May 2nd, 2008

asskicking boots

Orson Scott Card blasts J.K. Rowling over the Lexicon case; and Net Neutrality

1) Orson Scott Card discusses the Lexicon case:

Let me start out by saying, if you don't already know, that I enjoy Orson Scott Card's work (such as I've read). I've read Ender's Game a billion times. I loved Ender's Shadow. I eagerly await the comic. And as far as I know (because I don't know him, not at all) OSC is probably a fairly nice guy.

However, in his recent article about Rowling and the Lexicon case, not only is OSC rather inexplicably hostile and snooty towards JKR, but he's also pretty much dead wrong, legally speaking, in what he's saying in his arguments regarding why JKR is a hypocrite and an "evil witch" for suing.FN 1

Specifically, he's wrong when he uses a comparison of the plot of Ender's Game to the plot of Harry Potter to prove his point that Rowling "borrowed" from other works in a manner similar to the way SVA "borrowed" from Rowling:

Well, heck, I feel like the plot of my novel Ender's Game was stolen by J.K. Rowling.

A young kid growing up in an oppressive family situation suddenly learns that he is one of a special class of children with special abilities, who are to be educated in a remote training facility where student life is dominated by an intense game played by teams flying in midair, at which this kid turns out to be exceptionally talented and a natural leader. He trains other kids in unauthorized extra sessions, which enrages his enemies, who attack him with the intention of killing him; but he is protected by his loyal, brilliant friends and gains strength from the love of some of his family members. He is given special guidance by an older man of legendary accomplishments who previously kept the enemy at bay. He goes on to become the crucial figure in a struggle against an unseen enemy who threatens the whole world.


Indeed, if you look at this summary, you can see many similarities. I don't deny that. (And yes, I know that he's not really implying JKR stole plot from him personally.) However, I'd venture to guess that there are many other stories out there which follow these lines, *possibly* even ones published before Ender's Game. Several of the similarities listed are common fantasy tropes, ideas, or themes in storytelling. Here's an example just off the top of my head: with the exception that you could be talking about several of the characters in the X-Men instead of just one, read the above paragraph again, substituting the X-Men for Ender. Special abilities? Check! School for the gifted? Check! Intense games (Danger Room)? Check! Battles, angering one's enemies, life and death struggles, friends who protect each other and support each other (even when one friend has just, say, killed an entire star system)? Check! Older man with legendary accomplishments who guides them? Check! Saving the world? Check!

That's just one example, though I am sure there are others (feel free to leave any other examples you think of in the comments).

OSC is using his example to show that JKR's suit is frivolous, because, hey, everyone steals from each other anyway, and they should all just admit it and let it happen, in the interests of free speech and commentary!FN 2

Unfortunately, from a legal standpoint, he's all mixed up.

Here are the two legal concepts that are floating around in this article.

Fair Use

This is what is at issue in the Lexicon case.

Fair use, in short, "...provides an essential safeguard to ensure that copyright does not stifle uses of works that enrich the public, such as 'criticism, comment, news reporting, teaching, scholarship, or research.'" Copyright Office, quoting 17 U.S.C. § 107. It exists for the purpose of studying what has gone before, extrapolating new ideas from old materials or creations.

Thus you might quote copiously from The Adventures of Huckleberry Finn in a paper examining Twain's use of satire to show his views of racism during that time period. Or you might display a copyrighted photograph in a photojournalism class in an assignment in which the class must try to determine the story behind the photo just by examination, in order to teach about storytelling through composition and detail (we did this in my journalism class, btw, although I have no idea if the photo was copyrighted). You might quote from someone's blog or an article she wrote when doing a news report. These are all examples that would likely fall under fair use, assuming that the factors for fair use were met. (For fun, examples of fair use in teaching.) The key point regarding works that are considered fair use is that they add in some way to something already in existence - by analyzing it, by discussing its ideas, by criticizing it, etc. The new work could not exist without the old, BUT if the new work has that modicum of originality which benefits the public and advances thought, it may be fair use.

Idea/Expression Dichotomy

This is what OSC appears to be talking about. It is NOT at the root of the Lexicon case.

The idea/expression dichotomy is embodied in 102(b) of the Copyright Act, which states that, "[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." 17 U.S.C. § 102(b). This means that subsequent creators can use the ideas and facts existing even in works under copyright in order to create their own works. The Copyright Office notes that "the public domain is enriched immediately by the creation of copyrighted works because those works reveal and explain ideas that are immediately available for use without copyright restriction..."

As can be seen from the above, The ideas listed in OSC's example of how "similar" JKR's story is to his own are allowed to be used under copyright. Pretty much absolutely allowed ("in no case does copyright protection...extend to any idea..."), unless the two stories start getting too recognizeably close in details (i.e. two dark-haired heroes with lightning shaped scars, who practice magic, and have a nemesis who is sort of almost immortal, and have a bushy-haired genius best friend and a lanky red-haired best friend, and say "Alohamora" to open doors, and...you get the point). This issue has been litigated and decided upon numerous times over the years, with an excellent example being the seminal case of Nichols v. Universal Pictures Corporation, decided by the brilliant (and excellently named) jurist Learned Hand.

Nichols discusses alleged copyright infringment in the case of two plays, "Abie's Irish Rose" and "The Cohens and the Kellys." The plays have many plot similarities: A young Jewish person and a young Irish person falling in love despite prejudices, a secret marriage, the parents of the young people discovering and disapproving, strife being caused, a child being born, and reconciliation occurring between families because of it. Despite all this, the second play was found not to have infringed the first, because of the idea/expression dichotomy.

In the opinion, Learned Hand first notes that it is possible for a plot to be plagiarized. However, he then delineates between ideas and expression, saying:

Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist only of its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his "ideas," to which, apart from their expression, his property is never extended. Nobody has ever been able to fix that boundary, and nobody ever can. In some cases the question has been treated as though it were analogous to lifting a portion out of the copyrighted work, but the analogy is not a good one, because, though the skeleton is a part of the body, it pervades and supports the whole. In such cases we are rather concerned with the line between expression and what is expressed. As respects plays, the controversy chiefly centers upon the characters and sequence of incident, these being the substance.

...In the two plays at bar we think both as to incident and character, the defendant took no more -- assuming that it took anything at all -- than the law allowed. The stories are quite different. ... Nor does she fare better as to her characters. It is indeed scarcely credible that she should not have been aware of those stock figures, the low comedy Jew and Irishman. The defendant has not taken from her more than their prototypes have contained for many decades.


Essentially, he is saying that there may be some general ideas or themes that are similar, but to the extent that they are archetypes or prototypes, they are in the public domain. It is the specific expression (lines in the play, details of character, etc.) that is protected under the law.

...

OSC is making a comparison between two stories which share several similar themes but are, in fact, completely different in details of plot and character (e.g. I would never, on my own, think, "Wow, Ender and Harry Potter are so alike they could be twins! Remember that scene where Ender kills someone in the shower? I bet Harry would totally have done the same thing! Despite the fact that he totally panicked when he accidentally hurt Draco in the bathroom. You know, the guy who is his mortal enemy at school? Yes, clearly, the themes of these two stories are all the same!"); and two books that are, in fact, almost identical in content, albeit one containing more and being written like a story, and one being a categorization of items in that story. This comparison just doesn't wash.

OSC says, This frivolous lawsuit puts at serious risk the entire tradition of commentary on fiction. Any student writing a paper about the Harry Potter books, any scholarly treatise about it, will certainly do everything she's complaining about.

It's just not true. IF the Lexicon is found to be infringing, it will be because it doesn't contain enough originality to be a scholarly treatise or a commentary. The copyright laws exist to protect against instances in which there is copying without that spark of originality, and JKR has every right to file a legitimate suit if she thinks her rights have been infringed in that manner.FN 3

FN 1: I am rather amazed at the tone of OSC's article. Either he really hates JKR for other reasons, or he REALLY hates people who file what he thinks are unnecessary lawsuits. Though I'm willing to give him the benefit of the doubt, I feel like this article reflects poorly on him. The numerous unfounded personal attacks (JKR is doing this for the money? Which she wants to donate to charity? I mean, really.) leave "a sour taste" in my mouth. [ETA: Orson Scott Card earlier reviewed Deathly Hallows and the whole series favorably. He clearly enjoyed the books and thought they were well written. So maybe it's the alleged frivolity of the suit that is making him hostile here.]

FN 2: I am a strong believer in freedom of speech and expression. However, copyright law is designed to protect against someone producing something that is so unoriginal that it would not add to the public knowledge or discussion anyway, because whatever it was has already been said by the original creator. Thus copyright law is not the enemy of free speech, and can and should be used by authors to protect their creative rights.

FN 3: Just a little ETA - I posted this before seeing Tim Wu's recent article as linked by cleolinda at Fandom_Wank, but since this is a Lexicon post I'll just add my thoughts on that article here.

I think it's so interesting how two lawyers can agree in the main part on the law and then come down on different sides of this. In his article, Tim Wu says JKR is steamrolling over SVA's rights, whereas I say he's trying to steamroll over hers. Yet we agree on essential issues of law, such as that she does not own "discussion of her work—book reviews, literary criticism...." TRUE. Where Mr. Wu and I differ is on the facts - is the Lexicon transformative enough to BE one of those things? He uses the house-elf example to show it is. I looked at it, and except for that last sentence, it's, essentially, simply paraphrasing information from the books. How is that a "review," or a "criticism"? And where does it say "fan guides" are covered under fair use if they are not transformative (as he says in the rest of that sentence I quoted)? Last I checked, they weren't listed.

I also feel like Mr. Wu is missing the point when he uses sites like Wikipedia as examples - they are also (like the online Lexicon that JKR had no problem with) NOT BOOKS, and NOT CHARGING FOR USE. There *is* a difference.


...


2) Net Neutrality (in the United States)

This issue should be important to anyone who is reading this right now. It's unclear *exactly* how things would play out if the phone and communications companies are allowed to "tier" services and deliver uneven internet access based on who can and can't pay premium fees, but I think we can safely say it would change the quality of free speech and commentary on the internet and the internet as we know it, and that it wouldn't be good for the majority of us. I also think it's a ridiculous idea (Get your hands off my internet!!!).

Here's an interesting video summarizing the subject.

For fun, some info on the three guys mentioned in the video, who together essentially "invented the internet" (and no, I am not talking about Al Gore): Bob Kahn, Vinton Cerf, and Sir Tim Berners-Lee.

And in case you are wondering if it's an issue that's being blown out of proportion, there has been proposed legislation, and here are some actual quotes from the companies involved, regarding what they intend for the internet:

From The Washington Post:
A senior telecommunications executive said yesterday that Internet service providers should be allowed to strike deals to give certain Web sites or services priority in reaching computer users, a controversial system that would significantly change how the Internet operates.

...Smith, echoing recent sentiments by AT&T Inc. chief executive Edward E. Whitacre Jr., responded that network operators must be free to control the type and quality of service on the system in which they have invested heavily.


And in the same article, from those who oppose these regulations:

The incredible potential of broadband will be severely compromised if network operators are permitted to be the gatekeepers of the Internet, deciding what content, applications and services succeed or fail on the Internet," wrote the coalition, which includes Amazon.com Inc., eBay Inc., Google and IAC/InterActive Corp.

A couple of other articles:

From Businessweek

and

The Wall Street Journal.

If you want more detail, from the Save the Internet folks, Network Neutrality: Fact vs. Fiction.

Suggestions on what to do to protest the proposed changes include contacting your Congresspeople.