The Fair Use Doctrine

[sistermagpie]

> Carol responds:

> 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. 

Magpie:
They presented it as evidence when they argued their case and the 
other side argued its case and the judge is I assume going to decide 
on that. I don't mean that everything's going to hinge on that pie 
chart being absolutely accurate, but there's not going to be an 
independent team sent out to count up all the words at least in this 
trial I don't think. I just mention it because it shows one jist of 
their argument, that they're saying the Lexicon is made up of her 
writing. Iow, they're saying it's derivative and adds too little to 
be considered transformative. They claim it's 91% JKR's own words, 2% 
citations and the rest is "facetious remarks", etymologies, common 
knowledge, etc. 

I don't know whether the judge is going to be comparing the two 
himself or re-reading--the remark about people not having to read the 
books if they read the Lexicon was ridiculous and I don't think 
that's something the judge has to really work out. Whether or not the 
Lexicon is trying to replace any one of the HP books doesn't really 
matter (few of the intentions really do), I don't think, in a case 
about whether or not putting this book together violates the 
copyright. 

I agree that it seems like a lot of the stuff that's come up in the 
case hasn't been relevent--and I think a lot of work went into the 
Lexicon. I'm not sure it doesn't violate her copyright if it's 
published, though. Judges are trained to ignore anything emotional, 
including anger and tears, so whatever result it has it probably 
won't be on the judge.

-m