One of the other key aspects is that one should not argue copyright or trademark with someone who has more money than you do. If they have enough money and enough lawyers, you will lose even if they don’t win. (That last is part of practical copyright folklore.)

Richard Stallman insists that the term “intellectual property” be abandoned because it entwines three very different strands of law as if they were based on a single concept.

Don’t know anything about the California judges, but the desire to protect software seems to have been the engine that drove the law to overreach itself. Yes, Microsoft to blame – again!

The role of each individual reader/movie-goer is miniscule compared to Rowling’s. Even the role of all the readers/movie-goers combined is less than Rowling’s. But it is not zero and it is not negligible. But it is completely ignored by copyrights and this reduces our cultural wealth for the sake of the author’s financial wealth.
I would prefer to correct this imbalance.
An author should have the right to a share of any spin-off that profits from what they have created and should have the right to suppress anything that harm what they have created. The clearest example of this would be porno knock-offs. But they should not have the right to suppress derivative cultural creation just because they want to or just because it is derivative.
I would also be willing to have more protective rules (ie the current ones) for almost all authors but more balanced ones (ie the ones I outlined above) for authors, musicians etc. who have already earned, let’s say $10 million dollars or more.

Your comments about character copyright highlight one of the great unresolved internal contradictions of US copyright jurisprudence. Copyright, we are told in every judicial opinion on the subject and in the US civil code, protects “expressions” but not “ideas”. The law creating a copyright in a literary character is entirely at odds with this notion. Character copyright is a bizarre outgrowth of trademark law, imported wrongfully into copyright jurisprudence by overreaching Hollywood judges. That’s one of the reasons that disputes like this end up being so bewildering: the legal theory behind Rowling’s position contradicts the core ideas of copyright law, even while it has unambiguous legal precedents to back it up.

If I can write a book whose text and structure bear no resemblance to Rowling’s works, but take as their protagonist a young man named Harry Potter with a strange mark on his forehead, no protectible “work” of Rowling’s has been unlawfully “copied”. A derivative work is measured by the amount of actual expression copied: short phrases are not copyrightable. The two words “Harry Potter” most certainly are not.

Of course, my “Harry Potter” novel may well be a trademark infringement, but that is an entirely different body of law, crafted to protect consumers, not authors. The legal decisions making this an infringement of copyright are laughably incoherent; in reading them, it becomes clear that the plaintiffs sought an end-run around the burdens of proving a trademark case, and the California judges decided to give them a free pass. That they’ve been followed is a disgrace to the American judiciary.

But the bottom line is that JKR has been remarkably tolerant about non-commercial uses of her characters, contrary to what sortition says.

As long as you are running a fan website, it is acceptable, and even desirable, passive admiration. Publishing a book crosses the line into unacceptable presumption to take an active, independent part.

You’re to riffle through the phone book, discover the existence of other Harry Potters and announce that Mrs. Potter came up with Harry first.

I am not a copyright lawyer, obviously, but the claim that they are ‘her’ characters doesn’t seem to me to be a good basis for argument. People are entitled to comment on, and to speculate on ‘her’ characters all they want, and it seems to me that this Lexicon is doing just that. It’s clearly transformative, won’t be confused by people with the original work, and apparently doesn’t go beyond the boundaries of fair use (as best as they can be discerned) in its use of quotations etc. There was some ambiguity about the last of these points, but the Ansible link suggests that it has been cleared up. It seems to me that if you put this together with DL’s account, the Harry Potter people are pushing a highly expansive set of claims about their intellectual property rights, at least with regard to commercial uses. It’s quite right of Lessig to push back against this. Also, I’m inclined to think PNH knows this stuff pretty well, seeing as it touches on his daily breadwinning activities.

J.K. Rowling’s motives for writing her own encyclopedia are pretty well irrelevant to the rights and wrongs of this case, although they’re clearly relevant to our assessment of her character (she seems to be a fairly decent person, as best as I can figure it out). If I rob a bank to give money to the poor, it’s not going to stop the judge from sending me to chokey if I’m caught, nor should it. This is an argument about rights (and whether they have been exceeded), not the purity of motivations.

Sortition’s comment seems to me to be off-base. As I understand it (correct me Kate or Patrick if I am wrong) the discomfort of fandom with this Lexicon stems from the fact that JKR has not gotten at all steamed up about non-commercial uses of her work, including some that obviously go way beyond the boundaries of fair use. It’s only the commercial stuff that she and her lawyers are upset about. The Lexicon project, which takes something that was once a non-profit bit of fandom, and turns it into a commercial product (while stripping out the bits that couldn’t pass muster with the lawyers) threatens to upset this happy equilibrium. I can understand why fans may take this view; I also understand why Lessig is doing what he is doing, and personally opt for the Lessig position. But the bottom line is that JKR has been remarkably tolerant about non-commercial uses of her characters, contrary to what sortition says.

dsquared – I had a bit in the previous version of this comment on the Joyce case, which has been settled in a deal that mostly favours the plaintiff. On the level of personal motivations (which should not be the level we analyse this stuff on, but which is the stuff of our gut reactions), I have to say that I completely understand where Stephen Joyce was coming from. He has the well-deserved reputation of being a first-class pain in the arse and control freak, but if some academic was speculating on the basis of bad psychoanalytic and literary theory together with strained readings of texts that a beloved family member had sexually abused his daughter, I’d do everything in my power to make that academic’s life difficult too.

Don’t know about Tolkien, but in the case of the Joyce Estate, all of those concordances and guidebooks (or at least, all those I could find on Amazon) require the co-operation of the Estate, all of them thank the estate at the start and IIRC Lessig is already engaged in litigation with Stephen James Joyce. In the case of a living author rather than an estate I think he’s got even less of a case.

I can understand if Ford wanted to keep them from putting Ford logos on the calendar (i.e. above and beyond what is on the cars being photographed), or wanted them to put a note that verifies it’s not an official Ford calendar, but it looks like that’s not all they wanted.

Btw, can someone real quick remind me what my position is supposed to be on this? Am I supposed to support intellectual property as favoring “the workers”, or should I be seeing it as a way to keep the “big corporations” in charge?

? are you 100% sure that Henry Ford invented the motor car?