gwern comments on Harry Potter and the Methods of Rationality discussion thread, part 14, chapter 82 - Less Wrong

7 Post author: FAWS 04 April 2012 02:53AM

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Comment author: Alsadius 12 April 2012 10:16:55PM 2 points [-]

5) is not a believable option, since the legalities of fanfic prohibit any conventional sort of publication, and just slapping "Book 1"/"Book 2"/etc. on top of chapter headings does very little.

The rest is good analysis, though.

Comment author: gwern 12 April 2012 10:42:00PM 3 points [-]

since the legalities of fanfic prohibit any conventional sort of publication

No, they don't. They just mean it takes a publisher with a little guts, willing to defend it under fair use grounds (in MoR's case, parody).

Comment author: komponisto 13 April 2012 04:11:39PM 1 point [-]

since the legalities of fanfic prohibit any conventional sort of publication

No, they don't. They just mean it takes a publisher with a little guts, willing to defend it under fair use grounds (in MoR's case, parody)

They would lose, and probably correctly so. If that defense worked for MoR, it could be applied to any situation where someone just made up their own story using someone else's characters, and the whole concept of copyright would be effectively abolished.

(Not that abolishing copyright wouldn't be a policy worth considering...)

Actually, in fact, it seems obvious to me that any publication at all -- "conventional" or not -- of fanfiction is blatantly illegal, just like distributing your own modified version of Microsoft Windows would be.

(Note that "is illegal" is not the same thing as "should be illegal".)

Comment author: gwern 13 April 2012 04:34:26PM 3 points [-]

They would lose, and probably correctly so. If that defense worked for MoR, it could be applied to any situation where someone just made up their own story using someone else's characters, and the whole concept of copyright would be effectively abolished.

Are you under the impression that fair use has never worked before or parody in particular? Because otherwise I don't understand why you are so certain of what you are saying.

Comment author: komponisto 13 April 2012 04:54:08PM *  3 points [-]

I think it's clear that MoR is not (merely) parody, but a literary work in its own right that happens to be derived from an existing work by someone else.

It's a kind of thing that I think ought to be allowed, but which I don't think actually is.

Comment author: gwern 13 April 2012 05:06:17PM 4 points [-]

I think it's clear that MoR is not (merely) parody, but a literary work in its own right that happens to be derived from an existing work by someone else.

Something that could be said with equal justice of The Wind Done Gone.

Comment author: TimS 13 April 2012 05:19:00PM *  3 points [-]

But see Dr. Suess Enterprises v. Penguin Books.

In brief, someone used elements of Dr. Seuss to criticize the OJ verdict. Held: not parody fair use because the target of the parody was not the infringed work.

So, how reasonable is it to say that MoR is a parody of canon!Potterverse? I honestly don't know the answer, but I suspect it would be dispositive of the fair use analysis.

Comment author: gwern 13 April 2012 05:43:00PM *  2 points [-]

How reasonable? I think pretty reasonable; MoR directly criticizes canon on numerous occasions, from the exchange rate to Hermione being Sorted into Gryffindor to Harry using random curses on Slytherins and on and on. Reading through one link on that, I see nothing about the Seuss parody parodizing Seuss, and plenty that fits MoR, eg.:

Parody achieves its status as social commentary by disparaging the original work, however slightly, by "pointing out faults, revealing hidden affectations, emphasizing weaknesses, and diminishing strengths.^1^

or

The court concluded that the infringing work broadly mimicked Dr. Seuss' characteristic style, but it did not ridicule that style. 170 The court noted that Penguin's use of the Cat's stove-pipe hat, Dr. Juice as a narrator, and a title similar to the original's title were all means of drawing attention to the new work, perhaps "to avoid the drudgery in working up something fresh."171

Finally, with regard to the purpose and character of use, the Ninth Circuit considered whether The Cat NOT in the Hat! merely superseded the Dr. Seuss originals or whether it "transformed" those works. 172 The court did not recognize any effort to create a transformative work. 173 As a result, under the first factor, the court concluded the scale tipped against fair use because the infringing work was neither a parody nor transformative. I74

...When considering a parodist's claim to fair use, a court must first determine if an infringer's work meets the threshold requirement for the defense: "whether a parodic character may reasonably be perceived. >7232 Courts have recognized parody as a work containing a discernible direct comment on the original. 233 Although the Ninth Circuit conceded Penguin's work did broadly mimic Dr. Seuss' style, it concluded that the work was not a parody because The Cat NOT in the Hat! did not target the "substance" of the original work.234

Comment author: TimS 13 April 2012 06:07:29PM *  4 points [-]

There's surely some kind of sliding scale. My HP fanfic:

Harry took the machine gun, and gunned down the Dursleys for being abusive parents. The End

is critical of something - but if it isn't the Potterverse, then it isn't parody. That doesn't mean that the work is not fair use (I think the third and fourth factors weigh heavily in my favor).

In short, I don't think that an interpretation of fair use (of which parody is the relevant type) that protects all fanfic is likely to be adopted, even if MoR was fair use of the Potterverse.

Comment author: gwern 13 April 2012 06:11:03PM 2 points [-]

In short, I don't think that an interpretation of fair use (of which parody is the relevant type) that protects all fanfic is unlikely to be adopted, even if MoR was fair use of the Potterverse.

Naturally, but we're discussing MoR here.

Comment author: [deleted] 13 April 2012 06:00:10PM 1 point [-]

Courts have recognized parody as a work containing a discernible direct comment on the original.

Thanks for the data, that's very helpful.

But imagine you had to defend MoR as parody. What would you say is MoR's discernable direct comment on the original? Would you say that this comment is leveled specifically at JKR's world? Is this comment the central aim of MoR?

Comment author: gwern 13 April 2012 06:07:54PM *  4 points [-]

What would you say is MoR's discernable direct comment on the original? Would you say that this comment is leveled specifically at JKR's world? Is this comment the central aim of MoR?

My thesis would be something like 'the world of JK's HP is ill-thought out, inconsistent, and bears a message with regards to death with characters & ideals that is morally repugnant'. This is easy to defend as Rowling has been kind enough to specifically state that the overall theme of her books is accepting death, and Eliezer has been kind enough to have Harry explicitly assail this theme.

Is it the central aim? I don't know. (I think it is, but I could be wrong.) Depends on where MoR goes. If it ends with a world transformed and enriched by use of, say, Elixir of Life and all Dementors destroyed, well, the argument practically makes itself.

Comment author: komponisto 13 April 2012 05:11:36PM 1 point [-]

Something that could be said with equal justice of The Wind Done Gone.

...and sure enough, there was a lawsuit.

Comment author: gwern 13 April 2012 05:17:20PM 3 points [-]

Which they won, paying nothing to the plaintiffs and continuing to publish The Wind Done Gone. Which is why I am using it as an example!

Comment author: komponisto 13 April 2012 05:19:32PM *  2 points [-]

No, it says they settled:

the case was settled in 2002 when Houghton Mifflin agreed to make an unspecified donation to Morehouse College in exchange for Mitchell's estate dropping the litigation.

...thus in effect purchasing the right to publish, which is what they were supposed to have done all along.

Comment author: TimS 13 April 2012 05:25:09PM 1 point [-]

Given that the Mitchell estate lost on appeal, I'm not sure the settlement after that decision is evidence of anything but nuisance payment.

Comment author: [deleted] 13 April 2012 05:23:19PM 1 point [-]

EY originally wrote the thing while (on record) attributing the characters and context to JKR, and then (on record) mentioned that JKR said she is fine with fan works and doesn't require attribution, after which he stopped.

I'm no lawyer, but I expect this means that EY is on record acknowledging his creative debt to JKR, and doing so because he thought he was legally obligated to. It seems like it would be hard to argue that MoR is fair use. This shows that the intent of the work was something the author thought was in range of her copyright, and thus not something like parody.

Comment author: gwern 13 April 2012 05:35:24PM *  2 points [-]

I'm no lawyer, but I expect this means that EY is on record acknowledging his creative debt to JKR, and doing so because he thought he was legally obligated to. It seems like it would be hard to argue that MoR is fair use. This shows that the intent of the work was something the author thought was in range of her copyright, and thus not something like parody.

This makes no sense to me.

EDIT: and specifically, acknowledging the debt is more of a good thing; from one discussion:

Whether the infringer copied the original in good faith or for a commercial interest may contribute to the court's understanding of the context of the infringement.72 Any aspect of the infringer's conduct, including whether the infringer acknowledged the copyright owner or whether the infringer sought permission, can be considered.73 Acknowledgment of a source, however, does not excuse infringement when other § 107 factors are present. 74 Additionally when the second work is a parody, the parodist is neither expected to seek nor obtain the copyright holder's permission.75 Understandably, few authors would grant permission to have their character or their work mocked.76

Comment author: [deleted] 13 April 2012 05:56:31PM 2 points [-]

I just looked up JKR's statements on fan fiction, and I got the impression that she would sue in case something were published for profit, or just published in some print medium (I suppose a book or magazine).

I don't think you could defend MoR as a parody with JKR's original books as the target. Some MoR chapters point out absurdities in JKR's work, but EY doesn't make it his business to lampoon the original series. Judging from the wiki page on fair use, this makes MoR a 'satire', and these fare much worse in fair use cases.

The point about acknowledging debt is just that EY apparently went in with the intention of publishing something within range of JKR's copyright. This would speak against an argument that the intention was parody: if the original intention were fair use parody, then why the legal disclaimers at the heading of each chapter? If that was out of respect only, then why the word 'disclaimer', and why stop doing it after JKR had given legal permission to FF writers?

Comment author: gwern 13 April 2012 07:24:12PM *  1 point [-]

The point about acknowledging debt is just that EY apparently went in with the intention of publishing something within range of JKR's copyright. This would speak against an argument that the intention was parody: if the original intention were fair use parody, then why the legal disclaimers at the heading of each chapter?

Parody is by definition 'within range of JKR's copyright'; anyone wanting to write a parody is going in with that express intention. Attribution is just common courtesy and useful metadata. Per my previous quotes, this probably only would matter to the judge as indicating that the author's intent is not malicious.

If that was out of respect only, then why the word 'disclaimer', and why stop doing it after JKR had given legal permission to FF writers?

JKR hasn't given legal permission, she's merely made some intent clear which at most, from what I recall of my classes on the topic, gives fanficcers a weak promissory estoppel. Why stop? Because he did it a few dozen times before, and the purposes have been served.

Some MoR chapters point out absurdities in JKR's work, but EY doesn't make it his business to lampoon the original series. Judging from the wiki page on fair use, this makes MoR a 'satire', and these fare much worse in fair use cases.

Exclusively focusing on criticizing canon is not necessarily helpful; original content helps pass other criterion like being a transformative use of the original and not being a replacement but a complement:

The Ninth Circuit also found Penguin's use of The Cat in the Hat non-transformative based on its conclusion that Penguin made no effort to incorporate "new expression, meaning, or message" into the secondary work.323 As a result, because market substitution was more certain, the court was willing to infer market harm under the fourth factor. 324 The Ninth Circuit, in its failure to analyze what would constitute "new expression, meaning, or message," at the very least, missed an opportunity to clarify the nature of a transformative work. This consideration was important because if The Cat NOT in the Hat! was transform ative , the first factor may not have weighed against fair use, despite the commercial character of the infringing work.325 Additionally, market substitution would be less certain and market harm might have been less readily inferred.326

...The Ninth Circuit cut short its analysis, or at least any presentation of its deliberations, regarding whether The Cat NOT in the Hat! was transformative.351 The court did not explain how the new work failed to incorporate original expression, meaning, or message.352 The court also failed to indicate how this new work would have superseded the original work.353 A full consideration of these subfactors under the analysis of purpose would have led the court to recognize the new work as transformative.354 As a transformative work, The Cat NOT in the Hat! could have been considered a fair use, after a full examination of the other statutory factors. 355

Comment author: Random832 13 April 2012 04:26:50PM 0 points [-]

It wouldn't abolish the whole concept of copyright - just characters-and-scenarios copyright, of which I am not sure what the actual legal basis it originates in is, or to what extent it has been tested in court.

Comment author: komponisto 13 April 2012 04:44:44PM 1 point [-]

Yes, I meant for the word "whole" to modify the word "concept", not the word "copyright". That is, my sentence was meant to be read as:

[T]he whole concept of copyright would be effectively abolished.

Distinguish between the scope of copyright (i.e. what kinds of items it applies to) and the force of the same (how much activity it prohibits within its scope). The emphasis of my claim was on the force rather than the scope.

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