[continued from a prior letter in which I respond to an Anonymous poison pen...]

More to the point, nobody ever claimed that J.K. Rowling was not entitled to copyright protection. The dispute here is what constitutes fair use. The problem is that there is no such concept in the UK (although they are trying to pass their own version, dubbed "Fair Dealing"). You'll note, for instance, that in the UK, parodies are not legally protected free speech; a parodist needs permission from the party he is parodying. Not so in the US; the Supreme Court ruled that parody is an absolutely protected form of free speech, and no legal permission is required to publish a parody. No, I'm not claiming the HPL is a work of parody. What I'm claiming is that it compiles information in a unique way, which is covered by copyright, and that it fairly uses the work of another author. Moreover, it provides citations and references to the source material, so this is not simply a case of plagiarism. This is no different from a Biblical concordance or index.

Mr. Manjoo has rightly been taken to task for his ignorance of fandom, copyright law, fair use, and plain old logic. The graceful thing to do at this point is to acknowledge that the premise was ill-considered and to issue a heartfelt apology to Ms. Rowling for his misogyny disguised as a think piece.

Whoa, there, cowboy! How is Farhad Manjoo ignorant of fandom? Why is that even relevant to the discussion of copyright law? He's been spot on in his characterization of fair use, despite what the nay-sayers here would have you believe, and his logic, while not impeccable, is not fatally flawed. The Google indexing analogy isn't the best, but it's not as bad as some people are claiming.

But most of all, I'm deeply offended you'd jump to the conclusion that Farhad Manjoo is a sexist -- I mean, that's what you're claiming here. Misogyny? You're accusing Farhad Manjoo of hating women, for crying out loud. Don't you think that's a bit over the top? Is it perhaps possible that you're engaging in a bit of racism here because of the article's author's name? I certainly can't know this to be true, but it seems suspicious that I find no other possible motivation to accuse someone of something for which I find no evidence in his writing.

Oh, and speaking of libel, what you've done here again comes very close to libel, something you have no problem accusing Mr. Manjoo of. Though you are clearly expressing an opinion, you don't explicitly state that it's an opinion -- you state this as fact. Maybe the person who should be apologizing here is you.

I am sorry to sound so picky when you have rightly taken anonymous posters to task for ad hominem viciousness. However, I'm afraid Mr. Manjoo DID open the gates to questions about Rowling's morality in his first post on the topic:

"But the question is not whether Rowling is on solid legal ground in suing her fans. It's whether she's on solid moral ground. And the answer, obviously, is no; indeed, considering how much her fans have done for her, her move is even more lamentable than Prince's recent promise to sue his supporters."

I know this was the comment that disturbed me the most; the same appears to have been true for several other commenters. I believe conjoining the legal and moral issues set a confusing tone for both posts -- but that may be because I don't find copyright law all that simple, either!

Since Salon offers the option of pseudonyms, I keep hoping it will decide to do away with "Anonymous" posts, which often seem to confuse nastiness with argument.

"In fact, Mr. Manjoo is arguing that the Harry Potter Lexicon (hereafter referred to as the HPL) is an example of fair use, and is consistent with existing copyright law, at least as it exists in the United States."

Granted. But neither he, nor you, are actually engaging with the problems the HPL is accused of having in the suit. The issue is not that fair use allows for a scholarly, reference, or commentary work to quote from a copyrighted source. That is understood. The question is whether the amount of quoting in the HPL falls within the bounds of legality or not.

How can you offer an opinion about that if you haven't studied both the HPL and the source text? You can't -- and part of the reason this matter has gotten as far as a suit is because neither the author nor the publisher would furnish a review copy of the manuscript when it was requested by the rightsholders.

It was also a factual error in FM's first article for him to imply that SVA and other contributors to the website ought to be able to profit from their work... in ignorance of the problem that SVA had never informed the other contributors of intent to publish.

(So why is FM championing SVA's right to profit from his hard work, instead of criticizing him for attempting to profit from the hard work of others? Because it's not relevant to the criticism FM is making against JKR? I disagree, I think it's quite relevant, because I don't think JKR was ignorant of the multi-contributor nature of the HPL website.)

"No, I'm not claiming the HPL is a work of parody. What I'm claiming is that it compiles information in a unique way, which is covered by copyright, and that it fairly uses the work of another author."

So... you're claiming this because you are familiar with both the HPL website's contents *and* with the HPL in manuscript form?

... No, of course you're not. Because you can't be; the publisher wouldn't even release the manuscript to the actual rightsholders for review without a court order -- a court order the issuing of which FM is decrying.

"How is Farhad Manjoo ignorant of fandom? Why is that even relevant to the discussion of copyright law?"

The fact that you DON'T KNOW how ignorance of fandom is relevant to THIS discussion of copyright law proves that you, too, are fairly ignorant of fandom. That's okay -- you're just a letter writer; you're not a journalist writing an article.

But, FM's original article decided to comment about JKR's relationship to her fandom and the way that this court case might impact the fandom, in addition to the parts about copyright law. That's why it's relevant. He went on to make other assertions in his article that he would not make if he were at all familiar with the mechanisms of fandom (for example, his absurd claim that he could not imagine how SVA might provide printed copies of the HPL website material to fans who requested it *without* entering into a probably-illegal publishing contract to produce a book to sell for profit -- well, all right, perhaps it's true that *he* could not imagine how to produce a nonprofit print fanzine; but, had he consulted any fans, he might have learned that fans have been doing that for each other for decades).

Aside from that, though -- at the heart of this case are basic issues about how a fandom relates to the rightsholder of the property around which the fandom has grown; what the fans can expect, what they hope, and what they fear. FM made some assumptions about those things -- and he got them exactly wrong. And that's why his knowledge of fandom is being criticized: don't speak on behalf of fans and what they expect and what they fear, if you don't know what you're talking about.

Fans are intensely aware of the fact that copyright and trademark hangs over their heads. For every property (book, tv show, movie) for which there is a fandom, there is also a unique relationship between the creator and/or rightsholder and the fans. Sometimes that relationship is antagonistic (Anne Rice famously demands that there be *NO* fan works created for her books.) Sometimes that relationship is very cozy (and I would submit that JKR has a fairly warm relationship with her fandom, even though they are also often the first to excoriate her). Copyright and trademark has been the bludgeon wielded by rightsholders and their lawyers for years. Sometimes it's employed in a carrot/stick way -- "I don't have to authorize this but I'm being nice, so you fans should play the way I want you to"; and sometimes, it's just the stick, as when a fan creator of a website, or of commissioned artwork, is served with a C&D order by lawyers.

For 40 years, fandom has operated under the *assumption* (not the known fact) that what they do is essentially a violation of copyright or trademark, but that if they do it in "fun", and never profit from it, they are "safe" to operate in this grey area, to have their fun and sometimes receive the praise of the rightsholders whom they admire. This assumption on fandom's part has been exploited by rightsholders, who use it to keep fandom in line, or shut it down if they desire, with threats of legal action.

But the fact is that for decades there were no legal test cases establishing case law. Fans who received C&Ds, not having money to fight in court, invariably C&Ded and/or went into hiding with their activities. The subject of copyright, fair use, the legality of transformative works -- fandom has discussed and theorized and hotly debated those topics for years. But nobody KNOWS what may happen if test cases go to court. All anyone knows is that what happens will probably depend a great deal on the nature of the test case; and that depending on what that case is, it may impact only one area of fannish experience.

As far as most fans can tell from reading the background of the SVA/RDR vs. JKR/WB case -- this is absolutely the worst test case many fans can imagine. And it is not a clear-cut assumption that fans would like SVA/RDR to win, or that their winning would be "good" for fandom.

But, whether SVA/RDR wins or loses, it will only impact fandom in certain ways, and those ways aren't actually very important to fandom. As hard as it may be for outsiders to understand, most fans aren't actually itching to profit from the work/fun they do for fandom. (Whether or not they "ought" to be is a separate question for another time.) Most fans want to continue to have their fun and share it with others of like mind, in the free-for-everyone gift-economy that fandom has been for years. They don't want a court to come out and say for sure that writing fanfiction and posting it on the internet is illegal. Most fans already assume, though, that what SVA is trying to do (publish fan work for profit) is illegal.

If Farhad Manjoo, or anyone else, wants to tackle that as a fundamental misassumption that fans are making to their own detriment -- great, examine it! But using the SVA/RDR test case as the basis for making that assertion seems to be shaky ground, because underneath the simplistic picture of the case that FM paints in his original article lies a lot of really problematic specifics, that at worst negate the arguments in their favor, and at best may be revealed as less problematic when more information comes to light.

Until we all find out what the HPL manuscript is like, we can't know whether JKR's objection to its publication is either reasonable, or legally sound. Yet, FM seems comfortable passing that judgement based on the incomplete picture that he sees. That's what I object to, along with the other inaccuracies and incomplete information in his articles.