Saturday, April 26, 2008

Off to Oz

Here is an interesting editorial by American author, Orson Scott Card (who's own works pre-date Harry Potter but carry significant similarities). He is coming from a literary point of view, which has been the point of view until the lawyers at Warner Brothers came along and saw an opportunity.

Some thoughts from here first.

J.K. Rowling continues to use the phrase that she "invented" the Harry Potter novels, not that she "wrote" them. The word "invention" is key. If Suzie Smith create a new way of dealing with the annoying issue of blowing ones nose and it's quite successful and then Kleenex turns around and starts selling it as their own - well, that's stealing someone's invention. Warner Brothers has trademarked a vast - and I do mean vast - accumulation of words from the Harry Potter series and are now claiming intellectual property over the words themselves, seeking control over those words (and not just images) for profit from slices of the pie in the exclusive use of those words and claiming the same type of protection of "invention" as one would with a new Nose Blower. Copyright laws are not making corporations enough money or control.

The other major issue here is that this is an example of a work that has been published without penalty on the internet, in fact as been lauded by the author of the Harry Potter series for its ease of use - so easy in fact, she's used it herself! But there aren't the restrictions over the internet as there in copyright laws (and if there were they aren't enforced, which sets precedent, too late!)- and there certainly aren't the international restrictions since the internet is global. There is no centralization of the internet - no Internet Czar, at least not yet.

The lawyers at Time Warner see a major threat to their troubled empire if work created on the internet is then published in traditional style in book form - since they did not intervene in the creation of the websites (and for marketing purposes that brought them even more profits, encouraged them - like the Leaky Cauldron and Mugglenet) they are now faced with a disaster if all those fan sites start publishing outside the control of the Time Warner corporation. Having dried up the cash cow of the fansites leading up to the publication of the final book, it's time to close up that pipeline and the fans can go home.

The fans have little idea what is happening - many of them grew up with Harry Potter and some are only just now graduating from college. They have been wined and dined and shown favor by Warner Brothers and have become celebrities themselves (been to Borders lately?). They are not going to wake up for twenty years and realize how they were used.

That Jo Rowling would encourage all this at the expense of her fan base - and her greatest fan - just is so sad, it seems to be a warning. There are times when the fact that Jesus called us to live simply and follow a lifestyle where the greatest are last and the last are first. He demonstrated that by the choices he made over the disciples he called - not one of them was a king, though one or two many have been wealthy (tax collector Matthew comes to mind) - their wealth did not bring them fame or respect, in fact, quite the opposite. Materialism was not a highpoint on his list of to-do's.

What causes us to loose our heads, our hearts, and our courage? Why would we gain the whole world and lose our soul, or as J.K. Rowling writes - splits our soul and it in what basically are idols, as though that will give us immortality? Perhaps she understands this better than she's let on when she was on the stand, this author of the word "horcrux" but the concept of which is as old as Exodus 20. Thou shalt have no other gods but Me. Perhaps she's struggled with this more than she's let on. And frankly, who can blame her?

Here's the editorial by author, Orson Scott Card:

Can you believe that J.K. Rowling is suing a small publisher because she claims their 10,000-copy edition of The Harry Potter Lexicon, a book about Rowling's hugely successful novel series, is just a "rearrangement" of her own material.

Rowling "feels like her words were stolen," said lawyer Dan Shallman.

Well, heck, I feel like the plot of my novel Ender's Game was stolen by J.K. Rowling.

A young kid growing up in an oppressive family situation suddenly learns that he is one of a special class of children with special abilities, who are to be educated in a remote training facility where student life is dominated by an intense game played by teams flying in midair, at which this kid turns out to be exceptionally talented and a natural leader. He trains other kids in unauthorized extra sessions, which enrages his enemies, who attack him with the intention of killing him; but he is protected by his loyal, brilliant friends and gains strength from the love of some of his family members. He is given special guidance by an older man of legendary accomplishments who previously kept the enemy at bay. He goes on to become the crucial figure in a struggle against an unseen enemy who threatens the whole world.

This paragraph lists only the most prominent similarities between Ender's Game and the Harry Potter series. My book was published in England many years before Rowling began writing about Harry Potter. Rowling was known to be reading widely in speculative fiction during the era after the publication of my book.

I can get on the stand and cry, too, Ms. Rowling, and talk about feeling "personally violated."

The difference between us is that I actually make enough money from Ender's Game to be content, without having to try to punish other people whose creativity might have been inspired by something I wrote.

Mine is not the only work that one can charge Rowling "borrowed" from. Check out this piece from a fan site, pointing out links between Harry Potter and other previous works: And don't forget the lawsuit by Nancy K. Stouffer, the author of a book entitled The Legend of Rah and the Muggles, whose hero was named "Larry Potter."

At that time, Rowling's lawyers called Stouffer's claim "frivolous."

It's true that we writers borrow words from each other – but we're supposed to admit it and not pretend we're original when we're not. I took the word ansible from Ursula K. LeGuin, and have always said so. Rowling, however, denies everything.

If Steven Vander Ark, the author of Lexicon, had written fiction that he claimed was original, when it was actually a rearrangement of ideas taken from the Harry Potter books, then she'd have a case.

But Lexicon is intended only as a reference book for people who have already paid for their copies of Rowling's books. Even though the book is not scholarly, it certainly falls within the realm of scholarly comment.

Rowling's hypocrisy is so thick I can hardly breathe: Prior to the publication of each novel, there were books about them that were no more intrusive than Lexicon. I contributed to one of them, and there was no complaint about it from Rowling or her publishers because they knew perfectly well that these fan/scholar ancillary publications were great publicity and actually boosted sales.

But now the Harry Potter series is over, and Rowling claims that her "creative work" is being "decimated."

Of course, she doesn't claim that it's the Lexicon that is harming her "creative work" (who's she borrowing from this time?); it's the lawsuit itself! And since she chose to bring the suit, whose fault is it? If she had left Vander Ark alone to publish his little book and make his little bit of money, she wouldn't be distracted from her next novel.

But no, Rowling claims Vander Ark's book "constitutes wholesale theft of 17 years of my hard work."

Seventeen years? What a crock. Apparently she includes in that total the timeframe in which she was reading – and borrowing from – the work of other writers.

On the stand, though, Rowling's chief complaint seems to be that she would do a better job of annotating and encyclopedizing her own series.

So what?

Nothing prevents her from doing exactly that – annotating and explaining her own novels. Do you think that if there were a Harry Potter Annotated by the Author, Vander Ark's book would interfere with her sales in any way?

This frivolous lawsuit puts at serious risk the entire tradition of commentary on fiction. Any student writing a paper about the Harry Potter books, any scholarly treatise about it, will certainly do everything she's complaining about.

Once you publish fiction, Ms. Rowling, anybody is free to write about it, to comment on it, and to quote liberally from it, as long as the source is cited.

Here's the irony: Vander Ark had the material for this book on his website for years, and Rowling is quoted as saying that when she needed to look up some 'fact" from her earlier books, she would sometimes "sneak into an Internet cafe while out writing and check a fact rather than go into a bookshop and buy a copy of Harry Potter."

In other words, she already had made personal use of Vander Ark's work and found it valuable. Even if it has shortcomings, she found it useful.

That means that Vander Ark created something original and useful – he added value to the product. If Rowling wants to claim that it interferes with her creativity now, she should have made that complaint back when she was using it – and giving Vander Ark an award for his website back in 2004.

Now, of course, she regrets "bitterly" having given the award.

You know what I think is going on?

Rowling has nowhere to go and nothing to do now that the Harry Potter series is over. After all her literary borrowing, she shot her wad and she's flailing about trying to come up with something to do that means anything.

Moreover, she is desperate for literary respectability. Even though she made more money than the queen or Oprah Winfrey in some years, she had to see her books pushed off the bestseller lists and consigned to a special "children's book" list. Litterateurs sneer at her work as a kind of subliterature, not really worth discussing.

It makes her insane. The money wasn't enough. She wants to be treated with respect.

At the same time, she's also surrounded by people whose primary function is to suck up to her. No doubt some of them were saying to her, "It's wrong for these other people to be exploiting what you created to make money for themselves."

She let herself be talked into being outraged over a perfectly normal publishing activity, one that she had actually made use of herself during its web incarnation.

Now she is suing somebody who has devoted years to promoting her work and making no money from his efforts – which actually helped her make some of her bazillions of dollars.

Talent does not excuse Rowling's ingratitude, her vanity, her greed, her bullying of the little guy, and her pathetic claims of emotional distress.

I fully expect that the outcome of this lawsuit will be:

1. Publication of Lexicon will go on without any problem or prejudice, because it clearly falls within the copyright law's provision for scholarly work, commentary and review.

2. Rowling will be forced to pay Steven Vander Ark's legal fees, since her suit was utterly without merit from the start.

3. People who hear about this suit will have a sour taste in their mouth about Rowling from now on. Her Cinderella story once charmed us. Her greedy evil-witch behavior now disgusts us. And her next book will be perceived as the work of that evil witch.

It's like her stupid, self-serving claim that Dumbledore was gay. She wants credit for being very up-to-date and politically correct – but she didn't have the guts to put that supposed "fact" into the actual novels, knowing that it might hurt sales.

What a pretentious, puffed-up coward. When I have a gay character in my fiction, I say so right in the book. I don't wait until after it has had all its initial sales to mention it.

Rowling has now shown herself to lack a brain, a heart and courage. Clearly, she needs to visit Oz.

Monday, April 21, 2008

Sunday, April 20, 2008

Opening up the Floodgates

BB NOTE: Here's another editorial on the current litigation by Warner Brothers against the creator of the award-winning HP Lexicon.

We're reminded of another editorial by James E. Groves where he quotes a letter from George Grant Elmslie to Frank Lloyd Wright:

Why not, in the years of your great maturity, exhale a modicum of kindliness to others, endeavoring to do their bit? No one can afford it so well as yourself. But alas, you are not endowed with so human an element, only with a curious quality of vanity, and a rather vulgar and childish egotism. You seem to have it in your mind that you yourself do your work, whereas the impulses are much deeper and more universal than the mere ego which you adore.
Here is the editorial by Marina Hyde of The Guardian:

Quite unexpectedly, the true original in the JK Rowling copyright trial is turning out to be the judge. "It has been brought home to me in the last 20 years," mused Judge Robert Patterson this week, "that litigation is not always the best way to solve things." If this seems a faintly unusual utterance for a man in his line of work, it is all the more so for having been made in his courtroom in New York, a city not known for its aversion to dragging lawyers into every aspect of the human drama. It is a town in which people have sued themselves - usually successfully. A couple of weeks ago you could have read about a man suing a Manhattan strip club over claims that a lap dancer's shoe caught him in the eye.

Though they have been spared any collisions with perspex footwear, Ms Rowling and Warner Bros, who make the Harry Potter movies, are suing to block publication of the The Harry Potter Lexicon, an encyclopedia of her wizarding world based on a long-established fan website of the same name. Its creator, one Steve Vander Ark, wept in court after Rowling accused him of "constant pilfering" and "utter laziness". On the other hand, she did concede she had previously given an award to the site, and used it as a fact-checking resource. There were tears on her part too, and it all seemed completely unnecessary.

Of course, it wouldn't be the first time that Warner Bros has been involved in a pettily protectionist copyright case. Do let's recall that brilliant letter Groucho Marx penned to the studio - makers of Casablanca - after he received an "ominous legal document" warning the Marxes off calling their movie A Night in Casablanca. "I had no idea that the city of Casablanca belonged exclusively to Warner Brothers," he deadpanned. "I am sure that the average movie fan could learn in time to distinguish between Ingrid Bergman and Harpo ... What about Warner Brothers? Do you own that too? You probably have the right to use the name Warner, but what about the name Brothers? Professionally, we were brothers long before you ..."

The case was eventually dropped. And it came to pass that moviegoers were indeed perfectly able to distinguish between Ingrid and Harpo - just as one suspects Harry Potter fans will be able to distinguish between JK Rowling's work and that of Mr Vander Ark.

We could all use a guide as to how the digital revolution has changed the world, but one safe-ish bet is to trust that quality rises to the top, and no matter how many Harry Potter fan "tributes" are sloshing about, interest in them will be dwarfed by that in the genuine article. What on earth is the difference between this stuff being on the internet or available to purchase in a book? The author might aver that in the latter case, money is being made by someone other than her - but the website has long carried advertising, so that seems moot. Vander Ark's publisher wanted a print run of 10,000; were Rowling to publish a lexicon, the first print run has been estimated at 3m.

"I believe the floodgates will open," she said this week, as though this sort of fan fiction could possibly be a problem for anyone other than creators of vast global phenomena. "I see this as an incredibly important case."

Alas, the judge was less convinced. In fact, in the course of advising the parties to settle, he referenced Jarndyce and Jarndyce, the long-running case featured in Bleak House that has become a byword for pointless and interminable litigation. He appears to have done so without requesting official permission from the estate of Charles Dickens. Judge Patterson confessed that he had enountered so many neologisms when reading one Harry Potter volume that he found it "gibberish" - marking himself out as one of that rare breed of adults who do not read these children's books on public transport wearing a moony expression. They opt for the special adult covers, or what we might call "the enabler edition".

As for Ms Rowling's argument that her work is being "debased", that position may be very compromised by this time next year, because she has given her blessing to the construction of a Harry Potter theme park in bookish Orlando, Florida. Bertie Bott's Tenth Circle of Hell ... I'm so sorry, The Wizarding World of Harry Potter will open next year, and the trailer website promises the chance to visit "Hogsmeade TM" and Hogwarts TM Castle", among other zones "inspired by" the Harry Potter books.

This, says the official blurb, "will provide fans with another way to experience the world beyond the books and films". And so it will: as some injection-moulded theme park, punctuated by those endless Disney-esque stands selling supersized fast food, and attempts to chisel cash out of you - or "experiential shops", as they have it. So when JK Rowling takes her first spin on the Cruciatus-a-Coaster, or whatever the big thrill ride will be called, here's hoping she looks back on Mr Vander Ark, and realises his modest fan project was not quite as ghastly as she made out.

Thursday, April 17, 2008

JK Rowling Appeals To Judge's Emotional Side, Rather Than A Real Legal Argument Over Potter Guidebook

From here.

From the apparently,-her-fiction-extends-to-the-courtroom dept

Earlier this year, we wrote about how J.K. Rowling's lawsuit against the publishers of a guidebook about Harry Potter's universe was extremely misguided. That lawsuit got a lot more attention Tuesday, as Rowling herself showed up in court to play an emotional, rather than legal, strategy. The NY Times even reports that she was "stoically holding back tears." Cry me a river. Rowling is basically trying to get copyright law to do a lot more than it is intended to do -- and all of her emotional bunk doesn't change that. Claiming that the "stress and heartache" of such a publication had hurt her creativity for the last month seems excessively questionable. Furthermore, it doesn't change the fact that a derivative work, such as this guidebook, doesn't violate copyright. There are lot of things that cause me stress and heartache and which might make me lose my concentration. It doesn't make them illegal.

It appears that the publisher's lawyer had some fun, pointing out that Rowling didn't seem to have that same sort of stress and heartache when she gave an award to the website that "The Harry Potter Lexicon" came from. And, when presented with evidence of how the book took Harry Potter details and did more with them (making them more useful), Rowling tossed out the following: "This is theft. Wholesale theft." Well, no, it's not. If it were anything, it would be infringement (not theft), but more importantly, it wasn't about republishing the content, but making it more useful. It's the same argument we discussed recently with people overestimating the value of the content, and underestimating the value of the service of making it useful. The most damning point might be that Rowling herself in the past admitted to using the lexicon to check up on facts she didn't remember.

However, the real key point that Rowling went back to again and again in her complaint is that she just didn't think the quality of the Lexicon was very good. That seems like a bizarre complaint, as copyright has nothing to do with quality. In fact, as the publisher's lawyer asked, "You feel it's your responsibility to prevent people from paying their hard-earned cash for things you don't like?" At which point, she switched arguments again, reverting to the claim that it was "theft." Of course, if she really thinks that the book is awful, there's a really easy solution: to come out with her own version of a guidebook. Surely, people would be a lot more interested in buying the "official" version, written with Rowling's approval, than some fan-created one. In fact, Rowling admits that she's been thinking of doing exactly that (and throws in the totally separate from the legal issues, but good for an emotional tug, claim that she would donate all proceeds to charity). Of course, there's nothing actually stopping her from competing, other than what appears to be her own unwillingness to actually have to compete for readers.

Read it all here - make sure to read the comments as well.

Wednesday, April 16, 2008

Wall Street Journal Blog: Potter Trial: On Last Day, Defense Outshines Rowling

From here.

Even by the judge’s own admission, the Potter case could go either way. But at the close of today’s session, which concluded a three-day trial, the defense appeared to score some serious points. Here’s what happened:

Is “Weak Waggishness” a Legal Conclusion? The plaintiffs (author J.K. Rowling and Warner Bros.) called their literature expert, Jeri Johnson, a “senior tutor” (that’s like an academic dean) from Oxford. Johnson, whose title was constantly confused by the lawyers — mis-addressing her alternatively as Don, Dean, and Doctor (she has no doctorate) — testified in broad generalities, concluding that entries in the Lexicon don’t add new “layers of meaning” to Rowling’s novels, and merely rearrange Rowling’s intellectual “furniture.”

Unimpressed, Judge Robert Patterson interrupted. “It’s not helpful testimony because it draws conclusions without specifics,” he said. “I can’t simply take the expert’s opinion as my own.”

Then, when David Hammer — lead attorney for defendant publisher RDR who handled every witness examination — crossed Johnson, her testimony simply unraveled.

Hammer pressed Johnson on her previous statements that the H.P. Lexicon is “weak waggishness,” that its jokes are “facetious,” “condescending in the extreme” and amount to “tedious jocularity.” Hammer got Johnson to agree that what’s obvious or facile to an academic dean at Oxford might not be so to children — presumably the Lexicon’s main audience. He asked: Could a work be useful to a 10 year-old even if it’s not something she would classify as a work of academic scholarship? “Yes,” she said. “No more questions,” he said.

Does the Lexicon Take the Best Crumbs of Rowling’s Cake? The problem of generalities continued to plague the plaintiffs when Rowling, the first witness in the case, took the stand in rebuttal as the trial’s final witness. Comparing her novels to a cake, Rowling claimed that the Lexicon takes all the best “crumbs,” repackages them and sells them for “entertainment value.”

Again, Judge Patterson interrupted, and addressed Rowling directly. “Can you imagine anyone reading [the Lexicon] for entertainment value?”

“No,” she replied. “But, without seeming arrogant or vain, there are entertaining things in it — and I wrote them.” Rowling went on to say that, just because she’s been successful, the law shouldn’t grant her less copyright protection. And, if the case is decided in RDR’s favor, she argued, borrowing law school cliches, that it will be a “slippery slope,” “floodgates will open,” “a precedent will be set,” and anyone will be able to “lift an author’s work” and present it as their own.

Law students, refresh our memory, but don’t the profs caution against the slippery slope argument, on the theory that it’s the job of judges and lawmakers to draw lines?

Maybe I Need a Reference Guide for This Case: That was Judge Patterson’s commentary at the close of testimony. Again, he urged the parties to consider settlement, reminding them that fair use is a “murky area” of law. Hammer then requested the opportunity to make a closing statement, which was a good call because his co-counsel, Anthony Falzone, delivered a strong one.

Rowling’s lawyer, O’Melveny’s Dale Cendali, emphasized their main theme, that the Lexicon “takes too much and does too little” but offered little in the way of specifics.

The defense’s Anthony Falzone, a lecturer at Stanford law a who hadn’t spoken since his opening statement, invoked a professorial tone and led the judge through a thorough analysis of RDR’s case. Synthesis and distillation is what makes the Lexicon “tranformative,” he argued. “Quality shouldn’t matter,” he emphasized. If the Lexicon is lousy, Falzone concluded, the answer is not to suppress it, but for Rowling to write her own.

LB’ers: Therein lies the trial’s narrative arc, short of the judge’s decision. Which way should he rule?