Here's My Take On the Tarantino v. Gawker Lawsuit Battle

tarantino-xx-blu-ray-posterA few people have asked my opinion on the Quentin Tarantino v. Gawker lawsuit and while I've been happy to lament it with friends and family, I hesitated to weigh in here because I wanted some time to get my thoughts in order. The situation, while comical, says something deeply unflattering about both Tarantino and Gawker, and it brings to light a previously unknown area of law that could have an impact that reverberates through the entertainment and media spheres for a long time. That time to think was also necessary to separate the wheat from the chaff - people have largely chosen sides based on knee-jerk reaction, rather than a thoughtful analysis of the facts (if you like Tarantino's films, Gawker is obviously the devil. If you dislike Tarantino's films, then he's a cry baby who may have instigated this whole fight). Now that I've had some time to process the situation, here's my take:

Whoever wins, we all lose.

For those not in the know, Tarantino sent an early draft of his new script, The Hateful Eight, to several actors he was considering for roles in the film. One of those actors (most likely Bruce Dern of Nebraska fame) gave the script to his agent. Somehow, the script leaked out of the agency and wound up on a website where it could be downloaded and shared by anyone. Angered by the leak, Tarantino spoke to Deadline to discuss how he was so pissed at the situation, he shelved the script completely and would make another film instead. A few days later, Gawker printed a story with the headline Here is the Leaked Quentin Tarantino Hateful Eight Script which contained a link to anonfiles, the website that was hosting the leaked script. Tarantino lost his shit and sued Gawker, claiming that it was liable for "contributory copyright infringement." You can find the complaint here, and you can read Gawker's response to the suit here.

Unlike traditional copyright infringement, contributory copyright infringement is a really muddy area of law, with very little case-law and precedent to accurately predict how a court would rule on this issue. Contributory infringement occurs when someone knowingly causes, induces, or materially contributes to copyright infringement. In this case, Gawker didn't host the script on its own servers, so it can't be liable for direct infringement. But because it linked to anonfiles and essentially told its audience, "here's where you can get it," Tarantino argues that it knowingly caused the infringement to be much worse than it otherwise would have been.

So did Gawker infringe Tarantino's script through contribution? That determination will rest on a lot of factors such as: the intent of the article's author and publisher, the likelihood of readers clicking through to the script, and the actual amount of traffic Gawker is responsible for sending to anonfiles. I honestly don't know how this will shake out, but here's what I do know... whichever way a court rules in this case, it sets a dangerous precedent for artists and web masters alike.

If Tarantino loses, it softens the rights of individual artists to protect their work from prying eyes. It allows websites to purposely drive traffic towards wrongfully obtained work without taking any of the blame for making the infringement worse. On the flip side, if Gawker loses, website owners will become responsible for content they don't host. No matter how you cut it, it creates a slippery slope that could negatively impact a lot of people, especially when you consider the fact that Tarantino filed his complaint in a California Federal District Court. Like New York, the California federal courts are extremely influential, and case-law coming out of those courts can set the agenda for the rest of the country.

To make matters worse, neither Tarantino nor Gawker have particularly good arguments. In the past, Tarantino has openly praised the leaking of his scripts, and his bluster is what made this story news to begin with (if he had handled it privately or through his lawyers, the script might never have leaked as quickly and as widely as it did). Gawker argues that because it's a news website, posting the link was newsworthy and thus, its actions are protected by fair use. But would a real news agency like CNN or BBC post the link? I doubt it. I also doubt that posting a link to an infringed script was the kind of thing the writers of our copyright laws envisioned when they came up with fair use.

I pray that the parties settle before getting to trial because this is not the case to determine such a deeply important issue.

When The Media Talks About Law School, They Only Tell Half The Story


[I'm biased, I admit it.  I loved law school, so if that means you want to call BS on everything I say after this sentence, I'll understand.]

Three weeks ago, The New Republic made a big splash in the legal community with this article examining the death of Big Law (huge multi-national firms with thousands of attorneys making over $150K per year).  The article describes how the old model of legal hiring is no longer applicable in a world of downsizing and economic uncertainty.  In the past decade, at least twelve major law firms have collapsed and the job market for lawyers has all but dried up.  And while the article never says the words "law school is a bad investment", it can't help but point out that

The odds are increasingly long that a recent law-school grad will find a job... In addition to the emotional toll unemployment exacts, it is often financially ruinous. The average law student graduates $100,000 in debt.

Even though the New Republic won't say it, every other mainstream media outlet already has.  Over the past three years, The New York Times, The Washington PostGawker Media and countless others have piled onto the "law school is a bad investment" bandwagon.  And whenever those stories get passed around between my friends and colleagues, I get annoyed.  "How can they paint with such a broad brush? Is what's good for the goose good for the gander?"

The premise is always the same: Law school is expensive  → since most people can't afford the tuition, they have to take out loans → the job market has shrunk for legal work, so there are fewer jobs for too many lawyers  → when lawyers can't get work, they drown in loan debt.  The New Republic article even quotes a lawyer who was let go from her Big Law job and believes she's facing bankruptcy as a result.

These arguments are all correct, and it seems like these stories are having the desired effect.  Law school enrollments in 2013 were down 13% from 2012 which were already down 7% from 2011.  I can't argue that law school is for everyone.  Law school is worth it for one group of people only: those who want to practice law.  No one else should consider it.

The media isn't wrong to point out these facts.  The media also isn't wrong to question the current model and to search for better options for long term sustainability.  The media IS wrong, however, to paint the choice to go to law school as a purely societal issue.  Yes, there are too many lawyers.  Yes there aren't enough jobs for them.  Yes it's contributing to the education loan debt crisis.  But you can't look at this issue solely through a macro lens.  These are individual people making a monumentally personal decision.  How will I pay my tuition?  How will I pay my bills for the next three years?  What are my job prospects after law school as opposed to now?  I can say from personal experience that my long-term job prospects in the entertainment industry weren't promising, so incurring all that law school debt seemed like a worthwhile gamble if there was a chance I could get a stable job after school.

By leaving out the human element, the issue turns into a binary Law School Is For Everyone vs. Law School Is For No One battle royal.  Even the articles defending law school education like this one build their case on the fact that lawyers will earn more money over their lifetimes than those without law degrees.  I understand that tactic.  As a lawyer, you want to use credible, citable evidence to prove your case - figures from the American Bar Association on enrollments, or a Seton Hall study on the economic value of a law degree.  Anecdotal evidence is less compelling if you're trying to convince an entire generation of people that something is or isn't for them.  If you want to justify something at the aggregate level, you need hard data.  That's how policy is made.

I lament the absence of the human element because I think we lose a real teaching moment.  People are drawn to law school for a variety of complex reasons (we weren't all wooed by promises of big paydays at firm jobs).  Reducing the entire argument to a numbers game diminishes the legitimacy of an entire profession.

There are certainly a lot of problems with the current law school educational system, but this isn't just a social issue.  It's a deeply personal one.  And the media hasn't done a good enough job telling THAT story.