without prejudice.15 The notice reserves Tarantino’s right to re-file an action against Gawker for contributory infringement “after further investigations to ascertain and plead the identities of additional infringers resulting from Gawker Media’s contributory copyright infringement.”16
Though Tarantino v. Gawker will likely never see the light of day, the question of whether Gawker, as a news website, would be held contributorily liable for knowingly posting hyperlinks to a copyright-infringing website, is an interesting one. This issue is particularly thorny because both hyperlinks as they pertain to copyright law and contributory copyright infringement are amorphous areas of law.17 It also raises issues of fair use, both in the hyperlinking context and in the news story context.
Part I of this Note provides background for hyperlinking, copyright law, fair use, and contributory infringement. Part II of this Note discusses pertinent hyperlinking, copyright infringement, and fair use cases. Part III of this Note argues that Gawker should be held liable in the instant case if Meghan Carpenter’s and Stephen Hetcher’s proposition that the fixation requirement’s “transitory duration” prong should be shed from the inquiry altogether. It also argues that Gawker’s use of the hyperlinks in this case should not constitute fair use.
* Senior Writing & Research Editor, Fordham Intellectual Property, Media & Entertainment Law Journal, Volume XXV; J.D. Candidate, Fordham University School of Law, May 2015; B.S., University of Maryland, College Park, 2010. I would like to thank Professor Hansen and Nick Bartelt for their advice and care; Stephen Dixon & Kate Patton for their hard work and patience during the editorial process; and most of all, my family. To my parents, Alyce & William.
Mike Fleming Jr., Quentin Tarantino Shelves ‘The Hateful Eight’ After Betrayal Results in Script Leak, Deadline (Jan. 21, 2014, 5:40 PM), http://deadline.com/2014/01/ quentin-tarantino-hateful-eight-leak-novel-669066/. At the time of the interview, the leak was presumably not publicly posted to the Internet. See also Eriq Gardner, Quentin Tarantino Suing Gawker Over Leaked ‘Hateful Eight’ Script (Exclusive), The Hollywood Reporter (Jan. 27, 2014, 8:03 AM), http://www.hollywoodreporter.com/thr-esq/ quentin-tarantino-suing-gawker-leaked-674424. ↩
Lacey Donohue, Quentin Tarantino Throws Temper Tantrum After Script Leak, Defamer (Jan. 22, 2014, 10:37 AM), http://defamer.gawker.com/quentin-tarantinothrows-temper-tantrum-after-script-le-1506541036. ↩
Lacey Donohue, Here Is the Leaked Quentin Tarantino Hateful Eight Script, Defamer (Jan. 23, 2014, 4:50 PM), http://defamer.gawker.com/here-are-plot-detailsfrom-quentin-tarantinos- leaked-1507675261. The web pages hosting the leak script that the hyperlinks led to have since been disabled. ↩
Id.; Tarantino v. Gawker Media, LLC, No. CV 14-603-JFW FFMX, 2014 WL 2434647, at *2 (C.D. Cal. Apr. 22, 2014) (order granting motion to dismiss). ↩
Complaint, Tarantino, No. 2:14CV00603 (C.D. Cal. Jan. 27, 2014), 2014 WL 279854. In the same suit, Tarantino also sued AnonFiles.com, the website hosting the unauthorized copy, and nine other anonymous defendants for direct infringement. Tarantino did not know the identities of any of these parties. See id. at 1–10 (naming ten “DOE” defendants). ↩
Id. at 11-12.↩
Motion to Dismiss at 1, Tarantino, No. 2:14-cv-00603-JFW-FFM (C.D. Cal. Mar. 10, 2014), 2014 WL 1356498; see Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1173 (9th Cir. 2007). See also Tarantino, No. CV 14-603-JFW FFMX, 2014 WL 2434647, at *4 (C.D. Cal. Apr. 22, 2014) (order granting motion to dismiss) (“However, nowhere in . . . the Complaint does [Tarantino] allege a single act of direct infringement committed by any member of the general public that would support [Tarantino]’s claim for contributory copyright infringement. Instead, [Tarantino] merely speculates that some direct infringement must have taken place.”).↩
Motion to Dismiss at 1–2, Tarantino, No. 2:14-cv-00603-JFW-FFM (C.D. Cal. Mar. 10, 2014), 2014 WL 1356498; Copyright Act of 1976, 17 U.S.C. § 107 (2012).↩
See Tarantino, No. CV 14-603-JFW FFMX, 2014 WL 2434647, at *5–6 (C.D. Cal. Apr. 22, 2014) (order granting motion to dismiss) (“[T]he Court concludes that the fair use arguments, albeit persuasive and potentially dispositive, are premature . . .”). ↩
Id. at *5 (“However, the Court concludes that the fair use arguments, albeit persuasive and potentially dispositive, are premature . . . .”). ↩
First Amended Complaint at 10, Tarantino, No. 2:14-cv-00603-JFW-FFM (C.D. Cal. May 1, 2014), 2014 WL 2526689. Tarantino also dropped AnonFiles.com and the other anonymous defendants from the suit. See id. ↩
See id. at 8 (naming “Doe-Downloader(s) 3 through 6” and stating that each “download[ed] a copy” of the script). ↩
Notice of Voluntary Dismissal at 2, Tarantino, No. 2:14-cv-00603-JFW-FFM (C.D. Cal. May 7, 2014), available at http://www.shadesofgraylaw.com/media/Tarantino-vGawker-Notice-of-Vol-Withdrawal.pdf; see also Gardner, supra note 1. Tarantino decided to continue with filming The Hateful Eight soon after his voluntary withdrawal. See Roger Friedman, Exclusive: Tarantino Move ‘Hateful Eight’ Has a November Start Date, Showbiz411 (May 24, 2014, 10:26 AM), http://www.showbiz411.com/2014/05/24/ exclusive-tarantino-movie-hateful-eight-has-november-start-date. ↩
Notice of Voluntary Dismissal at 2, Tarantino, No. 2:14-cv-00603-JFW-FFM (C.D. Cal. May 7, 2014), available at http://www.shadesofgraylaw.com/media/Tarantino-vGawker-Notice-of-Vol-Withdrawal.pdf. ↩
Richard Raysman, et al., Emerging Technologies and the Law: Forms and Analysis § 5.25 (2014). ↩