Judge Robert Patterson ruled today that the H.P. Lexicon infringes J.K. Rowling’s copyright in the Harry Potter series, while rejecting a finding of fair use. Judge Patterson granted an injunction preventing the distribution of the Harry Potter Lexicon while stating that the distribution would cause Rowling irreparable harm as a writer.
Basically the court found that the “Lexicon appropriates too much of Rowling’s creative work for its purposes as a reference guide.”
My favorite and possibly most backward line from the opinion is:
“While the Lexicon, in its current state, is not a fair use of the Harry Potter works, reference works that share the Lexicon’s purpose of aiding readers of literature generally should be encouraged rather than stifled.”
If you want to encourage these works then why rule against it… ? Well the answer is not a legal one it is an economic and emotional one. Once you get beyond the basics of the legal claims in this opinion you will notice something very disturbing. The court simply accepted many of Rowling’s bogus economic arguments and fell for her argument that the Lexicon is hurting charity. This court simply fails to grasp two things:
1. Answer speech you do not like, including commercial speech, with more speech not less
2. Monopolies are bad for the public interest – in this case they discourage the creation of new works, and expand copyright control beyond the work for purely anti-competitive reasons.
The court claims that “publication of the Lexicon would also result in harm to the charitable organization … More concretely, publication of the Lexicon would cause irreparable harm to the sales of Rowling’s companion books, all the elements of which are replicated in the Lexicon for a similar purpose. Readers would have no reason to purchase the companion books since the lexicon supersedes their value” (emphasis added page 64) This is flawed in many ways:
1. People will still buy official Rowling’s works simply because they are official, the Rowling approved brand sells books.
2. Rowling’s own companion inherently has an advantage, she can add more information or facts making it better. Competition creates a need for innovation, by killing the lexicon the court is protecting stagnation and discouraging new creativity.
3. People will buy the Rowling companion to support charity even if it is the same as the lexicon.
4. More products on the market create more interest and more hype for official goods.
This opinion is very disappointing.
Read the 68 page opinion for yourself: