Tarantino, Gawker And The Hateful Eight – A Case Of Inglorious Infringement?

Academy Award winning director, screenwriter and producer Quentin Tarantino has filed a copyright action in the U.S. District Court of Los Angeles against Gawker Media for facilitating the dissemination of the unproduced script for his film The Hateful Eight. As the media outlet that attempted to purchase the video of Toronto Mayor Rob Ford allegedly smoking crack, Gawker is no stranger to controversy.

The lawsuit alleges Gawker "made a business of predatory journalism" by posting multiple links to the entire script on its blog, the Defamer. Further, according to Tarantino's claim, Gawker encouraged users to download the copyrighted content with the cheery invitation to "Enjoy!" and has refused to remove the posted URL links.

The law in the United States currently does not recognize hyperlinking itself as a form of copyright infringement. In Perason Educ., Inc.v. Ishayen, 2013 WL 3948505 the United States Federal Court held that merely providing a link to a copyrighted content is not direct infringement of the copyright in that content. The court stated:

A hyperlink (or HTML instructions directing an internet user to a particular website) is the digital equivalent of giving the recipient driving directions to another website on the internet. A hyperlink does not itself contain any substantive content; in that important sense, a hyperlink differs from a zip file. Because hyperlinks do not themselves contain the copyrighted or protected derivative works, forwarding them does not infringe on any of a copyright owner's five exclusive rights under [Section 106 of the Copyright Act].

However, Tarantino's claim asserts that Gawker has gone well beyond merely providing a link to the copyrighted work and is itself contributing to the infringement. Contributory copyright infringment can be found on the part of someone who is not directly infringing but nevertheless is making contributions to the infringing acts of others. Tarantino alleges that Gawker is materially contributing to copyright infringement by knowingly providing links to third party sites where users can access his content which Gawker knew had been leaked without his permission. To succeed on contributory infringement, Tarantino must show that the webmaster or service provider actually knew or should have known of the infringing activity.

Contributory infringement has often been claimed against file sharing sites and search engines which exist as directories of others' content...