A U.S. Federal Court has ruled in the case of J.K. Rowling vs. the Harry Potter Lexicon, in which the Potter author sued to prevent a former librarian from publishing a compendium of facts about the novels. The book was based on the Lexicon website, which Steven Vander Ark has run for years — a fan site so comprehensive that Rowling herself has praised it in the past. The court decided on Monday that the Lexicon was not protected by the fair use clause in U.S. copyright law and would therefore be illegal if published. The judge, in my view, was completely wrong, and so was Ms. Rowling for bringing the suit.
I, of course, am not a lawyer. I don’t even play one on television. But I know a little bit about writing, and I know (or think I know) what copyright law was originally intended to do — which is to protect a creator’s rights to their creation, but also to balance those rights with the rights of society to create new works based on that original work. In my view, the judge’s decision gave the first part of that equation a vast amount of weight, while giving the second part virtually no weight at all. If anything, he should have done the exact opposite.
I’m not going to get any help in my view from Derek Bambauer of the Harvard Law School. Even before the decision he had pretty much decided that the Lexicon didn’t deserve to be covered by fair use, because it failed to meet any of the tests in the “four factor” standard — which looks at a) the amount of the work used; b) the nature of the work; c) whether the infringing work is “transformative” or simple copying, and d) what the effect of that work might be on the market for the original. But (not surprisingly) I think he’s wrong too.
Does the Lexicon use a lot of stuff from the Potter novels? Of course it does — it’s like an encyclopedia, or a concordance to Shakespeare; it has to use as much as possible (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). Is it transformative? I don’t see how it can be otherwise. It certainly isn’t anything like a regular Potter book; it’s just a compendium of facts and descriptions (for what it’s worth, Tim Wu seems to agree with me in a piece he wrote for Slate).
As for the effect on the market for Rowling’s novels, I don’t see how it could affect that. Would you rather read a Potter book or a big book that listed all the characters and events in order? In fact, interestingly enough, the court didn’t see that as a problem either — however, the judge said it would affect the market for lexicon-style books that Rowling might want to produce herself. That seems to be to take the “market effect” test and stretch it all out of shape. So now no one should be able to produce any derivative work because the author might someday want to copy that work? I hope that someone appeals this decision.