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.
Jeff Chiu/Associated Press
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