Peg Kerr&#39;s Journal

I'm tired of all the "Well she has so much money" arguments on this one from one side of the fanbase. This guy got greedy and got a little acknowledgement and decided to run with it. He should have initiated a dialogue at the least and at the VERY least realized that (and forgive me if I shout):

IT'S HER IDEAS. HER WORK. HER STUFF. YOU DON'T GET FREE RUN WITH IT. FAIR USE DOES NOT APPLY.

I work in IP enforcement professionally and I'll tell you what, this trial shouldn't have even taken a week. It should take about an hour. The judge should say, "It's her IP buddy. Take a hike."

You nailed it with hubris. This guy got that most common of fan reactions when you get that little bit of acknowledgment from your idol. He spun it up that he could do what he wanted to because "JKR liked my site! She gave me an award!" That does not make you BFF. This is the one thing that tends to rub me the wrong way with fandom, people taking it for granted and forgetting at the end of the day it's a business, not a tea party.

I hope this guy gets his ass handed to him large.

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I'm afraid fair use very well could and possibly SHOULD apply here. Reposting (small) sections of the books for commentary and criticism is utterly fair game. Search Amazon.com for 'Unauthorized Encyclopedia' and you'll see dozens of perfectly legal books that reprise, sort, comment and summarize lots of popular literature and media.

Yes, he was an ass about a lot of things. Yes, he could have worked with JKR. Yes, he probably SHOULD have and if he's persona non grata in fandom, I have no problem with that.

But legally speaking, IMO he's in the right.

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puppetmaker40.livejournal.com

From the US Copyright Office (and property there of) in regarding derivative works

A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law. To be copyrightable, a derivative work must be different enough from the original to be regarded as a "new work" or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself. Titles, short phrases, and format, for example, are not copyrightable.

Me again...
This is case does not impact Cliff notes or academic musings on the size of Harry's wand or anything of that nature. This is PLAGIARISM plain and simple. If he handed this into any academic institution, they would not publish it and if this was his master's thesis he would fail and get kicked out of the university with a letter of Reprimand attached to his transcript. This is not a derivative work.

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I'm aware of the phrasing of the law; I just don't agree it's a derivative work. Tim Wu's my favorite article on the subject to date: http://www.slate.com/id/2181776/

(I'd be more explanatory myself, but I'm at work so linking to an expert is a bit easier).

I also think this is one of those moments where reasonable legal minds will disagree, and it entirely depends on where you want copyright law to go. I'm firmly in the creative commons / remix culture camp; I know a lot of people are in favor of deeper restrictions a la Disney. We'll have to see what the judge thinks/feels.

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The idea that reorganizing work -- information architecture, well-referenced encyclopedias -- is not 'original thought' is troubling to me. We don't allow 'database' copyrights -- that is to say, we don't allow a phone book to be copyrighted for the same reason no one sues Wikipedia or Encyclopedia Brittanica for their entries.

Yes, this is more in-depth. But we have to ask the question where to draw the line.

Are Wikipedia's entries acceptable? (Make no mistake, those folks are making money -- not for profit does not mean no one gets a salary at the Wikimedia foundation.) All right, how about an entire, chapter-sized section in a 'Sci-Fi/Fantasy' encyclopedia that goes deeper in depth? All right, then how about an entire volume of a multi-volume SF/F encyclopedia?

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kijjohnson.livejournal.com

If he is writing his own copy about Rowlings's work, that's okay. If he quotes indirectly, that's okay, too. If he is quoting in a limited way from her works, that is also fine as long as he stays under the upper limit allowed.

Everyone knows that there's a limit for the maximum length of a single quote. There's also a top limit for the percentage of the work that is quotations from another copyrighted work, regardless of the lengths of the individual quotations. It sounds as though he's gone over the acceptable percentage of direct quotes.

Copyright is so very slippery.

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The 'maximum limit' is slippery too, though. And context is so important. I really do think it boils down, in a big and real way, to how you view copyright, author's rights, and all those big weird areas of the law where the digital world is changing things.

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The maximum limits have been pretty well defined in precedent. I'll have to dig it up later when I have a chance.

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Would love to read it!

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He's making a book, that is comprised of a majority of work that is not his, it's someone else's. "Unauthorized" or not, he's attempting to profit on something that he knows is not his. Unauthorized tell-alls and what not are for the most about a known topic, but actually written in original perspective. Not by using someone else's IP or in that right doing no more than parroting what someone else has said and done. The amount of *original* thought and work done by this guy compared to the amount of simple reprinting of other people's work is staggering.

He's got no leg to stand on legally and his strategy in this is to make as much of a stink as he can under "fair use" and then claim the whole "Oh I'm just a little guy getting picked on by the billionaire author who I love so much. Wahh wahh wahh." Cry me a river. I see people trying this same argument every day thinking if the they can make the "big bad studio/artist/IP holder" look bad enough then they can get away with it scott free. He is making money off of someone else's work.

I find arguments to the contrary a bit naive in their scope. JKR's claim to her personal IP should not be in any way diminished because of it's success or the fact she was kind enough to give a brief nod to a fansite.

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Hubris perhaps, but in terms of copyright law I honestly hope JKR loses. Yes, he was a dick about a lot of what he did, but in many ways he's in the right in terms of commentary and academic fair use.

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Did you read

praetorianguard's posts? Here and here

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I have, and I don't entirely agree. Unfortunately, I haven't read the actual complaint all the way through... but I trust Tim Wu, he's a terrific attorney and Intarwebz Fella, and I think this is the right case here: http://www.slate.com/id/2181776/

I love and adore J.K. I think she's trying to do right by her material. I think Steve's been a real jerk, and he really really could've handled this better.

But I think Tim's got it straight; encyclopedias are not adaptations, they are an entirely a fair use.

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You should go back and read the complaint. It's not fair use. (see above)

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minnehaha.livejournal.com

Tell me why you didn't take two sentences to explain what is going on.

K.

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Because I included a link to my prior post that did.

Short story: a guy I know and have worked with in the past--and liked--Steve Vander Ark, was a huge Harry Potter fan who created an on line compilation of information on the Harry Potter books, the Harry Potter Lexicon. Steve is (was) a librarian, so the info was nicely organized and the Lexicon was very popular. J.K. Rowling gave it a fan award and said that she used it herself when she wanted to quickly consult some tidbit of information about her back story when she was writing.

But then Steve decided to compile the Lexicon and sell it in book form. JKR objected to this because 1) she intends to write and sell an encyclopedia herself to raise money for charitable causes, and the design of the Lexicon book was designed in such a way that it would create confusion for the buyer, making them think it was authorized by Rowling and 2) the Lexicon is essentially merely a re-packaging of Rowling's work (the plaintiff put up a pie chart, attributing 91% of the Lexicon's content to Rowling's own words.)

They're battling it out in New York court this week. My take (esp. after reading

praetorianguard's posts) is that Steve is so far in the wrong here that it's hard to believe. And I am having trouble reconciling the Steve that I knew, who absolutely idolized J.K. Rowling, with someone who could do something so counter to her interests and who could be so stupid.

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kijjohnson.livejournal.com

...and so contrary to her charitable goal.

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febobe.livejournal.com

I personally am hoping to see JKR "beat the pants off" this guy. I'm afraid if she doesn't, it will set a dangerous precedent within copyright law. Personally I think copyright law is clear enough that this should have taken all of two seconds. . .I feel sorry for that woman having to come over here and spend a week defending her own work, for crying out loud. Good grief.

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baldanders.livejournal.com

It sure looks to me like this is far from cut-and-dried. There's plenty of precedent for encyclopedias, lexicons, etc. The "dangerous precedent" one commenter speaks of was set long ago. If anything, I see the possibility of a dangerous precedent being set where an author with a lot of money and legal power can shut down a project she doesn't like whether it's fair use or not. (Whether the guy acted like a dick ought to be irrelevant legally.)

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The reason I got licensed but never practiced:
(Whether the guy acted like a dick ought to be irrelevant legally.)

I have SUCH a hard time with that. In a case like this where I'm uninvolved I can. If I got close to one of the parties, it's problematic, hehe.

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This is why I got involved in IP enforcement, because I hate to see people get ripped off. Peg summed it up nicely above with this:

ut then Steve decided to compile the Lexicon and sell it in book form. JKR objected to this because 1) she intends to write and sell an encyclopedia herself to raise money for charitable causes, and the design of the Lexicon book was designed in such a way that it would create confusion for the buyer, making them think it was authorized by Rowling and 2) the Lexicon is essentially merely a re-packaging of Rowling's work (the plaintiff put up a pie chart, attributing 91% of the Lexicon's content to Rowling's own words.

Fair use again, does not apply. This guy got lazy, tried to slide one under the radar and is justly getting nailed.

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The design issue, I have NO problem with. It was confusing. That's totally cool by me.

The repackaging issue I think is the trickier issue.

You've replied to four of my comments separately; I think I got all the points in my two replies, but tell me if I missed something.

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I think we've both made our fair share of points. I was responding our of email as the posts came in so they tend to disjoint across the thread a bit. Not trying to hammer you persay.

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No problemo; I do the same thing. (I call it the instant messaging style of writing. Message-response with no connection between'em.)

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chaeche.livejournal.com

Thanks for the link. I put up a copy of my two posts here at

fandom_lawyers so people who aren't on my flist can read them. Do you mind changing the link in your original post?

Although

praetorianguard and I have differing views on the strength of the Lexicon's fair use claim, I think her analysis is very good. I didn't catch the indemnity issue that she picked up on (I'm a a patent lawyer and usually only deal with patent licenses). However I don't think RDR would bother suing Steve. The guy isn't loaded and they would never recover their legal costs.

So sadly I think this is going to turn out badly for everyone.

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I've made the switch on the link--thanks!

Yes, I'm afraid you're right; it will turn out badly for everyone.

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airemay.livejournal.com

I keep thinking about the wonderful presentation he made at Lumos about finding Harry, rediscovering why we love him and what not. It definitely made some people tear up! The whole thing makes me sad.

(by the way, your turnover recipe was fantastic!!!!!)

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