5 comments

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  ianbetteridge

  9 months ago

  "paradoxically, the judge rules against the Lexicon because it uses too much content from the Potter books, and then later says that it isn’t protected as a scholarly work because it isn’t scholarly enough."
  
  Hmm. That isn't actually paradoxical. A true "scholarly work" isn't measured by how much of something it cites, but by whether there is "original research" involved in it. Otherwise, I could potentially republish the whole of (say) Potter 1 as a "scholar's edition" and simply claim that it was protected as a scholarly work because I'd cited it in its entirety. Sounds like a daft argument, but hey, this is the law we're talking about... :)
  
  It's also worth remembering that with the "four factors", you don't need to fail all of them - they're "standards" rather than rules - and even failing just one or two can outweigh all the others. If, for example, I produced a version of Potter which annotated the entire text with high quality, scholarly research, the fact that I'd quoted the entire text and sold it (or given it away) would outweigh the original work I'd done.
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  mathewi

  9 months ago

  Fair enough on the paradox point, Ian. But still, how is a reference work or concordance supposed to work if it doesn't quote all the important stuff from the thing it is referencing? And if you produced a scholarly book filled with research that quoted the entire text, then I think you should get a fair use pass as well.
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  ianbetteridge

  9 months ago

  Well think of the consequences of allowing scholorly research to quote an entire text without permission. Suppose I'm the publisher of Ripoff Books Inc, a company which really doesn't like to pay authors (weasels, the lot of them!). So, I take the new edition of "Harry Potter and the Order of Copyright Lawyers", and reprint it with some "scholarly" comments in small type at the margins. Ones that, you know, I've made up.
  
  I sell it, $20 cheaper than the original, calling it the "expanded scholars" edition. Rowling's sales tank, because my edition is cheaper (which is easy when you don't have to pay the author). She goes back to being unemployed, and I rake in the cash. Woot!
  
  Is that fair use? I suspect most people would say "no". I'm not adding any value, for a start. But even if I was, would the value of my additions give me the right to reduce the value of Rowling's work, by producing something which could effectively replace that work?
  
  The point is that there are - and should be - no hard and fast rules to what is "fair use". Quoting everything without permission - even for scholarly purposes - is hard to justify, although there may be edge cases where it's fine. Like wise, taking even small sections out could be unfair.
  
  You're totally right to identify that copyright exists for the benefit of all of us, not just those who create original work. And that's why it's complex - and why saying that Rowling is totally wrong is overstepping the mark. She might have a case. She might not - and without looking at the work involved, I can't really say. But there's no automatic carte blanche to scholarly work, even if it does add genuine value.
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  Daniel Gibbons

  9 months ago

  It's probably not so much J.K. Rowling who's wrong here as it is the army of movie and merchandising interests who stand behind her brand. These are the sort of idiots who most likely believe that any sort of common sense approach to copyright will open the floodgates.
  
  Not trying to excuse her, since of course the final say is hers.
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  Scott

  9 months ago

  Legally aside, it's tactically unsound to quash what is basically fandom.
  
  One thing that comes to mind is size. If someone was to publish a lexicon of what was a little known work, I doubt the author would be upset, and more likely would just be happy for the attention. But once something is well known enough, I guess diminishing returns on awareness kicks into play and it starts screaming copyright infringement like it's Golum and someone has “my precious”. Check that; if you're looking at fame and fortune in terms of size it looks more like a giant or dragon bellowing outrage that some little squirt just swiped a tiny piece of your horde.
  
  Even if you do prove that it is theft, you still look petty.
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