Scrivener's Error

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Scrivener's Error	Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

08 September 2008

17:37 [GMT-6]

Harry Potter and the Copyright Infringement

Judge Patterson issued his post-trial ruling in the Harry Potter Lexicon case today. I'm not going to set forth an extensive analysis here; I just want to note a few things that this opinion does not do and/or proclaim.

Contrary to the whingeing (and outright screaming) that you're going to hear, this is not a rejection of fair use as a concept. It is, instead, limited to the particular facts that were presented to Judge Patterson for this matter.
Also contrary to that same set of whingeing and outright screaming, this is not a precedent that can be applied to block any other publication. It is a bench trial opinion by a trial judge in the Second Circuit. Another party or court might cite it as potentially persuasive, but it does not bind anyone except the parties to this matter. Most importantly, it depends upon some questionable precedent that has been rejected in four other circuits, so one cannot even count upon the same framework being applied to another lawsuit. (This is yet another reason that copyright matters should be assigned to the Federal Circuit — uniformity has substantial value in circumstances like these, even when the court ends up getting the decision "wrong" for some value of "wrong".)
This decision is not a rejection of the right to publish commentaries. The factual finding Judge Patterson made that is most telling is — as is all too common in legal writing — buried in the middle of another string of factual findings.

Instances of such verbatim copying or close paraphrasing of language in the Harry Potter works occur throughout the Lexicon. (See, e.g., Pl. Ex. 1, entries for "Apparition," "Bubtotuber," "Pince, Madam Irma," "Twycross, Wilkie," "Lovegood, Luna," "third- floor corridor," "Slytherin common room.") Rowling provides numerous examples in Plaintiffs' Exhibit 47, "a chart [she] made to show what [she] felt was the constant pilfering of [her] work."

Slip op. at 25. This is critical because it reflects the judge's ultimate opinion that the commentary was merely grafted on to substantial copying.

The transformative character of the Lexicon is diminished, however, because the Lexicon's use of the original Harry Potter works is not consistently transformative. The Lexicon's use lacks transformative character where the Lexicon entries fail to "minimize[] the expressive value" of the original expression. A finding of verbatim copying in excess of what is reasonably necessary diminishes a finding of a transformative use. As discussed more fully in analyzing the "amount and substantiality" factor, the Lexicon copies distinctive original language from the Harry Potter works in excess of its otherwise legitimate purpose of creating a reference guide. Perhaps because Vander Ark is such a Harry Potter enthusiast, the Lexicon often lacks restraint in using Rowling's original expression for its inherent entertainment and aesthetic value.

Slip op. at 49 (citations omitted; boldface emphasis added). Ultimately, the real problem with the Lexicon as it was to published is that it excessively copies not merely facts, but expression. Judge Patterson's ultimate evaluation on fair use is:

The fair-use factors, weighed together in light of the purposes of copyright law, fail to support the defense of fair use in this case. The first factor does not completely weigh in favor of Defendant because although the Lexicon has a transformative purpose, its actual use of the copyrighted works is not consistently transformative. Without drawing a line at the amount of copyrighted material that is reasonably necessary to create an A-to-Z reference guide, many portions of the Lexicon take more of the copyrighted works than is reasonably necessary in relation to the Lexicon’s purpose. Thus, in balancing the first and third factors,the balance is tipped against a finding of fair use. The creative nature of the copyrighted works and the harm to the market for Rowling's companion books weigh in favor of Plaintiffs. In striking the balance between the property rights of original authors and the freedomof expression of secondary authors, reference guides to works of literature should generally be encouraged by copyright law as they provide a benefit readers and students; but to borrow from Rowling's overstated views, they should not be permitted to "plunder" the works of original authors "without paying the customary price" lest original authors lose incentive to create new works that will also benefit the public interest.

Slip op. at 62 (citations omitted).
Finally, despite the stated restriction to the core copyright issues, the language of Judge Patterson's opinion reflects considerable trademark and unfair competition analysis, even when stated in the terms one ordinarily finds in a copyright opinion. This was, of course, inevitable: Unfortunately, the doctrine underlying two of the four fair-use factors is directly analogous to and (during its common-law development in the middle of the last century) drawn from trademark analysis. In short, this is not — contrary to its initial representations — a pure copyright/fair use opinion.

Labels: copyright, intellectual property, jurisprudence, publishing

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Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Links of Interest

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Writer Beware and the Writer Beware Blog provide essential knowledge for writers who don't want to be ripped off
Writing-World.com published by the former managing editor of the now-defunct Inklings
Agent Research & Evaluation provides both free and paid analyses of literary agents
US Copyright Office, including both registration forms and records and quite a bit of other helpful information
Trademark Electronic Search System (TESS) allows searches of granted, pending, and some rejected trademark registrations
US Supreme Court Opinions from the current and past couple of terms
Law Library of Congress includes statutes for free
The Public Library of Law can help you find the law... but not use it in court, as many of its resources are not in proper form and do not provide all of the citation information needed in court papers
Legal, free e-books are available through Online Books (University of Pennsylvania) and Shakespeare (MIT)
Legal, free music is available through
- ClassicCat.net (what kind of music do you think you'll find here?)
- Music.Download.com (long-awaited successor to MP3.com)
- Janis Ian (artist)
- John McCutcheon (artist)

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

A blawg is sort of like a blog on legal issues, but usually has a lot more links to outside resources (other than other blogs) than does a typical blog. Scrivener's Error is a blawg, not just a blog. You can find other blawgs at < ? law blogs # >.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the Supreme Court, don't forget SCOTUSBlog.
Some academics' blawgs with a variety of political (and doctrinal) viewpoints:
- Professor Anthony Arend (Georgetown Law)
- Professor Stephen Bainbridge (UCLA Law) (aka "The Perfesser")
- Professor Jack Balkin (Yale Law)
- Professor Dennis Crouch (Missouri Law) (better known as Patently-O)
- Professor Michael Froomkin (University of Miami Law)
- Professor Eric Goldman (Santa Clara University Law)
- Professor Rick Hasen (Loyola-LA Law)
- Professor Brian Leiter (U of Chicago Law/Philosophy)
- Professor Lawrence Lessig (Stanford Law)
- Professor Michael Madison (Pitt Law)
- Professor Larry Ribstein (University of Illinois Law)
- Professor Lawrence Solum (University of Illinois Law)
- Professor Rebecca Tushnet (Georgetown Law)
- Professor Tom Ulen (University of Illinois Law)
BoingBoing, by speculative fiction writer (and 'net activist) Cory Doctorow, is quite hostile to copyright enforcement efforts, particularly regarding file-sharing
The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance
Cyberlaw (Stanford) has its agenda grounded firmly in the so-called "digital commons," which might make a bit more sense if any of the advocates of that viewpoint understood diddly-squat about population ecology
The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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