The Fair Use Doctrine

[Carol]

Magpie wrote:

> I think there's a grey area here rather than a lack of understanding
on either side. The pie chart seems central to what they're trying to
prove, whether it's slanted one way or the other. That's still the
meat of what they're talking about. 

Carol responds:

I agree that there's a gray area; in fact, that's why this case is so
important. The Fair Use Doctrine was reformulated in 1974. IMO, it
needs to be reformulated again to clarify matters related to the
Internet, if nothing else. 

But the pie chart in itself isn't going to make much difference
because it could so easily be faked or slanted. It has to be backed by
solid evidence, such as actual extracts from both the Lexicon and the
HP books and, if possible, a computer analysis showing the percentage
of identical phrases. (Identical words won't help since "Hogwarts" and
"Harry" and "Snape" and "Dumbledore" and "Quidditch" will pop up all
over the Lexicon without necessarily violating copyright law. After
all, a concordance or an index is based on single words and short
phrases from the books and yet would be perfectly in accordance with
fair use.)

But, yes. The central question is how many of the phrases (not single
words and not ideas, which can't be copyrighted) are JKR's own.
Neither RDR nor Steve V. is claiming that he created the characters or
wrote the books, which would be absurd and easily disproved.

And beyond that, the question is whether the publication of his book
conflicts in any way with the HP books (not the unwritten Lexicon) or
hurts their sales (I doubt that anyone would buy the Lexicon who isn't
a fan of the books, myself). If it's shown to provide information, not
entertainment (like a concordance or an index or an encyclopedia),
there's no conflict, regardless of what percentage of her words he uses.

If, on the other hand, someone were to write an abridgement of the
books (along the lines of the Reader's Digest Condensed Books) without
JKR's authorization, that would be a clear violation of the Fair Use
Doctrine because it's clearly "derivative" rather than
"transformative." *All* of the words would be her own, but some of her
words would be omitted. (I don't think they could legally rewrite the
books along the lines of the Great Illustrated Classics series for
children, either. The books in that series are out of copyright, and I
don't think their own authors would recognize them: "Call me Ishmael.
I am a schoolmaster, and whenever life got me down, I would leave my
job and head for one special place." Yep. Easy to see how such
sterling prose came to be recognized as classic. <g>)

Anyway, the judge sounds like a man of sense. Maybe *he* should sit
down and compare a page or two of the Lexicon to the relevant pages
from JKR's books. Better yet, he should finish reading SS/PS (even the
Scholosatic edition would do, but of course the Bloomsbury edition
would be better) and at least sample some chapters from the other
books. It would be easiest to do it with the Dursleys since they
always appear in the books. Or read the entry on snape and compare it
with "the Potions Master" (SS/PS) and "Spinner's End" (HBP). I think
that would be sufficient to show that the Lexicon is not trying to
compete with or replace HBP; it simply can't. Instead, it's trying to
clarify the concepts, define the terms, and systematize the
information in the books to make them more accessible to readers of
the HP books who are confused or have forgotten something or just need
to know where to look for a particular quotation or incident.

Carol, who thinks that JKR should try some chocolate frogs in place of
the Bertie Botts beans she's evidently been eating
http://www.smh.com.au/ffximage/2008/04/17/rowling_narrowweb__300x373,0.jpg