Letters to the Editor
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A better analogy: unofficial guides
Consider the various gamer's guides and "missing handbooks" that are published, and how they rely upon the original game for context. Yet they are clearly considered fair use, and have often had that fair use acknowledged by the courts as game companies tried to sue the authors and publishers.
So this is an unofficial guide, but from the quotes that I have seen it keeps direct quotes to a minimum, relying instead on its own words to explain the terms, spells, names, et cetera. This would be no different than an unofficial guide to the Myst series, or the "Marvel universe" or even The Science of Star Trek for that matter.
Copyright laws are supposed to encourage new works, but once again it is being used to stifle competition. And I think that is what is really the case here: JKRowling is afraid that this guide is better than the official one...
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Copyright protects the expression of ideas, not the ideas themselves
What most of the JKR apologists seem to be ignoring is the fact that copyrights don't exist to protect ideas in and of themselves. Instead, they protect the author's expression of those ideas. That's why I can't claim a copyright on the idea of a boy discovering that's he really a wizard even if I daydreamed about it as an 8 year-old long before JKR set pen to paper.
JKR has every right to control the actual words that she set down, subject to fair-use exemptions, but her ideas, once released to the world, are part of the common cultural vocabulary and free for anyone to build on.
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@Peerke, @Kooshball
"A better anlogy whould perhaps be if I were to create an index of all paintings by any currently living artist. I could describe all his/her paintings, guess about where the painter got his/her inspiration and so on. Compare paintings I could even show fragments of the painting to illustrate details that support my story. This would be perfectly legal. The fact that the painter is also planning on publishing such a book, makes no difference."
No, Peerke. A *better* analogy would be something like you describe here, but in which you chose to include whole versions of the paintings in question to illustrate each entry.
You're absolutely correct that you can list the titles and dates and other information ABOUT the paintings, and you can write, in your own words, descriptions of them and analyze them. But in your proposed book, what you could not do was reproduce the actual paintings as illustrations, without licensing them.
This analogy does not completely relate to the SVA/HPL situation, because of course the HPL does not duplicate *all* of JKR's written words from the books. (There was a report, however, that the HPL *does* replicate the entire text of an auxiliary published reference work, "Fantastic Beasts"; however, it's uncertain whether the proposed book version of the HPL still contained that copyrighted material.) But, as others noted in comments to FM's first post, in copyright law regarding fair use, there is a threshold for how much text from a work may be quoted for scholarly purposes.
Actual users of the HPL (i.e. people who've seen the site, not many of the folks here, clearly including Farhad Manjoo, who haven't bothered to look at it) have noted that the AMOUNT of text replicated by the HPL fails the fair use threshold. And therefore, it is similar to the situation you would be in -- do you publish your book about the artist's paintings without any graphic illustrations of the paintings? Do you just include small details from the paintings that show only specific pieces of them? Or do you enter into a contract with the rightsholder to license the use of the full paintings?
One of the substantial points of the JKR/WB lawsuit is that enough of JKR's actual words are included in the proposed book that SVA/RDR should have done the latter. They didn't.
And when JKR/WB requested a review copy of the manuscript in order to find out whether the print version of the HPL met the fair use threshold for quoting text, SVA/RDR first said, "we can't give you a copy of the manuscript; how would that benefit us?" (this 1 month before the proposed distribution of actual books); then they said, "just print out the website! everything there is what's in the book!" (a stance that opens a lot of other cans of worms); and *then* they said (after many people protested, for example the other contributors of the site who had not been informed or consulted abotu their material being included in the book), "oh, uh, no, not everything on the site is in the book... we can't tell you what from the site is in the book and what isn't..."
"JKR has every right to control the actual words that she set down, subject to fair-use exemptions, but her ideas, once released to the world, are part of the common cultural vocabulary and free for anyone to build on."
Fine. So why is it that everyone, including Mr. Manjoo, is ignoring the issue here that a central problem with the proposed print version of the HPL is the question of how much of JKR's ACTUAL WORDS are included in it? On the website version, the answer is: a lot, probably more than is legal under the fair use clause of copyright law. In the book version, the answer is: nobody, including JKR/WB, can tell, because the author and the publishers would not supply a manuscript to be vetted.
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From MC, re FM narket knowledge
Farhad, you said, "You actually think so? You believe that the print version of the HPL will hurt sales of Rowling's book -- i.e., that there are people who'll choose the print HPL over her upcoming book (and will not buy just her book or both)? As I said, I'd be surprised if you offered up even one such customer."
I dont know if it would hurt sales of her book or not. She apparently does. Her call, not mine, not yours.
Understand you have a book coming out (congrats, by the way). May I please have an advance copy? I'd like to take your ideas, re-write them a tad, and publish them myself.