J.K. Rowling oversteps copyright... because fans are easier to pick on than academics?

Link: J.K. Rowling should lose her copyright lawsuit against the Harry Potter Lexicon. - By Tim Wu - Slate Magazine

The unique ways lawyers and authors try to stretch and distort copyright laws are reaching new levels of absurdity.

At first, I thought the article below was going to go toward a new argument about derivative fiction authorship (a case I believe can and should be made, but a more difficult argument than the point I want to make here).

Then, I realized that Rowling was actually suing what is essentially a critical VOCABULARY guide to Rowling's works.

What? What sort of absurd assumptions sit behind this suit? That the Encylopedia Britannica and the Oxford English Dictionary should have obtain copyright permission for every entry they include for a term or an entry that has a clear author with copyright?

It gets even sillier. It appears to me (check out the article below and see for yourself) that Rowling and her lawyers are going after FANS of her works largely because they are a less empowered group, rather than target FAR BIGGER offenders of the type of behavior the lawsuit seeks to punish.

What offenders am I referring to? Why, tenured academics in the humanities, of course! There is not an academic in the humanities in the U.S. who has not received tenure specifically for writing about and critically analyzing (and professionally profiting from) someone else's copyrighted work!

If what these fans are doing is a copyright violation, then nearly every scholarly book in the humanities, perhaps every college student's research paper which cites as sources CREATIVE AND COPYRIGHTED WORKS is, by virtue of the reasoning in this lawsuit, is ILLEGAL.

What a bizarro world this is.

Link: J.K. Rowling should lose her copyright lawsuit against the Harry Potter Lexicon. - By Tim Wu - Slate Magazine.

J.K. Rowling's Dark Mark

Why she should lose her copyright lawsuit against the Harry Potter Lexicon.

By Tim Wu

 Posted Thursday, Jan. 10, 2008, at 7:59 AM ET

As I wrote in October, over the last few years, the relationship between fan-written Web sites and the copyright owners of the content they draw on, if legally murky, has at least been peaceful. Once it dawned on media companies that fan sites are the kind of marketing that they usually pay hard cash for, they generally left the fans alone. But things turned sour in the fall, when the Harry Potter Lexicon Web site announced plans to publish a book version of its fan-written guide to the Potter world. Author J.K. Rowling and publisher Warner Brothers have sued the Lexicon for copyright infringement, exposing the big unanswered question: Are fan guides actually illegal?

[...]

At issue are the giant fan-written guides like the H.P. Lexicon or the Lostpedia (for the show Lost) that try to collect all known information on topics like Harry's pet owl or the Dharma Initiative. Rowling takes the position that she, as the original author, has the right to block the publication of any such guide. In her words: "However much an individual claims to love somebody else's work, it does not become theirs to sell."

But Rowling is overstepping her bounds. She has confused the adaptations of a work, which she does own, with discussion of her work, which she doesn't. Rowling owns both the original works themselves and any effort to adapt her book or characters to other media—films, computer games, and so on. Textually, the law gives her sway over any form in which her work may be "recast, transformed, or adapted." But she does not own discussion of her work—book reviews, literary criticism, or the fan guides that she's suing. The law has never allowed authors to exercise that much control over public discussion of their creations.

Unlike a Potter film or computer game, the authors of the Lexicon encyclopedia are not simply moving Potter to another medium. Their purpose, rather, is providing a reference guide with description and discussion, rather like a very long and detailed book review. Such guides have been around forever—centuries if you count the Bible, and more recently for complex works like the writings of Jorge Borges or The Lord of the Rings. As long as a guide does not copy the original work verbatim, it falls outside the category of "adaptation." And that's why it is largely unnecessary to discuss the more complex copyright doctrine of "fair use." Rowling's rights over the guide don't exist to begin with, so we don't need to go there.

[...]

Bizarrely, Rowling says that the fan guide would prevent her from writing her own guide to the Potter world. "I cannot," she said in a statement "approve of 'companion books' or 'encyclopedias' that seek to preempt my definitive Potter reference book. ..." To begin with, Rowling sounds entirely too much like a Death Eater in this quote. More generally, two products in the same market isn't called pre-emption—the word is competition. Why not let consumers decide which guide they like better? Rowling might object that the fan's guide will be strewn with errors or poorly written; but it is hardly the job of copyright to protect us from bad execution. And the fan's guide might actually be better, or at least different.

There are more ethereal reasons that Rowling ought not win. For reasons anthropologists will someday understand, volunteer encyclopedias have become the place to find what passes for our collective wisdom. Wikipedia is the clearest example: It may be wrong sometimes, but it is nonetheless a statement as to what we know. To her credit, Rowling accepts this and tolerates the online version of the H.P. Lexicon. But a general rule of the kind she is asking for isn't so generous: It would, by necessity, give copyright owners power over the content of Wikipedia and other online encyclopedias that discuss their works. Not the end of the world, but certainly a subtle form of thought control.

In the end, this dispute is about the current meaning of authorship. Rowling is the initial author and deserves the bulk of the credit, respect, and financial reward. But she has all of that. What she wants is a level of control over the Potter world that just isn't healthy. The authors of fan guides, like house elves, rarely get famous or rich. They deserve legal credit for their modest contributions, not the Wizengamot.

What bothers me above is that the author, Tim Wu, while making good points, is perhaps missing the most important point.

Wu is drawing some kind of unconscious distinction between critical study through works of of analysis and cataloging and documenting done by SANCTIONED and IMPORTANT author-types (a self-appointed class, as declared by the various academic credentialing or the established publishing industry) and ordinary people, hereto referred to by the diminutive label "fans."

He never mentions this distinction in the article, but he also never reaches or sees past it. What is the difference between a fan seeking to write the "definitive" piece of encyclopedic analysis and cataloging of Rowling's work and a tenured professor seeking to write the "definitive" piece of encyclopedic analysis and cataloging of, say, Emily Dickinson's work?

And no, the fact that Emily Dickinson is dead, or supposedly "canonized" by some massive sanction system called a "literary industry" doesn't count. Current postmodern scholars have easily collapsed distinctions between so-called "high" and "low" cultural products, distinctions that were only ever really enforced by repetition.

Further, before the advent of Modernism and New Criticism in literature, the PRIMARY "product" of literary scholars was a form of criticism known as "traditional-biographical."

That means if you wanted to be a literary scholar back in that time, you had two routes to follow:

1. catalog and link the author's works against a careful biographical analysis of events or aspects of the author's life, OR

2. catalog and carefully establish the exact chronology and literary development of various textual versions of the author's works, those first drafts that establish dates, the variorum editions that attempt to argue that Emily Dickinson used male and female pronouns interchangably in her love poems, or that Shakespeare wrote Twelfth Night BEFORE Hamlet.

Oh yeah, and along the way, they'd argue over and create lexicons for specialized terms and metaphors, which, for authors such as Jonathan Swift or Lewis Carroll, mean unusual and otherworldly terms and situations, and the potential political points that were made through allegory.

Granted, literary criticism has evolved considerably since then, to the point of subjecting live and dead authors to psychological high colonics in order to analyze the symbolic systems that go along with the works (ala' Freud or Jung). Or they take apart the imperialist or foundationalist cultural assumptions an author makes (like Tim Wu above), or even just to do a micro-minutia focus on a single literary work alone, as if it doesn't even have an author, or better yet, treat it as if the work itself doesn't exist and only the reader does!

All of which FANS of ANY work can engage in and profit from just as viably as tenured academics, because the Commons is free for anyone to engage in independent and unaffiliated research, even ordinary fans, even (gasp) ordinary journalists, even ANYONE who gets up in the morning and puts her underwear on one leg at a time.

Imagine that. Shhhh. Don't tell J.K. Rowling's ambitious lawyers. Think of the field day they could have, if they were turned loose in academia.