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Imagine this. You're writing a book — no, make it a series of books. All in all, they sell 375 million copies over a ten-year period, plus several feature films, and get translated into 64 languages. During the course of writing them, you discover that someone has gone to the trouble of collating a whole bunch of reference information for readers of your books, and made it available online for free. In fact, he's done such a good job of it that you find it useful as a reference yourself, and make extensive use of it while you finish your books. You even give him an award for the site.
Later, after your books are finished, he decides to publish his reference to your work.
Well, it sort of depends on whether you're J. K. Rowling, doesn't it?
Personally, while I'm as likely to disagree with Orson Scott Card's positions on various things as agree with them, I think he has Rowling dead to rights here. Most people would be quite satisfied with having become the 13th richest woman in Britain (and that's including the royal family) and the highest-earning novelist in history. But it seems becoming rich has made Rowling greedy.
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"J.K. Rowling is inappropriate for Xtians."
Granted, I would say so not because of the content of her writing, but because of her abuse of her role-model status.
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That's not to say Xtians shouldn't read Harry Potter novels. For my point here, that's a completely separate topic. If there's any relevance at all, I'd agree with the analysis they fall in the Tolkien/Lewis/et al realm of good vs evil allegories. I.e. if a Xtian family lets their kids read Narnia, it would be consistent to also approve of Harry Potter.
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I submit that a great artist knows when to let go of his or her work, to let it have a life of its own.
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Not that I'm faulting him for this. I don't necessarily agree with Rowling's stance, but the another article I've read about the subject said that the book is something like 75% Rowling's words, rearranged into an accessible manner. In the same situation, I expect I'd sincerely thank him for the valuable web resource... and send a cease and desist letter on packing it for profit.
I also think it's somewhat disingenous to compare this situation to plot similarities between Harry Potter and Ender's Game (and some good percentage of all other Kid/YA SF/Fantasy), though the whole "Larry Potter and the Muggles on Platform 13.6" or whatever debacle hits a bit closer to home.
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No, it's comparing apples and oranges. One is accidental similarity due to certain commonly used thematic elements, while the other is an undeniably derivative work.
Card is exactly right on that score: it's a scholarly work on her works, and is protected fair use.
These are the four factors used in determining whether something falls under fair use:
1. Purpose of the Use (learning, commentary, criticism OR commercial);
2. Nature of the Publication (factual OR creative);
3. Amount and Substantiality of the Whole (small OR substantial);
4. Effect on the Market (has no affect OR replaces a sale).
1 - This is debatable. Does being useful make something scholarly? Does the fact that the author used it herself make it scholarly? Is it being marketed primarily to a scholarly market (with definition of scholarly extending to elementary schoolers doing book reports)? Do I have the right to pull together a handful of key points directly from my textbook, with little input of my own, and use it to make a study guide which I then sell? That's less arguably scholarly, but obviously not fair use.
2 - I'd say this point goes towards the Lexicon guy.
3 - My understanding is that a substantial portion of the book is directly JKR's words, which would generally be looked on negatively in a fair use decision.
4 - That's the question, isn't it? JKR had previously and quite publically announced plans to create a similar work. However, the existence of the free web-based version of the Lexicon would be similarly likely to affect or replace sales.
I don't think this is a clear-cut case either way.
In my previously mentioned experience with Card, he gave me permission to make a derivative work, as long as I didn't make money off of it, didn't use his major characters, and with the caveat that permission could be revoked should it interfere with future commercial interests, which seemed perfectly reasonable to me, both at the time and now, and similar to this situation.
If Rowling was offended by the site, the time to be offended was before she made use of his collation work herself as a reference for her own writing and before she gave it an award for being so useful.
She isn't offended by the site, as far as I'm aware. She's only offended by the fact that it's now being repackaged and published for profit. Or if she is offended by the site now, it's because they took advantage of her previous lenience.
What you're saying sounds an awful lot like the "failure to enforce trademark" issue mentioned below - because she didn't enforce her copyright at the first opportunity, she gave up the moral and/or legal right to do so.
Would it make a difference if she'd said, "I have no clue why you can't follow my plots without a reference, but go ahead and have your fun." rather than using it herself? Would enforcing the copyright the instant she became aware of the site be a more friendly action and less greedy action towards fandom?
She allowed people onto her private property to have a party in her front yard, and even had a bite to eat herself, but isn't allowing them in her house. I don't see an issue with that.
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Even JMS had problems with fan stuff jumping the web. On the web, it is just a simple reference/encyclopedia, it is fair use. But turn it into a Published Book, and make all sorts of additional information available, and it could be considered an Additional Work of Fiction in that world and thus opening up the Publishing World to additional unauthorized works of fiction.
Oh, and I have friends who did a Tolkien Encyclopedia. You should see the hoops they went through to appease the Tolkien Estate and thus protect Tolkien's works.
Yeah, it seems trivial, but it's not.
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Nothing new
I'm not sure if it's going to be a successful legal battle. I'm not sure if it's one I agree with. It's not unique, unprecedented or farcical. If you're going to rage at this, stand outside a New York courthouse and glare at intellectual property plaintiffs all day.
Card's article is lost under a sea of Slashdot traffic, so I haven't seen it. What I've heard secondhand is that he's saying the suit comes from Rowling's bitterness that her hit series is over and she's no longer considered relevant. If that is one of his points, I think it's projection on Card's part.
Re: Nothing new
[1] Except that now, of course, after the fact, she's decided she meant to publish a cross-reference book like that all along.
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