An Appeal In the "Harry Potter Lexicon" Case 189
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."
Re:imitation of J. K. Rowling's writing style... (Score:5, Insightful)
"Imitation of [Author X]'s writing style" would cover any written satire of the author. Since satire is universally accepted as protected and allowed under copyright law, imitation of style cannot be considered copyright infringement.
As a matter of fact this extends beyond writing to all works that can be copyrighted. Imitation of style covers, essentially, any possible satire.
Re:imitation of J. K. Rowling's writing style... (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.... -_-
diagonally (not straight) (Score:5, Insightful)
Diagonal lines are as straight as any other lines.
Re:imitation of J. K. Rowling's writing style... (Score:5, Insightful)
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.
Wealth is relevant, at least in theory (Score:5, Insightful)
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:imitation of J. K. Rowling's writing style... (Score:5, Insightful)
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.
Re:Harry Potter (Score:4, Insightful)
I really don't think his point was to point out a parallel to a real-life minority... He just wanted to call Harry Potter gay.
Re:Wealth is relevant, at least in theory (Score:2, Insightful)
Re:Wealth is relevant, at least in theory (Score:3, Insightful)
Re:Wealth is relevant, at least in theory (Score:5, Insightful)
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?
Re:Summary of Previous Posts (Score:4, Insightful)
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.
Re:Wealth is relevant, at least in theory (Score:4, Insightful)
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.
Re:imitation of J. K. Rowling's writing style... (Score:3, Insightful)
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 material. Second, it's however much is fair, under the circumstances. Could be a lot, could be a little. Fair use is extremely vague, and deliberately so. Bright line rules don't mesh well with fairness.
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.
Meh. I really wouldn't bother with rules of thumb for fair use. It's the overall circumstances of each case standing alone that matters. Any given rule of thumb is as likely to be wrong as it is right, because it does not take into account all of the surrounding issues. Go with your gut instincts instead, looking at the particular circumstances of the actual use in question.
Re:imitation of J. K. Rowling's writing style... (Score:5, Insightful)
It's weird, isn't it?
You'd almost think there was more than one person posting here.
Re:imitation of J. K. Rowling's writing style... (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.
Re:imitation of J. K. Rowling's writing style... (Score:3, Insightful)
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:
Re:imitation of J. K. Rowling's writing style... (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.
Re:imitation of J. K. Rowling's writing style... (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.
Re:Wealth is relevant, at least in theory (Score:3, Insightful)
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.
Yes and no. It's worth considering that Rowling's windfall in terms of the Potter royalties has effects on other people too. There are plenty of people who are inspired to write because of one or two high earners. It raises the profile of writing as an art form and generally encourages more people to try it.
Besides, the cost to society hasn't been any higher for Harry Potter than it was for, say, Robin Hobb's Farseer books (to pick an example from my desk). The cost in both cases was granting the author a monopoly over their work for a fixed period of time. What that author manages to achieve with the monopoly is not society's issue.