Peteski Productions is arguing that Deadspin spoiled a two-part cliffhanger on the Dr. Phil program by posting a clip of Ronaiah Tuiasosopo speaking in what he said was the voice of the fictitious girlfriend "hours before the Dr. Phil Show aired to over 98% of its viewers." In other words, the clip was posted after the episode of Dr. Phil had already been broadcast in some markets, breaking the show's own news blackout on the question of whether or not Tuiasosopo would perform the female voice.

According to Broadcasting & Cable, the first and second parts of the interview drew 4.8 million and 4.3 million viewers respectively, exceeding the show's average of 4.1 million. That performance helped make Dr. Phil the No. 1 rated syndicated talk show for that sweeps period.

A remora is a fish, sometimes called a suckerfish, which attaches itself to other fish like sharks. The host fish gains nothing from the relationship but the remora is enriched by obtaining benefits (usually food and transportation) from the host.

We publish all manner of stories here. Some are serious, some are frivolous, some are dumb. I am not going to make a case that the future of the Republic rises or falls on the ability of the general public to watch a video of Hulk Hogan fucking his friend's ex-wife. But the Constitution does unambiguously accord us the right to publish true things about public figures. And Campbell's order requiring us to take down not only a very brief, highly edited video excerpt from a 30-minute Hulk Hogan fucking session but also a lengthy written account from someone who had watched the entirety of that fucking session, is risible and contemptuous of centuries of First Amendment jurisprudence.

I've been in therapy since I was seven.

Update: Lena Dunham's personal litigation counsel Charles Harder has contacted Gawker to relay a demand from his client, Lena Dunham, that we remove the above quote from our web site. In order to clarify our intent in quoting the above matter from Dunham's proposal, we have decided to append the following commentary: The quoted sentence is revelatory of Dunham's character in that it provides evidence that she has been examining her own thoughts and desires analytically from an absurdly young age. It is also indicative of a nauseating and cloying precociousness that permeates the entire proposal.

When I was about nine I developed a terrible fear of being anorexic.

Update: Lena Dunham's personal litigation counsel Charles Harder has contacted Gawker to relay a demand from his client, Lena Dunham, that we remove the above quote from our web site. In order to clarify our intent in quoting the above matter from Dunham's proposal, we have decided to append the following commentary: The quoted sentence is indicative of Dunham's self-dramatizing narcissism inasmuch as it presents what is obviously a desire for an attention-grabbing condition as a fear of developing said condition. It is also indicative of a nauseating and cloying precociousness that permeates the entire proposal.

The court has no problem finding that Peep Telephony's activities were a matter of public interest, as Peep Telephony had received some high-profile coverage from technology reporters before Gizmodo's story, and Redmond apparently had been trying to stir up press coverage in advance of the 2011 CES conference. The court summarizes that the "Gizmodo article was a warning to a segment of the public--consumers and investors in the tech community--that Redmond's claims about his latest technology were not credible."

The court also says that Redmond's beefs relate to statements of opinion, not fact. The court notes that the word "scam" as not a factual assertion (a dicey outcome), the article was written in a "casual" and "sarcastic" first-person style ("the article's general tenor and language would give a reasonable reader the impression the authors were expressing subjective opinions, not reporting facts"), and the article used weasel words, such as "seems," "arguably," "looks like," etc., to qualify key fact-like assertions.

The most interesting part of the opinion is where the court talks about the article's "transparency." The court says (emphasis added):

The sources upon which the authors rely for their conclusions are specified, and the article incorporates active links to many of the original sources--mainly Web sites and promotional material created and maintained by Redmond and his ventures....Having ready access to the same facts as the authors, readers were put in a position to draw their own conclusions about Redmond and his ventures and technologies....Statements are generally considered to be nonactionable opinion when the facts supporting the opinion are disclosed.

This is true, of course, but a point often lost when defamation plaintiffs are breathing fire. A properly-cited article, filled with hyperlinks to original source materials, should be extra-resistant to defamation claims--even if written with typical blogger snark. Readers can easily inspect the source materials themselves and make their own judgments about the article's veracity. Thus, either the citations provide proper factual support for the article's opinion, or the links should eliminate any problems with the author's knowledge (where that matters to the prima facie defamation claim, which would have been the situation here). Either way, the defamation claim should fail, as it did here.

So this decision is a great ruling for bloggers. Unfortunately, it's unpublished (like far too many California appellate court opinions), which limits its precedential effect. To fix this, my RA and I are planning to request that the court publish it. Even if it remains unpublished, perhaps the ultimate takeaway--that defamation claims against well-cited blog posts will be quickly dismissed by anti-SLAPP laws and lead to the plaintiff paying money to the defense--will help dissuade similar lawsuits nonetheless. Especially in a situation like this, where the potential plaintiff already had gotten an on-the-spot rebuttal, suing over a blog post like Gizmodo's rarely makes sense.

• Kotaku didn't just post the random image. It was highlighting a point in a Kotaku live chat, where the producer of the EA game Dante's Inferno noted that it was this image that inspired him to create the video game:

  "The real "ah ha" moment for me was seeing this really cool map that someone created of the 9 circles of hell. You see a lot of these maps, you know the "V" shaped cross section, but there was one in particular that had all the call-outs for the different sections, the "bosses" of each circle (Charon, Minos, Cerberus, etc.), and I just looked at that map and said, "that's a level-based game waiting to happen."

• So it wasn't just a random use of the image -- it was a story about that specific image and included commentary beyond just the image.
• I don't know if the post changed, but as it stands right now, the image is a small thumbnail and there are two separate links to McCulloch's full image. Update: People are saying that the original post was not a thumbnail, but had a much larger version of the image. I'm still not sure how that wouldn't get fair use protections, however...
• There's a whole bucketload of derivative works issues here: McCulloch's image is derivative of the book. The video game is derivative of the book and the image. The blog post is derivative of all of that.
• Us reporting on the lawsuit where this image is central to the lawsuit again highlights how this is likely fair use.

1. the purpose and character of the use
   
   This clearly weights towards fair use. There is new expression around the image, describing how it was used to inspire the video game. On top of that, being used in reporting is quite a common form of fair use.
   
   
2. the nature of the copyrighted work
   
   This factor tends not to get that much attention, but the key issue is usually whether the content has already been published. In this case, it has been and is available for everyone to see on the web anyway.
   
   
3. The amount and substantiality of the portion taken
   
   While this is the whole image, it appears to be a thumbnail of the image and provides additional commentary. As we've seen in a variety of cases involving fair use questions concerning images, making use of the entire image, even in commercial use, can still be fair use if it makes sense in context. In this case, that certainly seems to be true.
   
   
4. The effect of the use upon the potential market
   
   This is one of the "big" tests, and it again weighs entirely towards fair use here. Is anyone less likely to purchase or license the work because of Gawker's use? That seems highly unlikely. If anything, it brings additional attention to both the artist and the work.