Not long after “Fire and Fury” reached the bestseller list, WikiLeaks tweeted what appeared to be a full-text copy of Michael Wolff’s explosive book about a tumultuous Trump White House.
Full text of controversial book on Trump, "Fire and Fury", by Michael Wolff, leaks onto internet: https://t.co/sf7vj4IYAx
— WikiLeaks (@wikileaks) January 8, 2018
Whether WikiLeaks could be accused of copyright infringement depends on a few factors, experts say.
“If I upload an unauthorized copy of a book on my website and I share that link to everyone, that’s clearly direct copyright infringement,” Shyam Balganesh, a University of Pennsylvania law professor who specializes in copyright and intellectual-property laws, told The Washington Post. “On the other hand, if someone else uploads some infringing content and I just share its location, i.e., the link via a tweet, then it is unlikely to be direct infringement.”
In the latter case, Balganesh said, the liability falls on whoever uploaded the file and whoever downloaded it.
“If you’ve downloaded it, you have made an unauthorized copy, and if you’ve made an unauthorized copy, you’ve violated the reproduction right of the copyright owner,” he said.
Balganesh said WikiLeaks’s tweet, which says that the book was leaked “onto internet,” would suggest that a third party possibly published the text online and WikiLeaks shared the link. The consensus, he said, is that merely sharing a link to unauthorized content is not direct copyright infringement.
But it does not mean that an organization such as WikiLeaks could not be held liable, experts say.
“You can imagine a lawsuit against WikiLeaks for inducing infringement or contributing to infringement,” said Eugene Volokh, a professor at the University of California at Los Angeles who has taught copyright law.
Mitchell Zimmerman, a California-based lawyer who’s handled copyright, trademark and patent cases, agreed. Widely distributing a link and inviting people to download illegal copies are equally serious, he said.
“Any notion it’s okay to encourage people to download infringing copies of an entire book that they are free to buy is just wrong,” Zimmerman said. “Destroying the financial basis for publishing a book [and] being able to sell it is just a backhanded way of discouraging people from writing books critical of the president in the first place. WikiLeaks is promoting a kind of soft censorship when it seeks to punish the author and publisher of a controversial work.”
Experts also do not believe that WikiLeaks’s actions are protected by the First Amendment. Volokh said that applies only if WikiLeaks shared content that has been suppressed from the public. The book remains available to anyone, albeit at a cost.
WikiLeaks did not respond to emailed questions from The Post. But in a recent tweet responding to an International Business Times story that seemed to speculate on WikiLeaks’s motive, the organization said: “@WikiLeaks reports on leaks. Hint: It’s in the name.”
At some point after WikiLeaks tweeted the PDF file, Google took it down. Anyone who clicks on the link is directed to a page that says the file can’t be accessed, because it violates Google’s terms of service.
Google said in a statement that the company removed the file as soon as it became aware of it.
“Our policies prohibit the use of our products to distribute copyright-infringing content,” the statement said.
Had Google continued to host the file, the company also could conceivably have faced some liability, Volokh said.
Still, it’s unclear how long the file was online, or whether anyone among WikiLeaks’s nearly 5.5 million Twitter followers downloaded it illegally.
Statutory damages in a copyright infringement lawsuit could go as high as $150,000, Balganesh said.
A spokeswoman for Henry Holt and Co., Wolff’s publisher, did not immediately respond to a request for comment.
Last week, an attorney for President Trump sought to stop the publication of book, which had prompted Trump to decry Stephen K. Bannon, his former chief strategist. Bannon had made unflattering comments in the book about the president and his family. White House press secretary Sarah Huckabee Sanders called the book “some trash” that a previously unknown author “wants to peddle.”
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