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.
An all encompassing claim of control… pretty bold Ms Rowling… considering this is the era of dismantling dictatorships. If this case in any way regulates forms of free expression and creativity (as if?), will then all copies of books with any reference to God or Jesus be pulled off the ledges by the criminals who further developed characters of characters?
February 16th, 2008 at 12:51 am
I’m sick and tired of people thinking that they have the right to steal a creative work just because everyone else is doing it and because the tools are freely available.
No one is telling people not to be creative on their own! No one is stopping them from being creative! They’re not even telling people not to share their new creations! (Rowling did not have a problem with the free web version of this content.) They are saying that the new content creators have no right to make money off of those new creations because they are fundamentally based on someone else’s work. (Greater than 50%.)
If said new content creators think that this new work is mostly a new creation, they have every right to pursue their right to make money on it through legal channels. There have long been mitigation processes through intellectual property courts for proving that your contribution to a work is greater than the work that it is based on. Sometimes the courts even agree and grant full credit to the later author of a work. This happens all the time with Hollywood screenplays with multiple writers.
I think going forward this kind of usage will continue to be regarded as intellectual property theft, not fair use. The copyright owners will just have to figure out new ways to halt and prosecute it. It’s not worth it to sue every person who has an illegal video or image on their own personal website, but it is worth it to issue cease and desist orders to giants like (old) Napster & YouTube, telling them that by allowing users to post such materials they then become liable for that copyright violation.
People who steal intellectual property don’t realize that they threaten the things that they love. They want everything for free, but they don’t seem to notice that if there is no financial incentive for creating great works, most of them will never be created in the first place because it is too much work and expense.
February 22nd, 2008 at 2:35 pm
George, either you’re deliberately obtuse, or you’re too stupid to get the point.
NO-ONE is complaining about stealing the major part of a work, the point here is derivaive works.
Case in point: Warhol’s painting of a Campbell’s soup can. I don’t know about you, but I can’t tell them apart. Are we enriched or destroyed by this?
Think about it.
February 25th, 2008 at 6:07 am
before i start…a few things scream out at me….
“He mentions that for some, the Lexicon book would be their only purchase of a Harry Potter encyclopedia, and says the idea the official book would not be damaged because the same information is available on the Lexicon website because a website is impossible to give as a gift to a Harry Potter fan. “If the Lexicon were a perfect substitute for the [book] Lexicon, there would be no reason to incur the extra costs of publishing the book. Even if it is an imperfect substitute for the volume that Ms. Rowling expects to produce, the Lexicon would adversely affect demand for Ms. Rowling’s book.
so even if they are different…that doesn’t matter. hmmmmm.
“It counts 2,034 entries out of the book’s 2,437 entries that lift text directly from Harry Potter, and says the remainder “merely [add] adverbs such as ‘unfortunately,’ ‘sadly,’ or ‘possibly’ to descriptions” clearly shows that all RDR/SVA have done is cut and pasted the material from the Lexicon and put it on paper to make money. Without scholarly criticism or analysis, it’s blatant plagiarism.”
no…actually, since by all accounts it hasn’t even been set in type yet, it isn’t.
and see what i just did? where i directly lifted the text and then put lil flippy things in front and after it?
THATS CALLED QUOTING.
im allowed to do that. and, in fact, if it is NOT direct text, i could be misrepresenting you. MIS-quoting you.
so,say, if he called Ron’s hair, o…say….chestnut with an auburn hue, rather then a direct quote, he would in deed be guilty of the very thing he is being charged with….copyright infringement….taking an already static character and introducing a new element.
now….
i can already hear it….”but its her book!!!”
yes dear.
its her book.
her characters.
her world (excepting the fact that england is…well…england.)
but let me ask all you rabid little potterites this….are the thoughts in YOUR head on HER books hers?
of course not.
unless you wanted to make a spot of cash from those thoughts.
then she gets a say….right?
WRONG.
“she made up the characters, she made up the world, she blah blah blah whine whine whine…”
i have read quite literally MILLIONS of books. i dont count, but i average at least one a day, going all the way up to three if im having a nervous breakdown and cant sleep.
ive been reading like that since i was in 2nd grade.
and while JKR is decent, she is hardly the first to come up with any of it.
NONE.
its all derivative.
everything is, actually, which is why we have GENRES.
individual groupings of stratas based on their tone and what they derive from.
kind of like food groups.
JKR is a nice solid PB&J….
and i’ll be the first to admit that sometimes a good PB&J is EXACTLY what one wants and needs. not to heavy, yet filling…sweet, but healthy enough to lack any major guilt.
wizard schools, guilds, spells, teachers,methods….give me any random bit and ill give you a corresponding random bit from another book that precedes it.
now….nothing wrong with that in the slightest.
plenty of food to go round, you know?
BUT….just because she wrote a decent PB&J does not give her rights over all other combinations of peanut butter, bread, and jelly, descriptions of such (including her own) lists of such, opinions of such, etc.
even if she IS planning on writing her own encyclopedia….its just that….hers.
NOT HIS.
that would be the difference.
and the rub.
just because she might/probably will/could write one….means he can not?
NO!
if RDR stole her notes on such, and tried to publish….if they had access to non published material JKR has in her head or otherwise, that would be a different story.
RDR’s/SVA’s book is just that….THEIRS.
based on and inclusive of already existing material organized into an easily referenced chunk of paper.
theres no plot….you cant read the thing for story value…
its a series of QUOTES, for gods sake, and a bit of “english for americans” thrown in to ease the ride.
the fact that its all about JKR’S books is legal.
if he was to write a NEW book with her characters, THAT would NOT.
the song about the song, as the say, is not the song itself.
February 28th, 2008 at 10:16 pm
If the publisher simply came out and said, “We’re doing this because she’s rich, and we just want a cut of it,” at least that would be honest, because that is all that this is really about. Of course she has rights to her own work. Any author should. Funny how you don’t see anyone challenging a non-rich author’s rights to their own work, isn’t it?
Would anyone even bother trying to publish the HP Lexicon’s content if it weren’t going to make money? They argue that they are promoting her book, so they don’t owe her. But the truth is, her books would promote THEIR book, so by their own argument, they DO owe her — and it doesn’t matter how much money she has already made.
If I wrote Moby Dick, I’d get money. If I READ Moby Dick and told everybody about it, I wouldn’t get money. Why should I? Is this really that hard to understand? Do you really not get the difference between writing a book and writing a BOOK REPORT? Get real.
And yes, as a matter of fact, I CAN tell the difference between a can of soup and an Andy Warhol painting… and so can everybody else.
February 29th, 2008 at 6:38 pm