Another Summary of Fair Use

[Carol]

Carol earlier:
> > But as a courtesy to JKR, and to keep her from appealing the case
and causing who knows what harm to the fair use doctrine and the
rights of fans and scholars alike based on an original work, I think
Steve V. ought to make certain changes (updating the entries, altering
the Sorting Hat entry so that it consists of more commentary and
summary and less quoted material, correcting any errors that JKR
considers to be particularly egregious--admittedly, the few errors she
cites <snip>
> 
> Magpie:
> Maybe this is nitpicky, but just had to say that JKR can't do harm
to the fair use doctrine or rights of fans since she's not in charge 
the law. The judge is the one who would be ruling on whether this 
book was okay or not based on what Fair Use already says--at least
that's how I understand it works. Her challenging of this book is 
just a challenge. 

Carol responds:

Possibly I was a bit careless with my wording here. Mea culpa.
However, my point was that if the printed Lexicon in its current form
duplicates the entries on the website (minus essays, illustrations,
links, etc.), it contains entries that need to be updated, pruned, or
otherwise revised (e.g., the Snape and Sorting Hat entries). Steve V.
would be wise, IMO, to make the needed corrections (better late than
never) by updating the entries, eliminating overlong quotations like
the one in the sorting Hat entry, and otherwise revising the book to
make it more acceptable to JKR. (I agree with Alla that RDR should
have submitted the manuscript to JKR for her review and suggestions.
She could at that point have noted any entries that she considered to
be "plagiarism.") RDR seems to have given Steve an unrealistic
deadline, without adequate time to make the revisions he himself, and
JKR, considered necessary. Had they done so, the case might never have
gone to court. 

BTW, JKR herself has evidently stated objections to the entries on
Peeves and Sirius Black, which I haven't examined yet. Those articles
might be good ones to sample with regard to the validity of the pie
chart. If she has any *valid* objections, even if they're not actual
violations of copyright, he would be wise to make those revisions as
well. 

My point, since it was apparently clear, is that it may not be too
late, even now, to avoid prolonged litigation and appeals. All JKR
needs to do is agree to drop the suit if Steve makes certain changes
to the manuscript before publication. Bu, of course, Steve and RDR
would have to agree to cooperate.

More important, the judge's ruling on this particular case will not in
itself rewrite the Fair Use Doctrine (which, as he says himself, is
difficult to interpret in this and many other instances) but it *will*
set a precedent that other judges in other cases can follow.

And, to be nitpicky myself, JKR is not challenging the Fair Use
Doctrine per se (though she seems to believe that an author's right to
her own creations is absolute). She's challenging the Lexicon's claim
to be covered under the Fair Use Doctrine. And that, actually, is
what's at stake. *Is* a reference work based on an original work
(whether or not it contains errors) protected under the Fair Use
Doctrine? And how much of that reference work can be quotation or
close paraphrase and how much must be summary, analysis, or inference?

If all the entries were like the one on the Sorting Hat, JKR would
have a very strong case, and the pie chart would be valid. As it is, I
think her case is weak, and the few cases of copyright infringement
(such as the Sorting Hat entry) can be easily remedied.

Magpie:
<snip> I don't think a judge would have any interest in making a
ruling that made it illegal to write reviews or scholarly work or
criticism--lots of all three have already been done for HP without any
challenge. And the judge isn't going to interpret the law/situation in
a way he doesn't really agree to just because it's JKR.

Carol:
True. But he's also aware that any decision he makes is likely to be
appealed and will certainly set a precedent. If a work like the
Lexicon can be challenged by the author, so can any book based on
another book that doesn't have explicit permission from the author.
And authors might just clamp down on what they do and do not authorize.

As it stands, an author has the right to write or approve an
abridgement (because an abridgement would be entirely her own words
arranged as she wrote them but with omissions) but not a work of
literary criticism (which is considered fair use as long as it doesn't
quote substantial extracts without permission). The Lexicon lies
somewhere between the two in a grey area of the Fair Use Doctrine
which, for better or worse, a ruling in this case would help to define.

Magpie: 
> I'm also not even so sure that any case like this is able to have
such far reaching effects because I think they're all very 
individual. If she wins because the thing is ultimately considered to
add nothing than that's not changing the Fair Use Doctrine--and I 
don't think it would automatically call into question any reference
book based on something fictional even if it had far more analysis in it. 

Carol:
If I understand you correctly, you're saying that if JKR wins because
the Lexicon is judged to be mostly JKR's own words, the ruling will
have no effect on the Fair Use Doctrine (which is already decided on a
case-by-case basis). I don't entirely agree because books like the
Lexicon are not covered by the Fair Use Doctrine as it now stands,
which is why the judge can see both sides and recommends that they
settle out of court. The judge's decision would be the first of its
kind, and it would indicate whether Lexicon-style reference books (in
a printed form intended for publication) are or are not acceptable.
And the judge will have to decide just how much verbatim quotation or
close paraphrase is allowable in such a book.

I don't think that the Fair Use Doctrine in itself is being challenged
(though perhaps JKR and WB wish that it didn't exist and that her--or
their--rights to her work were absolute). It's the *interpretation* of
the Fair Use Doctrine as its currently formulated that's at stake here.

Magpie:
I believe of the two sides it's the Stanford Group that's more openly
eager to reform the cpoyright law. <snip>

Carol responds:
And with good reason, given the grey areas and the current confusion
over whether publication on the Internet constitutes publication in
the usual sense. A law formulated in 1976 needs to be reexamined in
light of the very different conditions that exist in 2008. And that
reexamination and reformulation needs to take place regardless of who
wins this case or whether it's settled out of court.

Magpie:
I don't know whether the arguments on JKR's side (leaving aside
irrelevent stuff like whether her own encyclopedia would sell fewer
copies or whether she's got writer's block or loves her books like
children or whether the book's sloppy or not) are attacking the law
itself or just trying to show that the Lexicon fits the law already.

Carol responds:
I don't think that even JKR's lawyers would challenge the law itself
(but given that Disney is trying to extend the copyright on Mickey
Mouse in perpetuity, I could be wrong!). They're just trying to show
that the Lexicon doesn't fall under Fair Use as currently formulated.
Again, the amount of quoted material and close paraphrase that can be
used in a secondary work depends on the nature of the secondary work.
And books like the Lexicon which are partly informative, partly
interpretive, don't seem to be covered at all. (Sidenote: I tried to
find out whether true concordances, which use a great deal more of the
author's own words than the Lexicon does, are considered fair use, but
I couldn't find any information. I certainly wouldn't create one
without the permission of the author, however!)  

Magpie:
> If she won it seems like that would just put the next person in the
same position as Steve was in when he started writing.

Carol responds:
I'm not sure what you mean. IMO, if she won, "the next person" would
be forced to obtain permission not only for quoted material that would
normally fall under fair use but even to write and publish the book.

Magpie: 
> A book that more aggressively challenged her own views of characters
with essays etc. wouldn't be able to be challenged this way. (I 
assume the Lexicon actually tries to make its own biases close to the
author's so she wouldn't have much trouble with at least that kind of
interpretive spin.)

Carol responds:
I'm not so sure. Since she regards her own views as definitive,
claiming that the characters don't exist outside her imagination (an
absurd claim, IMO--they exist on the pages of the printed books and,
through the imaginative and "transformative" process of reading--in
the imaginations of her readers as well), so I wouldn't be surprised
if she challenged a book that "wrongly" interpreted her characters.
But that's neither here nor there--the Lexicon, as a reference book,
tries to keep interpretation to a minimum. It's intended to inform,
not entertain. It's not even intended to shape the reader's perception
of the books the way a critical analysis of Voldemort's motives or
flower symbolism in the HP books would do.
> 
> I'm just saying that if JKR's team is trying to claim that the 
Lexicon is simply entertainment like the Seinfeld book that's not 
attacking much of the Fair Use doctrine. 

Carol responds:
If that's what they're claiming, they've pretty much lost the case
already, don't you think? But as I said, I don't think they're
attacking the Fair Use Doctrine per se. They're challenging the claim
that the Lexicon is protected by the Fair Use Doctrine. And that boils
down to whether the Lexicon is primarily a reference book and, if so,
how much quoted material (properly attributed) it can *fairly* use
without violating copyright law.

Magpie:
The grey area is more about what this book is, it seems to me, rather
than whether Fair Use should be stretched to cover criticism or
scholarly works.

Carol:
Fair Use doesn't need to be "stretched" to cover criticism or
scholarly works. Those kinds of books (along with the needs of
teachers, reviewers, etc.) are the reasons why Fair Use exists.
Without it, the author's rights (unless he or she sold some of those
rights, as JKR did with the movie rights) would be absolute.

But, yes. The grey area involves books like the Lexicon that don't
fall under categories already specified in the Fair Use Doctrine. But
Fair Use is almost certain to be reformulated in the near future, and
a precedent that narrows rather than expanding its protection, one
that privileges the rights of the original author over those of the
authors of secondary works, would have implications for free
expression that could mean more lawsuits and more restrictions on fans
and scholars alike. It's a scary prospect, for me, at least.

BTW, I came across a reference to a book called "Brand Name Bullies:
The Quest to Own and Control Culture." Is anyone familiar with this
case, which seems to discuss not only trademark ownership like that of
WB but also copyright? It wouldn't discuss the JKR vs. RDR case since
it's too new, but does it contain anything relevant to our discussion?

Carol, who agrees with Alla that RDR behaved badly before the trial,
but thinks that the important question involves the content of the
book and whether it falls under Fair Use, not the behavior of anyone
involved in the case
> 
> -m
>