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An Appeal In the "Harry Potter Lexicon" Case
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."
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).
a Magical Mystery Tour!
...(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.
"Enjoy what you're doing! If it becomes drudgery, you're doing it wrong!" - Jim Butterfield
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.
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Hold your horses!
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:
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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.
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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.
Diagonal lines are as straight as any other lines.
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.
"Anyone who [rips a CD] is probably engaging in copyright infringement." - David O. Carson
What does her wealth have to do with it?
Copyright exists to incentivize content creators to create more content by granting them a temporary monopoly.
When someone amasses "enough" wealth and declares their intentions to retire they break their end of the deal. Therefore, additional wealth would not be a motivator for the creation of more content and the copyright monopoly is no longer serving its purpose.
People smarter than I should establish what "enough" wealth is and when a monopoly is no longer necessary but that's what we have courts for.
"(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.
Knowing Google's lust for data collection, the Soviet Union is still alive and well inside the psyche of Sergey Brin....
I'm not well versed in the case, but if the defendant was indeed producing a lexicon (a complete catalog of terms), then IMHO this constitutes more than just a fair-use smattering of examples being quoted and, hence, would constitute copyright infringement.
You forgot the hot-n'-heavy scene with Tinky Winky.
My God, it's Full of Source!
OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
How can you write something that includes more information than what is available in the source material when you are writing a reference guide on the same material?
So it would follow that a description of how Harry Potter looked in the book would be non-copyrightable. Once she set it down as a fact, it lost it's copyright protections.
If you read the article referenced in the synopsis, you'll find that it is hardly a critical article. It spends about 80% of its length simply recapping the case, a few lines of saying the decision should have gone the other way, then the last 20% bemoaning the fact that because of the decision, the fair use is more muddy. In a critical article, I was hoping for more meat. Why should the decision have been different? What errors of law were there?
Basically the guy wrote a paper that said "oh I wish it were different", the defendant happened to then appeal, and the writer is cashing in on that by saying "hey, I criticized the decision and now it's being appealed". Like he had something to do with that.
Even if no legal difference, if we're just discussing things on the web there's a bit of a difference between the four possibilities of:
legally right, but a jerk;
legally wrong, and furthermore, a jerk;
legally right, and we're all on your side; or
legally wrong, but I can sympathize.
10 PRINT CHR$(205.5+RND(1)); : GOTO 10
If he made a parody of the thing, he'd be safe ?
1. s/Harry Potter/Hairy Putter/g
2. ???
3. Profit !
The guy who wrote the Lexicon is a fucking leech. If he were a true fan, no matter whether he felt he was right or not, he would have quietly ended this controversy long before now, out of respect for Rowling. But obviously he's just an avaricious turd with no original ideas.
... 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 definitely involved and deserves (as well as being legally entitled to) a piece of the pie.
The lexicon author and would be publisher got what they deserved for being greedy stupid little monkeys. Everybody wants a free ride...
They knew better and can't play dumb and pretend they didn't. I'm not a book publisher or attorney and I know better than to try some shit like that with someone else's franchise.
-Viz
Don't kid yourself. It's the size of the regexp AND how you use it that counts.
It's called the Harry Potter Lexicon for f*cks sake... how much more attribution do you need than the publication's title? I'd imagine anyone buying a copy would have some idea of who wrote Harry Potter - and many people know who originally wrote the ideas that Ms Rowling ripped off (without attributing those ideas and 'styles' to their relevant owners)!
I don't know why everyone's arguing with me. Everyone's entitled to their personal opinions. We all have different values and outlooks.
In my personal opinion the vagueness of the law surrounding "fair use"
has a chilling effect on creativity, and
was exacerbated rather than ameliorated by Judge Patterson's opinion.
And in my personal opinion a lady who was once on welfare and is now super-rich should have it in her heart to let the guy slide, even if she is advised by her attorney that a copyright infringement may have occurred, especially where (a) she expressed such reverence and adoration for, and gave such encouragement to, his project when it was only a web site, and (b) the guy's web site helped to increase and promote the success of her underlying works.
My legal opinion is that the decision was incorrectly decided. When the Second Circuit reaches its conclusion on the appeal, we'll find out if I was right or wrong.
Ray Beckerman +5 Insightful