Harry Potter and the Army of Lawyers

Great Debates
1

Widely reported, but this version is from MSNBC:

The story itself has since been pulled from the Daily News web site, so I can’t link to it.

As I understand it: Facts cannot be copyrighted, so the Daily News could provide a plot summary and expose major details. “It is a fact that such and such happens in the book.”

Whether excerpts from the book fall under fair use is a tougher question. The four factors used for determination of fair use are:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes
The Daily News obviously printed this to sell papers. News reporting is specifically mentioned in copyright law as being potential fair use, but I don’t think that overcomes the commercial motivation here. I didn’t see the actual article, but I haven’t heard of any criticism or commentary being included either. It was basically, “We got the book! Look at this sample!”

2. the nature of the copyrighted work
The book is creative as opposed to informational, and furthermore is unpublished. Both weigh against it being fair use.

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole
Two pages out of 870 is a very small portion.

4. the effect of the use upon the potential market for or value of the copyrighted work
I would say it has no negative effect. Harry Potter fans will still be buying the book. It’s possible some who were not planning to buy the book liked what they saw and changed their minds. The publisher is doing lots of blustering about how they’ve been irreparably harmed, but I don’t buy it. What damage is there?

The Daily News had the book and could have given it a scathing review without violating copyright. I imagine that would have done more damage to the marketing campaign than simply printing two pages from the book. But surely they could not be sued for a review.

Oops. From the Edmonton Journal:

Similarly in the U.K. From the Ottawa Citizen:

What is going on here? Why should the publisher have the right to control every single aspect of the public’s knowledge of the book before release? Don’t talk about spoiling the book for all the children. I’m talking legally.

Here is a spoiler for the unreleased movie Terminator 3:When Arnold first appears, he’s naked as in the previous films and obtains clothes at a male strip club.Did I just cause irreparable harm to the T3 marketing campaign? Of course not.

I don’t blame the publisher for trying to keep things secret, but the courts should not acquiese to their every demand. Whether the Daily News excerpt was fair use, I don’t know. Maybe not. But issuing an injunction to prevent revealing any details at all, as is the case in Britain and Canada, is simply ridiculous.

2

Just a minor comment:

I couldn’t resist reading your spoiler.
Actually , you did (very slightly) ruin T3 for me.

3

Perhaps you missed this part of the Edmonton Journal article:

In short, this is a contractual question, not a copyright question.

Wholesalers sign confidentiality agreements (CAs) with the publisher, in which they presumably agree to insure none of the substance of the plot leaks before the release date, and in which they also presumably agree to allow injunctive relief to prevent violations of the CA.

The only question the court was asked to answer was the extent that such contracts could be enforced against third parties once those third parties were made aware of the contract. There aren’t enough facts in the article to tell, but I wouldn’t be surprised if the wholesaler required early recipients of the book to acknowledge the CA and agree to abide by its terms. Or the publisher might be arguing that those terms are implicit between recipient and wholesaler when an early recipient gets a book to which he is aware there is an enforceable CA.

In short, the publisher isn’t saying the law should prevent all discussion of plot points; it’s saying that these particular recipients agreed to not reveal plot points and that they should be held to that agreement.

4

I wasn’t aware it was possible to enforce agreements against third parties in such a manner. The Montreal woman who purchased the book at Wal-Mart never agreed to anything, nor did the paper who rented the book from her for their review. I’m surprised if the paper can indeed be held to an agreement Wal-Mart (or their wholesaler) signed.

Even so (again from the Edmonton Journal article):

It apparently comes down to whether a review will cause irreparable harm and I just don’t see how the judge can make that conclusion. Perhaps a review outlining all the twists and turns of the plot would lessen the desire of some readers to buy the book, but if it has a few minor details, I don’t see the harm.

5

I think the argument is probably that it is an implied term for the paper that rented the book. The argument is “we made you aware of this agreement, and it was understood that when you rented it you would abide by its terms. A reasonable person in your position would expect to be bound by the CA. That requirement is implicit in our rental agreement.”

Note that the newspaper isn’t contesting on the grounds that this wasn’t part of the agreement – it’s contesting on grounds that the book had already been “published” (presumably, by being put into book form and delivered to the wholesaler) and thus the CA no longer applied. That’s a pretty weak position to argue, since such an interpretation of the term “publish” would largely defeat the whole point of the CA.

The Daily News is a different matter altogether. That is a copyright issue – the paper published a photograph of two pages of the book. The article wasn’t a summary of plot points; it used J.K. Rowling’s actual written words. **

I’m not a Canadian lawyer, but here in the States “irreparable harm” would be the standard for the availability of injunctive relief rather than monetary damages. The standard is basically “would monetary relief be insufficient to make the plaintiff whole?” In this case, it probably is – once the plot is made public, there’s no putting the genie back in the bottle, and given the speed with which information travels Rowling et al would lose all the intangible advantages of a single worldwide release date. That’s a tough thing to measure in monetary terms, so injunctive relief is probably appropriate.

Of course, if you get down to that argument, the paper has already lost on the substantive grounds. If the court is just deciding between injunctive or monetary relief, it’s already decided that some kind of relief is appropriate – and thus that the defendant did something wrong.

6

I’d say the actual harm would be minimal. Whenever I buy a book in a bookstore, I ALWAYS flip through and read at least a couple pages.