Tuesday, November 23, 2010

Saradise Lost - Book 5 - Chapter 1: Saradise Lost Series Resurrected

Back on July 27th, 2009, I wrote a post titled Saradise Lost Book Three, Chapter 31 - Saradise Lost Series Concluded. I had hoped to be done with writing about Sarah Palin.

It wasn't meant to be. After aborting her term as Alaska governor early in that term's third trimester, Palin insinuated herself into the national political scene in what has been a remarkably unique way:

• Her tweets and facebook posts on health care changed the course of the debate.

• Her contract with FOX News has given her the equivalent of millions of dollars worth of free advertising, both as a celebrity on-the-make, and as potential political candidate.

• Her first book and its tour kept her in the national news almost daily for over a month. Her second book's tour begins Wednesday.

• Her reality show, in which she rather lamely abuses her family, one way or another, is out there every week for most of the rest of the year. Then there will be the re-runs.

• And we're being subjected to daughter Bristol, formerly known as "The Abstinence Fairy," manipulating Dancing with the Stars, in rather tasteless ways.
The book tour, and the time between now and when Palin announces her exploratory campaign for the 2012 presidential race, will be the subject of Saradise Lost Book 5.

This is the 396th chapter of the entire series.

Media Matters picked up on the fact that even Palin's employer, FOX News, notes Palin's book tour strategy has its political bottom line:

So the book tour is concentrating on GOP 2012 primary battleground states. The reality show keeps pounding away, presenting her family ambience somehow as normal in an Alaska sort of way. Palin is attempting to hijack next year's Dancing with the Stars already, with her push to have Christine O'Donnell be a new dancer:

Sarah Palin reportedly lobbied producers of the ABC hit show "Dancing With The Stars" on Thursday night to bring failed Tea Party-backed U.S. Senate candidate Christine O'Donnell on as a contestent to the next season of the program.

According to the entertainment website PopEater, the former Alaska governor assumed the role of "casting director" when cheering on daughter Bristol as she competed in the show's finale.

An executive at ABC reportedly signaled that O'Donnell taking to the dancing floor might be an idea worth considering. The network insider also took a shot at the conservative favorite's infamous "I'm not a witch" campaign ad, which she released during her general election fight against now-Democratic Senator-elect Chris Coons.

"O'Donnell would fit right in," said the source to PopEater. "She certainly would be so controversial that the amount of press attention and buzz the show would get would be huge. Plus, you know they would make her dance in a witch's hat with a broomstick."

Palin's show lost 40% of its viewing audience for its second episode, which put it back down there with the bowling channel or something. So, five million people came to watch the opener, three million came back:

Apparently the country is not overly interested in watching Sarah Palin stun halibut with a billy club. Deadline Hollywood reports that Sarah Palin's Alaska, which drew a record 5 million viewers for its premiere last Sunday, lost 2 million viewers for this Sunday's follow-up.

On Sunday, the series executive produced by Mark Burnett, drew 3 million viewers. That is down 40% from the 5 million who tuned in for the debut last Sunday. In adults 18-49, Palin averaged 885,000, down 45% and also posted a similar decline, 46%, in adults 25-54.
Regarding the lawsuit against Gawker for leaking excerpts from Palin's book, the online journal Paidcontent.org looks into the case law on this kind of suit and comes up supporting Gawker over Harper-Collins and Palin:
[T]he Nation Enterprises case is different from the Palin case in one key respect: it involved a writer that had objectively been cheated out of a contract; Palin, by contrast, stands to make many millions from her book.

Ordinarily, Gawker‘s cheeky commentary on a political figure of national interest would seem like a classic case of fair use. The post that went up (no longer on Gawker) has commentary interspersed throughout Palin’s text. And even with the parts that weren’t commented on directly—the attribution page, for instance—couldn’t those be a type of commentary in and of themselves? After all, we’re talking about Sarah Palin here, a woman who can actually be parodied by actors reading verbatim transcripts of her words.

But Gawker was publishing a leak. Is the website’s publication of a negative post prior to the release of the book really so different, legally speaking, than it would have been five days later, after the book had hit store shelves? Unfortunately, yes. Stanford’s Fair Use Project has some details on seven key precedents regarding text-based fair use, including Harper & Row v. Nation Enterprises. The common thread: judges are generally ready to give copyright holders strong remedies when the supposed “fair use” might hurt the copyright holder’s bottom line.

That line of thinking is clearly present in the Nation Enterprises case, even though Ford and his publisher showed clear evidence of losing out financially as a result of the leak. The Nation—which had acquired his manuscript through shadowy means—actually scooped its competitor Time Magazine, which had already agreed to pay Ford $25,000 to publish an exclusive pre-publication excerpt. As a result of ,em>The Nation‘s scoop, Time canceled the contract and refused to pay the half of that fee it hadn’t already handed over.

Lawyers often refer to copyright as being a “basket” of different rights, and the Supreme Court ruled that the Nation had stolen Ford’s “right of first publication, an important marketable subsidiary right.” The fact that an excerpt is published pre-publication isn’t always determinative, but it is a “key” factor “tending to negate a defense of fair use,” the court held in a 6-3 decision.

Other cases of text excerpts that weren’t found to be fair use included books of trivia questions about Seinfeld, and an unauthorized guide to the TV show Twin Peaks—because, in both cases, they were seen to interfere with marketing of the “authorized” versions of such books. In another case, Salinger v. Random House, J.D. Salinger sued and successfully prevented his unpublished letters from being paraphrased in an unauthorized biography.

A showing of economic harm is exactly the kind of evidence that Palin can’t possibly muster here. If anything, the brouhaha over the Gawker excerpt is going to help her bottom line.

What seems to have really swayed judges in previous cases are situations where the copyright holder was going to lose sales in a market. Situations like Palin’s—where a copyright holder is in a prime position to reap all the benefits of a copyright, and anger at leaks is more about a desire for control than a real economic threat—ought to be treated differently.
Meanwhile, the European blog, Palingates has not been threatened, and has continued to publish content from Palin's pathetic volume.


Anonymous said...

A showing of economic harm is exactly the kind of evidence that Palin can’t possibly muster here. But I think it is Sarah being offended that some h8er blog is abusing her 'intellectual property,' without her authorization.

Sarah thinks her freely tweeted and posted ideology and social wedge-issue anger is expressly unique and can only be encapsulated in books where her name appears on the cover.

Thank god we have the Sarah Palin Department of Law looking out for her interests, else she not make a buck.

Kevin said...

It should be kept in mind that the court order telling Gawker to take the book excerpts down is only a preliminary injunction to preserve the status quo until the case is decided. Whether or not a judge grants a preliminary injunction depends not only on the judge's first impression of the merits of the plaintiff's case, but on the judge's balancing the likelihood and extent of the harm that would be inflicted on the defendant if the injunction were granted against the likelihood and extent of the harm that the plaintiff would suffer if the injunction were denied.

Although people who would read the excerpts on Gawker (and certainly on Palingates) would be unlikely to buy the book in any case, Palin has an argument that allowing hostile reviewers to selectively quote from the book and bash it publicly before it goes on sale might prejudice the public against the book, causing her financial loss. (Reviewing publications and those from whom favorable comments are expected are commonly given advance copies, but this is at the discretion of the author or publisher.) Once the book is on store shelves and fair game for everyone, I would expect the scope of "fair use" to broaden substantially.

Anonymous said...

Palingates did receive a letter from Harper Collins and Palingates response. You can see it posted as an undate at the bottom of the Wednesday, Nov 17th post.


Anonymous said...

Thanks for continuing your Sardise Lost series, Phil!

Philip Munger said...

anon @ 1:25 - I wrote about the Palingates matter earlier:


Anonymous said...

Thanks for the continuation of the series.

I think it is time for Sarah to refudiate the bad advice her lawyers gave her. She needs to sue Palingates. As soon as possible. And also send more threatening letters too, to keep them annoyed while the lawyers are busy filing. Be sure to include 'must keep secret' on all threatening letters to prevent further leakage.

That's a flaming paper bag there Sarah -don't you need to jump on it?