That Was Quick: Appellate Court Says Simon & Schuster Not Subject To Prior Restraint Order Over Mary Trump's Book; But Fight's Not Over Yet
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Yesterday we wrote about how Charles Harder, representing the President's brother, was able to get a highly questionable temporary restraining order (TRO) against Mary Trump and Simon & Schuster not to publish Mary Trump's book "Too Much and Never Enough, How My Family Created the World's Most Dangerous Man." We noted that the prior restraint seemed unlikely to survive appellate scrutiny, and within a few hours it was already greatly limited. NY Appellate Court judge Alan Scheinkman wrote a much more thorough opinion than the (lower and misleadingly named) Supreme Court judge's ruling on the TRO.In it, he says that the TRO should be lifted from Simon & Schuster as a non-party to the confidentiality agreement signed between Mary Trump and others in her family. However, that does not necessarily mean the publication will go ahead. A somewhat modified order remains in place against Mary Trump, with the recognition that the more thorough hearing about the order will take place prior to the book's planned release anyway, which the judge seems to feel means that the order is not yet restricting any speech.S&S is not a party to the settlement agreement. The only basis offered by the plaintiffto extend the temporary restraining order to S&S are the allegations that S&S intends to act on Ms.Trump's behalf in causing the publication of the book and that S&S is acting at Ms. Trump'sdirection and in concert with her. However, these allegations are conclusory and not supported byany specific factual averments. Unlike Ms. Trump, S&S has not agreed to surrender or relinquishany of its First Amendment rights (see Ronnie Van Zant, Inc. v Cleopatra Records, Inc., 906 F3d at257). Since the predicate for the plaintiff's application for a temporary restraining order is theexistence of the confidentiality provision of the settlement agreement (and no alternate basis for aninjunction against Ms. Trump is either suggested or apparent), and S&S is not a party to thesettlement agreement, this Court perceives no basis for S&S to be specifically enjoined. However, it does appear that Simon & Schuster is not out of the woods yet entirely. Apparently the heavily lawyered-up agreement that the Trump family signed 20 years ago did include a clause that does allow for an injunction against "any agent" acting on a signatories' "behalf" may also be covered by an injunction. But, the judge argues, there is not enough of a briefing record to establish if S&S qualifies. So, while the order directly regarding S&S is lifted, it is possible that following the hearing next week at the (again, lower) Supreme Court regarding the permanent injunction, it could bring S&S back in under that umbrella:While the plaintiff has alleged, in effect, that S&S is Ms. Trump's agent, theevidence submitted is insufficient for this Court to determine whether the plaintiff is likely tosucceed in establishing that claim. So, while the plaintiff is entitled to have the temporary restrainingorder bind any agent of the plaintiff, this Court will not name S&S as being such an agent. So now, the parties get to fight out over the larger permanent injunction next week, which could bring this debate back around again pretty quickly.It is worth noting that the court also does nod towards the public interest argument for being one reason why an injunction might not be appropriate, but it is only doing so in acknowledging that argument, not tipping one way or the other on it:The passage of time and changes in circumstances mayhave rendered at least some of the restrained information less significant than it was at the time and,conversely, whatever legitimate public interest there may have been in the family disputes of a realestate developer and his relatives may be considerably heightened by that real estate developer nowbeing President of the United States and a current candidate for re-election. Drawing the appropriatebalance may well require in camera review of the book sought to be enjoined. Stated differently, thelegitimate interest in preserving family secrets may be one thing for the family of a real estatedeveloper, no matter how successful; it is another matter for the family of the President of the UnitedStates. So... the fight to publish the book will continue next week.One element in this case that I haven't seen much talked about, but also does deserve some scrutiny: the decision to have the case filed by Donald Trump's brother, Robert Trump. This is, somewhat obviously, a flimsy front for the president himself. He's using the president's own lawyer, who has represented the president in a bunch of other cases. It appears that the confidentiality agreement was signed on one side by the president, Robert Trump, and their sister Maryanne Trump Barry a former federal judge. While there may be some expediency reasons to try to pretend that this is really on behalf of the less-well-known brother it still seems like an odd choice for multiple reasons.First off, basically everyone recognizes this is really to help the president and not so much his brother. So having Robert be the plaintiff does little to actually shield the president. But, more importantly, if there are any "damages" from the breach of this agreement, it sure seems like Donald Trump would have the strong argument for those, as opposed to Robert Trump. But, perhaps Harder is hoping that using Robert Trump somehow gets the court not to consider the public interest argument as laid out above -- saying that this case is not actually about the private behind the scenes events related to the President of the United States, but rather his much less well known brother. I have trouble seeing that argument passing muster, but who knows. I didn't think a judge would engage in prior restraint either, and that turned out to be wrong.
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posted at: 12:00am on 03-Jul-2020
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Research Libraries Tell Publishers To Drop Their Awful Lawsuit Against The Internet Archive
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I've seen a lot of people -- including those who are supporting the publishers' legal attack on the Internet Archive -- insist that they "support libraries," but that the Internet Archive's Open Library and National Emergency Library are "not libraries." First off, they're wrong. But, more importantly, it's good to see actual librarians now coming out in support of the Internet Archive as well. The Association of Research Libraries has put out a statement asking publishers to drop this counter productive lawsuit, especially since the Internet Archive has shut down the National Emergency Library.The Association of Research Libraries (ARL) urges an end to the lawsuit against the Internet Archive filed early this month by four major publishers in the United States District Court Southern District of New York, especially now that the National Emergency Library (NEL) has closed two weeks earlier than originally planned. As the ARL points out, the Internet Archive has been an astounding "force for good" for the dissemination of knowledge and culture -- and that includes introducing people to more books.For nearly 25 years, the Internet Archive (IA) has been a force for good by capturing the world's knowledge and providing barrier-free access for everyone, contributing services to higher education and the public, including the Wayback Machine that archives the World Wide Web, as well as a host of other services preserving software, audio files, special collections, and more. Over the past four weeks, IA's Open Library has circulated more than 400,000 digital books without any user costincluding out-of-copyright works, university press titles, and recent works of academic interestusing controlled digital lending (CDL). CDL is a practice whereby libraries lend temporary digital copies of print books they own in a one-to-one ratio of loaned to owned, and where the print copy is removed from circulation while the digital copy is in use. CDL is a practice rooted in the fair use right of the US Copyright Act and recent judicial interpretations of that right. During the COVID-19 pandemic, many academic and research libraries have relied on CDL (including IA's Open Library) to ensure academic and research continuity at a time when many physical collections have been inaccessible.As ARL and our partner library associations acknowledge, many publishers (including some involved in the lawsuit) are contributing to academic continuity by opening more content during this crisis. As universities and libraries work to ensure scholars and students have the information they need, ARL looks forward to working with publishers to ensure open and equitable access to information. Continuing the litigation against IA for the purpose of recovering statutory damages and shuttering the Open Library would interfere with this shared mutual objective. It would be nice if the publishers recognized this, but as we've said over and over again, these publishers would sue any library if libraries didn't already exist. The fact that the Open Library looks just marginally different from a traditional library, means they're unlikely to let go of this stupid, counterproductive lawsuit.
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posted at: 12:00am on 03-Jul-2020
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