The Harry Potter Trial, Pt. 2

An AP article appearing today made many of the points I did in the first part of the trial coverage.

In particular, it cleared up some of the criticisms I leveled at Rowling. Rowling apparently told the judge, "I never, ever, once wanted to stop Mr, Vander Ark from doing his own guide; never, ever." She said that his online Harry Potter Lexicon simply includes too much of her original work and suggested that he remove more of those citations in his printed edition.

The article agreed with me on the points I made in the first post as to copyright law being a "nebulous area." Intellectual rights lawyer, Lawrence Pulgram (who defended Napster in the case against Metallica), said, "Fair use is the most erratically applied doctrine in copyright." The article goes on to say that Rowling and Warner Brothers agrees that Vander Ark's proposed book falls under the fair use guidelines, but that he simply used too much of Rowling's original material.

However, they also agreed with me as to the differences between what is published online and what sees print, with another intellectual rights lawyer, Alan Behr, calling it "almost a parallel universe," where "people basically do things you would never do in print."

The judge himself said the case could go either way and strongly urged a compromise between parties. RDR Books said they were willing, but neither the author nor her publisher have given any indications of a willingness to compromise. He is not expected to rule for at least a month.

Quite literally, the article - while it did not cite me or mine (of course) - was simply a rewrite of my own! It touched on basically every point I made in my first post - further, it agreed with me on all of them! But I'm not just here to "toot my own horn," I wanted to expound on some of these ideas to further this discussion:

The Weirding, as I said before, actually uses the fair use copyright caveat to a great degree in the RPG section. In fact, one of the main reasons I have not been able to publish more of the material I have ready is because I have not secured rights from the holders - usually because I cannot find those holders and/or how to contact them. However, roleplaying games actually encourage this concept - online. Rowling herself has been very good-natured about this online exploration of her characters and concepts.

But - again, as I said in the earlier post - I would never consider publishing any of the content in print for the purposes of selling it because that does constitute copyright infringement. For me to publish, say, the Dark Conspiracy campaign material, I would need to secure permission from the copyright holder, and I honestly do not know who holds those rights at this time! Regardless, print is not the media into which I ever wanted to move this material, because the Web provides a much more palatable environment - it is conducive to immediate change and commentary, and allows for specific cross-referencing (through linking).

The question in the Harry Potter case is exactly how much of Rowling's original material Vander Ark has included. After all, both his derivative work and citations and quotations from the books themselves constitute a clear-cut case of fair use - and both Rowling and WB agree to this - so just how much is too much?

But the questions for derivative works online go much deeper:

As I stated before, The Weirding does not charge for access to the derivative RPG works we offer, but we do include advertising on the pages which feature this content. The (very) slight return we receive from this advertising is to compensate us for the time, effort, work, and other resources we put into creating the derivative works. Now, no one is calling this infringement (yet), but what if we did charge a fee to access this material - would that constitute copyright infringement?

I'm going to go on-record as saying, "It depends on the model used."

If we charged an access fee per section/work - for example, $5.00 to access the Chill material, $3.00 for the Dark Conspiracy material, $10.00 for the Champions material (these are just arbitrary amounts for illustration; the point is still valid if all the amounts were the same) - then yes, that is infringement. That would be much the same model as if we printed the material for sale.

However, if we charged a flat-fee for access to all of the material, then no, I do not think that would be infringement, because that is asking a fair amount in compensation for the work we have done and contributed to the original work's (from which our original work was derived). After all, while our original content is derived from another source(s), it adds value to the original material.

But when it comes to RPG-related material, as well as any other content which follows the same model, there are some major differences:

1. The supplementary material we provide is useless without the original material from which it is derived. We cannot and do not republish the original rules, though we cite them when necessary, which is perfectly acceptable under the domain of fair use, so long as we do not cite enough of them to allow you to play the game without first purchasing the original rules. In this manner, our original content could actually be argued to promote the source material.
2. All of our derived work is original and expounds/expands upon the source material. It adds value to what has already been published.
3. Role-playing games were specifically developed to be interactive and thus open to interpretation and alteration by the users.
   

The Harry Potter Lexicon, while certainly legal under the fair use caveat, is suspect when these two rules are applied. If one wanted to know more about the Harry Potter universe but did not want to spend the time and money to actually read them, this Lexicon would be the single, best source of information. Further, while the second point could be argued, in the most literal sense, it is not necessarily an original work, and though it may add some value to the original works, it does not significantly expand or expound on them. Further, Harry Potter was not developed as an interactive media; you read Harry Potter, you watch the films, you are not supposed to control the characters or have any say in their outcome.

But it isn't exactly like comparing apples to oranges, as the fundamentals in-play are basically the same. The problem here is that the outcome of this trial could change the interpretation of fair use and pave the way for more of these types of suits, which means some asshole will eventually try to extend the battle online. And just because the derived work is distributed freely does not protect you from an infringement suit; the original creator simply has to show that he suffered a loss due to your "infringement," regardless of whether or not you actually profited.

© C Harris Lynn, 2008