Rough Week, judicially

This past week has seen at least three developments in copyright law and legislation that all bode badly for higher education and user’s rights.  Each however, need to be seen in context, since none may actually pose the imminent threat that initially appears.  This post will address the case decided during the week, the next will deal with some legislative developments.

There was a decision last week at the district court level in the case of the Harry Potter Lexicon that found that, even though the Lexicon is a transformative use that creates a new work with a different purpose than the novels on which it is based, it is not a fair use.  The court enjoined the publication of the Lexicon and awarded the minimum possible damages (less than $7000) to J.K. Rowling and Paramount Pictures in a decision that is really very carefully reasoned and that hews closely to the facts in the particular matter.

The director of the Fair Use Project at Stanford discusses the decision here.

The court rejected a fair use defense based on this (abbreviated) analysis of the fair use factors:

1. The purpose of the use is mostly transformative, creating a reference guide to the the series of novels, but this factor does not wholly favor defendants because of nearly complete, verbatim copying of two short reference guides that Rowling had already published (on fantastic creatures and quidditch) and because  more of the novels are quoted verbatim that is reasonable necessary for the transformative purpose.
2. The original works are highly creative and deserving of the fullest protection permitted by copyright law.
3. The amount used, and its substantiality, is greater than is necessary for the transformative purpose.  The judge explicitly declined, however, to find bad faith or to endorse Rowling’s reference to “plundering,” writing instead that the Lexicon author seemed to be carried away by his enthusiasm for the books.
4. While noting that Rowling is not allowed to corner the market for reference guides to her novels, the court held that there was substantial impairment of her market opportunities in two senses.  First, the Lexicon would directly compete for sales with the two previously-published guides mentioned above (but not with the novels).  Also, Rowling is entitled to license derivative works such as a musical production based on Harry Potter, and the reproduction of songs and poems in the Lexicon could harm this opportunity.

In many ways the decision reads sympathetically toward the Lexicon author and is critical of Rowling and her overreaching claims to absolute control over any writing about the Harry Potter series.  I was especially pleased to see the judge single out the language used by plaitiffs of piracy and theft for criticism.  In the end this decision is not as harmful as it could be.  The potential in this case was for a broad decision that would severly limit the scope offered in many recent decisions for transformative uses within the fair use analysis.  Instead this is a thoughtful decision that sticks very closely to the specific facts and does not do to much damage to the kinds of transformative uses that are important in higher education.  It is a reminder that scholars should be careful not to appropriate more of an original work than is reasonably necessary to accomplish a legitimate purpose — criticism, commentary or organization for reference.  It is certainly a limitation on the freedom to copy even for such purposes, but it has not created the mine field for such works that could have resulted from a less considered opinion.