Two items from Canada are much in the news. The first is the Canadian Court of Appeals reversal, within 24 hours of oral argument, of the imposition by the Copyright Board of a levy of up to $75 on iPods. See here. (Congrats to Howard Knopf). Then, following up on an earlier posting, Avril Lavigne has confidentially settled her copyright dispute, see here. In the UK, after issuing the comprehensive follow-up to Gowers discussed in this blog two days ago, Lord Triesman has apparently abandoned the topic entirely, resigning his government position and taking a job as President of the Football League, see here. He has a longstanding interest in the subject, as a player, referee, and coach. His appointment surprised many, especially those that Manchester United, who had expected one of there own to be appointed.
Back in the U.S., Professor Tim Wu has a piece on Slate about the Harry Potter Lexicon suit, here, in which he states:
Rowling is overstepping her bounds. She has confused the adaptations of a work, which she does own, with discussion of her work, which she doesn't. Rowling owns both the original works themselves and any effort to adapt her book or characters to other media—films, computer games, and so on. Textually, the law gives her sway over any form in which her work may be "recast, transformed, or adapted." But she does not own discussion of her work—book reviews, literary criticism, or the fan guides that she's suing. The law has never allowed authors to exercise that much control over public discussion of their creations. Unlike a Potter film or computer game, the authors of the Lexicon encyclopedia are not simply moving Potter to another medium. Their purpose, rather, is providing a reference guide with description and discussion, rather like a very long and detailed book review.
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On the Lexicon issue, Wu doesn't at all mention the unfortunate decision in Castle Rock
Entertainment, Inc. v. Carol Publ. Group, 150 F.3d 132 (2d Cir. 1998),
aka, the Seinfeld Trivia case. As most readers of this blog probably know, someone created and published an
unlicensed book of Seinfeld trivia, with details about characters and
lines from the show, arguing that doing so was fair use and merely a
compilation of facts. The court held that the facts about the show
weren't really facts, but rather expressions of the creators'
imaginations, and the most important fair use factor of effect on the
market was in Seinfeld's favor since they had plans for their own
derivative books based on the show. See also Twin Peaks v.
Publications Int'l, Ltd. 996 F.2d 1366 (2d Cir. 1993), which was plot
summaries and quotations from the TV show Twin Peaks – again, the
court held that the amount of material taken from the original was
substantial and adversely affected the market for authorized books
about the show, and so denied a fair use defense to copyright
infringement.
I don't necessarily agree with it, but there is strong precedent in Rowling's favor. As the Lexicon's lawyer, how do you distiniguish these cases?
I am interested in the issue of waiver/estoppel in this case -- the Lexicon has been online for a long time, with at least tacit approval from JKR, if not outright active support. Crossing from free Internet to for-sale hard media makes a difference to JKR, I am sure, but will it make a difference to a court?
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