Madgirl.org

Phew, these guys are safe at last!

As promised, I wrote a lengthy summary/analysis of the HP Lexicon decision for the JETLaw Blog. I have to say, it is one of the most thoughtful and well-written district court decisions that I’ve ever had the pleasure of reading. I don’t know anything else about this Judge Patterson, but I wouldn’t be surprised to see a nice appellate spot in his future. He probably also has a great clerk.

My personal opinion is that this was the best possible outcome for the case. It didn’t cut so broadly as to lay waste to the reference guide market in general, which I think was the concern of many people going into this. The bottom line was that the Lexicon in particular simply took too much–more than was necessary for a reference guide.

In fact, the catching point seemed to be the two HP companion books–Quidditch Through the Ages and Fantastic Beasts and Where to Find Them. Because these are already essentially reference materials, the fact that the Lexicon pretty much copied directly from them without a transformative purpose pretty much wiped out the fair use defense.

I sometimes find myself in an interesting ideological position when it comes to copyright law and fair use in particular because I am both a writer with many writer friends who have that serious proprietary interest in their copyrights for the purpose of making a living and also a huge proponent of participitory culture. I also have the sort of social norm intuition that many fans have of the distinction between commercial and noncommercial copying.

One thing that the court pointed out at the end of the decision when considering harms to JKR that I think is worth remembering for writers is that any copying of language, fair use or not, can diminish the original creator’s copyright in that language. The Lexicon took so much (often not specifically attributed) of JKR’s original language (her “plums” as she called them) that its publication could have eventually led to conflicting copyright assertions. For the passages in the Lexicon that were sort of paraphrased but used certain terms of phrase… who should have the rights to that language?

In any case, I’m pleased with the outcome and was also pretty thrilled this came out now while I’m getting so into copyright. The analysis was a great exercise for me!