Fairly Useful

Harry Potter vs. Lexicon, In Search of a Golden Ratio

The Harry Potter Fair Use Case is actually a little bit boring. As everyone who is ever likely to read this blog already knows, British author J.K. Rowling and her film producer, Warner Brothers Entertainment, are suing RDR Books, a small Michigan publisher, to stop the publication of the Harry Potter Lexicon by Steven Vander Ark Ark.

Rowling sees the H.P. Lexicon as “little more than an alphabetized form of plagiarism.” She claims that Vander Ark has merely lifted large portions of her own language without acknowledgment. The publisher, of course, takes a different view of the facts. RDR’s lawyers defend the H.P. Lexicon as an independent transformative piece of scholarship, similar to a Shakespeare concordance or the Encyclopedia Britannica.

The case is boring from a fair use perspective because it should all turn on a pretty narrow interpretation of the facts. Two questions will decide the case: (1) How much has Steven Vander Ark actually taken? (2) What has he actually added in substance or selection and arrangement? The legality of the H.P. Lexicon or similar indexes such as the Lostpedia ultimately turns on the degree to with the new work is transformative. IMHO merely shuffling up seven volumes of the H.P. series into alphabetical order is insufficiently creative to justify fair use. On the other hand if the court determines that Vander Ark has added significant original material, arrangement and selection, he has a very strong claim to fair use.

It is somewhat trite to observe that Rowling’s ownership of her expression should not give her a veto over subsequent discussion of that expression. The (boring) factual question this case presents is essentially, what is the ratio of original H.P. material compared to lexicographic contribution? 

The court filings for the case are available at justia.com

Matthew Sag

Copyright in State Laws

Ars Technia reports that the State of Oregon is claiming copyright over that state's Revised Statutes. The statutes are available on the website Justia.

Oregon's Legislative Counsel, Dexter Johnson, claims that this amounts to infringement because it copies not only the text of the law, but also the "arrangement and subject-matter compilation of Oregon statutory law, the prefatory and explanatory notes, the leadlines and numbering for each statutory section, the tables, index and annotations and other such incidents."

What ever happened to the public interest in knowing the law?

The Phony International Case Against Fair Use

Just in case you missed it, Bill Patry's recent post, "Fair Use, the Three-Step Test, and the Counter-Reformation" on the international dimension in the fair use debate is a must read.

Patry argues that there is a "counter-reformation movement afoot in the world of copyright" which is engaged in a whispering campaign agianst fair use. He describes the assertion that the fair use doctrine in the U.S. is incompatible with the Berne Three-Step test as "Baloney." I could not agree more.

U.S. News & World Report IP Rankings

For whatever it's worth, the US News 2008 IP Rankings are as follows (overall US News ranking)

1. University of California, Berkeley (6)

2. Stanford University (2)

3. George Washington University (20)

4. Columbia University (4)

5. Franklin Pierce Law Center (n/a)

6. Duke University (12)

7. University of Houston (55)

8. Santa Clara University (77)

9. Boston University (21)

10. Illinois Institute of Technology (Chicago Kent) (66)

11. DePaul University College of Law (88)

11. New York University School of Law (5)

11. University of Michigan--Ann Arbor (9)

14. Yeshiva University (Cardozo) (55)

15. John Marshall Law School (n/a)

16. University of California--Los Angeles (16)

17. Harvard University (2)

17. University of Minnesota--Twin Cities (22)

19. Georgetown University (17)

20. University of Washington (30)

According to US News "These specialty rankings are based solely on votes by legal educators who nominated up to 15 schools in each field. Legal educators chosen were a selection of those listed in the Association of American Law Schools Directory of Law Teachers 2005-2006 as currently teaching."

Notice how they don't claim that it was a random selection.

Matthew Sag

Israel's fair use law

Johnathon Band, a copyright lawyer in Washington, D.C., and an adjunct professor at the Georgetown University Law Center has written an article for the Jerusalem Post in praise of Isreal's adoption of an american style fair use law.

Band argues that the adoption of fair use, part of a series of copyright reforms passed by the Knesset In November 2007, will ensure that Israel remains among the world's technology leaders. I agree with Band's main contention, that a flexible fair use doctrine is vital to preserving a balance between the rights of authors and the public in a period of constant technological evolution.

Band's observations on the political economy of this issue in Israel are particularly interesting:

When the fair use provision was pending before the Economics Committee, 16 US entities, including Google, Yahoo!, and the American Library Association, sent a letter to Chairman Kahlon supporting enactment of the provision. These entities believe that adoption of fair use provisions in domestic copyright laws around the world is necessary for the development of a global information economy.

At the same time, US entertainment interests and their Israeli affiliates opposed the fair use provision. They in essence feared that Israeli courts were not sophisticated enough to apply the fair use doctrine properly.

Matthew Sag

Rowling v. RDR Books Trial Set For April 14

This is slightly old news, but just in case you missed it, the Rowling v. RDR Books trial has been set for April 14, 2008. The trial will be open to the public, and will be conducted before the Honorable Robert P. Patterson in courtroom 24 of the Daniel Patrick Moynihan United States Courthouse, 500 Pearl St., New York, NY 10007.

I have not read through the materials yet but the key question for me is: have the defendants simply taken the contents of the HP series and reorganized it by subject rather than chronologically? If so, the author's case is pretty strong, if not, she may struggle to establish substantial similarity. the fair use issues can only be addressed after substantial similarity has been established.

While I believe there are many categorical instances of fair use, this case will turn on a very close analysis of the facts, so its hard to say more without reviewing the manuscript.

See http://cyberlaw.stanford.edu/case/rowling-v-rdr-books for regular updates.

Don't Cite Me Bro - Update

Deven Desai's forthcoming article Property, Persona, and Preservation is now available without the "do not cite..." footer. The footer was not intended and was merely a remnant of an earlier version. My thanks to Deven for (a) appreciating the irony referred to in my previous post and (b) displaying a sense of humor.

"Don't Cite Me Bro!"

Something strange is happening in the legal academy. Literally hundreds of law professors are posting their papers on the ssrn website where they can be accessed by the public, but at the same time publicly proclaiming “DO NOT CITE OR CIRCULATE WITHOUT PERMISSION.” A quick search of the ssrn website for the expressions locates 2080 occurences of "do not cite" and 840 of "do not cite" + "without permission".

Take for example a recent post by Deven Desai on Concurring Opinions. In his post, Deven offers us preview of his forthcoming article Property, Persona, and Preservation, which addresses questions such as, who owns your emails, blog entries, FaceBook pages when you die? Intrigued by this teaser description I followed the links to download Property, Persona, and Preservation only to find that the all-too-common “DRAFT – DO NOT CITE OR CIRCULATE WITHOUT PERMISSION” footer staring at me from the bottom of the first page.

Here is my dilemma. Suppose I read the paper and discovered some fact or concept relevant to the paper I am writing at the moment. I would have the option of (1) committing plagiarism by discussing the fact/idea without attribution or (2) ignoring the footer and giving Deven due recognition. (3) I could simply fail to discuss some particular compelling fact or idea, but that hardly seems satisfactory.

Faced with three unappealing alternatives, I chose a fourth. I simply stopped reading the paper when I reached the “don’t cite me, bro!” footer. It was, I concluded, better to remain ignorant than to risk obtaining knowledge that would be so encumbered.

The “don’t cite me” footer is the academic equivalent of the MBL and NFL warnings instructing us that “accounts and descriptions of this game may not be disseminated”: i.e. watch the game, but don’t talk about it afterwards, or ever.

If I had been able to read Deven’s article I might now observe some irony between his general theme and the application of the odious footer. However, given that such an observation might be seen as an unauthorized citation, I decided to merely assume the contents of Deven’s paper and write this blog post without the benefit of having read it.

Just to be clear, Deven Desai is a scholar who I both like and respect. I have singled him out quite unfairly in this post because I know that he has a sense of humor. Now that I am done with this post I plan to read Property, Persona, and Preservation, I recomend it (on faith) to you as well.

Please feel free to cite and circulate this post.

Matthew Sag

PS: something very odd happend to the text when I posted initially posted this. Hopefuly it makes more sense now. 

Michael Savage lawsuit update

According to the San Francisco Chronical: "A federal judge said Friday she's inclined to dismiss a lawsuit by conservative radio talk show host Michael Savage against a Muslim rights group that reprinted his attacks against Islam and called for an advertising boycott." See Judge ready to dismiss Michael Savage lawsuit, by Bob Egelko, Chronicle Staff Writer Saturday, March 8, 2008. See my previous post "Self-Defense and Fair Use: Savage v. Council on American-Islamic Relations", for more details.

Matthew Sag

Turnitin is fair use

According to a press release I just was on PR Newswire, a United States District Court judge in Virginia has granted summary judgment in favor of the defendant iParadigms in relation to their Turnitin(R) Plagiarism Detection Service.

The case, A.V. et. al v. iParadigms, LLC, No.07-293 (E.D. Va. 2007) began when four high school students complained about their school’s practice of checking papers for plagiarism using the web-based plagiarism detection service. The students claimed that their copyright in their papers was being violated because papers submitted to Turnitin are incorporated into the Turnitin database to prevent future collusion.

I have not seen the court’s decision yet, but the outcome seems correct as a matter of copyright law and common sense (which do not always coincide). My understanding is that iParadigms also based their defense on a contractual argument. iParadigms copying should be considered fair use in spite of the fact that they are a commercial entity copying the entirety of the plaintiff’s work (two factors that in some cases suggest no fair use should be found).

The critical reason why iParadigms should benefit from fair use in this case is that although they are copying the work, they are not using the work for its expressive value. In fact, works in the database will never be read by a human except to confirm the computer’s assessment that one work is a copy of another. The students here suffer no loss of control of their expressive works; they just don’t get to control the use of the works as data for a plagiarism detection algorithm. In essence then, this case is about whether authors get the exclusive right to control the use of meta-data relating to their works, as such it has significance that goes well beyond this specific application.

I am tackling the issue of the non-expressive use of expressive works more generally in a forthcoming article.

Matthew Sag