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gwern comments on Harry Potter and the Methods of Rationality discussion thread, part 14, chapter 82 - Less Wrong
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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".)
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.
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.
Something that could be said with equal justice of The Wind Done Gone.
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.
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.:
or
There's surely some kind of sliding scale. My HP fanfic:
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.
Naturally, but we're discussing MoR here.
As I was trying to say, it is hard to articulate a test that is both (1) sufficiently clear ex ante and (2) correctly divides works like MoR from the mass of fanfic. Specifically, I doubt that there is sufficient consensus on where the dividing line should be.
And in general, the major critique of fair use is how unpredictable it is in practice.
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?
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.
That does sound plausible, thanks. My sense is that MoR is written with the aim of demonstrating rationalist principles and cognitive biases. Many (maybe all?) of the chapters are titled so as to indicate the principle or biases they discuss. I see your point about death, but I guess I get the impression that the structure of the work is centered around educating people in a certain philosophy. That said, one of the fair use categories is 'educational'.
It can do both - it's not just asserting that 'death is bad, mmkay?', but explaining/demonstrating the facts & reasoning which lead to that conclusion so you understand why death is bad.
(Somewhat like how canon sort of tries to justify death: fearing death makes you do bad things and yields a fate worse than death, to state it baldly.)
...and sure enough, there was a lawsuit.
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!
No, it says they settled:
...thus in effect purchasing the right to publish, which is what they were supposed to have done all along.
Given that the Mitchell estate lost on appeal, I'm not sure the settlement after that decision is evidence of anything but nuisance payment.
As I understand it, that was an appeal of an injunction, not the merits of the case (despite the WIkipedia article's implication that it was a ruling on the merits).
Is there a legal distinction between a "nuisance payment" and an ordinary settlement?
When a court looks at the binding precedent of Suntrust v. Houghton Mifflin in which fair use and parody specifically was upheld for novels, will they care about a settlement in which the plaintiff received not one penny? I don't think that's how precedents work...
Injunctions are decided in part by whether there is a reasonable likelihood of success on the merits. Saying that one isn't entitled to injunction often means that the court thinks you will lose if the case went to final judgment. In this case, the appellate court directly addressed the fair use issue. Text of decision here
If I'm a doctor, and you sue me for medical malpractice, and we settle for $5 million (the cost of treating your injuries) - probably not nuisance settlement. Same amount of injury, but we settle for $5,000 - that's "go away so I don't need to spend more on legal fees." (A more realistic Pascal's mugging).
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.
This makes no sense to me.
EDIT: and specifically, acknowledging the debt is more of a good thing; from one discussion:
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?
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.
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.
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:
On the issue of transformation, I can now see how a case would be made. Thanks for the post.