Lessig vs Rowling : The Book Industry’s Fairwell Battle?

One of the last ‘fair use’ projects that Lawrence Lessig is working on before he turns his attention to politicians, is a battle between a small book publisher and JK Rowling, author of the Harry Potter series. It promises to be a battle that, if Lessig is successful, puts the publishing industry in check and allows new forms of creativity to thrive. And if he fails, allows the publishing industry to continue its unfair rewriting of copyright law.

The case centers around a blogger who has been running a fan site called the Harry Potter Lexicon who has decided to publish it as a companion book to the Harry Potter series. The site covers Harry Potter essays, mistakes, terminology, timelines and other Harry Potter trivia. Rowling and her publishers have ignored the site author Vander Ark until now – because they deem that he’s making a profit out of the genre. (Ignored is perhaps not the best word, if you check the clear legal text at the bottom of the site, we could assume that the owner has already been harassed by the Rowling legal team).

Writing in the New York Times, Joe Nocera points out that there have always been compendiums for popular literature (like the Tolken novels) and that the case reminds him of the music industry attack on Napster or the Viacom’s litigation against YouTube. Attacks not only on ‘rogue’ sites but on the regular folks who use them as well:

Copyright holders have tried to impose rules on the rest of us — through threats and litigation — that were never intended to be part of copyright law. They sue to prevent rappers from taking samples of copyrighted songs to create their own music. Authors’ estates try to deprive scholars of their ability to reprint parts of books or articles because they disapprove of the scholar’s point of view. Mr. Lessig likes to cite a recent, absurd case where a mother posted a video of her baby dancing to Prince’s song “Let’s Go Crazy” on YouTube — and Universal Music promptly demanded that YouTube remove the video because it violated the copyright. Have these efforts had — as we like to say in the news business — a chilling effect? You bet they have.

….No one is saying that anyone can simply steal the work of others. But the law absolutely allows anyone to create something new based on someone else’s art. This is something the Internet has made dramatically easier — which is part of the reason we’re all so much more aware of copyright than we used to be. But it has long been true for writers, filmmakers and other artists. That’s what “fair use” means.

…What Ms. Rowling is saying, however, is that her control of Harry Potter is so all-encompassing that only she gets to decide the terms under which a companion book is allowable. She can talk all she wants about charities that will be deprived if she loses this case, but this is really a power grab. RDR Books should not have to “fall into line” to publish the Lexicon. Ms. Rowling is claiming a right that, if granted, will hurt us all.

And in a roundabout way, that gets us back to what the Internet has wrought. For, as Mr. Lessig points out, anybody who owns a computer can now create content that is based on someone else’s creation. Indeed, we do all the time, by posting content on Facebook, on YouTube, everywhere on the Internet. If the creation of that content is deemed to be a violation of copyright, “then we have a whole generation of criminals,” said Mr. Lessig — which is terribly corrosive to society. But if it is fair use, as it ought to be, then it becomes something quite healthy — new forms of free expression and creativity.

A Tight Grip Can Choke Creativity – New York Times