Copyright idiocy

[bunnyjadwiga]

The publishers and author of the Harry Potter books are suing for copyright violation by a book form of the Harry Potter Lexicon http://www.hp-lexicon.org/ by Mr. Vander Ark.

http://online.wsj.com/article/SB120847059496924513.html?mod=googlenews_wsj
http://www.hollywoodreporter.com/hr/content_display/film/news/e3ic5e17e9271fcb92ac43fafb4fddf4cef
http://books.guardian.co.uk/news/articles/0,,2273592,00.html

In http://ap.google.com/article/ALeqM5hIGNIcztySvpGhm95iGPhNL7ov1AD901VBQO0:
Rowling claims the printed work:
"Rowling claims the book is nothing more than a rearrangement of her own material and told the judge it copied so much of her work that it amounted to plagiarism.

"I think it's atrocious. I think it's sloppy. I think there's very little research," she testified Monday. "This book constitutes wholesale theft of 17 years of my hard work."

Now, mind you, this allegedly is a printed version of the Harry Potter Lexicon that appears online, which doesn't actually reproduce more than a few scattered lines of her text. (She claims that she thought the online lexicon was ok, which is why she gave it an award, until the site added the "Please do not copy material from any version of the Lexicon." In other words, she thinks he should let people freely post as their own work material from the Lexicon-- the actual full TEXT of the lexicon, while she can sue him for writing explanations of her naming conventions.

What's this about? Oh yes. She's supposed to be writing (and her publishers publishing) an encyclopedia of Harry Potter herself. She hasn't done it yet, but her publishers are afraid that some tiny little segment of the purchasing world will buy this book instead of the Encyclopedia written by Rowling, if there ever is one, and so affect the sales of the Rowling book.

Do the words "That's kinda silly" mean anything to you? Most Rowling fans will buy and read anything she writes now. Libraries, too, will be forced to buy the Encyclopedia, if it ever appears. Nor will sales of the original series be impacted by a guide to the series, as far as I can imagine.

You see, its the publishers who own Rowling's copyrights for the previous books. Rowling hasn't figured out yet (because she probably has a contract with her publishers that handles this) that if the right of the "owner of copyright" to "prepare derivative works" is interpreted in the way her publishers want it to be, some unlucky authors who have sold their work might well be in the situation of being sued by their own publishers for writing things considered 'derivative' of items that they themselves have written, and sold...

This is the fair use clause of the law:
Limitations on exclusive rights:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Comments

[ladypeyton.livejournal.com]

An independant auditor went through the published lexicon and tallied up that 91% of the book is a direct copy of the Potter books. There's a pie chart anda bar chart that were entered into evidence that I'll try to find for you.

Also, SVA himself admitted during his testimony that he scanned in the books and cut and pasted them to create the Lexicon. The parts of the online Lexicon that he has used are not the original essay parts since they didn;t have permission to use them and they wanted to avoid copyright violation.

I've been following this issue since he first announced he was going to take the Lexicon offline into book form.

Also, JKR has stated, under oath (her testimony is available at the Leaky Cauldron), that it's not derivitave works that she objects to and mentioned several derivitave works that she considers to be excellent. It's the fact that this book is, for the most part, a C&P job that simply re-arranges her words into alphabetical order and when it *does* try to stray from her words it gets things wrong.

[ladypeyton.livejournal.com]

Here's the pie chart and bar chart that was entered into evidence. They're on the last two pages of the legal document.

http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2007cv09667/315790/83/

[bunnyjadwiga.livejournal.com]

Except that there's no category in there for "descriptions of things that appear in Rowling", as in:
"Mandrake Draught potion
ingredients: include Mandrake, of course
This powerful antidote will revive people who have been Petrified.
*
Mature Mandrakes are needed for this potion, which Snape brewed in May, 1993 [Y13], to restore the victims of the Basilisk from the Chamber of Secrets (CS9).
*
There has been some discussion as to how Petrified people would be able to drink a potion. Clearly this particular concoction is not always ingested. Perhaps Madam Pomfrey applied the potion to the skin of the victims.
"

Apparently the bar-chart maker puts that in the category of "Rowling Material". To my mind "Rowling Material" would be the quotes, and only the quotes.

[ladypeyton.livejournal.com]

Except you only have access to the online version, which is not the book. The pie chart people compared the actual publication that RDR wants to sell. There's significant use of Rowlings words in the book.

To my mind "Rowling Material" would be the quotes, and only the quotes.

Unfortunately, that's not the precise definition on plagiarism.

Plagiarism vs. copyright infringement

[bunnyjadwiga.livejournal.com]

Plagiarism and copyright infringement are not the same thing.
For one thing, once you've given credit to the person, it's not plagiarism.

The question of how much 'copyright' rests in the ideas, and not the words, is one that is long disputed.

Re: Plagiarism vs. copyright infringement

[ladypeyton.livejournal.com]

Plagiarism and copyright infringement are not the same thing.

Yes it is. If you read JKRs testimony she was much more upset by instances of plagiarism than she was by copyright infringement. She wasn't concerned about other derivative works, she was upset by what she considerd vast amounts of plagiarism by SVA.

Unfortunately, the pie chart of doom never made it into evidence due to the vagaries of our legal system (the witness who created it was a rebuttal witness, not the other kind and could not introduce new evidence) so SVA and RDR will probably win, especialoly since the judge called JKRs books gibberish.

Re: Plagiarism vs. copyright infringement

[bunnyjadwiga.livejournal.com]

Plagiarism can be copyright infringement, copyright infringement can be plagiarism, but they aren't the exact same thing.

Now, if Rowling is claiming that the paraphrasing that Vander Ark did is not sufficient change from what she wrote, then you are looking at plagiarism.
For instance, if I say that in J.R.R. Tolkein's Hobbit Biblo Baggins' house had a door that was green, and round, and his house was a very comfortable hole...
that's NOT plagiarizing Tolkein.
But if I excerpt the description in the Red Book of Westmarch:
http://www.geocities.com/redbookofwestmarch/hobbit.htm
without giving them credit, I'm plagiarizing them.

Plagiarism doesn't take into account the fair use tests, including whether someone is making money, either. So if the book is plagiarism, and it's just the website in print form, then Rowling completely failed to complain about the plagiarism in the website and in fact praised it. Vander Ark saying "don't repost this without permission" doesn't turn it into plagiarism either. Fair use doesn't apply to plagiarism, just copyright.

Plagiarism is when someone uses my material without using quotes and/or giving me credit in their handout, and it can also be copyright infringement; copyright infringement can happen if they copy my material and give me credit but don't ask my permission. The twits at the Ascension Research Center who copied my entire article on Jadwiga and gave me credit, violated my copyright but didn't plagiarize me.

Rowling is a) playing for sympathy "I don't know if I'd have the strength to go on" and b) muddling plagiarism and copyright.

There's several issues here:

Plagiarism:
a) is the book the same as the website?
b) If the book is the same as the website, and Rowling claims this is plagiarism, why did she not complain before?

Copyright infringement:
c) Does the book and/or the website pass the 4 part fair use test? There are two points:
- does the fact that it is a for-profit operation make or break the test?
- and does it fail point 4, that is, whether it will affect the market for the Rowling works and or a prospective encyclopedia by Rowling? (Rowling's neurotic attitude doesn't come into it here, only the market matters.)

Re: Plagiarism vs. copyright infringement

[ladypeyton.livejournal.com]

Plagiarism is when someone uses my material without using quotes

The lack of quotes in the book was her biggest complaint during her testimony.

Rowling is a) playing for sympathy "I don't know if I'd have the strength to go on"

Well, IMO she's always been a huge emotional roller coaster. It's not like SVA's tears on the stand weren't a play for sympathys as well.

The reason she never minded the website was that he wasn't making money off it and it. She objects to the idea of him making money off her words. Not her ideas, her words. Plus in a great number of instances he gets information wrong. She quoted a few places where his logic was completely off because, she says, he doesn't do any research.

I really recommend heading the redaction of her testimony. It's here: http://www.the-leaky-cauldron.org/2008/4/15/first-day-of-jkr-wb-vs-rdr-books-trial

It looks like they reached a partial settlement on the trial as well in case RDR wins they have to remove all mention of JKR including her words of praise for the website but they CI is still on the table and will probably be appealed all the way up to the Supreme Court. Here: http://www.the-leaky-cauldron.org/2008/4/17/jkr-wb-vs-rdr-books-trial-day-three-a-partial-settlement-reached-wsj-law-blogger-dan-slater-speaks-to-ip-expert

Re: Plagiarism vs. copyright infringement

[bunnyjadwiga.livejournal.com]

I'm not convinced Vander Ark was playing for sympathy, but then both Vander Ark and Rowling are, in my opinion, a bit tipped.

I'm not really interested in reading a fan site's redaction of what Rowling sez, because Rowling flat out threatened her OCD fanbase on the stand that she wouldn't write more about Harry Potter if the owners of the copyrights on her other books lost their case. But I'm biased. No matter whether she gives the money to charity, I'm not impressed with what the Fan Sites have reported as Rowling's statements.

The Fan sites also are all up in arms about the "gibberish" thing, which cracks me up; it seems to me that if she can explain that only she could sort out the gibberish (the gibberish, after all, being the majority of the originality in the books-- that's why it's so easy for me to find Miss B. both newer and older books of magical school fantasy to feed the habit created by Harry Potter)

I just don't buy the idea that ALL the Obsessed Fans won't rush right out and buy the bloody Encyclopedia if she writes it, and that librarians all over the world won't have to buy the thing even if it's as unreadable as Joyce's Ulysses. Of course, if she does a crappy job on the Encyclopedia, and someone else does a better one, her publishers (the only ones who will make money on the thing, if she sends her royalties to charity) may have trouble selling it for the next hundred years.

But I think we all agree that Vander Ark's publication isn't going to be the better version. No matter what happens now, there's every indication that any reference work about the Potterisms is going to require major indemnities on the part of anyone who isn't one of the Publishers who currently hold the copyrights. (You do have to wonder, for instance, if the US publishers win and Rowling's UK publishers get tired of waiting for Rowling to get on with making an encyclopedia -- assuming she ever does-- and come up with something by one of their tame writers, assuming the UK copyright law also gives them as copyright owners the right to prepare derivative works... you have to wonder how much it will cost Rowling's US publishers to be able to print that too...)

Re: Plagiarism vs. copyright infringement

[ladypeyton.livejournal.com]

I'm not really interested in reading a fan site's redaction of what Rowling sez, because Rowling flat out threatened her OCD fanbase on the stand that she wouldn't write more about Harry Potter if the owners of the copyrights on her other books lost their case. But I'm biased. No matter whether she gives the money to charity, I'm not impressed with what the Fan Sites have reported as Rowling's statements.

*shrug* They tried very hard to be fair. One of the reporters even recused herself as soon as an email between herself and SVA was admitted into evidence but it's your perogative.

But I think we all agree that Vander Ark's publication isn't going to be the better version.

Especially since it's already available free on the internet...

but then both Vander Ark and Rowling are, in my opinion, a bit tipped.

I agree wholeheartedly.

I'm not really interested in reading a fan site's redaction of what Rowling sez, because Rowling flat out threatened her OCD fanbase on the stand that she wouldn't write more about Harry Potter...

She's not going to write anuything more about Harry Potter at all unless ou count the encyclopedia. She said that a long time ago. She considers his mythology closed.

I was never a member of the fandom, although I'm a fan of her books, but I look forward to the judgement on tis case. It'll be interesting, either way it's decided.

Re: Plagiarism vs. copyright infringement

[ladypeyton.livejournal.com]

Ooooh! If you're even remotely interested the Leaky Lounge just posted links to actual transcripts of all three days of testimony here:

http://www.leakylounge.com/WB-JKR-vs-RDR-SVA-Part-1-t61169.html&st=480&p=1591595#entry1591595

[bunnyjadwiga.livejournal.com]

At this point, copyright has been expanded to the point where fair use is virtually meaningless and unenforceable. My favorite moment was when the copyright lawyer for Mary Kay, Inc., as an SCA volunteer, claimed that "fair use doesn't exist" which she later defined as "fair use doesn't apply to the SCA."

Commercial ventures-- including criticism and reporting-- are not excluded from fair use, IF the balance of the 4 point test is on their side. Test #4 is not just "are you going to make money off it" either-- it's "will people buy your work instead of that owned by the copyright owner"...

[aeliakirith.livejournal.com]

My favorite moment was when the copyright lawyer for Mary Kay, Inc., as an SCA volunteer, claimed that "fair use doesn't exist" which she later defined as "fair use doesn't apply to the SCA."

There's a story there, isn't there?

[bunnyjadwiga.livejournal.com]

By the way, under U.S. copyright law, it's not the AUTHOR who gets first crack at making derivative works, it's the COPYRIGHT OWNER. I have every reason to believe that Rowling is NOT the copyright owner of at least the first few books anymore; her publishers are.

[pedropadrao.livejournal.com]

The way I see it, writing commentaries & concordances is one of the oldest acts of scholarship. The Mishnah, for instance, is a vast commentary on the legal bits of the Torah & on the then-extant cases of the Sanhedrin & lesser rabbinical courts. I don't see why a concrodance & commentary of Rowling's stories is somehow the same thing as violating her copyrights to her books, any more than the currently extant concordances & commentaries upon Tolkien's books are violations of his estate's copyrights to his books. I think the courts & Congress really need to rethink a number of aspects of copyright, including this one.

[anastasiav.livejournal.com]

I have to admit I'd never really imagined putting the words "Mary Kay, Inc." and "SCA" in the same sentence before. We do have a diverse membership, don't we.

One thing I'll add here - there is a legal requirement that the rights holder "vigorously defend" their assertion of rights. In the famous "Disney sues daycare" imbroglio (Disney sued some small daycare which had a huge, unauthorized mural of Disney characters on its wall), Disney lawyers pointed out (correctly, without a commentary on the law itself) that the law basically requires rights holders to make every effort to stop infringement wherever they find it if they don't want their rights to pass into the public domain as abandoned. They can ignore use that is "minor and inconsequential" but little else.

Rowling's tearful testimony aside, therefore, there is an argument to be made that the law as it stands more or less forced them to at least make the attempt to stop publication.

[bunnyjadwiga.livejournal.com]

I have to admit I'd never really imagined putting the words "Mary Kay, Inc." and "SCA" in the same sentence before.

I have to admit that as a fair use activist, I began to believe that Morgan was using her position in the SCA to advance her professional clients' interests-- by trying to convince us that fair use didn't exist. Was she doing it deliberately? I don't know. Did she take on the job in order to preach the copyright owner's gospel? She certainly did not take a similar activist stand publically on behalf of the members of the SCA as copyright owners, but she may have been behind the arguments that kept the SCA from scanning heraldic submissions on the grounds that we didn't hold the the right to so reproduce works copyrighted by the creators, i.e. member illustrators (of course, that's something that could have been changed, easily, by a checkmark on the form...) which would have been fighting for the copyright rights of members as copyright owners...

[lauradi7.livejournal.com]

There are LJ communities following the court transcripts word for word, and I've been convinced that Rowling is going to win.
The fact that the author of the Lexicon included in his publishing contract that the publisher wouldn't make him be responsible if they were sued for copyright infringement and the fact that he made a stink when someone copied parts of his web site onto Wikipedia makes me think he is a hypocrite and a sneak (which may not in fact be the same as a copyright infringer).
see for example:
http://praetorianguard.livejournal.com/

hypocrite?

[bunnyjadwiga.livejournal.com]

There is a difference, in my opinion, between describing something in words and lifting the exact same words and using them without permission. If someone wanted to use my articles on the web as the basis for their own articles, but re-worded things (and added material and interpretation of their own) I don't think it would be a violation. But on the occasion where people have lifted my WORDS wholesale, without attribution or permission, I've notified them and their host that I wanted the material taken down.
But again, it was my words, not merely the information contained in those words, that they were copying.

Re: hypocrite?

[lauradi7.livejournal.com]

I can see that distinction. I know next to nothing about copyright law, although I gather that it's different in the UK and US (not that that is relevant in this case, because her books have publishers each place). I have a better grasp of plagiarism, but I think you're being generous with your example - if the hypothetical person is basing something on your work (re-worded and supplemented), I think it would still need attribution. Or a big thank-you
in some sort of acknowledgment section, anyway.

[iestynapmwg.livejournal.com]

Here's Neil's take on it...