Monday, September 15, 2008

Finally, a reasonable counter-argument

Intellectual property lawyer Paul Rapp argues against J.K. Rowling's victory in her lawsuit against the Harry Potter Lexicon.

Fair use cases have increasingly turned on whether the new work (here, Vander Ark’s book) is transformational of the first work. Here, the judge ruled that the encyclopedia was indeed transformational, just not transformational enough. The 62-page decision contains endless examples of “similarities” between Vander Ark’s book and the Harry Potter series—a painful thing to read, and when you think about it, kind of silly. It’s an encyclopedia, for crying out loud; it shouldn’t be a huge surprise to discover that it contains similarities to the thing that it’s, well, encyclopedia-ing. But the judge was bothered by Vander Ark’s verbatim copying, which he seemed to think was excessive, leading to the bothersome conclusion that had Vander Ark jumped through a bunch of needless hoops and had simply done more paraphrasing, he would have been alright.

The judge also put, in my view, way too much emphasis on the obvious facts that the Harry Potter books were fiction and that Vander Ark’s work was a profit-making endeavor in finding that there was no fair use of Rowling’s works. I think the judge also put too much stock in a couple aged decisions denying fair use in similar situations, one involving a Seinfeld trivia book and another involving a Twin Peaks fan book, both of which I think would be decided differently today given some more recent cases that have opened up the concept of fair use to be more consistent with today’s exploding remix culture.

There seem to be two big points here: 1. verbatim quotes are exactly what one would expect in an encyclopedia and 2. the precedents the judge cites are out-of-date in contemporary "remix culture." As you might gather from my earlier post, I'm in closer agreement on the second than the first. Rapp is dismissive of paraphrasing, but it's exactly that non-quoted "original commentary" that would have given Vander Ark an argument that he was adding something instead of rehashing the text. In this case, it's clear that extensive quoting is the untenable middle ground between what I would call "indexing"—providing a list of locations in Rowling's text for each entry, but not quoting the text itself—and analysis or "original commentary" that would have discussed Rowling's ideas and placed them within the text.

It's worth noting, if you read Rapp's full commentary, or most of the other coverage of this case, that it really doesn't matter that Rowling has a whole bunch of money and Vander Ark was a middle school librarian, or that Rowling claims that the lawsuit has given her writer's block. These are the dramatic details, but they are legally immaterial.

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