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Rowling wins fair use suit

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J.K. Rowling has won a lawsuit against the Harry Potter Lexicon website, which was planning to publish a print version.

“I took no pleasure at all in bringing legal action and am delighted that this issue has been resolved favourably,” said Rowling in a statement. “I went to court to uphold the right of authors everywhere to protect their own original work. The court has upheld that right. The proposed book took an enormous amount of my work and added virtually no original commentary of its own. Now the court has ordered that it must not be published. Many books have been published which offer original insights into the world of Harry Potter. The Lexicon just is not one of them.”

In his opinion, U.S. district court judge Robert Patterson said that RDR “had failed to establish an affirmative defense of fair use” and issued a permanent injunction against the Lexicon. According to Reuters, Patterson awarded the plaintiffs $750 for each of Rowling’s seven Harry Potter novels, as well as $750 each of the Quidditch Through the Ages and Fantastic Beasts and Where to Find Them, for damages totaling $6,750.

Rowling’s victory would seem to cast a pall over all kinds of fan-based projects, from Robert Foster’s Guide to Middle Earth on to various fan encyclopedias of various comics characters.

We’ll have some more analysis tomorrow.

  1. GAH! No it wouldn’t!! Would people please RTF decision? Hell, read what you just posted: “Many books have been published which offer original insights into the world of Harry Potter. The Lexicon just is not one of them.” One assumes that such analysis would extend to other fandoms as well. It was just THIS PARTICULAR companion book that wasn’t transformative enough to qualify as fair use.

  2. I don’t think this will have any effect at all on anything that utilizes fair use as people have understood its implications for years now, until Generation Entitlement came along and had attempted to redefine it. If it had gone the other way, that would have been a real change.

    I think it’s playing right in the hands of people who want to cheapen creative culture out of big-time me-wanty feelings — or “the future is now and we are young and awesome and old men can suck it” feelings, or a confidence/arrogance/selfishness that they as creative people are uniquely qualified to surf the tidal wave it may cause while other people crash, or whatever — to see this as some sort of blow to projects that wouldn’t have existed before people began to assert fanhood as some kind of implied ownership agreement.

    In other words, if someone can make the argument this would prevent the existence of some vital project that previously came into existence and was valuable and not just a bunch of planned-on, ridiculous bullshit by people who treat the burden having to get a licensing agreement like they were being grounded by some mean ol’ dad, I’d love to hear it because I keep looking for stuff like that.

  3. Note that Rowling didn’t give a damn when the Lexicon was a website. She didn’t call her lawyers until Steve Vander Ark decided to publish it as a book — a book that would be in direct competition with a forthcoming official Harry Potter encyclopaedia, as Vander Ark knew perfectly well.

    Also note: He asked for permission, and was denied it, and went ahead anyway.

    (If you haven’t seen the Fandom Wank account, you really should take a look. It’s highly sarcastic — well, it is Fandom Wank, after all — but there are a lot of solid facts in there, including a timeline of events leading up to the case being filed.)

    Basically? Steve Vander Ark did some incredibly dumb things and got smacked down. No fan project run by anyone with a modicum of common sense is under threat because of this verdict.

  4. Most corners of fandom are breathing a sigh of relief over the verdict. One of the fears was that if Rowling lost this suit, it would mean that intellectual property owners would have a very compelling reason to clamp down on fan activity. Good on Rowling; glad to see she came out on top of this.

  5. My girl is an avid fandomer, and I studied copyright and trademark law, so I’ve been tracking this case in the news. The website itself is full of add-on critical material (though I can’t attest to quality). The book, as proposed, was apparently an index of HP content quoted wholesale, without editorial comment – and especially without the commentary from many parties that already exists on the website (which is what people were expecting to see published). There’s a lot of noise and chaff surrounding the defendants, but as stated in previous comments, they really were asking for it, and they got what was coming to them.

  6. “fair use” is just as much of a joke as “obscenity.”

    Those who are on one side have a completely different perspective from those on the opposite side.

    (this is not a comment on the particular case mentioned in this post. It’s a comment on crappy vague terms used in courts that only serve to cause more problems.)

  7. Tom Spurgeon, I’d agree with your Generation Entitlement comment but for one small flaw in your reasoning:

    Steve Vander Ark is 50 years old. Roger Rappaport, owner of RDR Publishing, is also up there in years.

    So if you’re defining Generation Entitlement by the behavior of these fans, it would have to be the Boomers…then again, we could probably make a good argument for that interpretation!

  8. Ha! I was just about to post some taking of umbrage at Tom’s implication that people my age (26) are all a bunch of whiny, over-entitled shits. (I won’t say there aren’t any people like that in my generation, but I wouldn’t say it’s more than any other.) Thanks, Jocelyn.

  9. I thought some of the specific folks were older, I didn’t know how old… my bad on not being sharp. I meant more the general impulse/feeling where this kind of thing has a specific, arguable legitimacy it didn’t before — I’m more than certain Gen-X, Boomers, the Silent Generation, the Greatest Generation and whatever other goofily-named generation (Gen Boop Boop E Doo? the Rockin’ Reconstructionists?) all had their fair share of guys and gals working this kind of angle!

  10. Dear Tom, somehow I doubt that you’re ten seconds from The Great Hereafter, so I’m quite certain that you do indeed have a future.

    You’re quite right, however – there is hardly one generation which can call itself or be called “Generation Entitlement” because we have to deal with entitled jerks of all walks of life, unfortunately.

  11. Right this second I’m emailing Tom Spurgeon pictures of me writing my Honours Thesis in my underwear while simultaneously stealing the new Lil’ Wayne off the internet and conditioning my skin.

    Also my thesis is on why Kramer’s Ergot 7 is too expensive.

  12. “Right this second I’m emailing Tom Spurgeon pictures of me writing my Honours Thesis in my underwear while simultaneously stealing the new Lil’ Wayne off the internet and conditioning my skin.”

    If you call it stealing, you can’t claim fair use later. Call it “sampling”. It’s what Lil’ Wayne calls it.

  13. I want to add here that while “fair use” the term may seem vague, “fair use” the legal concept is VERY well-defined to defend creators from just this type of piracy. Just _wanting” information to be “free” doesn’t make it so. The legal system is pretty well set-up to define intellectual property theft, as we’ve seen here. Hooray from me to the courts. :)

  14. I applaud any author who stands up for their rights. There is no reason for anyone else to make money off of your sweat and tears. So kudos to you Mrs. Harry Potter.

  15. ” want to add here that while “fair use” the term may seem vague, “fair use” the legal concept is VERY well-defined to defend creators from just this type of piracy. ”

    I disagree. One side just needs better lawyers.

    Besides, I still see people selling bootlegged dvds at conventions. Piracy, I mean, “fair use” is alive and well.

  16. Fred the Frown, I can’t tell if you are being serious or not and I find your comments to be sophomorically cynical. I doubt that you’ve even seriously considered the implications of what this news item is all about. Patrick McEvoy is absolutely right–Just “wanting” information to be “free” doesn’t make it so. Speaking as a guy who has both a lawyer specializing in this area and who has been bootlegged, this hits close to home for people who own intellectual property.

    And shame on anyone who pulls stuff off torrents, it’s wrong and you know it.

  17. You can wish shame on torrentkids all you want, but weezy, specifically weezy, was able to only release pirate records for three years, was the most pirated musician on the web, and still managed to pull off one the few indisputable hit albums of 08. File-sharing helped weezy. Didn’t hurt him.

  18. “I want to add here that while “fair use” the term may seem vague, “fair use” the legal concept is VERY well-defined to defend creators from just this type of piracy. ”

    Certainly, there’s plenty of case law dealing with the subject and plenty of discussion in copyright law as to what may or may not consitute fair use. But still, what does and does not constitute “fair use” is kept a somewhat vague topic specificallly so that every instance where it is invoked must be dealt with on its own merits.

    Copyright law does describe factors to consider when courts determine whether a usage is “fair” or not–the purpose/character of the usage; the nature of the copyrighted work; the amount of the work taken; the effect of the usage on the market–but it doesn’t give hard-and-fast formulas like “If you use X amount of the work, that’s fair use but if you use X+1 amount, that’s infringement.”

    As more legal-minded colleagues have pointed out to me over the years, to claim fair use is an affirmative defense. Which means (among other things) that the only way to know if a usage is Fair Use or not is to be sued, to argue that the usage was fair in court, and to have the court agree or disagree. (Which seems to be what happened in this Rowling case.) It’s not really possible to know with certainty whether a usage would be Fair Use or not unless/until those legal events happen. Which is a source of frustration for many, but that’s a whole other matter…

  19. True story: I once got mugged and missed my flight and had to stay over in a strange city but then I had an awesome time and I got a gig out of it that replaced the money I lost by about a factor of two so I guess that makes mugging okay now, too.

    What kind of thinking is that? I barely know how to reply to it, that’s so borderline insane. Someone always benefits in nearly every circumstance, except maybe watching a NCIS marathon on USA Network. That’s 100 percent bad.

    Also, to take this full circle, it should be noted there are plenty of people over 30 that justify usurping the right and responsibility of an artist to direct their own work, and that some version of these arguments have always existed, it just seems that people were less weird about defending them if pressed.

    However, I am now old enough to have seen Paul Pope receive a “suck it, dad!” argument, so I have that going for me.

  20. I would echo that though fair use seems a vague concept, its legal definition is remarkably simple (for legalese, that is). Its the interpretation of it that can get messy. The Lexicon (in print form) was cutting, pasting, and organizing — not offering critical comment and analysis (as far as I can tell).
    A great resource for this is here:
    http://www.law.duke.edu/cspd/comics/

    The main difference in taking this argument to comics is of course the visual element, which makes it much more complicated. BUT not impossible! I think that young kids/turks do want to create their own things, but they also want to be part of the larger, older artistic tradition. No, they can’t create Batman comics, but they can play with the ideal. Fair use is generous, and though comics companies vigorously protect their characters (as they should) they are well aware of fair use and do seem to encourage it in certain arenas.

    I think though this is a long overdue conversation for comics as 1) it’s important and 2) it’s not nearly as transparent as perhaps it should be.

    “Guide to Middle Earth” = best book for an island castaway ALL TIME? ADMIT IT!

    Brad
    Gen-X

  21. “Fred the Frown, I can’t tell if you are being serious or not and I find your comments to be sophomorically cynical.”

    It’s both serious and a joke, but I’m no Jon Stewart. Also, I’m very cynical and most people can be accused of being sophomoric.

    “I doubt that you’ve even seriously considered the implications of what this news item is all about.”

    I haven’t. I used it as a springboard to comment on the vagaries of the term “fair use” and how from a copyright-holder’s point of view it’s an oxymoron and from a consumer point of view it’s wide open until someone decides for them that it isn’t “fair” at all… and also how that’s not at all FAIR to the consumer. “Fair Use” hasn’t been given a fair trial yet because the RIAA and the MPAA is a huge lobby with limitless funds and savvy computer nerd is a nobody with a paypal account. If I did look into the case, I’m sure I would find that it was a just and reasonable ruling.

    “Speaking as a guy who has both a lawyer specializing in this area and who has been bootlegged, this hits close to home for people who own intellectual property.”

    I’d like to hear about the specifics of your bootlegging issue. Some bootlegging IS shameful.

    “And shame on anyone who pulls stuff off torrents, it’s wrong and you know it. ”

    No, it isn’t, and I know it. Downloading torrents isn’t one of those shameful bootlegging instances. Torrents are the best thing since Napster was free. However, as I’ve learned in the past, good luck convincing those on the opposite side to agree with you. The pro-torrent side won’t give an inch, and neither will the anti-torrent side. That’s probably why there isn’t an increase in lawsuits. No matter what either side does, the other will find a way to get around it. It’s a never-ending battle, and it’s probably factored into operating budgets like any other expense.

    Ali T. Kokmen

  22. ***trying one more time, and sorry for the multiple posts***

    Here’s the rest:

    Ali T. Kokmen, that is pretty much what I was getting at.

    “so I guess that makes mugging okay now, too.” says Tom Spurgeon. While that sort of comparison may work on some people (especially during election years), it doesn’t work on the rest of us. Mugging is a specific crime. Fair use is intentionally vague, as Ali up there pointed out. It can mean different things to different people (or companies) on different sides of the courtroom, and that’s not really very fair.

    “it just seems that people were less weird about defending them if pressed.”

    Fair use applies to more than just “the right and responsibility of an artist to direct their own work”. For example, in the digital age, the FBI warning at the beginning of movies has changed to make simply copying the DVD as a back-up in case someone scratches it (which to normal thinking people is quite simply “fair use”) a potential crime. Why? So the movie studios can charge extra for “digital copies” included on the DVDs as an “extra”. It all comes down to money. Those with it make the rules and win the legal battles; those without it break the rules and try to avoid getting pulled into a legal battle.

    I can’t speak for every other pro-torrent person out there, but I don’t advocate downloading as the primary means of enjoying the various forms of entertainment. My monthly comics habit and Netflix addiction are a testament to that. However, if I miss whichever episode of a television show I watch due to some “breaking news” I have no interest in, I like the idea of being able to log on and download it for free without consequences. I would say that’s fair usage, but the people who make those shows would disagree. There are those on both extreme ends of the “fair use” spectrum, but most of us fall somewhere in the middle and we should be free from legal action.

    “I would echo that though fair use seems a vague concept, its legal definition is remarkably simple (for legalese, that is). Its the interpretation of it that can get messy.”

    I assume you are talking about the “four factors” the courts use to determine whether the usage is fair. Each factor is clearly defined but open-ended and subject to the interpretation of each specific case. I find this to be vague in the same way obscenity is vague, which is the “I know it when I see it” ruling the courts get away with. That’s the part that bothers me.

    I don’t think the Lexicon case would fit ANYONE’S interpretation of fair use aside from the ones who were being prosecuted, and even then, I think they knew it but wanted to give it a shot in court anyway. They lost. Good for Rowling.

  23. @Dave Chalker,

    That’s very interesting, that your family’s involved in managing Foster’s guide. Speaking broadly, are there or have there ever been any arrangements (e.g licensing) with the Tolkien Estate or the present publishers of Tolkien’s work that protects Foster’s guide from infringement claims? It’s something I’ve always wondered about.

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