That case and that book

[Carol]

Carol earlier:
> > 
> > As far as I can see, the paraphrases are perfectly legitimate, not
coming close enough to JKR's original wording to constitute 
plagiarism or copyright infringement.

Nora: 
> See, this is where I think we're hitting loggerheads.  I believe,
per Castle Rock and other decisions, that copyright does not apply
only to the exact specific wording--it's the right to the work as a
body, not only to the exact phrasing.  You can paraphrase and still
commit copyright violation. <snip>
> 
> Yes.  Paraphrase can violate copyright.  Copyright violation does
not care whether you quote directly or paraphrase.  It's the taking
and the using that matters.

Carol responds:
No. It's the use of the author's *words* that matters. And both the
quality and the quantity of the quoted or *closely* paraphrased
passages matters. If the source is cited and the author's words are in
quotation marks, you are not taking her property and claiming it as
your own (plagiarism, which is only a legal violation if it violates
copyright law)). And copyright law, specifically the Fair Use
Doctrine, allows you to quote and paraphrase as much of the original
work as is necessary for the type of work you are doing, as I hope the
numerous posts quoting the Fair Use Doctrine have establihed. 

Let me quote once again from "The MLA Style Manual and Guide to
Scholarly Publishing," second edition (MLA being the Modern Language
Association):

"Like verbatim copying, close paraphrasing of protected expression can
constitute copyright infringement if the borrowing does not meet the
criteria for fair use, The ideas contained in a work, though, in
contrast to the original expression, may be freely used without risk
of copyright infringement" (21.1.13, p. 44).

Only "verbatim copying" and "*close* paraphrasing" that picks up an
author's *words* without putting them in quotation marks or block
quote format can violate copyright. A careful paraphrase that uses the
author's *ideas* cannot because *ideas cannot be copyrighted*. Of
course, it's an *ethical* violation (plagiarism) to paraphrase without
crediting your source, but it's not copyright violation.  And Steve
V's paraphrases eliminate all vestiges of JKR's distinctive style,
taking them as far from the "original expression" as possible.

If that's not sufficient to convince you that ideas can't be
copyrighted and that the work as a whole is only protected from being
*copied,* not from being paraphrased or summarized, here's a quotation
directly from the U.S. government's copyright site:

"Copyright protects the particular way an author has expressed
himself; it does not extend to any ideas, systems, or factual
information conveyed in the work."

(FL-102, Revised July 2006)

http://www.copyright.gov/fls/fl102.html

"The *particular way* an author has *expressed [her]self" is
protected--the ideas and the content and any information that can be
gleaned from the book and re-expressed through paraphrase and summary
is not.

*Paraphrasing* the copyrighted material is not *copying* it.
Paraphrasing, as, of course, you already know, is using different
words to convey the same idea without duplicating the original
phrasing except when doing so is unavoidable, as in "the Sword of
Gryffindor" or "the Half-blood Prince." So, IMO, JKR's lawyers'
examples of legitimately paraphrased sentences, with the sources cited
(as the lawyer's charts do not convey) do not qualify as fair use
infringement, even if 91 percent of the book consisted of such
paraphrases, all of which are placed in a context that differentiates
them from JKR's published works and her unwritten Scottish Book. (Now
if Steve V. had somehow had access to her completed but unpublished
manuscript for that book and had used it without authorization, he
would be in serious trouble.) The fact that the quotations are in
quotation marks, the paraphrases do not pick up the original wording,
and the sources are cited *is* important given that JKR was charging
Steve V. with plagiarism. Even though plagiarism is only a legal
offense when it involves copyright infringement (which, again,
involves words, not ideas), it seems clear that JKR wants it made
clear that the ideas, the "fictional facts" and imaginary creatures,
are her invention, even though ideas can't be copyrighted, and citing
the source accomplishes that purpose.

Nora:
> And that's the other problem.  Proper citation is not a Get Out of
Jail Free card for copyright violation--you can cite everything
properly and still violate copyright and the four factor Fair Use
test, depending on how much you take for what you're doing with it.
>
Carol:
That depends. If the entire work, or a substantial portion of it,
really were "copied and pasted" from JKR's books, citing the sources
would make no difference. But paraphrasing isn't copying, and citing
the sources for a paraphrase is an acknowledgment of the source of the
ideas, a courtesy to the author and an aid to readers. (It also, of
course, prevents the ideas from being plagiarized, which is irrelevant
to copyright law but not to JKR as the creator of the HP series.)

As for the Four Factor test, of course I agree that that's the crucial
factor. I'm merely trying to establish that paraphrasing, unless it
comes so close to the author's actual words as to be indistinguishable
from the author's "original expression" (MLA), "the particular way an
author has expressed [her]self" (FL-102), does not violate copyright law.

And far from being a "get out of jail free card," citing your sources
aids the reader and is a courtesy to the author. It's a sign of
professionalism and scholarship and respect for the author's words and
ideas. It will not qualify overabundant *copying* as fair use, nor
will the failure to cite a quotation or paraphrase necessarily count
as a violation of copyright law (though it will count as plagiarism
and could have serious consequences for a student or scholar).

I'm just saying that JKR's lawyers are failing to acknowledge that
Steve V. cited his sources, crediting JKR's ideas (and her words, in
the case of quoted phrases) to their source. In so doing, he acted in
good faith and they did not.

Carol, who really wants to drop out of this discussion but felt
compelled to make and support this particular point