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Quote of the Day - Maybe I'll start a [Harry Potter] club later on. But right now I'm still trying to find my place at the University. - Emerson Spartz

What's The Difference Between Copyright Infringement On The Web And In Books?

The famous author of the Harry Potter series of books is about to give us the answer to that question, one that perhaps has neither been asked nor answered before.  According to Associated Press Reporter David B. Caruso, Author J.K. Rowling has filed suit in Manhattan federal court (no jury demanded) against an upcoming book to be published called the Harry Potter Lexicon.  It's planned  to be published on November 28, 2007, and will be some 400 pages long.  It's light reading compared with her later books, but will turn heads in the world of copyrights.

You see, the Harry Potter Lexicon has been published before - on the Internet.  It was published not only without challenge by Rowling, but apparently also with her blessing.  In 2004, she bestowed a Fan Site Award on the the website and its author, Steve Vander Ark, a middle school teacher who founded the website back in 2000 in his spare time.  In fact, the publisher says Rowling provided this comment on the Harry Potter Lexicon website: "This is such a great site that I have been known to sneak into an internet cafe while out writing and check a fact rather than go into a bookshop and buy a copy of Harry Potter (which is embarrassing). A website for the dangerously obsessive; my natural home."

Now that Vander Ark, through RDR Books, wants to publish his site in a hard-copy book, Rowling is instead bridling.  She plans her own lexicon of everything Harry Potter and believes Vander Ark's book will interfere with her sales.  As E! Online puts it, it's a case of "Harry Potter And The Unauthorized Lexicon."

The issue here is one of waiver, however.  In copyright law, waiver or abandonment of copyright "occurs only if there is an intent by the copyright proprietor to surrender rights in [her] work." 4 Melville B. Nimmer & David Nimmer, Nimmer On Copyright ¶ 13.06 (2000), as cited in A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001).  For non-lawyers, Nimmer on Copyright is the definitive treatise relied on by many courts, not just our own Ninth Circuit. 

The question before the house, then, is whether Rowling's approval of the Harry Potter Lexicon website and her failure to issue a Digital Millennium Copyright Act takedown notice will operate to waive her right to stop the Lexicon from being published as a book or alternatively constitute fair use of her work.  It's unlikely that courts have ever faced the former issue before.  Here you've got Rowling's knowing approval of a work she now claims infringes on her Harry Potter copyrights (now owned by Warner Brothers), which has been bestowed for at least three years running, if not seven.

It's going to be a tough road for Rowling to walk.  There isn't a difference between a copyright on the Internet and a copyright in books.  It's all the same copyright - the differences are only in the media and the remedies.  Failure to police the copyright can operate as another means to prove waiver, especially here when Rowling not only knew about the violation she alleges now, but she also approved it some three years ago and then did nothing to enforce her copyright.

Fair use may also be one of the defenses asserted against Rowling's suit.  If a court determined that the Lexicon is fair use of Rowling's copyrighted work, then she won't be able to enforce her copyright against it.  Fair use can be found where copyrighted content is displayed for comment or scholarship, which is apparently what the Lexicon is all about.

How would you rule?  MIPTC predicts Rowling's lawsuit will fail and the Lexicon will be published. 

In the meantime, since you can't read the Lexicon in print, you can read the Complaint here.

Posted by J. Craig Williams on 11/4/2007 at 10:02 Comments (6)



Comments by D. van Broek from Netherlands on Wednesday, November 14, 2007 at 10:04

As I see it, the main problem would be that the site is on a free basis; no money is being made off the site.
With a book, published by an official publishing company, it is something else. Namely, a book is published with the intent of making money. And this I believe to be the sore point.


Comments by L.M.A. from United States on Saturday, November 10, 2007 at 19:45

As I see it, allowing the Lexicon to exist online does not constitute a waiver of copyright. First, the standards for waiver are relatively high (higher than for trademarks), and second, consider the effect of such a ruling: if a copyright owner doesn't order the takedown of internet sites using aspects of their creations, ruling that Rowling has abandoned her rights would mean that all those other authors who have allowed fan sites, fan fiction, fan art, and more to exist in the amateur non-commercial realm have abandoned their rights too. Ridiculous!


Comments by Dan from United States on Wednesday, November 07, 2007 at 18:18

As much as I would like to, I'm not seeing either fair use or waiver on this one. I see that the website exists with a certain degree of legality through an implicit (and possibly revokable)license. Even if we called this a waiver it would need to be a very narrowly construed waiver--and it certainly would not include a right to make unlimited print copies of a website.
And fair use? I think 106 should be read quite broadly--but probably not broadly enough to cover this. I do not believe that this book attempts or purports to bring anything new to Rowling's works. In fact, it looks like it exists almost exclusively within that world. It does not seem to contain additional scholarship or commentary.


Comments by C. M. Warren from United States on Wednesday, November 07, 2007 at 05:16

I was wondering, because I have heard various versions, but is it true that fair use laws for copyrighted material generally only allots say 3,000 words worth of material before they have to see permission from the owner of the intellectual property that is being discused.
Being a fan of both harry potter and the harry potter lexicon, it seems like the lexicon would in print not constitue fair use unless they cut out of quotes and passages from the books and other trademarks used online for non profit. Given six years of comments and hints from joanne rowling that she may, and in the last 4 years, intends to write a encylopedia on her world that organizes everything, including what never made it into her books, would that have a effect on the case, as it is intent that has been public long before lexicon became a entity in the harry potter fandom.


Comments by Nick from United States on Tuesday, November 06, 2007 at 15:18

It does not seem contradictory to say that the Lexicon could be covered by fair use when posted online and not fair use when put into print. There are several factors to consider, but it should be clear to anyone that a fan site is much different than a published book and that shifting from one to the other would alter any fair use analysis.
However it turns out, I hope that waiver plays little to no role in the final decision. It would be awful for a court to say that JKR waived any rights by allowing the Lexicon to exist online because it would force (c) owners to go after likely fair uses of their works for fear of waiver. Thus would make (c) policing even more confrontational and further erode the entire concept of fair use. Even if she condoned the existence of the Lexicon online, that doesn't necessarily mean that the Lexicon would enjoy the full spectrum of protection under copyright: by taking it off-line it is changing the nature of the work, the financial motivation behind it, and it's overall impact on JKR, all things that make it less fair use-y than when it simply was on a website.


Comments by L. McGee from United States on Monday, November 05, 2007 at 13:29

Actually, the Lexicon is not really about comment and scholarship. Most of the content is reorganized information from the books(lists of characters, places, etc.) Except for a section of fan-submitted essays which would need their own permission granted to be published, if they are even being included in the book at all, which no one knows for sure because RDR Books refuses to supply a manuscript copy. I'm really not sure RDR Books can claim Fair Use.
But I would like to know what you think of the difference between The free content on the website and the webmasters current plans to make this a commercial venture for profit. Does it make a difference as far as copyrights?


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