[HPFGU-OTChatter] Re: The Fair Use Doctrine

[Lee Kaiwen]

sistermagpie:
> if the reason for winning is that JKR "approved" of ...
 > the Internet site (as opposed to them proving that this
 > particular book was fair use). That would force authors to
 > be more careful about "approving" of things accidentally
 > that way.

I have no idea what legal legs JKR's past endorsement of Steve's site 
has. Does her awarding it site of the year (or whatever) constitute 
permission to publish? I would tend to think that would be a very 
difficult argument to make. And thus any authorial concern to that 
effect would be more three parts paranoia than legal precedent.

Now that's not to say authors can't be paranoid and hire enough lawyers 
to make things rough for website owners anyway. But I'd be surprised if 
any judge would mistake an authorial "attaboy" for a contract to publish.

Carol:
 > I don't think that if JKR loses, it will be because she
 > didn't protect her intellectual property.

Someone already pointed out my faux pas here -- it's trademark, not 
copyright, that you can lose by failing to defend it.

In any case, I think I just argued against myself above. I earlier 
raised the question of whether JKR's approval of the website weakens her 
disapproval of the RDR version. Now I'm thinking I would be surprised to 
hear a judge take her previous approbation as implicit permission to 
publish. But whether it would factor in in other ways -- well, what do 
*I* know about copyright law?

Carol:
 > And even the percentage of allowed quoted material varies,
 > depending on the type of book involved.

But what constitutes "quoted" material? Is it strictly verbatim 
reproduction, or does it include paraphrase and summary as well? If 
someone (oh, say Steve, or RDR) wanted to publish something (say, maybe, 
a lexicon) that summarizes the life of a fictional character (perhaps 
Harry Potter) under an entry called "Potter, Harry James", without 
actually reproducing any relevant text verbatim, does that constitute 
for legal purposes a "quotation"?

Carol:
 > JKR's claim that the Lexicon and the trial have made it
 > impossible for her to work on her own encyclopedia is
 > irrelevant.

I would agree. If the RDR lexicon is protected under fair use, then any 
impact it might have on JKR's future projects are not an issue.

Carol:
 > As for JKR's claim that the work Steve did wasn't work at
 > all because she had done the work of writing the books...
 > Summary and paraphrase also require skill and effort.

As I mentioned in a previous post, I am the author of a harmony of the 
gospels (don't bother looking for it in stores; it was a limited run 
about twenty years ago), which does nothing more than rearrange and 
republish pre-existing material. I would bristle a bit at the suggestion 
(implied in JKR's argument) that my scholarly efforts were minimal, 
unoriginal and/or not worthy of protection in their own right.

So I'm in full agreement with you here.

Magpie:
 > Yes, I heard that. And I admit I thought it was a little
 > annoying. Why blame fandom for the fact that somebody
 > tried to infringe on your copyright?

I agree, but I'm not unsympathetic to JKR's side. Since there's no way 
to predict when or whether any particular fan endeavor will suddenly 
explode into a legal case, from JKR's and her publisher's perspective, 
the only solution is to be more restrictive of everything. Yes, it's 
unfair to fandom in general, but what other solution is there?

Magpie:
 > From what I've heard from one lawyer SVA's contract
 > actually leaves him open to being sued by RDR when it's all over,

Now THAT would strike me as a rotten thing to do. After all, RDR 
approached Steve (from what I understand) and convinced him to change 
his mind about publishing. To turn around and then sue Steve would be a 
dirty trick all around, even if legally allowable. That's when I would 
really start feeling sorry for Steve.

Sorry, gotta go. My daughter's sick and I need to sit up with her.

CJ