Wednesday, 16 April 2008

Rowling vs RDR

The blogosphere is full of news of the latest litigation related to JK Rowling and the Harry Potter mythos. This Legal IQ post explains the background and parties: Stanford Law School's Fair Use Project Defends RDR Books Against Copyright Lawsuit Brought By J.K. Rowling and Warner Bros.

The case hinges on "fair use" - whether RDR Books' Harry Potter Lexicon has sufficient characteristics to allow its particular reassembly of material from Rowling's works. This is a subtle decision based on four criteria: 1) purpose (e.g. commercial or not); 2) nature of original (you can get away with reproducing more of a non-fictional work than a fictional); 3) how much of the original was used; and 4) market effect (i.e. does it undercut the market for the original?). See the Fair Use Network for more on this. Anthony Falzone, the defendant's lawyer (who is associated with the Stanford Center for Internet and Society's Fair Use Project) argues that the case is highly important, in that Rowling's winning would set a precedent majorly eroding the centuries-old right to create concordances and other derivative works. This idea is expanded in Joe Nocera's New York Times article, A Tight Grip Can Choke Creativity (bugmenot).

Dan Slater at the WSJ's Law Blog, reporting on the final day of the trial, thinks it looks good for the the defendant, RDR: Potter Trial: On Last Day, Defense Outshines Rowling. At Info/Law, Derek Bambauer, Assistant Professor of Law at Wayne State University Law School in Detroit, Michigan argues otherwise in Harry Potter and the Lexicon of Fair Use. Much of the legal argument is well over my head: I'd never heard of estoppel and laches - loosely, the doctrine that someone's case is weakened by their having acted in a way suggesting approval for what they're now complaining about - so I won't bother to speculate which way it'll go.

We won't know the result immediately: as this Bloomberg account says - J.K. Rowling Returns to Witness Stand, Defends Authors' Rights - the lawyers now have three weeks to submit final briefs. The presiding judge, U.S. District Judge Robert Patterson, had urged both sides to settle, mentioning Bleak House (the futile Jarndyce and Jarndyce case where legal costs ate up the disputed estate). But no deal. Whoever wins, it'll likely go to appeal, because both sides have strong interests to defend and deep pockets.

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