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HARRY POTTER LEXICON, Part IV: Conclusions of Law, Fair Use; Also, Part V: Damages and Conclusion - Walking on the Edge
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HARRY POTTER LEXICON, Part IV: Conclusions of Law, Fair Use; Also, Part V: Damages and Conclusion
For ease of reading, a collection of Lexicon Links from Foresthouse Central:

The briefs are filed and here’s what’s going on in them
A few notes on the trial, commentary
More notes on the trial, commentary
Orson Scott Card vs. JK Rowling: He is WRONG (a discussion of Fair Use and the Ideas/Expression Dichotomy)
Link to the decision
Decision Breakdown: Part I, Findings of Fact
Decision Breakdown: Part II, Copyright Infringement
RANT re: Knowing the Facts Before You Take Sides, and other things
Decision Breakdown: Part III, Derivative Work
Decision Breakdown: Part IV, Fair Use, and Part V, Damages and Conclusion

PLEASE NOTE: This is not my "analysis" of the case; this is a summary of the decision as rendered by the court, with a few footnotes of commentary. Analysis to come. :)

...

Part IV: Conclusions of Law, Fair Use;

Also, Part V: Damages and Conclusion

 

In which I condense 27 pages of the opinion into 5.5 pages in MS Word, and then say, and I quote, “Whew.”

 

 

Fair Use: THE KEY ISSUE

 

Bear with me, y’all. This is a long one, because it’s the most important. Here we go!

 

Defendants argue that even if the work is infringing, it is protected under the doctrine of fair use.

-          The fair use doctrine is designed to balance the needs to protect copyrighted material and to allow others to build on it.

-          It is an important balance to keep because protecting copyrighted works and giving their creators exclusive rights creates an incentive for original works, but the freedom to create secondary works is also beneficial to the public in that original works can be developed, critiqued, discussed, and even parodied, often adding to the overall benefit of the work in various ways.  Impeding referential analysis and the development of new ideas out of old would strangle the creative process.

 

Fair use is codified in 17 U.S.C. sec. 107:

The fair use of a copyrighted work, … 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 test is subjective, which means that the factors can be given different weights and the use as a whole is considered in the light of those factors.

 

The ultimate test of fair use…is whether the copyright law’s goal of promoting the progress of science and useful arts would be better served by allowing the use than by preventing it.

 

As noted above, there are 4 main factors considered in a fair use case.

 

FACTOR 1

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

PART A: Transformative?

The court notes that the most critical point here is whether and to what extent the new work is transformative.

Plaintiffs’ argument:

-          Plaintiffs argue that the Lexicon is not transformative because it does not add significant analysis or commentary. However, the court notes that this lack is not determinative of whether the work is transformative.

o        The court notes that originally, RDR argued that the Lexicon was a work of scholarship (which would give them a strong case that it’s transformative). Since the trial, they changed their argument and admitted it’s not a scholarly analysis.FN.1

o        The court also notes that occasionally, the Lexicon adds a bit of “new understanding” to characters or entries.FN.2

Determining if it is transformative:

-          Does the work add something new, with a “further purpose or different character, altering the first with new expression, meaning, or message”?

o        In other words, will the new work benefit the public by adding value to the original somehow?

o        When copyrighted expression is combined with original (new) expression, the work is probably transformative.

§         The court finds the purpose of the Lexicon’s use of the seven main HP books to be transformative, because JKR’s purpose was to entertain and tell a story, and the Lexicon’s purpose is to serve as a reference guide.

§         The court finds the Lexicon’s use of the 2 companion books to be only “slightly” transformative, because those 2 were essentially reference books already; so the purpose, while not exactly the same (because Rowling’s books are also for entertainment) is close enough that the Lexicon does not add much new value to that material.

-          Overall, the best evidence of the Lexicon’s transformative purpose is its value as a reference source.

o        Similar works about The Chronicles of Narnia, etc. demonstrate the demand and usefulness of these types of reference books.

-          HOWEVER, the court finds the transformative value is diminished because the Lexicon often fails to “minimize the expressive value” of the original works.  I.e., it quotes whole chunks of text and copies verbatim much of the time.FN.3

o        Also wherever Vander Ark neglected to cite to the books (i.e. many, many places) the Lexicon’s use as a reference guide is diminished and it’s less transformative.

Overall: The court seems to find the intent of the book to be generally transformative, but the fact that the actual content of the book takes large portions of the original without adding much, and neglects to cite weighs against this being a strong factor for Defendants.

PART B: Commercial or nonprofit? (Somewhat a subfactor)

-          This factor is often not given as much weight because 99%  of the time, the answer is: commercial.

-          The real concern behind the commercial nature inquiry is “the unfairness that arises when a secondary user makes unauthorized use of secondary material to capture significant revenues as a direct consequence of copying the original work.”

o        I.e. when it’s for commercial exploitation, rather than beneficial to the public.

-          RDR sought to exploit the popularity of HP. The commercial nature of the use weighs against a finding of fair use.

o        However, since they also intended it to be a reference guide to “benefit the public,” the intended use is fair, and the commercial nature only “weighs slightly” against a finding of fair use.

Overall, the court says that a reference guide would be beneficial to the public, so even though it’s a commercial use this only weighs “slightly” against finding fair use.

PART C: Good or bad faith? (subfactor)

-          The court is “not persuaded” that RDR’s delays, etc. in responding to Plaintiffs’ lawyers constitutes bad faith.FN.4

o        Because the Defendant “reasonably” believed it was protected by fair use, it was entitled to proceed with producing and marketing the book

o        Anyway, the court says this factor is hardly considered.

Overall, this weighs slightly in favor of the Plaintiffs, but it’s a minimal subfactor when weighing the whole set of factors, so that doesn’t make much difference.

FACTOR 2FN.5

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

-          “The question is whether the amount and value of Plaintiffs’ original expression used are reasonable in relation to the Lexicon’s transformative purpose in creating a useful and complete A-Z reference guide to the Harry Potter world.”

o        The court must examine not only the quantity, but the quality and importance of the materials used.

o        It is reasonably necessary for the Lexicon to “make considerable use of the original works” to fulfill its purpose as a reference guide.

o        HOWEVER, the gigantic amounts of verbatim copying and “close” paraphrasing weigh “heavily” against the Defendant here.

§         This amount is substantial enough to “tip the third factor against a finding of fair use...”

·         Note: even using 13% of a magazine article was found to be substantial enough in one cited case.

o        The court notes that a copier is not entitled to copy the “vividness of an author’s description” for the sake of accurately reporting expressive content (I.e. taking all of JKR’s “plums.” Heh.)

§         Also the Lexicon uses JKR’s language for things that could easily be described in other words (Example: Mirror of Erised.)

o        Sometimes the Lexicon summarizes, but sometimes it copies. It’s very uneven in when/how it uses Rowling’s words.

o        The court finds the Lexicon “takes wholesale” from the 2 companion books, and the purpose is only slightly transformative there, so this weighs heavily against a finding of fair use.

Final conclusion: They took way too much, man.

FACTOR 3FN.6

(2) the nature of the copyrighted work;

Creative and fictional vs. factual

-          Creative works are more protected, by dint of being something other people probably couldn’t have, even with some effort, also come up with in exactly the same way.

-          Harry Potter is very creative and original; so this factor favors Plaintiffs.FN.7

FACTOR 4

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

-          Courts must consider the market for the original works, but also for derivative works.

o        Potential derivative uses include only those that creators of original works would in general develop or license others to develop.FN.8

§         If the original author can show a ‘traditional, reasonable, or likely to be developed’ market for licensing her work, then this factor will favor her.

o        NOTE: the court found the Lexicon is not a derivative work, so Plaintiffs’ argument that it would compete with JKR’s planned encyclopedia is irrelevant.

§         The market for reference guides is not exclusively hers to control.

§         HOWEVER, the court notes that b/c Rowling/WB could reasonably choose to develop the market for the songs and poems in the novels (as derivative works), Defendant’s verbatim reproduction of these without a license would harm the derivative market.

-          Also considered is whether allowing the defendant’s actions would result in a substantially adverse impact on the potential market for the original.

o        i.e. the actual HP books, or companion books.

§         No plausible basis for believing the Lexicon would hurt the series’ book sales. (Remember: different purposes.)

§         HOWEVER, definite basis for believing Lexicon might hurt the sales of the 2 companion books.

·         This is why the fourth factor goes to Plaintiffs.

The Plaintiffs prevail on this factor because of the Lexicon’s use of the material in the companion books and the verbatim reproduction of songs and poems.

CONCLUSION:

Factor 1: The Lexicon is intended to be transformative but the use of the original material is not consistently transformative; and

Factor 3: The Lexicon takes way more than necessary of the original work in relation to its purpose.

Together, these two factors weigh against fair use.

Factor 2 and Factor 4: The creative nature of the works and the harm to the market of the companion books weigh in favor of Plaintiffs (i.e. against fair use).

The judge notes: reference works should be encouraged, but should not be permitted to, essentially, gut the original works in their pursuit of creating a reference book.

SUMMARY OF FAIR USE ANALYSIS FOR DUMMIES: The Lexicon copied. way. too. much.

THE PENALTY:

Injunction

Plaintiff must demonstrate:

1) it will suffer an irreparable injury;

-          Irreparable harm presumed with showing of prima facie infringement; it was shown here.

o        Also, Defendants failed to establish their defense of fair use.

-          Even if harm is not presumed, Plaintiffs have established that injury would result from publication

o        She’d be too depressed to write her own book.FN.9

o        She’d have less incentive to write her own book if there were a bunch of others already.FN.10

o        Lexicon publication would also harm the charities Rowling was going to give encyclopedia proceeds to, and the reading public.FN.11

o        KEY POINT: There would be irreparable harm to the companion books since the Lexicon would supercede them in value (due to essentially containing most of them as well as the info on the series).

o        KEY POINT: Publication of the Lexicon would diminish Rowling’s copyright in her own words. Danger of there being future disputes over who owned the rights, particularly if Rowling paraphrased her own language in her encyclopedia and it came close in some way to a Lexicon paraphrase.

2) other remedies like money are inadequate to compensate for the harm;

-          Defendant will keep infringing if there’s no injunction.

-          The irreparable harm presumed above means money alone isn’t sufficient.

3) considering the balance in hardships of the parties, an equitable remedy is warranted; and

-          Plaintiffs would suffer hardships as discussed above; Defendants would not suffer any hardship except not being allowed to publish an infringing book, which is (obviously) not protected.

4) that an injunction would not harm the public interest.

-          Interesting discussion: injunction would both benefit and harm the public.

o        Benefit:

§         Prevents possible proliferation of works that appropriate too much of an original copyrighted work.

o        Harm:

§         (Proper) reference works should be encouraged.

Statutory Damages

-          Since the Plaintiffs suffered no harm YET (except for court costs and infringement) because the Lexicon isn’t published, the court awarded them the minimum in statutory damages, $750 per book, for a total of $6,750.

FN.1 Because they realized how hopelessly silly that argument was.

 

FN. 2 Although from the examples given, it’s really not any kind of insight that someone who read the books wouldn’t already have, unless they were very unobservant. The phrase Stating the Obvious comes to mind. (Draco was constantly frustrated by the attention given to Harry? REALLY? I never would have guessed!)

 

FN.3 The court’s explanation for the Lexicon’s “lack of restraint” in using Rowling’s words is hilarious: “Perhaps because VanderArk is such a Harry Potter enthusiast,” he just couldn’t help but copy her!

 

FN.4 I disagree, but that’s just me.

 

FN.5 Yes, I realize the real factor 2 (nature of the work) is below the real factor 3. Just go with it, folks. This is the HP universe; it’s supposed to be fun and wacky! (Haha, look at me paraphrasing Cable & Deadpool in an analysis about copying and paraphrasing. I’m so meta.)

 

FN.6 Or 2, as the case may be. (See FN.5.) And yes, I know why the court paired 1 & 3 like they did – it’s still weird.

FN. 7 And that’s “all she wrote” here. Really! It was that easy. Plaintiffs rule, Defendants drool. ZING.

FN.8 Like, say, an encyclopedia that the author stated she was going to write.

 

FN.9 OK, I agree with whoever said this isn’t really a good reason. But it’s dicta, so it doesn’t really matter.

 

FN.10 This, however, is a good reason. One of the reasons to protect copyrights is to give authors the incentive to create. If the market was flooded with Potter encyclopedias, JKR would not have as much incentive to write one herself. At any rate, this is all dicta (i.e. not precedential); the actual point the judge decided on was that prima facie infringement = presumption of injury.

 

FN.11 Not really harm to the Plaintiff, per se. But again. This is all dicta.




ETA: For some good analysis, check out the discussion at Info/Law. (Hah. Neither of us is fond of the court's switching the order of the factors. Also see his comment on FN. 18 - I like the way he structures how the analysis could have gone instead. And see his comment in the comments re: the same point.)

Also, Praetorianguard discusses the case. (Haven't had time to read it yet!)

And a discussion on Groklaw (Same.)

And here's an article that talks sense about why Rowling was right to sue.

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