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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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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.)
I know it's a pain, but could you point me to a chapter in which the badness of death is argued for? I thought to look in 'pretending to be wise', but the badness of death was very much assumed there. There's a diagnosis of Dumbledore's view on death as being a reaction to fear, but that's obviously not a valid argument against his position, or a valid argument in support of the view that death is bad.
Also, what does the topic of death have to do with the stanford prison experiments, the fundamental attribution error, the scientific method, the efficient market hypothesis, delayed gratification, Bayes theorem, Dominance hierarchies, locating the hypothesis, etc.? These chapters, for the most part, just don't discuss death at all.
ETA:
Hmm, should I be worried that I think this is right? It seems straightforward to me, if there's any such thing as courage: to be courageous is ultimately to value some good over your own life. If this valuation is rational, than fear of death can make you choose your life over the good thing, and that's bad. And it can lead to a fate worse than death: namely, your being alive and the good thing not being achieved.
I don't think you're trying very hard here.
Privileging the hypothesis of a meaningful afterlife rather than Occam's razor that it doesn't exist or it is the same as ghosts and photographs. (This is one argument against death being good: the wizarding world is in a vastly epistemically superior position to Muggles as far as evidence for life after death goes, but Harry pokes holes in it anyway.)
The mechanisms by which religion and other sadistic beliefs can spread.
Do I really need to explain this one?
Useful for having the patient to investigate and hold off on conclusions (which lead to confirmation bias & backfire effects - you missed those).
That one's just criticizing canon's worldbuilding. (I think. Imaginative suggestions about how that could be related are welcome - perhaps an argument from silence that if the afterlife existed the market would be exploiting it somehow?)
Okay, against an opponent who says that death is good because there is a good afterlife, I can see how this one would work. That's not an argument that death is bad, of course, or clearly an argument against 'accepting death' (whatever JKR meant by that), but it's progress. The chapter itself doesn't mention death at all though.
And your thought is that it's 'sadistic beliefs' that teach that death is not bad? Why does explaining these mechanisms show that death is bad? I'm afraid this seems very indirect to me.
Yes, that one especially, if you have the time and inclination. I recognize that I'm imposing on you here.
The question was, 'how does this relate to the thesis that death is bad'? I mean, if we think death is bad, then in some sense we could take any good epistemic principle as relating to that thesis, insofar as good epistemic principles relate to true beliefs. Is this as direct as we can get?
...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...
No, settlements are not precedent, only court rulings are. The point is that merits of this case were never ruled upon by a court. The appeals court ruling in Suntrust was about the injunction that had been granted, not the merits. So, yes, the next time someone sues over this in the Eleventh Circuit, there won't be a preliminary injunction granted, and whatever work is being disputed will able to be published until the case is resolved by a jury (or settlement). But that doesn't bind how the jury will rule. And it certainly doesn't bind other circuits -- in fact, a court in a different circuit could even issue an injunction, in which case there would probably be a Supreme Court case about the injunction issue.
EDIT: To put it succinctly: the precedent is "the book can be published until the case is decided", not "writing a new novel using someone else's characters constitutes fair use". (And it is only binding in the Eleventh Circuit.)
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).
Agreed.
Agreed. But that judgement on the court's part is not, itself, a ruling on the merits of the case. It represents nothing more than their probabilistic prediction about what the verdict will or would be. Vacating an injunction does not dismiss the suit.
Should be interesting, I'll take a look. But already, on p.3, I notice the following:
If that is the case, then I agree that that is fair use. But I see that as different from fanfiction. If you don't, I don't want to get into a detailed argument here about what the difference is. But, in short, if the primary purpose of MoR were to serve as commentary on Rowling, I would see it as fair use. As it is, however, it seems to me that that isn't the primary purpose of MoR (although it does do that among other things). Primarily, MoR is another great and compelling story by Eliezer Yudkowsky, but which happens to have used J.K. Rowling's universe as its setting in order to take advantage of the popularity of the Harry Potter books in order to attract readers. Now, I don't think there's actually anything inherently wrong with that (and even if I did, I would make an exception for MoR because it's just so damn good) but it is my empirical opinion that current copyright law is in fact (unfortunately) designed to make this kind of thing illegal.
My question was whether there was a legal difference. So far as I know, there isn't, and in neither case does the outcome serve to establish jurisprudence.
As I stated here, I think you are correct that fair use protection for MoR turns substantially on whether MoR is interpreted as parody of canon Potterverse.
Regarding settlements, I agree that there is no legal difference based on the amount of settlement. My point was that the fact of a settlement was not evidence of who won the court case, particularly because the appellate court discussed likelihood of success on the merits in evaluating the preliminary injunction.
Edit: and if you think "likelihood of success on the merits" is a prediction about the future rather than a legally binding statement of the content of the law, then I assert my expertise to say that you are legally incorrect.
I don't think that's quite right.
MoR can be construed as parody of Harry Potter - in fact, a lot of reviewers point specifically to where it pokes fun of holes in Rowling's worldbuilding, and (as noted elsewhere hereabouts) a major theme is the reversal of Rowling's stance on death.
But that's just a special case of transformativeness:
In practice, it lets the courts say "I would make an exception for MoR because it's just so damn good".
Actually, I will say that I thought of it as a parody myself at first, and even described it to other people as a "spoof". However, I feel that it has grown into more than that over time, as the story has developed. At this point, the original seems almost irrelevant. (My personal familiarity with the canon is limited, but people have told me that it pales in comparison.)
(Understand that I find it utterly perverse that what ought to be a profound compliment amounts in this peculiar context to an argument "against" the story.)
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.