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Harry Potter case brings the law into Internet Age

  • Story Highlights
  • Author J.K. Rowling sues online fan over rights to all things Harry Potter
  • Case could help bring copyright laws in step with Internet Age
  • Judge says case is a close call, urges parties to settle
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By Sunny Hostin
CNN
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Sunny Hostin is a legal analyst on "American Morning."

NEW YORK (CNN) -- It's a battle worthy of Harry Potter himself.

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J.K. Rowling, author of the Harry Potter books, leaves a federal court in New York City.

His creator, author J.K. Rowling, is locked in a courtroom fight not with an evil wizard but with one of her biggest fans, a former librarian from Michigan named Steven Vander Ark.

Rowling is suing to stop the publication of the "Harry Potter Lexicon," an encyclopedia authored by Voldemort -- I mean, Vander Ark -- that Rowling claims is a wholesale theft of her work.

The encyclopedia is an offshoot of Vander Ark's long-popular fan Web site, which details the world of Harry Potter, replete with magic spells, potions and quidditch rules. Even Rowling has admitted that she was a fan of the site. Video Watch the players state their cases »

"This is such a great site that I have been known to 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 (which is embarrassing). A Web site for the dangerously obsessive; my natural home," she said in a quote picked up by news organizations around the world.

Alas, she's not such a big fan anymore. Not since Vander Ark decided to turn the Web site into a book. Under the marketing plan, the publisher was initially to print 10,000 copies selling for $24.95, beginning last November.

(In the interest of full disclosure, Warner Bros., which is part of CNN's corporate family, is also suing the book's publisher.)

Many Potter fans are crying foul. Lynn, from Philadelphia, Pennsylvania, commented on the Times of London's online edition: "It seems these Web sites have promoted and publicized her works, and followed her every move like a little puppy dog and that was fine so long as she made the money. She wrote a good story, but her books are hardly great works of literature. She needs to get a life now and perhaps not be so flattered by herself. Work on another book, have a cup of tea, move on."

Rowling is a billionaire and Vander Ark is a mere muggle: a librarian. The Web site Salary Wizard lists the expected salary for a typical librarian in the United States as $53,861. But Rowling says it is not about the money, it's about control.

"The book at the heart of this case has overstepped a boundary so unreasonably that I have been forced, regretfully, to take legal action," she said in a statement as she took the case into a New York courtroom.

"If this book is published, it will open the floodgates for anyone to lift an author's work and present it as their own," Rowling said. "But if it is not published, that will be a boon not only to all who create original works, but to all who enjoy those works."

Paul Callan, professor of Media Law at Seton Hall University, thinks she has a case. He said, "I think it's a radically different situation than a free Web site that is just there to help fans. This is a crass attempt to make money off of the creativity of a very successful author."

But Professor Tim Wu of Columbia University law School said Vander Ark (and other creators of fan Web sites like the Lexicon, for that matter) is an author in his own right. "These may not be authors like Rowling, who are going to become millionaires. But I think, however humble, they are they deserve a little respect, and that's where I think the law needs to go."

Most lawyers agree -- with both professors. That is because this is an extremely close call on the law, almost a toss-up, in my view. Even U.S. District Court Judge Robert Patterson, who is deciding the case, said so, urging the parties to settle. "This case is in a murky state of the law," said Patterson. "I've listened to the parties and heard them. I'm not sure you couldn't settle even now, if you listen to what's being said."

So, why is this legal question so murky?

Most likely, the law simply hasn't caught up with the Internet. The Copyright Act of 1976, enacted way before the advent of the Internet and the fan-based Web sites, bestows copyright owners with control of their creative work. A copyright is supposed to protect its owner, and thus, only the author can authorize others to reproduce the work. But that right is not unfettered, as many think. One of the more important limitations is the doctrine of "fair use."

The law set out four factors to be considered in determining whether a use is fair:

  • The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
  • The nature of the copyrighted work.
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  • The effect of the use upon the potential market for or value of the copyrighted work.
  • The distinction between what is "fair use" and copyright infringement is unclear. And even acknowledging the source of the copyrighted material (which the Lexicon does) is no substitute for obtaining permission. Permission that Vander Ark apparently did not get but curiously demands of those wishing to "copy" his "work."

    That's right, "The Harry Potter Lexicon" has a copyright, too.

    This is not a new battle. President Ford fought it 30 years ago. In 1977, he contracted with Harper & Row to publish his memoirs, "A Time to Heal: The Autobiography of Gerald R. Ford, " a 30,000-word tome. Of course, what was of great interest to all was a chapter discussing why he pardoned former President Nixon.

    The agreement gave Harper & Row the exclusive right to license prepublication excerpts. In 1979 (before there was a CNN), Harper negotiated a deal with Time magazine (now CNN coporate kin) for the right to excerpt 7,500 words on the pardon. Shortly before the Time article's scheduled release, an unidentified source provided The Nation magazine with the unpublished Ford manuscript. The Nation wrote a 2,250 word article, using at least 300 words lifted directly from the manuscript, scooping Time.

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    Time canceled its article and refused to pay Harper under the contract. Harper immediately sued The Nation, and the case went all the way to the Supreme Court. Harper's argument? No fair! No fair use, that is. And the Supremes agreed.

    So what will happen in the next chapter of the Harry Potter legal saga? A decision in the case is not expected until after May 9. Whatever the outcome, we could be witnessing a precedent-setting case about creativity and control. E-mail to a friend E-mail to a friend

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