Harry Potter ruling points out the limits of fandom

Just because you're a fan doesn't mean you can steal from an author. The key is how you approach a derivative work.

J.K. Rowling recently won the right to be even richer when a US federal judge ruled against a Harry Potter fan's right to publish The Harry Potter Lexicon. In so doing, Ms. Rowling demonstrated two things:

  1. No matter how "right" it may seem to use someone else's copyrighted works, you can't simply assume that right, and
  2. Just because you're copying out of love and devotion doesn't make it right.

I'm sure that the defendant in the Harry Potter decision, Steven Vander Ark, must have felt hard done by to see his paean to Rowling's genius stomped on by her. A wide range of Potter fans seem to share this view. As I'll describe below, this isn't wildly different from open-source "fans" who piggyback on the works of others .

But their misplaced feelings and his intentions are somewhat irrelevant here. He copied liberally from Rowling's work to create "his" lexicon, which is the primary problem, as Groklaw points out:

The fact is, Rowling led the defendant on with praise of his work, there was talk of him being the editor of the official encyclopedia, then changed her mind about having him or anyone as editor and decided to do it herself. Her prior praise of his fan site weighed against her. But she did tell him eventually he had no role, and he went ahead anyway, with some marketing that the judge found misleading. So the question was, is it fair use? It certainly could have been, since a copyright owner can't control transformative derivative works totally, but where the defendant failed was in the how of it, how he went about it.

The impression I get from the Order is that if he'd been less of a fan and copied less and written more of his own words instead, it would have worked out better for him.

Bingo. If we were talking about a phone book (with lots of facts about names, addresses, and phone numbers), the bar for copyright infringement would have been set higher. Arguably, if applied to software law, which has a range of "facts" about common programming techniques, etc., the bar would also be higher, though not quite as high as a phone book.

There are limits to fandom, in books as well as software. In open-source circles there has been hand-wringing about whether it was OK to piggyback on others' trademarks to provide training for JBoss and other open-source projects . It is, but it's all in how you do it. Yes, it's trademark versus copyright, but the underlying principle is the same:

Intellectual property must be respected, even if your desired infringement is born of love and respect and not a desire to pilfer.

Personally, I think Rowling would be better off encouraging fan fiction and derivatives in the same way that Stephanie Meyer has done with her novels. But that's the author's decision, not the fan's. It's a tough requirement, but ultimately it's necessary to protect control of one's creations.

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About the author

    Matt Asay is chief operating officer at Canonical, the company behind the Ubuntu Linux operating system. Prior to Canonical, Matt was general manager of the Americas division and vice president of business development at Alfresco, an open-source applications company. Matt brings a decade of in-the-trenches open-source business and legal experience to The Open Road, with an emphasis on emerging open-source business strategies and opportunities. He is a member of the CNET Blog Network and is not an employee of CNET. You can follow Matt on Twitter @mjasay.

     

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