As reported by the 1709 Blog back in February, director Quentin Tarantino is currently suing popular media and gossip blog, Gawker, for the contributory infringement of copyright in a script entitled, The Hateful Eight. The screenplay was leaked after the director circulated it among six acquaintances. Thereafter, the script was uploaded to two file-sharing sites: Anonfiles.com and Scribd.com. Gawker reported the leak and provided hyperlinks to the uploaded files.
Last week, a district court judge in the Ninth Circuit granted Gawker’s motion to dismiss on the grounds that Tarantino had failed to provide any evidence of direct infringement. Instead of providing the necessary proof that someone copied the work and that Gawker’s actions contributed to that direct infringement, Tarantino simply speculated that some direct infringement must have taken place.
This leads one to wonder whether Tarantino’s assumption that direct infringement occurred was misplaced. On the balance of probabilities, it seems likely that someone will have downloaded the script from the file-sharing sites. Ought the failure to provide a specific allegation of such actions be grounds for motion to dismiss? Or ought the court presume direct infringement and allow the case to continue to the discovery stage?
Also interesting is the court’s discussion of what qualifies as a direct infringement. In a footnote, the court states that “even if Plaintiff alleged that individuals accessed the links contained in Defendant’s article in order to read Plaintiff’s script, such an allegation would still not support Plaintiff’s contributory infringement claim against Defendant” because “[s]imply viewing a copy of allegedly infringing work on one’s own computer does not constitute direct infringement.” Some have questioned whether this statement is consistent with a previous Ninth Circuit case of MAI Systems v Peak Corp., 991 F.2d 551 (1993). According to this case, the automated copying of protected material into a computer’s RAM is potentially grounds for direct infringement, despite the temporary existence of the copy. Presumably if someone did use the link to access the script, their viewing of the site would create a RAM copy and thus constitute a direct infringement under the MAI holding.
The court will allow Tarantino to re-file the case with more evidence by the end of the month. Meanwhile, although he was initially so appalled by the leak that he decided to scrap the project, the director has subsequently stated that he is continuing to work on the script.