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Stanford Law Professors to Lead Defense Against JK Rowling Copyright Infringement...

I just read on GalleyCat that some prime legal minds will be representing RDR in the defense of the Rowling copyright infringement lawsuit. If you aren’t up to date on this, the facts, briefly, shake out as follows:

  • Harry Potter Lexicon site starts up in 2000
  • Promotes Pottermania and is used by Rowling and Warner to promote Potter related stuff
  • Lexicon decides to publish book on Rowling stuff
  • Rowling files suit
  • Fandom is angry at RDR (Jane owes Random big post and will do so soon)
  • Jane looks up suit on Pacer and sees that RDR is a tiny company that is not well situated for a protracted legal battle with Rowling. Worries.

The RDR legal team now looks like this:

  • Lead Counsel: Ex-federal prosecutor David Hammer
  • Anthony Falzone, Stanford University’s Fair Use Project executive director.
  • Julie Ahrens, Stanford University’s Fair Use Project associate director
  • Lawrence Lessig, the author of Free Culture

I so hope that this goes to trial and is not settled because the legal precedence of this case could be vitally important to the measurement free use v. copyright.

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

4 Comments

  1. David English
    Dec 05, 2007 @ 11:42:14

    Have Julie Ahrens, Anthony Falzone and Lawrence Lessig lost their Creative Common minds? Shouldn’t they be defending JK Rowling rather than the deceptive Mr Rapoport and Mr Vander Ark?

    The HP Lexicon website is NOT being sued or threatened. Indeed, JK Rowling has been very liberal with the online use of her copyrighted material as long as it was not-for-profit. And they’ve had no problem with scholarly or critical works that meet the standards of Fair Use.

    RDR Books has been conflating the proposed book with the website, which is misleading. The Book, apparently, contains less than half of what is on the website and will not contain any critical essays or literary analysis. Or will it? RDR has a curious definition of the word “verbatim”.

    Mr Vander Ark is hardly the posterboy for Fair Use. A visit to the HP Lexicon’s website will reveal a site obsessed with copyright and intellectual property rights. It’s a case of “Do as I say, not as I do.”

    And then there’s the question of who is the author of the HP Lexicon. It’s obvious that the website is a collective work. Julie Ahrens even speaks of it as a site created by “a distinguished volunteer team of librarians and academics”. But how is it that Mr Vander Ark can slap his name as “author” on a collective work? What’s become of the rights of that team of librarians and academics?

    This, of course, may all be a shallow publicity stunt be RDR and the book may actually meet Fair Use. But that doesn’t explain the shameless attempt to conflate the book with the website. Or that RDR keeps harping on JK Rowling’s fansite award given almost four years ago as if that somehow can be transfered to the book. If this book is only a pale imitation of the website, perhaps it ought to be called something else. But that wouldn’t sell as many books, would it? And this is all about making money, isn’t it?

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  2. Jane
    Dec 05, 2007 @ 11:59:10

    David English – You used one of our favorite words here – conflate.

    I don’t know much about the conflation of the book with the website. Nor do I know of the contributors to the book that is being published nor what contractual arrangement the contributors have made with the publisher and/or author.

    I don’t see it as violative of the copyright law for one individual to be the named author even though there are several contributors. I don’t think that is at all uncommon in works such as these.

    Second, I see you conflating the two issues. One issue is whether Vander Ark is impermissibly using content created by the users of the website. The second issue is whether Vander Ark is impermissibly using the content of JK Rowling.

    The suit that is brought by Rowling is for the latter issue because she does not have “standing” to sue for the first issue. Standing is a legal procedural issue and only those who are directly harmed (this is a big summation for a somewhat complicated issue) can bring suit. So the ones who would bring suit for the first issue (impermissible use of content created by users of the website) would be the content creators.

    It may very well be that the HP Lexicon website users who created content that is used in the paper published work have a suit against Vander Ark, but that is not what is before the court in the SD of NY with Rowling.

    These are two very separate issues because they pertain to separate parties and while they may involve the same body of law (copyright), the ultimate issues the court/jury may decide would be different.

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  3. David English
    Dec 05, 2007 @ 12:55:16

    Well, Jane, I did say they were two questions. I did not conflate them. And RDR has been deceptive as to what is or is not in the book. Their website said the Plaintiffs had “falsely alleged that the Lexicon will contain photographs, maps, artwork, lengthy verbatim excerpts and song lyrics.” Actually, it was RDR that said the book would be the website “verbatim”.

    And it is clear to anyone who has visited the HPL website that it exceeds Fair Use in it’s use of quotes, lengthy excerpts and song lyrics. There is, outside the collection of essays not by SVA, very little in the way of commentary or literary criticism in the HPL. It is, as its title “lexicon” suggests, a encyclopedic dictionary of the HP World. And that would require permission of the copyright holder as it doesn’t transform the work but merely indexes and catalogues it. (That’s why RDR’s spokesperson Richard Harris has denied that the book is an encyclopedia.)

    As well, RDR has not put “unofficial” or “unauthorised” in the title. And yet, by constantly mentioning JK Rowling’s favorable comments about the website, they have implied that it has JKR’s blessing. That’s misleading.

    I know WB/JKR have no standing to complain on behalf of the other authors of the HPLexicon website. However, the website was given considerable latitude by JKR to quote from her copyrighted material because it represented itself as a not-for-profit fansite. It was free and open to all. The book essentially closes the Commons and creates that kind of proprietary fence that Lessig and Falzone’s FUP find objectionable.

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  4. Jane
    Dec 05, 2007 @ 16:11:23

    I am not sure what the argument is. It sounds like the arguments you are making are moral or ethic arguments. Copyright law, though, is not an equitable issue. Copyright infringement is an intentless act. You either copy or you don’t whether you do it intentionally or accidentally. Whether you lie about it or you don’t.

    Let’s assume that RDR is being deceptive because it is not answering the questions posed to it by fans or even by Rowling prior to the lawsuit or that it, in some way, is misleading fans/public about the contents of the book? In deciding whether the ultimate work is an infringement of Rowling’s copyright, that has no bearing because copyright law does not look to the anything but the four corners of the work that is the allegedly infringing.

    And it is clear to anyone who has visited the HPL website that it exceeds Fair Use in it's use of quotes, lengthy excerpts and song lyrics. There is, outside the collection of essays not by SVA, very little in the way of commentary or literary criticism in the HPL. It is, as its title “lexicon” suggests, a encyclopedic dictionary of the HP World. And that would require permission of the copyright holder as it doesn't transform the work but merely indexes and catalogues it.

    Assuming the work to be published is merely and index and a cataloguing, it can be argued that that, in and of itself, has transformed the fictional work into something else like say, a resource material. According to the US Supreme Court “transformative work” is one that alters the original work “with new expression, meaning, or message. . . . A use is considered transformative only where a defendant changes a plaintiff’s copyrighted work or uses the plaintiff’s copyrighted work in a different context such that the plaintiff’s work is transformed into a new creation.”

    The court in Perfect 10 v. Amazon involved the use of Google’s thumbnail images in its search engines. The 9th Circuit said as follows:

    Although an image may have been created originally to serve an entertainment, aesthetic, or informative function, a search engine transforms the image into a pointer directing a user to a source of information. Just as a “parody has an obvious claim to transformative value” because “it can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one,” Campbell, 510 U.S. at 579, 114 S.Ct. 1164, a search engine provides social benefit by incorporating an original work into a new work, namely, an electronic reference tool. Indeed, a search engine may be more transformative than a parody because a search engine provides an entirely new use for the original work, while a parody typically has the same entertainment purpose as the original work.

    The 9th Circuit is not the 2nd Circuit (NY) and decisions can vary from circuit to circuit but fair use is not “clear” as you have indicated and this case could be very important in determining the reach of copyright law which many scholars believe is too broad.

    If the issue that you are worried about relates to the fans use of original fiction, then a ruling for Vander Ark is a win for fandom because right now you rely on the largesse of authors to play in the playground that they have created. If Vander Ark wins, that provides fans with more freedom to create original works of fiction, maintain websites, and generally promote and support the authors that they love; rather more restrictions.

    I know that if I were an active member of a fan community, I would want a broader interpretation of the fair use clause and not a more narrow one.

    If I am misunderstanding your argument, please let me know so that I can appropriately respond.

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