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

Harry Potter And The Pitched Copyright Battle

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 Sunday, November 04, 2007

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