J. K. Rowling Wins $6,750 In Infringement Case 521
NewYorkCountryLawyer writes "J. K. Rowling didn't make enough money on Harry Potter, so she had to make sure that the 'Harry Potter Lexicon' was shut down. After a trial in Manhattan in Warner Bros. v. RDR Books, she won, getting the judge to agree with her (and her friends at Warner Bros. Entertainment) that the 'Lexicon' did not qualify for fair use protection. In a 68-page decision (PDF) the judge concluded that the Lexicon did a little too much 'verbatim copying,' competed with Ms. Rowling's planned encyclopedia, and might compete with her exploitation of songs and poems from the Harry Potter books, although she never made any such claim in presenting her evidence. The judge awarded her $6,750 and granted her an injunction that would prevent the 'Lexicon' from seeing the light of day." Groklaw has an exhaustive discussion of the judgement.
Hold your horses! (Score:5, Informative)
Whoa, whoa, whoa. Back up a moment! NewYorkCountryLawyer, I normally respect your posts, but this one is in need of some serious scrutiny.
As it happens, I was listening to the details of the case this morning on NPR. The problem with this specific book is not that it focuses on the Harry Potter series. The problem is that nearly every description was lifted from the books in a reasonably clear case of plagerism and/or derivitive works. Most reference books contain unique descriptions and commentary above and beyond the information presented in the source material. However, this particular lexicon made no effort to add such value over the books themselves.
In effect, it was merely a reorganization of J.K. Rowling's books into a dry reference. Something for which only the author has a legal right to grant.
THAT is why the judge found against the lexicon. And he did so with a strong warning that this book is an exception to the usually legal practice:
Before the outrage starts... (Score:3, Informative)
It's my understanding that 80% the contents of the website on which the encyclopedia is based is copied verbatim from the HP books. How does that NOT fail the "fair use" test?
not quite all that (Score:1, Informative)
I would like to point out that Rowling has not gone after any of the other dozens of books written about the Harry Potter universe; she went after this one because it DID infringe on her copyright.
Amazingly slanted summary (Score:5, Informative)
The lawsuit was to stop the publication of the book; it had nothing to do with the $6k.
Sounds to me... (Score:2, Informative)
I guess the judge has actually seen the lexicon. He knows how much is original and how much is copied.
Re:Hold your horses! (Score:5, Informative)
Bingo. Coppying excerpts for purposes of ccommentary and criticism of a work is generally an acceptable practice that is considered fair use. Compiling a bunch of excerpts and publishing them as a lexicon without adding anything original and of value is a clear case of infringement.
Re:What does her wealth have to do with it? (Score:5, Informative)
That is true when it comes to trademark protection and patent protection, but NOT copyright protection.
Link to NPR Audio (Score:5, Informative)
http://www.npr.org/templates/story/story.php?storyId=94407484 [npr.org]
Re:What does her wealth have to do with it? (Score:5, Informative)
Not only that, but Ms. Rowling explicitly said that she had no objection if the Lexicon continues to be published for free on the web.
It's really, really hard for me to get worked up over this.
Re:What does her wealth have to do with it? (Score:5, Informative)
You're confusing 'standing to sue' with 'losing a trademark'.
In the U.S. (and probably in the U.K., too), if you become financially damaged in a given situation, and you knowingly allowed that situation to occur, you lose your standing to sue by failing to mitigate your own damages. This is called the 'doctrine of laches [wikipedia.org]' and is a form of estoppel.
Competing negates fair use? (Score:3, Informative)
Seriously, can someone explain why competing reference books rule out fair use, especially given that she admits she hasn't even started on her version, years after his has been done?
Re:Poor Harry... (Score:5, Informative)
Copyright is not trademark. You don't have to defend copyright to keep it.
Re:Hold your horses! (Score:2, Informative)
Re:Poor Harry... (Score:4, Informative)
It's typical to show contempt for those artists you consider crass or over-commercialized, by depicting them as metaphorically abusing their creations.
This is called "parody." It is protected fair use. Creating your own comic strip series starring Opus would not be. You can profit from the former. You may not from the latter. The authors of the Lexicon were trying to profit.
Re:Hold your horses! (Score:5, Informative)
And if you've ever looked at the Lexicon website, you know that it does precisely that.
The website does, yes. My understanding of the book though is that a lot of this was being driven by the publisher, not really the author of the Lexicon website. The publisher decided to strip out virtually all of the original material from the website in order to shorten the book. The Lexicon book, as opposed to the website, supposedly is almost entirely direct quotes from the Harry Potter books.
Dry Reference (Score:3, Informative)
Sure.
A "Dry Reference" is a tidy work arranged primarily for the purpose of being able to quickly identify items or reach the information you want. Think most of the standard reference works (dictionary, Encyclopedia Brittanica, Star Trek or Star Wars encyclopedias, owners' manuals or service manuals for commercial products, various manuals for operating systems or software languages, journals for various professional organizations).
A "Wet Reference" is a reference work written largely in-universe and intended to be read cover-to-cover for its own reading value. Think of many of the looser reference guides to various fantasy worlds often written either by the author or with direct author involvement, such as the Dragonriders' Guide to Pern or the Silmarillion.
The term "dry", in terms of books, is often a substitute for the word "boring" - not that it necessarily is to all people, but in that a general reader (which is to say, someone without interest in the subject of the reference work) trying to sit down with it is going to have about as much fun as someone who forgot to bring a novel on their plane flight and is now stuck reading the torturously boring in-flight magazine.
Re:What does her wealth have to do with it? (Score:3, Informative)
Re:What does her wealth have to do with it? (Score:5, Informative)
/. is not, nor has it ever been a news site. It is a current events discussion forum with a tech slant.
Re:What does her wealth have to do with it? (Score:4, Informative)
$6,750 is what was awarded, not necessarily what was demanded. Although the judge, who did the awarding, obviously determined the amount based on principle, Rowling could have asked for astronomical monetary damages out of greed and been rejected -- we (or at least, I) don't know.
Re:Poor Harry... (Score:5, Informative)
In the decision the judge wrote that though the Lexicon was a "work of love from the author" as you put it, the amount of verbatim copying was so pervasive as to disqualify it from Fair Use. I can't, for example, create Bob's Encyclopedia by directly quoting the majority of the Encyclopedia Britannica and pass it off as Fair Use even if I spend years doing it. In her NPR interview she mentioned other reference books she did not sue because they did not directly copy her work.
Also a part of Fair Use is the term "for public good". She did not object that much to the website because presenting information to the public served a public good. Trying to make money off of it, is not "for public good".
From what I read, it was RDR Books that was unwilling to negotiate and advised the Lexicon author not to negotiate. Even if your events are correct, if you wrote a series of books over 20 years, and someone came along and copied your work and tried to sell it, you wouldn't be bitchy about it? "Listen, it looks like I've copied your work. You want to discuss this. No? Bitch."
Orson Scott Card's take on this mess (Score:3, Informative)
For those of you who missed this the first time, you should really read his take on this whole mess. [hatrack.com]
Re:Hold your horses! (Score:1, Informative)
Thank you, Moryath. It's always a pleasure to hear from someone who actually knows something about copyright law.
I'm sorry, but he hasn't shown any knowledge of copyright law. He has only said that he agrees with your point of view.
Indeed, NYCL has jumped the shark on this case. Not only has he posted extreme biased showing he's simply crusading against the 'rich' (funny, coming from a lawyer who probably makes 5x the hourly rate I do), but he's acting juvinle in the follow up comments as "AKAImBatman" pointed out nicely, "patting them on the back" particularly for comments of absolutely no substance.
Is NYCL a Jack Thompson of 'rich people'?
Re:Goody for her, good for us (Score:3, Informative)
Negative. She was out for more, the judge was the one that decided the actual amount.
From the article:
Re:Bad summery (Score:3, Informative)
Despite what a lot of people are saying, Rowling did not sue. Her publishing company did.
Not so. J. K. Rowling is the second named plaintiff.
I Fail to See... (Score:3, Informative)
1) I fail to see how JKR is "damaged" by this lexicon, unless it misrepresents her books, which there is no argument that ever did.
2) For JKR to claim that this "discouraged" her from writing her own encyclopedia (and giving all that money to charity, which is supposed to melt our hearts in sympathy for her), appears spurious and said to bolster her case is simply because it is so hard to prove false. One is left to believe that JKR has killed a superior work because she fears she can't compete with a better author here.
3) Despite the large amount of copying that weighed against the lexicon author I find his work transformative rather than mere cut & paste because:
a) A huge amount of original research, organization, and sheer effort was put into its creation.
b) How can you write any lexicon without referring directly to and quoting the original facts in their most original (hence correct) form?
c) This is not intended to, nor would it ever be confused with, being a new, unauthorized HP novel.
4) JKR is a very controlling author. You need only refer to her tightly demanded release dates for each new book and their draconian enforcement of early released copies for no apparent reason more than to bring additional fame to herself and allow her to read a couple chapters to a few children on the first night of official release.
5) How could this have ever been infringement at all when it was never published due to prior restraint shown here? There should have been no statutory damages at all!
To me, when JKR put HP out in the world (and was rewarded more than handsomely for it) it became part of the world at large. It succeeded because we cared about it so much. To then say that only JKR can dictate who is allowed to comment on it afterwards defys logic, humanity, and reason.
That JKR found a judge to agree with her is equally sad.
Re:Poor Harry... (Score:4, Informative)
No one applies for copyright any more, in any country, and there's no need to thanks to the Berne Convention (which just about every modern country goes along with). Copyright is automatic, with no need to take preemptive steps in any member country.
In the case of Encyclopedia Britannica, that was a young America deliberately thumbing it's nose at Britain. Even then, the publishers of Encyclopedia Britannica had a reasonable expectation of copyright protection, sans inflammatory politics.
Re:Poor Harry... (Score:5, Informative)
This is not a fight between a Big Author and a Little Guy, this is a Scummy Company getting Bitchslapped.
Re:Thanks, NewYorkCountryLawyer! (Score:5, Informative)
I am curious what is it that makes you so mad about this case.
The decision troubles me because it is flagrantly wrong, and -- because it is widely publicized -- will affect decisionmaking by creators and by publishers. I.e. it will have a 'chilling effect'.
Re:And so my book won't be published either (Score:4, Informative)
So what's the solution
There needs to be a more detailed code of best practices, as, e.g., what has been agreed to for documentary film makers [centerforsocialmedia.org], or what we are hoping to see for user-generated online video [blogspot.com]. Also there should be some kind of very inexpensive arbitration forum where these issues can be resolved quickly, expeditiously, inexpensively, and before -- rather than after -- the creator has invested his or her time, energy, and money.