Dan Hemmens has yet another go at JK Rowling
Comments
In order to post comments, you need to log in to Ferretbrain. Don't have an account? See the About Us page for more details.
FerretBrain » Articles » Shooting Fish In a Barrel » Comments
Comments on Daniel Hemmens' Shooting Fish In a Barrel
*stares* This is more like shooting one sedated fish in a specially shaped barrel that only allows enough of an opening for your bullet to enter :P
Otherwise, though? I'm heartened to see you going against JKR here. I don't know if you've seen the commentary on the case in fandom sources, but considering the ridiculous nature of what she is trying to do here, the way so many people have come out in blistering support of her actions makes me boggle. The unfounded personal attacks against the other side are even worse, especially considering that this lawsuit should not have happened. Reference works of this kind are fair use, and no one has ever been this bothered about just for that reason. If she doesn't like the Lexicon reference book, nothing stops her from finishing her own encyclopaedia and releasing it. It just makes no sense.
I like to think that I can be relied upon to come out against JK Rowling. It's practically my party trick. I'm not surprised that fandom is out in support. Hell, even Mr Vander Ark is out in support and he's the damned defendant
I don't really pay much attention to fandom, except when they agree with me or when they write something exceptionally pretty (i.e. depressingly better than JK Rowling - which is actually pretty often) ... but I'm genuinely mind-boggled that they would *agree* with her actions on this one?
Surely she doesn't have a legal leg to stand on? (Is there a a lawyer in the house?) And it's just plain pissy.
Intellectual property may well be the area of law I know least about, but I think from what I've heard about the case that the problem is something like this:
If you published and sold one of the Potter books without permission (and without paying her royalties), you'd be making money from what would be almost entirely Rowling's work and very little of your own work. If you translated the same book into Klingon and then published and sold the translation, it would be more your work and less hers, but still the plot, characters, pacing, structure, and probably even some elements of the prose style would be hers and she should probably get a substantial cut of the proceeds. If you wrote a twenty-page summary of the book (in English) and published and sold it, the balance would be further in your favour, but still you'd be using a lot of her work, so arguably she should still get a share. You see where this goes: Warners are basically arguing that all Mr Vander Ark has done is summarize and rearrange Rowling's material.
Which is kind of true. Of course that seems to have nothing to do with what Rowling herself thinks is going on. Her comments quoted above have nothing to do with the legal issues in the case as far as I can see, and are pretty imbecilic. Of course there *is* a legitimate response to the question about encyclopedias, but it's not 'encyclopedias are a con', it's 'the things an encyclopedia puts in alphabetical order are facts about the real world, which nobody had to put any effort into inventing'.
But that raises another question, which is not so much about whether Rowling is stupid (no further debate needed there) as about whether intellectual property law is stupid. Is there really such a categorical difference between the statement "Quidditch is played up on broomsticks up in the air" (http://www.hp-lexicon.org/quidditch/quidditch.html#Rules) and the statement "A cricket match is played on a grass field, roughly oval in shape" (http://en.wikipedia.org/wiki/Cricket)? In a sense one is a fictional statement and the other a factual statement; but you can put it another way and say that one is a factual statement about a fictional world and the other is a factual statement about a real world. Both are equally true, provided you read the former sentence with the implicit preface "In J.K. Rowling's 'Harry Potter' books" (which obviously you do, because that's the whole point), and they have exactly the same ratio between the amount of work / inspiration / usefulness contributed by the person making the statement and the amount of work / inspiration / usefulness contributed by the person who invented the game in question. Yet we wouldn't say that the inventor of cricket (if cricket had been invented by one specific person) should be entitled to a share of any money made by the person making the statement about cricket pitches being grassy ovals.
So in a sense Mr Vander Ark has more or less just taken the products of Rowling's mind, paraphrased them, and arranged them in a thematic rather than a narrative order. His work relies entirely on Rowling's work and no one would want to read his book if hers didn't exist. But, at the same time, that's exactly what makes the case, and the law it's based on, ridiculous. His work is so entirely reliant on hers that it in no sense undermines, subsumes, or replaces her work. It won't stop anyone buying her books, and in fact it may well encourage more people to buy them. It doesn't take away any of the money she earned by writing the books, and it doesn't stop her earning more money every time another copy is sold. What she's really demanding here is that she be paid twice for inventing Quidditch: once for writing about it in the 'Potter' books, and a second time for Mr Vander Ark writing about it in the 'Lexicon'.
The problem is that the whole idea of intellectual property is a philosophical nightmare. Of course Rowling has to be able to make money from her ideas. Otherwise writers would starve. But on the other hand the whole exercise is based on the assumption that the more money Mr Vander Ark makes from her ideas, the less money she makes from her ideas. Money is ostensibly a zero-sum game. If I give you 10, I'm 10 worse off. There appears to be no way for me to cause you to acquire my 10 without myself losing my 10. But, we cry, ideas aren't like that. Ideas are infinitely reproducible and infinitely transferable. I have an idea, I tell it to you, now we each have that idea. Where before there was one person with one idea, there are now two people with one idea each. Arithmetic says there must now be two ideas, but of course there's still only one; and yet it's not that we have half each, or that we each own a half-share in one idea: no, each of us has one whole idea. Now, if my idea is worth 10, then here is how I can give you 10 without losing 10: I give you my idea, and then you can sell it for 10, and I still have my idea, which I can also sell for 10, and now we have 10 each. But wait, it's not so simple after all, because if I give you my idea for free then you can give it to someone else for free, and he can give it to someone else for free, and she can give it to someone else for free, and pretty soon everybody in the world has free access to my idea and nobody wants to pay be 10 or even 10p for it. Although giving you my idea didn't look like it would make me any worse off, it actually has. So now how am I supposed to make a living out of having ideas?
The most obvious solution is for me to refuse to give you my idea for free. In stead I charge you 10 for it. Now I am 10 better off. I still have my idea, however, so in theory I can go on doing this indefinitely, charging people 10 each for something that I don't lose by giving it away. I could get as many 10 notes as there are people who want my idea. But there's a flaw here too, because once I've sold you my idea you can then, if you want, give it away for free, and just as before anyone can get it free and no one needs to pay me for it. It's not as bad as the first scenario, because I've still for 10 from the first sale, but once might think I was entitled to more.
The intellectual property solution is to say that nobody is allowed to give away my idea. Anyone who gets it must get it from me, and if I want you to pay 10 for it then that's the only way you're going to get it. The problem is that this is (1) very very difficult in practice to enforce and (2) entirely contrary to the whole point and essence of ideas (which is, as mentioned some time earlier, that they can be given away without being lost). It effectively seeks to make ideas as easy to deal with as physical property by making it illegal to take advantage of what makes them different from physical property.
I can't claim to have a fully developed superior solution. It would seem more in tune with the nature of ideas if I were just to charge you a sufficiently massive amount of money when I first sell you the idea that I can survive quite happily until I get my next idea and I needn't care if I never make another penny out of that first idea again. The problem is that now you've invested a massive amount of money in my idea, and I can prevent you making any of it back by simply telling my idea for free to a bunch of other people. After all, I've already had all the money I'm going to make out of that idea, so there's no reason why I shouldn't give it away for free from now on. So what's your incentive for buying the idea from me in the first place, when you can wait for some other chump to fork over the cash while you wait in the queue to get the same idea for nothing? In fact, although it may be in everyone's collective interest for the idea to get bought, it's in nobody's individual interest to buy it. So if we carry on down this line of thinking the only solution seems to be for the state, being the representative of the collective good, to use tax-payers' money to pay writers one-off lump sums to write books that can then be distributed for free (or for nothing more than the cost of producing the physical copy of the book).
I don't know. It's very hard to see a solution. But it's not hard to see that there are some real problems with the current attempt at a solution, because if there weren't then people like Mr Vander Ark wouldn't be weeping in witness-boxes.
Pretty much none of the actual ideas in Rowling's books are her own. Kid who discovers magical abilities and goes to a special school? The Worst Witch, come on down. Kid discovers that he is the last scion of a lost family and is destined to defeat the Dark Lord? Well, there's almost every epic fantasy written since the 1970s...
In copyright law, which is the specific area of the law we are dealing with here, it's not just the idea itself which is important but the presentation (in the case of the HP books, what Rowling actually sat down and wrote). If Rowling had just sat in that cafe and wrote "A boy discovers he is a wizard and goes to Wizard School; he fights the Dark Lord" on a napkin and tried to publish that nobody would buy it. What makes the Harry Potter stories valuable - and, in essence, what makes the copyright valuable - is the specific presentation, the fact that (at least in the earlier books) Rowling is actually capable of writing a good story that people are willing to pay money for.
Now, if Jill Murphy wrote The Worst Witch at the Inter-School Quiddich Match, in which the Worst Witch and her school go off to a sporting event hosted by Hogwarts and she meets Harry and Snape and the rest, she'd clearly be breaching Rowling's intellectual property rights; even though the general idea of a magical school isn't new to Rowling, and the particular style of school arguably originated with Murphy, the particular presentation of the idea we see in the Potter novels - Hogwarts, Dumbledore, Snape, rotating cast of Defence Against the Dark Arts teachers and all - originates with Rowling.
On the other hand, I'm aware of several unofficial Harry Potter publications out there (I could have sworn I saw a "Guide to the Harry Potter World" in The Works a few years ago) which quote liberally (or as liberally as the law allows, which is more than sufficient for most criticism purposes) from the books. Heck, there's even books that are all about how Harry Potter is evil and Rowling is a foul temptress leading the youth of today astray. I don't see how the Lexicon is any different from those books except for these three points:
1: It's more thorough than earlier guides to the books, at least partially because it's based on all seven books.
2: It appears to be ambiguous as to whether it is a guide to the Harry Potter books (in which case it's just reporting a bunch of facts about them, and it's on somewhat sturdier ground) or whether it is a guide to the Harry Potter universe - in short, whether it is reporting on the word of Rowling, or whether it is attempting to claim an authorial authority over the Potter universe which only Rowling can really claim to have.
3: Rowling happened to want to do an encyclopedia of the Potter world herself, and feels that the Lexicon would either make such a project redundant or make it less profitable.
I suspect that point 2 is the origin of many of the legal arguments in the case, but that point 3 is the actual motivation; it'd be pretty weak to rely on point 3 in court, since it'd put Rowling in the difficult position of trying to assert intellectual property rights on the basis of a book she hasn't actually written yet.
Of course, if Rowling had just trademarked "Harry Potter" we wouldn't be in this mess; then you couldn't put something like The Harry Potter Lexicon out without being accused of "passing off" - making out that your product is an official Harry Potter (TM) product when it isn't. Actually, for all I know she has, and these are the grounds the suit is being brought under - but I suspect she hasn't. We'd have seen far less unofficial guides to the Potterverse were that the case...
Actually, I think that's where the problems arise. Legally speaking (as far as I understand) nobody is entitled to make money from their *ideas*, they're entitled to make money from their *works*.
It pretty much has to work this way, because otherwise Jill Murphy really could sue JK Rowling for use of the "magical school" idea and Joss Whedon could sue the makers of Alias, Tru Calling, Wonderfalls and Veronica Mars for the "Teenage girl kicks ass in a TV series" idea.
IP law only protects the presentation, not the idea.
Actually, I'm not sure even that would make any difference. "McDonalds" is a registered trademark, so is "Microsoft", people write books about them all the time. That's basically where this problem seems to be coming from: you obviously have to be able to write *about* somebody else's intellectual property, otherwise there would be no such thing as literary criticism. It is, in fact, totally legitimate, for a third party to write a lexicon, guide, or criticism of any work of intellectual property. The *only* legal recourse JK could possibly have here is (a) if the poor bugger has used too much of her original text, but I doubt he has or (b) if she can show that he had somehow claimed that she endorsed the book when she didn't (you might recall that this second issue was the way that Fox News tried to sue "Lies and the Lying Liars who Tell Them").
I suspect that point 2 is the origin of many of the legal arguments in the case, but that point 3 is the actual motivation; it'd be pretty weak to rely on point 3 in court, since it'd put Rowling in the difficult position of trying to assert intellectual property rights on the basis of a book she hasn't actually written yet.
Not only is she trying to assert her IP rights over a book she hasn't written yet, she's also trying to claim that those rights include the right to prevent the publication of competing product. It really is like Jill Murphy trying to sue Rowling because the Potter books might harm sales of the Worst Witch.
Sorry to double post, but this actually highlights another important point (which admittedly we've already mentioned, but I thought I'd repeat anyway). Not only would Lord Sebastian Cricket, inventor of Cricket not be entitled to a cut of the profits from a dictionary which includes a description of a cricket pitch, he would also not be entitled to a cut of the profits of a cricket match.
Again, it comes down to the fact that you can't copyright an idea. Even if Cricket *had* been invented by one man, it would be impossible to say that the *idea* of playing a game where two teams of men hit a ball away from stumps in an effort to score runs was his and his alone. Contact juggling was pretty much invented by Michael Moschen (the guy who was David Bowie's arms in Labyrinth) but it's grown well beyond him and he has no ownership over the idea.
In fact if you *could* copyright ideas, there'd be huge enormous problems. Since Mr Moschen, for example, has lost all interest in contact juggling (he just sees it as something he did for a while in the eighties), if he maintained exclusive rights to the idea, nobody would be able to do it. If you could patent not only inventions but also the ideas *behind* those inventions, there would be nothing stopping people developing ludicrous monopolies (imagine, for example, if Microsoft held not only the patents for "Windows" and "Microsoft Word" but also for the ideas of "Operating Systems" and "Word Processors").
Lord Sebastian Cricket would hold the copyright on Lord Cricket's Concise Rules to the Cricketing Sport or whatever other works he chose to publish about the game he had invented, but he would not and should not own the game itself, because that would give him the power to decide, on a whim, that nobody was allowed to play Cricket any more.
The scary thing about this case is that Rowling is claiming for herself not only the right to be acknowledged as the creator and originator of Harry Potter, but also to actually control what is said about it and that's actually rather scary.
This is very true.
I suspect that Rowling's lawyers will present the argument that the Lexicon does not fall into the category of criticism or discussion since it does not voice any actual opinions about the matters at hand; it simply provides a long list of details about the Harry Potter universe without comment. This is frankly a somewhat shaky argument - there's plenty of, say, unofficial episode guides for TV shows which rely on providing a list of facts about the shows in question, and I've never heard of any of them being taken down - but a) she's rich, she can afford good lawyers, they'll probably dress it up a bit and b) the fact that I can't think of any instances where people have tried to stop The Unofficial Guide To (Whatever) might mean one of two things: either my memory is sloppy, and there have been instances, in which case there's precedent they can call on, or nobody's tried to prevent this sort of thing from happening before, in which case they might be hoping to set a precedent.
Yes, that's exactly how it should be. The law is rather less than clear about it :-( -- yet another argument for copyleft ;-)
- The very thought of the sheer number of thinly-disguised Potter imitations makes me cringe. At least in the current situation anyone who wants to get onto the children's fantasy bandwagon needs to be creative enough to write something different.
- If anyone could write about Potter we would have a million Rowlings making ridiculous declarations about the series instead of one. And one is more than enough.
Actually, copyright doesn't protect against thinly disguised imitations at *all* - if it did half the Fantasy novels on the market would have to be taken down for ripping off Lord of the Rings.
The reason that copyright actually *is* a blessing is that otherwise every single publishing company in the world would be cranking out Harry Potter books at a furious pace. This would then give them no reason to look for new authors of their own, it would make it impossible for smaller companies to survive in the market (Bloomsbury was only saved because it "got" Rowling - if another company had just been able to decide to publish its own copies it would have sunk years ago).
Copyright and patent law exist to protect the investments of people who spend a lot of money developing things which then become instantly reproducible. Without it, publishing would become financially non-viable.