Harry Potter and the Rule of Law (1)

Collegues and I were having a conversation online about the J.K. Rowling lawsuit. Someone had asked about why some had refered to this as a 'Disney-like' lawsuit. I'm not completely sure but I speculate:

I can’t help thinking that to a great extent our perception of the merits of this case are clouded by the fact we know JKR is a mega-bazillionaire. Afterall we conclude, hasn’t she made enough already? Even their front page Daily News today basically called her a whiny cry-baby. I think this is entirely unfair. Regardless of how much she has made she still has the legitimate right to claim infringement and no one should begrudge her that right because of the size of her bank account. And we shouldn't root for the underdog because they are battling the odds either. This particular case is murky for a number of reasons not least of which she appears to have approved of the web site (from which the lexicon is to derive) although it seems to me that she was only encouraging a fan.

Disney has always been known as aggressive in defense of their intellectual property and characters. They are the gold standard representatives of the theory that aggressive defense is the only form of maintaining and retaining copyright. JKR will say the lexicon is both a copy of her work AND of crap quality but like Disney she is ensuring any future defense of her copyright. After all, something much bigger may come up and she is preparing for that possibility by killing this one off. Even if she looses she is establishing a track record of defense. If she allows third parties to use her property without attempting to stop them it is easier for future judges to point at this inactivity and side with the 'infringing party'.

Also mentioned in the 'conversation' was a post from Print Is Dead guy Jeff Gomez (Admittedly his title might be better than mine). This is part of what he said but you should read the whole post:

In Rowling’s case, her books are going to sell no matter what. But if she’s allowed to succeed in stopping RDR, think about all of the books about books (not to mention books about movies and plays and music) that won’t get written as a result

I believe Jeff is off the mark here. There are numerous ways in which a copyright holder like JKR can loose a case and a third party can create 'a separate and new work' which can be used by adoring fans everywhere. There are also ways to do this by avoiding the threat of the law entirely. In this case there appears to be a question of quality and plagiarism although the Judge will decide.