Intellectual Property

Hogwarts Law School

Dispatch from a conference on copyright

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Harry Potter gets along with his fans. Some media companies fire off menacing legal threats at the first sign that someone might be doing something unauthorized with one of their characters, but J.K. Rowling and Warner—the author of the Harry Potter books and the studio behind the Harry Potter movies, respectively—have had a generally tolerant attitude toward the amateur fiction, home movies, and online guides created by the boy wizard's fan base.

So some were surprised last fall when Rowling and Warner sued to stop RDR Books from publishing Steven Vander Ark's The Harry Potter Lexicon. The Lexicon is essentially a hard-copy version of Vander Ark's website, which collates information about the Potter series; the site is filled with detailed lists of the peoples, places, spells, and creatures that inhabit Rowling's world. Much of the text was drawn directly from Rowling's books, prompting the novelist to argue that Vander Ark intends to make money by repackaging her words. It's unclear how the courts will rule, but I'm inclined to agree with Columbia Law School's Tim Wu as to how they should rule. Wu wrote in Slate that Rowling "has confused the adaptations of a work, which she does own, with discussion of her work, which she doesn't….Textually, the law gives her sway over any form in which her work may be 'recast, transformed, or adapted.' But she does not own discussion of her work—book reviews, literary criticism, or the fan guides that she's suing."

Yet even if the courts end up agreeing with Wu, Vander Ark has lost a more important battle. The Harry Potter fan community has overwhelmingly sided with Rowling, shunning Vander Ark and denouncing him with such phrases as "arrogant, egotistical, self-absorbed jerk." The reasons for this reaction are complex. In part it reflects the difference between a book sold for profit and a website offered for free. In part it reflects allegations that Vander Ark misled potential contributors into believing his book had Rowling's blessing. In part it simply reflects the fact that fans are predisposed to agree with their favorite authors. The case hasn't been decided yet, but in the court of his peers Vander Ark will be punished—is being punished—either way.

Speaking at the OnCopyright conference in Manhattan on May 1, Wu pointed out just how sharply this cuts against most people's expectations. Ordinarily we assume that the fan norms surrounding intellectual property will be looser than the letter of the law. This time, the law may be more permissive than the fans.

The conference was sponsored by the Copyright Clearance Center, a company that helps guide businesses, universities, and others through the thicket of licenses and permissions required by intellectual property law. There were four panels over the course of the day: one on copyright's collision with technology, one on copyright and society, one on copyright and the arts, and one on copyright and the law. The speakers ranged from industry figures eager to strengthen intellectual property controls to radicals ready to dump some rules into the harbor.

But the most important division on display wasn't the split between the conservatives and the reformers. It was the line that divided the law panel from all the others. The former featured three intelligent attorneys debating how the law should be interpreted and what the law should say. The latter featured artists, journalists, entrepreneurs, activists, and academics grappling with a world where people's behavior is governed much more by tools and norms than by statute books.

Kevin O'Kane, for example, is the man behind redlasso, a service that makes it easier to search for ongoing and recent TV and radio broadcasts, extract the parts you want, and drop them into the context of your choice. You could, for example, find all the references to the word "Myanmar" in the last 12 hours of TV news, pull out the appropriate clips, and add them to an online news commentary. The result, O'Kane hopes, will be an "online media center for bloggers."

There may come a day that CNN or Fox or a local broadcaster in Iowa City decides that this useful tool is a machine for piracy and takes redlasso to court. But you need only visit YouTube, Crooks and Liars, or any video-heavy blog to see that the Web already welcomes such efforts to recycle what used to be perishable content, that this enriches our ability to discuss the issues of the day, and that people across the political spectrum engage in this behavior without pause. If the law thinks they're wrong, then our norms may know something that our laws do not.

Nor did this informal borrowing begin with the Internet. On the arts panel, the novelist Jonathan Lethem spoke about the imitation and appropriation that has always been embedded in creative activities. Every artist begins by copying, he said, and some of the best—he singled out William Shakespeare and Bob Dylan—keep borrowing until the end of their life. This is part of the creative process, he argued, and it should be welcomed rather than banished.

Lethem has covered this territory before. Last year he contributed an article to Harper's called "The Ecstacy of Influence: A Plagiarism"; it not only touted the virtues of quoting and appropriating other people's work, but was itself largely stitched together from other writer's words, a fact revealed at the end of the essay when he listed the texts he had pilfered. It was a clever stunt, but it highlighted something important about creativity: not just the fact that writers draw on other people's work, but the fact that the best writers transmute those influences into something of their own. Lethem's novel Gun, With Occasional Music carries a critic's quote on the cover declaring that it "Marries Chandler's style and Philip K. Dick's vision." It's a good description: The book, a murder mystery that features talking apes and kangaroos, feels like a mash-up of Raymond Chandler's hard-boiled crime writing and Philip K. Dick's surreal science fiction. But it's impossible to imagine either Chandler or Dick producing this particular story. It's part Chandler, part Dick, and all Lethem.

The book also says something about what the world would be like without that free-flowing creative exchange. Where other dystopian novels imagine states that force individuals into a suffocating collective, the totalitarian society in Gun keeps people apart, by limiting the questions they can ask and the memories their minds can contain. The result is a world without communication and a world without a past—a world where every thought is an orphan work.

Not even the most militant copyright maximalists would consider that desirable. But even if they tried to impose such a restrictive regime, they'd be helpless in the face of technologies that make it easy to defy antiquated copyright rules, and in the face of norms that put more gentle restrictions on our behavior. The OnCopyright conference didn't give me the impression that the lawyers were on the verge of fixing America's intellectual property laws. But it did bolster my faith that we'll manage to muddle through anyway.

Jesse Walker is reason's managing editor.