Today HP, tomorrow the world

[rivkat]

The Boston Globe has yet another story about fanfic. It's pretty insulting, in my opinion. To add injury to insult, they don't quote me, though they do quote heidi8 and Meredith McCardle, whose article about the legality of fanfic is here (scroll down; the article is in .pdf format). McCardle's article is written for either a legal or a fan audience. She says many things I agree with and some that I don't; she's clearly less comfortable with trademark law than copyright, and makes the trademark issues too complicated. (The short of it: there's not a trademark problem with fan fiction. Really.)

I have over twenty books stacked up that I ought to review and stories I ought to finish, but the Supreme Court really screwed me in my professional life by refusing to decide Nike v. Kasky, which I was planning to write about, and I need to figure out what to do about that. I already knew they were going to strike down sodomy laws, so the announcement didn't make me feel all that good. In fact, this Term was a real drag; my mom lost her prison visitation case 9-zip, and the end-of-Term cases make the Court look more moderate than it really is, which can only help Bush because people will think that the Court will keep the Republicans from going too far to the right.

At least Derek Lowe continues to make me happy: "They're advocating a mixture of aspirin, a statin, folic acid, an ACE inhibitor, a diuretic, and a beta-blocker. The idea is to go after cardiovascular disease with pretty much all the known therapeutic options at once. This is a touchingly linear approach to drug therapy. It's actually kind of sweet." A man who can think that an approach to drug therapy is cute is my kind of commentator.

Comments

[rivkat.livejournal.com]

1. So far, the argument that destroying the market = commercial has had extremely limited success -- an analogue of that argument has sometimes worked in domain name cases, where a few courts have accepted the argument that registering jewsforjesus.org to criticize Jews for Jesus is commercial use because it prevents people from reaching Jews for Jesus, but even there the courts are split, and I think this reasoning is unlikely to spread to non-domain name cases. Causing commercial harm is something that Consumer Reports can do by panning a product, but there's no way that that means CR is making "commercial use" of the product's name. Also, I think the TM owner would have a hard sell on market harm in the first place; there's really no evidence that things like Harry Potter fanfic have done anything other than whet people's appetites for more official novels.

2. It's always risky business to go to court in a fair use case, and judges are definitely influenced by concepts of moral right even when they have no formal place in US law. That said, the fair use test is pretty much anti-moral rights on this point: the less likely the copyright owner is to like what you've done, the more likely it is you've made a transformative fair use, as the Mitchell estate found out when it tried to stop Alice Randall from associating Gone with the Wind with homosexuality and miscegnation in The Wind Done Gone. My position is that moral rights are terrible ideas applied to anything other than limited-edition art, and I'm not so sure about limited editions. It comes down to what you think the law protects and ought to protect; I have some distant sympathy for an outraged JK Rowling who feels violated when her characters are perverted, but I don't think that outweighs the value to society of other people being able to play with those characters, at least noncommercially. If you (devil's advocate you) believe in moral rights, we're going to have a hard time talking because we don't share enough common premises, as is often the case when American and Continental ideas collide.