September 10th, 2008

book - key

My thoughts on the Lexicon decision...

Let me show you them.

So those of you have been following this story presumably already know that J.K. Rowling won her lawsuit against the publisher who was going to put out a book version of the HP Lexicon website. I have been paying keen attention to this story for reasons of both fannish and professional interest: fannish, because how this case plays out could have significant implications for fan-created content both online and off, and professional because I deal with questions of copyright and fair use in my work as a college librarian almost every day. From what I could gather of the facts of the case, Rowling was in the right here, so I was pleased to see the judge rule in her favor, but I was curious to see the reasoning and learn what implications, if any, there were for fandom and the world of academia.

So I read the decision, all 68 pages of it. Which, if you have any interest in the case or in copyright issues in general, I totally recommend; the text of the decision is actually quite readable, for a legal decision, and for the most part I had no trouble following it at all. The full text is available as a PDF here. But if you just can't see wading through the whole thing, praetorianguard provides an excellent summary. (Even if you do slog through the entire decision, you should go ahead and read her summary anyway, because it explains some of the legalese. Plus, it's funny.)

The gist of the decision is that the Lexicon violates JKR and Warner Brothers' copyrights because it takes too much material from the books, in particular because it copies descriptive language straight out of the text. However, the judge specifically stated that a reference work based on a creative work is transformative rather than derivative, because it serves a different purpose from the original books (mostly -- the two "textbooks" by JKR, also named in the suit, are essentially reference books and the Lexicon is on much shakier ground with the amount of text it copied from them). The Harry Potter novels were written to tell an entertaining story; the HP Lexicon was written to serve as a reference work. From the decision:

While the Lexicon, in its current state, is not a fair use of the Harry Potter works, reference works that share the Lexicon's purpose of aiding readers generally should be encouraged rather than stifled.

The fan side of me is pleased with this language; the librarian is thrilled. If the assertion that a reference guide based on a work of literature is transformative stands up (and it may not; here is an interesting analysis that claims the judge in this case went too far), then this ruling a boon to fans of literary criticism and textual analysis everywhere. It's not that no reference book can be considered a fair use, it's just that this particular reference book doesn't meet the standard:

The transformative character of the Lexicon is diminished, however, because the Lexicon's use of the original Harry Potter works is not consistently transformative. The Lexicon's use lacks transformative character where the Lexicon entries fail to "minimize the expressive value" of the original expression. A finding of verbatim copying in excess of what is reasonably necessary diminishes a finding of a transformative use. As discussed more fully in analyzing the "amount and substantiality" factor, the Lexicon copies distinctive original language from the Harry Potter works in excess of its otherwise legitimate purpose of creating a reference guide.

It's possible that the publisher will appeal, so this may not be over yet. As always, Fandom Wank is the best place for the latest and greatest information on this case. All hail cleolinda, for reals.