Author J.K. Rowling has won her case against the publishing house RDR and author Steve Vander Ark over the Harry Potter Lexicon. It was a case that had people contemplating copyrigt and fair use. Was Vander Ark's copy and pasting of information from the books, without attribution, covered in fair use? If the case went in JKR's favour would it be a blow to all reference books? The answer to both, as ruled by Judge Robert Patterson, is no.
I will confess that I was rooting for JKR on this case. It was not always a popular stance to take. Some found her pursuit of the case greedy and self-serving. After all, she had allowed Steve Vander Ark's non-profit website (it runs ads to pay for server use only) by the same name. More over she had praised it and awarded it a fansite award on her own webpage. Some argued that she since she didn't mind him stealing her content for free she had no right to mind him stealing from her for profit. Others said that his use of her content should be covered under "fair use" of material alloted to reference books and if she were to win all reference books would be in danger and all fan sites served cease and desist orders immediately.
So it’s okay for Rowling to benefit from the obsessive of a fan, but not okay for the fan to benefit as well? It’s a bit selfish, isn’t it, to support the efforts of your fans while they funnel money to you but to disregard their time and energy when it seems they might earn a little back?
Then there were the supporters and the pie chart of doom which suggested that 91.4% of the material in the printed Lexicon came from JKR herself. As the Praetrian Guard said, if that is even close to true there's no way in hell it's fair use.
Judge Patterson agreed. In a 60 page ruling (note: links to PDF) Judge Patterson decreed that the Lexicon went beyond the limits of fair use. You may be wondering what "fair use" really means. Librarilly Blonde interviews intellectual property laywer Heidi Tandy on fair use and what it means. In a nutshell, it allows someone other than the copyright owner to reproduce a copyrighted work.
In making his ruling Judge Patterson focused on the use of the copyrighted materials. Quite simply, did Vander Ark's use of JK Rowling's work add to its meaning? Or was it a pure lifting of facts - a copy and paste if you will - without adding any further thought or commentary? Nancy Prager commented to the judge's ruling on this issue.
He found that the primary purpose of the use of the works was not to “add some new insight, of whatever value,” to Harry Potter. Additionally, the use was not consistently transformative as Vander Ark “often lack[ed] restraint in using Rowling’s original expression for its inherent entertainment and aesthetic values.”
Similarly, the amount and substantiality of the works used was a concern to the judge. He found that the “verbatim copying and close paraphrasing of language from the Harry Potter works” was beyond an amount reasonably necessary.
Fair use argument foiled.
But what about fan sites and fanfiction? They are fine. It actually would have been worse if the case had ruled in favour of Vander Ark's publisher. Imagine for a moment that the judge had ruled that because Rowling herself had allowed the material to exist on the internet (nevermind that she praised it) she had forfeited her right to enforce copyright elsewhere. How many fan sites do you know? Buffy, Mad Men, Harry Potter, Battlestar Galatica, Star Trek, Twilight, every little bit of fan fiction would suddenly be a threat to the original copyright owner. Cease and desist orders would have been sent out by the crate-load. As Heidi Tandy pointed out in her interview, this hasn't changed the exisiting law, it has enforced it.
The judge did not rule out fansites or additional reference books. Liz at A Chair, A Fireplace and a Tea Cozy points out that an unofficial reference guide is still possible.
As has been quoted elsewhere, "Issuing an injunction in this case both benefits and harms the public interest. While the Lexicon, in its current state, is not a fair use of the Harry Potter works, reference works that share the Lexicon’s purpose of aiding readers of literature generally should be encouraged rather than stifled." The problem isn't what SVA/RDR wanted to do; it is what they ended up doing.
Bottom line: for all of you who argued that an unofficial guide is permitted, you were right. But this guide is not permitted, because of the amount of cut and paste.
And that is what it all comes down to - how one uses content under fair use. As our high school teachers and college professors repeatedly tried to drive into our minds - quoting and paraphrasing is fine as long as it is attributed and used for the purpose of adding meaning to our own words. But taking the whole kit and caboodle? That's stealing.
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