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An Appeal In the "Harry Potter Lexicon" Case 189

Posted by kdawson
from the soon-to-be-on-sale-in-diagon-alley dept.
NewYorkCountryLawyer writes "RDR Books, the would-be publisher of the book version of the 'Harry Potter Lexicon' Web site, has filed an appeal from the judge's decision in Warner Bros. Pictures v. RDR Books, the case involving the Harry Potter Lexicon. The judge, after a bench trial, issued an injunction and awarded statutory damages of $6,750 (as we discussed at the time), holding that the Lexicon was not protected by fair use due to (a) sloppiness in attribution in sections, (b) the length of some of the quotes, and (c) imitation of J. K. Rowling's writing style in portions. I recently wrote an article criticizing the opinion, but doubting that an appeal would be taken in view of the small damages award. I guess I underestimated the resolve of the defendants and defendants' lawyers — who include the Stanford Law School Center for Internet and Society."
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An Appeal In the "Harry Potter Lexicon" Case

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  • by Anonymous Coward on Tuesday November 11, 2008 @10:32PM (#25729041)
    The story is about a boy who lives in a cupboard ("in the closet"). His Aunt and Uncle are ashamed of him because his parents were quite eccentric ("flaming") and they are deeply concerned and afraid that he will turn out just like them. On his 11th birthday (i.e. roughly at the onset of puberty), the boy discovers that he is actually a "wizard", different in both style and substance from straight people, or "muggles" (breeders).

    The boy is groomed into his new existence by a large, hairy bear of a man who shows Harry a hidden underground community of "wizards"(the gay subculture) living right under the noses of the general population . Harry's first visit to this subculture involves traveling through "Diagon Alley", a play on the word diagonally (not straight).
  • by JoeCommodore (567479) <larry@portcommodore.com> on Tuesday November 11, 2008 @10:35PM (#25729069) Homepage

    ...(c) imitation of J. K. Rowling's writing style in portions...

    Is that even an enforceable law? If so most authors should have their books contested, as people learn partly through imitation and experience. Throwing weak points out like that makes me suspect of the ruling.

    • Re: (Score:3, Insightful)

      Yeah, a writer's style is not supported by copyright to my knowledge -- only the actual words. And the "length of quotes" in the book... Have you ever read a research paper? Sometimes over half of each of the previous works are cited and included! That said, lack of proper attribution... That IS just sloppy, and they have every right to call them out on it. Though, being the Harry Potter lexicon, it's hard to imagine any other source than JK Rowling's works.... -_-

      • by Hal_Porter (817932) on Tuesday November 11, 2008 @11:32PM (#25729481)

        I'm not sure you can compare the HPL and a research paper. The actual text in Harry Potter is the basis of a billion dollar industry [the-numbers.com] and Rowling's publishers have very good lawyers. Fair use has rules about quote length and attribution and it seems like this guy broke them. Of course a lot of research papers may break those same rules but it would be very unlikely anyone would sue over that.

        Slashdot is schizophrenic about copyright, if someone had taken big chunks of GPL code and used them in a closed source application everyone would be baying for blood, but for some reason Harry Potter is considered entertainment and therefore OK to copy, a bit like movies and music. In a sense Harry Potter is open source - the text is freely available. It definitely isn't Creative Commons though, so while you are free to cite it you are not free to make derivative works, unless you have an agreement with Rowling herself.

        From what I've read this guy cut and pasted big chunks of the original text and didn't add much himself. While the whole thing was non commercial he was safe but as soon as he started to make money he wasn't. It's actually the literary equivalent of using GPL code in a commercial, closed source application.

        • by cpt kangarooski (3773) on Wednesday November 12, 2008 @12:48AM (#25729989) Homepage

          Fair use has rules about quote length and attribution

          No, it doesn't. Fair use ultimately boils down to 'you can use as much as is fair, given the overall circumstances.'

          When you time shift television, you're 'quoting' the entire thing, and stand a good chance of successfully claiming that it's a fair use. In other circumstances, however, excessive copying can sink a fair use argument handily.

          There's also no attribution requirement, but if you claim that you were engaged in a particular type of fair use, and that type of use normally involves attribution, failure to include the attribution may harm your argument, and ultimately, your defense.

          • Re: (Score:2, Interesting)

            by Hal_Porter (817932)

            A long time ago when I was in an class someone told that all quotes had to be attributed and you could only quote one paragraph from each source, and you had to add some sort of original commentary tying the quotes together to make a point that was not present in any of them individually. Apparently in the US the rule of thumb is 300 words maximum and attribution. Now these are usually designed for safety rather than maximizing the amount you can quote. They are style rules too, so they vary from institutio

            • Re: (Score:3, Funny)

              by kae_verens (523642)

              A long time ago when I was in an class someone told that all quotes had to be attributed and you could only quote one paragraph from each source, and you had to add some sort of original commentary tying the quotes together to make a point that was not present in any of them individually.

              -- this quote was originally uttered by Hal_Porter

              I notice you did not name this "someone". Does that mean that your quote is illegal?

            • by clifyt (11768)

              "A long time ago when I was in an class someone told that all quotes had to be attributed and you could only quote one paragraph from each source, and you had to add some sort of original commentary..."

              That is a good rule of thumb when you are trying to get students to do, say, a 3 page paper. I.e., something that could be knocked out in a half hour by a competent writer that has read the material and synthesized the information into something new.

              Then again, I've never actually quoted more than a sentence

          • by KillerBob (217953)

            Fair Use does have limits.

            Limitations:

            Time:
            up to two years without permission
            Portion:
            Motion Media: 10% or three minutes, whichever is less
            Text: 10% or 1000 words, whichever is less (except poems)
            Music: up to 10%, but no more than 30 seconds
            Illustrations and photographs: less than five images per artist
            Data Sets: 2500 fields or cells or 10%, whichever is less
            Special cases:
            poems, email, online chats, LISTSERV discussions, Web cameras; see the guidelines for further information
            Copies:
            no more than two copies, which may be placed on reserve

            source: http://www.uic.edu/depts/accc/newsletter/adn20/copyright.html [uic.edu]

            You can find the same information at dozens of websites around the world, though most of the first hits are from universities, because the whole concept of Fair Use was introduced to help universities and provide protection for academic use of copyrighted materials. To save you the trouble:

            http://www.google.ca/search?hl=en&q=fair+use+time+limits&btnG=Google+Search&meta= [google.ca]

            • by cpt kangarooski (3773) on Wednesday November 12, 2008 @09:25AM (#25732389) Homepage

              That is all very nice, but it is terribly inaccurate. I mean, you could have at least looked at Wikipedia!

              Without getting bogged down with details, fair use was not created for the benefit of universities or academics, though they have certainly been beneficiaries. And as law that was essentially a creation of the courts, until quite recently, there wasn't even a statute. Congress didn't even formally take note of the doctrine until the 1976 Act (fair use dates at least to the mid-19th century) when they included a statute (17 USC 107) which I shall reproduce here, in its entirety:

              Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
              (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
              (2) the nature of the copyrighted work;
              (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
              (4) the effect of the use upon the potential market for or value of the copyrighted work.
              The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

              That is fair use. And notice what it actually said: "[T]he fair use of a copyrighted work ... is not an infringement of copyright." The factors are just components in a test to figure out if a test is fair. And it's not a mathematical test, or a bright line test. You needn't succeed with all four factors. In some cases, you can do quite poorly on most, and still succeed. But it depends on the details of "any particular case." Just because it was fair for Alice to do something doesn't mean it will be fair for Bob, if their circumstances are not precisely identical.

              There are no numerical limits here, no 10% of this, or 2500 of the other, or any such nonsense. Those are not legal guidelines, those are the creation of laypeople who are flummoxed by the lack of clear guidance from the courts, since with the case-by-case nature of fair use, and the rules and interpretations (not included here; they'd be too much work than I'm prepared to invest in a /. post) there can never be clear guidance. Even canonical examples (parody, time shifting, etc.) are not really inevitably fair. It is a fuzzy, messy matter of equity, and apparently those folks just can't stand that, so they have guessed and unfortunately, you think their guesses are gospel.

              This is of course, not true, and I can immediately see instances where what they advise is probably fair (they don't know, of course, no one does) might not be, and where what they say is probably not fair might be.

              If you're interested in fair use, if you want to get a grasp on what it is, and where it comes from, and what the rules are, you will have to read a lot of cases regarding it. And then, like the courts, you will be left with a vague sense of it, which defies easy explanation, but at least you can look at a set of circumstances and have a good idea of whether it is fair or not. Because fair use must be able to accommodate any circumstances (the Folsom court could not have even imagined time shifting video tape) it can never be pinned down.

              In any case, you might want to stop spreading your misinformation. Those are just guesses by and for people who can't stand fuzzy rules, regardless of the fact that the rules actually are fuzzy, and need to stay that way.

              • Re: (Score:3, Insightful)

                the rules actually are fuzzy, and need to stay that way

                Agreed that they are fuzzy. Do not agree that they need to stay that way.

            • by russotto (537200)

              Those guidelines were basically pulled out of the ass of a group called the "Consortium of College and University Media Centers". Neither the copyright holders nor the courts nor the legislature was involved in creating them. They don't have legal force.

        • Re: (Score:3, Interesting)

          I doubt you could make the argument that some chunk of source code or a research paper, shared and used by a very small minority of people, should be subject to the same rules as a cultural icon shared by over a hundred million people. At what point do corporations stand aside so that the PUBLIC can own their own culture? By the law as you (and many others) interpret it -- never. In my opinion, corporations can suck a big one on this -- they don't own culture, and that's what harry potter has become, whethe

        • Slashdot is schizophrenic about copyright

          It's weird, isn't it?

          You'd almost think there was more than one person posting here.

        • Slashdot is schizophrenic about copyright

          We're certainly hearing voices of people who aren't present; those of RMS, Larry Lessig and NYCL in particular.

          Our thoughts are incoherent: watch the word salad that some of the trolls spew out.

          We're also delusional: we hold the fixed belief that Microsoft are evil and Open Source is good, despite Novell selling out and Microsoft uhmm... well they do try to do something good.

          Social cognition is pretty impaired in all of us, and there's a lot of avolition going on: we all sit on our asses and complain instea

        • by pbhj (607776)

          Slashdot is schizophrenic about copyright, if someone had taken big chunks of GPL code and used them in a closed source application everyone would be baying for blood, but for some reason Harry Potter is considered entertainment and therefore OK to copy, a bit like movies and music.

          The same sort of business model as is used by those issuing code under the FOSS licenses (I know GPL !== FOSS) is available in all industries (though I'll admit it seems to fit well in only a few).

          I wonder if "Harry Potter Inc." only had the first run of book sales (as subsequent runs would be under competition) ticket sales (for movies at Cinema) and merchandising monies how many millions JK Rowling would still have made?

          Musicians that do shows/concerts can still make a living even if they provide the shee

        • by drinkypoo (153816)

          Slashdot is schizophrenic about copyright, if someone had taken big chunks of GPL code and used them in a closed source application everyone would be baying for blood, but for some reason Harry Potter is considered entertainment and therefore OK to copy

          What? You're on drugs. If they had just put the books up on their website, you might have a point. Since they were quoting from the books (with or without traditional attribution) in order to make illustrative points, the only rational argument here is over how much they should be quoting, and to what standards they should be held when it comes to attribution.

          You cannot own the facts. It is true that the Harry Potter books have certain characteristics. If you share these characteristics on the web, this is

        • Re: (Score:3, Insightful)

          by mcgrew (92797) *

          Fair use has rules about quote length and attribution

          Not according to Stanford law professor Lawrence Lessig in his book "Creative Commons". What is and isn't "fair use" is a murky gray area.

          Lessig's book (available on the internet under a CC license) is written in a manner a layman can understand and is a must-read for anyone interested in copyright reform.

          • Re: (Score:3, Insightful)

            Fair use has rules about quote length and attribution

            Not according to Stanford law professor Lawrence Lessig in his book "Creative Commons". What is and isn't "fair use" is a murky gray area. Lessig's book (available on the internet under a CC license) is written in a manner a layman can understand and is a must-read for anyone interested in copyright reform.

            You don't have to go to Lawrence Lessig for that. There isn't a lawyer in the country who thinks that "fair use" has straightforward, easy-to-follow rules. It is definitely a murky gray area. This vagueness favors the big content holders -- 6 motion picture companies and 4 record companies -- who like nothing more than litigation.

        • by jeremyp (130771)

          You can't compare a research paper and an HP lexicon. The whole ethos of research papers is to allow people to reuse the research in themand thus properly attributed quotes are considered a good thing and contribute to the writers' reputation. In fact, in the UK, the number of citations your research gets is used as a quantitative measure of its value and may affect your future fuding. Scientists probably look forward to seeing lots of lovely long quotes from their papers - as long at it's not plagiarise

    • Re: (Score:3, Interesting)

      by K. S. Kyosuke (729550)

      I guess that unless the law has changed, you can protect no such thing as "writing style" under any kind of "IP protection". Even words, which are still "quite concrete", IMO do not constitute a copyrightable work, unless you really made them up. Well, this might be just the case, but I still believe it is in public interest not to prohibit usage of *words*, no matter how exquisitely refined a word is from the creative point of view. I guess the best thing you can do is to apply for copious trademarks.

      But -

      • by drinkypoo (153816)

        Even words, which are still "quite concrete", IMO do not constitute a copyrightable work, unless you really made them up. Well, this might be just the case, but I still believe it is in public interest not to prohibit usage of *words*, no matter how exquisitely refined a word is from the creative point of view.

        If you look in the dictionary you will find numerous words whose odd spellings or even their existence were invented by various English Authors; Chaucer springs immediately to mind. Granted, none of that would still be covered by copyright, but the point remains. If you want to protect the use of a word then you need to use Trademark law.

    • ...(c) imitation of J. K. Rowling's writing style in portions...

      I propose a kdawson imitation thread.....

      1....2.....3.... Go!

    • Re: (Score:3, Interesting)

      by erroneus (253617)

      It's not even part of the law at all! Copying "style" is not covered by copyright or patent or any other intellectual property laws that I am aware of. This judge is effectively ruling based on his OPINION and isn't even considering the law. I have to wonder if that is even legal. I think judges get away with far too much.

    • by Spasemunki (63473) on Tuesday November 11, 2008 @11:21PM (#25729373) Homepage

      Fair use necessitates attribution- making it clear when text is being quoted or paraphrased, and when new material is being added by the author. One of the points cited by the judge was the sloppy attribution and long quotes. By imitating Rowling's style while including long, unattributed portions of her work the authors of the Lexicon are making it unclear where her text ends and theirs begins, making their work appear to be a new composite work derived from Rowlings text rather than a work that comments on, satirizes, etc. Rowlings material.

      The gist of the decision seems to be that if the Lexicon did a better job of clearly identifying what is Rowling's work and what is their own. That makes it hard to argue that they are commenting on or sampling Rowling's test in a manner compatible with fair use. Imitating Rowling's style is part of what creates the confusion.

      • by cpt kangarooski (3773) on Wednesday November 12, 2008 @12:43AM (#25729955) Homepage

        Fair use necessitates attribution- making it clear when text is being quoted or paraphrased, and when new material is being added by the author.

        No it doesn't.

        This particular defendant, however, claimed that he had written a reference guide. Since the novels are not reference guides, this would be a transformation of the copyrighted works, and it strengthens a fair use argument to show that the defendant has used the underlying work in a transformative manner. The court noted, however, that due to the lack of attribution, it wasn't actually a very good reference guide. This undercut the claim of it being a transformative work. That, in turn, weakened the fair use argument.

        If he had instead written a parody, he would not have had to include attributions, since parodies are a type of transformative work where attributions aren't really expected. Such a parody could easily be a fair use.

        Imitating Rowling's style is part of what creates the confusion.

        It might further harm the 'it's a reference guide' argument, but copyright does not protect mere writing styles, nor does copyright care about confusion. Copyright chiefly cares about copying. A novel written in Rowling's style that didn't copy anything protectable from her corpus of work, would not infringe her copyrights.

        • by Spasemunki (63473)

          You're correct re: attribution- I was thinking of plagiarism. Copyright doesn't care about style or confusion, but they can definitely speak to the effect on the author's ability to exploit the original work. Rowling has an exclusive right to create derivative works- imitating the style used in the series and its associated works (Rowling has previously published in-world guidebook style works) undercuts Rowling's ability to profit from the work in a way that a guide book written using a different style w

          • by cpt kangarooski (3773) on Wednesday November 12, 2008 @01:36AM (#25730337) Homepage

            Rowling has an exclusive right to create derivative works

            Which is not implicated in this case; the guidebook was not a derivative work. Rather, the author got in trouble for his excessive verbatim copying.

            imitating the style used in the series and its associated works

            Would also not constitute a derivative work.

            Derivatives are defined in the law:

            A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".

            As you can see, merely being based upon a preexisting work isn't enough. In practice, the derivative has to recast, transform, or adapt the preexisting work. An adaptation, like "Harry Potter: The Opera" would be a derivative. A sequel book, such as "Harry Potter and the Endless Revenue Stream" would be a derivative work. But as the court pointed out, a mere reference guide is not a derivative work, because it does not recast, transform, or adapt the thing to which it is a guide. This was covered pretty well in the Beanie Baby case, and the point was repeated in this case.

            Likewise, merely using the style of the Harry Potter books would not constitute a derivative work, because that doesn't recast, transform, or adapt the preexisting books.

            undercuts Rowling's ability to profit from the work in a way that a guide book written using a different style would not.

            So? Copyright does not include a right to profit. Imagine the absurd results that would occur if it did: A scathing review of the latest book or movie that caused it to be a big flop would constitute copyright infringement! Even if it didn't copy so much as a word. Likewise, a rival author who wrote a series of dreadful books about vampires which drew away the audience for Harry Potter could be accused of infringing on the basis that her (bad) original works were undercutting Rowling's profits, despite a total lack of copying anything.

            • by Spasemunki (63473)

              So? Copyright does not include a right to profit. Imagine the absurd results that would occur if it did: A scathing review of the latest book or movie that caused it to be a big flop would constitute copyright infringement! Even if it didn't copy so much as a word. Likewise, a rival author who wrote a series of dreadful books about vampires which drew away the audience for Harry Potter could be accused of infringing on the basis that her (bad) original works were undercutting Rowling's profits, despite a to

              • by Twanfox (185252)

                Reference, please.

              • by cpt kangarooski (3773) on Wednesday November 12, 2008 @02:08AM (#25730509) Homepage

                That's true. But not really all that relevant here. The Lexicon was not supplanting the market for the novels. And as the court pointed out, "[n]otwithstanding Rowling's public statements of her intention to publish her own encyclopedia, the market for reference guides to the Harry Potter works is not exclusively hers to exploit or license, no matter the commercial success attributable to the popularity of the original works." There was a concern, however, that the lexicon might harm the market for some of the existing ancillary works it copied from, since it copied so much.

                And more generally, there still isn't a right to profit. Remember, fair use only arises where there is prima facie infringement of an actual right, such as the right to reproduce the work in copies. Writing a bad review would not be infringement at all, unless it included quotes or something. Writing a competing series of terrible books would not be infringement either. Only if there is some underlying infringement would a fair use argument (and the fourth, monetary, factor) come into play. In the case of a review, I would be utterly amazed if a court decided that the loss of sales attributable to the review was relevant under the fourth fair use factor. I certainly cannot recall such an absurd outcome ever having happened.

            • by Spasemunki (63473)

              As you can see, merely being based upon a preexisting work isn't enough. In practice, the derivative has to recast, transform, or adapt the preexisting work. An adaptation, like "Harry Potter: The Opera" would be a derivative. A sequel book, such as "Harry Potter and the Endless Revenue Stream" would be a derivative work. But as the court pointed out, a mere reference guide is not a derivative work, because it does not recast, transform, or adapt the thing to which it is a guide. This was covered pretty wel

              • by cpt kangarooski (3773) on Wednesday November 12, 2008 @02:19AM (#25730559) Homepage

                But if you're going to publish a 'reference' book, you have to do so in such a way that it doesn't take on the qualities of a derivative work.

                That's usually pretty easy.

                If you take long quotes from a book and then insert additional explanatory text around them in the same style, you haven't created a guidebook, you've created a modified version of the source work./i>

                I suppose that's possible. But it would be an odd guidebook. You're essentially describing Cliff's Notes with extensive paraphrasing of the story between long verbatim quotes. That's an abridgment, and it would be a derivative.

                We can immediately see that the Lexicon in this case isn't like that; it's organized alphabetically, not chronologically. A lot of text about the man-eating Aardvark from book 4, followed by the entry for the magical Albatross from book 1 is hardly putting the original story back together out of snippets and paraphrases.

                Please remember that the court did not find the defendant to have infringed on the derivative right; the Lexicon is not a derivative work. Rather, the issue was verbatim copying, and too much of it.

            • by pjt33 (739471)

              Derivatives are defined in the law:

              A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work".

              As you can see, merely being based upon a preexisting work isn't enough.

              Actually the very section you quote says that being based upon a preexisting work is enough. It then gives a list of examples lest anyone interpret "based upon" too narrowly.

              • Yeah, the courts have more or less wound up treating the 'such as' clauses as a list of examples, and everything not specifically listed has to fall under the 'or any other form.' Basically, merely being based upon a preexisting work isn't enough; to be a derivative, a work must be a new version or variation at least some protected part of the underlying work. Talking about a work, as a guide does, is seems unlikely to qualify.

        • by Artifakt (700173)

          A parody could be fair use, but substantial quotation doesn't belong in parodies. To create a parody the author would have to rewrite those quotations somewhat, not use them straight. I suppose that a parody could use some text without alteration, but surely it can't be a very high percentage of the total work.
          David Gerrold once did a parody of E. E. (Doc) Smith's work, and accidentally transcribed an entire paragraph straight from Smith, based only on what he had read 10 years or more before

          • Re: (Score:3, Insightful)

            by cpt kangarooski (3773)

            A parody could be fair use, but substantial quotation doesn't belong in parodies.

            That depends on the parody; every case is different. Besides, it is well-established that parodies have to copy quite a lot in order to make it clear just what they are parodying. This could involve verbatim copying, though it needn't necessarily, but there will be a lot of copying no matter what.

            but surely it can't be a very high percentage of the total work.

            First, the issue is how much was copied, not the ratio of copied:new

            • Re: (Score:3, Insightful)

              by mcgrew (92797) *

              An example is the Harvard Lampoon's Bored of the Rings (which I quote from decades old memory so the quote is probably inexact), passage lifted from Lord of the Rings in bold:

              ...but pity stayed his hand. "Its a pity I've run out of bullets"

          • by drinkypoo (153816)

            To create a parody the author would have to rewrite those quotations somewhat, not use them straight.

            Weird Al made a parody of a Crash Test Dummies song, the best part of the whole thing was how his lyrics meshed with the parts of the song that didn't change. Please, get real.

            David Gerrold once did a parody of E. E. (Doc) Smith's work, and accidentally transcribed an entire paragraph straight from Smith, based only on what he had read 10 years or more before. When he realized this, he went back and changed it before publication, thinking that an entire paragraph, in a short story sized work, was too much to justify. That's probably a pretty good rule of thumb.

            It probably is, but in other cases the work might not even make sense without quoting the paragraph verbatim.

      • by Artifakt (700173)

        There are some widely used methods of making it simple and straightforward for readers to determine which parts of a text are quoted material. The use of different fonts, font weights and sizes, indentation or italics are all practices which it seems fair to describe as industry standards, and are all simple to implement. While there are different methods, these reflect differences in how much material is being quoted, how much it resembles the non-quoted parts, and so on. Most publishers have policies that

    • Is that even an enforceable law?

      Well, it's not a law, so no.

      As to whether it's relevant, absolutely it is. On its own, a writing style (much less a pedestrian, tortured one like Rowling's) is not eligible for copyright protection. However, no one has suggested that is the case--from either side. The relevance of the writing style speaks to the purpose and character of the allegedly infringing work, as well as to the amount and substantiality of the copying. These, as anyone actually involved or educated in the field would immediately

    • ...(c) imitation of J. K. Rowling's writing style in portions...

      Is that even an enforceable law?

      No, it isn't, IMHO.

  • by Anonymous Coward on Tuesday November 11, 2008 @10:54PM (#25729197)

    What does her wealth have to do with it?

    I was not aware that society's subjective judgment of whether someone has made "enough" money from one's intellectual property was a factor in copyright law. Either there's a copyright infringement or there isn't. Rowling's wealth and success are irrelevant.

    --

    Hold your horses!

    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.

    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:

    Issuing an injunction in this case both benefits and harms the public interest. While the Lexicon, in its current state, is not a fair use of the Harry Potter works, reference works that share the Lexicon's purpose of aiding readers of literature generally should be encouraged rather than stifled. As the Supreme Court suggested in Campbell, "[b]ecause the fair use enquiry often requires close questions of judgment as to the extent of permissible borrowing" in cases involving transformative uses, granting an injunction does not always serve the goals of copyright law, when the secondary use, though edifying in some way, has been found to surpass the bounds of fair use. Campbell, 510 U.S. at 578 n.10. On the other hand, to serve the public interest, copyright law must "prevent[] the misappropriation of the skills, creative energies, and resources which are invested in the protected work." Apple Computer, 714 F.2d at 1255. Ultimately, because the Lexicon appropriates too much of Rowling's creative work for its purposes as a reference guide, a permanent injunction must issue to prevent the possible proliferation of works that do the same25 and thus deplete the incentive for original authors to create new works.

    --

    Erm...What?

    Why the bad attitude in the submission post?

    Someone was trying to release a commercial product whose premise was stealing content from an established work.

    If they didn't get hit hard on copyright infringement, they'd get hit hard on trademark infringement, and rightly so.

    Like it nor not, J. K. Rowling created the series, and decided to turn it into a commercial enterprise. It's well within her moral and legal rights to make sure a bunch of idiots don't cling to her coattails trying to milk dollars from a popular franchise that they have no legitimate claim to.

    --

    Amazingly slanted summary

    I heard J.K. Rowling interviewed on NPR about this. She listed many of the books that are derivative works that she is thrilled about. The commonality with acceptable books is that they add original thoughts. The targeted book contained no original thoughts but just indexed material from her books, in many cases copying the content and even indexes from her books verbatim.

    The lawsuit was to stop the publication of the book; it had nothing to do with the $6k.

    • Here is the problem.

      Rowling sued the book before ever seeing a single rough draft of it. Her lawyers insisted it copied verbatim without rewriting any passages based off the web site.

      The book's publisher claims that those entries were largely rewritten for the lexicon.

      Given that neither of us have read the lexicon (as it is not published) we are left to believe one side or the other. What I find curious is how Rowling was so sure of her side of the story without having read the book herself.

      The lexicon wa

      • by UnknowingFool (672806) on Tuesday November 11, 2008 @11:54PM (#25729611)

        Rowling sued the book before ever seeing a single rough draft of it. Her lawyers insisted it copied verbatim without rewriting any passages based off the web site.

        Citation Needed. From the actual decision written by the judge [nytimes.com], there were numerous example of verbatim copying in the manuscript. How did Rowling know that? Because Rowling was aware of the site. The site had verbatim copying. She was fine with that when it was a non-profit website. The minute they tried to make money off her writing, she objected.

        The book's publisher claims that those entries were largely rewritten for the lexicon.

        Despite the publisher's claims, the judge found that the majority of the book would have been in quotes had the Lexicon properly attributed the work to Rowling.

        Given that neither of us have read the lexicon (as it is not published) we are left to believe one side or the other. What I find curious is how Rowling was so sure of her side of the story without having read the book herself.

        Again, she was aware of the website which had verbatim copying. You don't have to believe one side or the other. The judge having read Lexicon made a determination that the Rowling was correct: Lexicon copied a lot from her book. The question is if you believe the judge.

        She has also threatened law suits at cases clearly covered by parody. I don't think she is evil, so much as she is strongly attached to the world she created.

        Given the fact that Rowling has not sued other companion books like MuggleNet.com's [amazon.com] and the Complete Idiot's Guide to Harry Potter, Rowling isn't against companion books per se. She was against this particular one.

      • by Spasemunki (63473) on Wednesday November 12, 2008 @12:02AM (#25729659) Homepage

        Given that neither of us have read the lexicon (as it is not published) we are left to believe one side or the other.

        The judge got to read it. His ruling mentioned specifically that there were lengthy verbatim excerpts. The combination of this with the practice of poor footnoting/attribution with the imitation of Rowling's style made the Lexicon appear to be a derivative work rather than a text incorporating passages in a way acceptable under fair use.

    • by langelgjm (860756) on Tuesday November 11, 2008 @11:30PM (#25729451) Journal

      What does her wealth have to do with it? I was not aware that society's subjective judgment of whether someone has made "enough" money from one's intellectual property was a factor in copyright law. Either there's a copyright infringement or there isn't. Rowling's wealth and success are irrelevant.

      I remember seeing this comment in the earlier discussion some time back.

      While wealth might not be a factor in whether there's an infringement or not, wealth is relevant to the theory of copyright law. Copyright doesn't exist to make people lots of money. It exists to provide incentive for people to create things they otherwise wouldn't have created.

      In terms of economics, paying a dollar more than is required to provide that incentive, or providing a day more copyright, is inefficient. If the author would have created it without that extra little bit, then that extra little bit is a waste. Society is overpaying for creativity.

      Of course, determining the exact amount of incentive in each case isn't feasible, so there will always be some overpaying. However, the point is that if copyright were making every rights holder wealthy, it would probably indicate that society was in general overpaying for its creativity. And, as in the case, if one rights holder becomes very wealthy, society is probably overpaying in that instance.

      Would Rowling still have written her books if the work only got her half her current earnings? Probably. A quarter or a tenth? Still probable. Would she have written the books if copyright only lasted 15 years, instead of decades? Probably. Society is undoubtedly overpaying for this creativity.

      • Re: (Score:2, Insightful)

        Her wealth has nothing to do with whether it's a copyright infringement. It has everything to do with her being greedy and selfish and forgetting from whence she came.
        • by Captain Sarcastic (109765) * on Wednesday November 12, 2008 @01:18AM (#25730229)

          Her wealth has nothing to do with whether it's a copyright infringement. It has everything to do with her being greedy and selfish and forgetting from whence she came.

          And this relates to the lawsuit how?

          I mean, I understand that you don't like Ms. Rowling, because you see her as a money-grubbing miser who is trying to milk as much out of her work as possible. Fine with me.

          However, your arguments are starting to sound as though you wish that there were be a legal mechanism to say, "OK, you've made enough money from this, now shut up and let us have at it."

          Your posts are usually cogent on other areas... actually, your posts are unusually cogent in other areas, and I admire your expertise in copyright law. Could you give this topic a rest?

      • by Grond (15515) on Wednesday November 12, 2008 @01:27AM (#25730293) Homepage

        Would Rowling still have written her books if the work only got her half her current earnings? Probably. A quarter or a tenth? Still probable. Would she have written the books if copyright only lasted 15 years, instead of decades? Probably. Society is undoubtedly overpaying for this creativity.

        Luckily, we invented a way to redistribute some of that excess wealth back to society: taxation. Of course, the tax regime isn't perfect, but it's overall a much more efficient way to correct overpayment than trying to determine, ex ante or even ex post, how much money a given author deserves for a given creative work. I'll give you that the copyright term is too long, but we shouldn't try to cap how much money an author can make from a work. Instead, we should just set appropriate, progressive income taxes.

      • by hey! (33014)

        Well, I agree with your analysis of the economic purpose of copyright. However, in the US, at least, the power to grant copyright is not limited to the intent for which the Constitution grants that power to Congress. Were that so, then copyright extension would be unconstitutional. Since there is no way to send information back in time, there is no way to incent authors of pre-existing works by copyright extension.

        The state of the law, as I understand it, is that the bit about "To promote the progress

      • Re: (Score:3, Insightful)

        by julesh (229690)

        While wealth might not be a factor in whether there's an infringement or not, wealth is relevant to the theory of copyright law. Copyright doesn't exist to make people lots of money. It exists to provide incentive for people to create things they otherwise wouldn't have created.

        In terms of economics, paying a dollar more than is required to provide that incentive, or providing a day more copyright, is inefficient. If the author would have created it without that extra little bit, then that extra little bit

    • by cpt kangarooski (3773) on Wednesday November 12, 2008 @01:22AM (#25730265) Homepage

      I was not aware that society's subjective judgment of whether someone has made "enough" money from one's intellectual property was a factor in copyright law. Either there's a copyright infringement or there isn't. Rowling's wealth and success are irrelevant.

      Oh, it's not. It's a big factor in copyright policy, however, so perhaps that's where the confusion arises. After all, if copyright is meant to promote the public good by encouraging authors to create and distribute works by means of granting them a limited economic monopoly on the work for a limited period of time, how much money authors make, and how often they make it, and how, etc., becomes pretty important.

      The problem is that nearly every description was lifted from the books in a reasonably clear case of plagerism and/or derivitive works.

      Plagiarism isn't infringing, or even illegal. Plagiarism is when you copy someone's ideas (which are not protected by copyright) and claim them as your own (which copyright doesn't care about). Copying someone's written work verbatim, even with plenty of attribution, and disclaiming any credit for it would not be plagiarism, but could quite easily be copyright infringement.

      As for derivatives, this isn't one, and the court pointed that out. The infringing work doesn't retell or recast the story or adapt it in another medium; it's just a reference guide for the books. It merely copied, and it copied enough, and in such a way, that they lost their fair use argument.

      However, this particular lexicon made no effort to add such value over the books themselves.

      That might be relevant insofar as one would claim that it's a reference guide, and thus transformative, but generally it is irrelevant. What matters is how much you copy, not how much you add. Besides which, the court rejected the argument that the lexicon had to be a work of literary criticism or some such. A mere guidebook is okay.

      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. ... The targeted book contained no original thoughts

      No, doing that is perfectly fine. This particular author was a little quote-happy is all. Had he been a bit more careful, he would have been well within his rights to write a dry reference. And again, dry references are not inherently infringing. Original thoughts aren't necessary.

    • What does her wealth have to do with it? I was not aware that society's subjective judgment of whether someone has made "enough" money from one's intellectual property was a factor in copyright law. . . Rowling's wealth and success are irrelevant.

      Obviously, you have never voted Democrat.

    • by pbhj (607776)

      What does her wealth have to do with it?

      I was not aware that society's subjective judgement of whether someone has made "enough" money from one's intellectual property was a factor in copyright law. Either there's a copyright infringement or there isn't. Rowling's wealth and success are irrelevant.

      If you think the application of law is to be completely dissociated from the purpose of the same law then you're right. If not, I contend, that you're wrong.

      Her wealth has a lot to do with it - her wealth was provided by the state (that's the general public's combined force of will) protecting her work from being copied to ensure that she gain financial remuneration in return for the public's future free enjoyment of her creative works.

      Many people appear to believe that once someone has gained more from the

  • "(c) imitation of J. K. Rowling's writing style in portions"

    Fictional? Creative? Fantasy?

    So.....Now *WRITING STYLES* are copyrightable??

    If Rowling and the publishers are hoping to protect their reputation, I think it is safe to say they just shot themselves in the foot. Repeatedly.

  • by daveime (1253762) on Wednesday November 12, 2008 @07:20AM (#25731811)

    If he made a parody of the thing, he'd be safe ?

    1. s/Harry Potter/Hairy Putter/g
    2. ???
    3. Profit !

  • ... if the author of the lexicon had gotten permission from JK Rowling to repackage her work in printed form, and worked out a deal for part of the income that would be generated due to all the material in the lexicon from *her* books, there wouldn't have been a problem.

    Too bad greed got the best of them...

    I can't fault J.K. Rowling for not laying down and watching it happen. Everyone involved is entitled to a stake in the profits, and they sidestepped the fountain that made it all possible. JK is definitel

    • You way overstate the holding of the case. Judge Patterson fully recognized that defendant was entitled to do a reference work on the Harry Potter stuff, and that it could be a simple 'encyclopedia' or 'lexicon', without asking anyone's permission. The only thing Judge Patterson had a problem with was with some of the sloppiness.

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