A Fair Use Lexicon

Even the person who gets the news from CNN.com (which is today, much of American humanity) knows that the much-anticipated copyright trial of the young century started today in New York:  J.K. Rowling and all things Harry Potter vs. Steve Vander Ark, publisher of The Harry Potter Lexicon, online here and, the federal courts willing, coming to a bookstore eventually.  There are many things that could be said about this case; I’ll say only the one thing that I shared this morning with my Copyright Law students:

Over the last decade, copyright owners in many industries dreaded and resisted the prospect that the copying machine that we call “the Internet” might destroy their business models.  Rowling v. RDR Books (the formal title of the Harry Potter case) presents the relatively uncommon situation in which the Internet (i.e., “free”) version of the alleged infringement was unobjectionable; hackles were raised and claims were filed only when what was merely digital became (or threatened to become) analog.  When bits become books, one might say, the fur flew.

4 thoughts on “A Fair Use Lexicon

  1. Perhaps everyone is missing the point; there is no plagiarism unless the author has quoted more than 25 consecutive words without attribution. And, as I understand it, plagiarism is not the issue in Warner-Rowling v. RDR. Nor is there copyright infringement; the author of the lexicon did not use Rowling’s ideas or characters and present them as his own. The issue at hand is fair use, and frankly–in concert with the current power grab by Amazon.com (which, in any other political atmosphere, would be courting a monopoly lawsuit)–the entire exercise is best viewed as one in which major corporations (i.e., Warner and Rowling Inc.) are attempting to pervert commerce in an open market and transform said commerce into mandatory sales to a monolithic entity. In short, the Queen of Plagiarism–and there have been many, many researchers who have traced the origins of Rowling’s storylines, characters, vocabulary and more to writers long dead and some not dead at all–has simply allied herself with Warner (taking a cue from Disney, which rewrote the copyright laws to dampen competition for their rodent and his friends) to further restrain trade in the intellectual arena. Her actions are, in a word, reprehensible. Worse still, of course, are her craven mewlings about her plans to donate the proceeds from her own purported lexicon to some British charity or another. (Perhaps I should get in line; my husband is British, and my business is already being affected by Amazon.com’s attempt to establish its printer as the only one acceptable for publishers to use. Lord knows what will happen to authors and small publishers if Warner-Rowling prevails.)

    Frankly, I think RDR’s lawyers might have had a chance at dismissal of the case on the grounds that it is a frivolous suit, except, of course, for Warner-Rowling’s muscle. One can only hope that the judge is muscle-proof and decided the case on its merits, not on the self-proclaimed merits of a company that wants to restrain trade, and an aging welfare mother who used some free time on the dole to repackage storylines and characters and is now, impossibly, claiming the high ground.

  2. I shouldn’t let this go uncorrected:

    The following proposition — “there is no plagiarism unless the author has quoted more than 25 consecutive words without attribution. ” — has nothing to do with copyright law, and it isn’t even an accurate statement as a matter of ethics.

    The following proposition — “Nor is there copyright infringement; the author of the lexicon did not use Rowling’s ideas or characters and present them as his own.” — also mis-states the law.

  3. Gosh, golly. So sorry: Should we not make commentary on issues if we are not lawyers, but simply working in publishing, where the commonly accepted standard regarding plagiarism is as I stated it? When I made the comment about copyright infringement, I was simply quoting the issue as it had been presented in half a dozen articles on the Internet.

    At the end of the day, whether I cited the existing laws correctly or not, Rowling succeeded in using the court system (whether she did that by fair means or foul) to limit competition to a work she had not yet written. A dangerous precedent, I would think, but not one that seems unusual in the current atmosphere in which protecting the powerful from any and all comers seems to have been codified, if not in fact, at least in intent.

  4. Publishers, editors, and writers alike should participate in commentary — absolutely.

    But mythology is mythology, and if publishers are relying on and publicizing a mistaken rule of thumb then (i) they are doing harm both to the fabric of the law and to the interests of people that the law is meant to protect, and (ii) they should be called out on it. I assume that the rule of thumb is adopted and disseminated in a good faith effort to understand the law, but of course it is always possible that more cynical forces are at work in some contexts.

    Plagiarism and copyright infringement are different things.

    Plagiarism is an ethical question.

    Copyright is a legal question, though some people would like to make it an ethical question.

    Using fewer than some minimum number of words will not automatically clear you of copyright infringement.

    Using more than more maximum number of words will not automatically make you liable for copyright infringement.

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