Well, half the argument being put forward is that the publication of these books would lose Rowling something, either financially or creatively.

Yes, there is a financial component, and there’s also the component that she has the right to control her copyright. You may disagree, and you might act completely differently if you were in a similar situation, but she’s within her rights. As I mentioned before, if the author had approached the work differently, and used his own words to describe the “facts” listed in the lexicon, Rowling would have lost her case. Now, he’s permanently enjoined from publishing.

As for the fair use doctrine, that’s more complicated. Most copyright law was created back in a time when the only way to sell a copy of something was to make a physical item. This incurred a substantial cost, so people who profited from copyright infringement would most likely be professional thieves rather than ordinary people and personal copying was such small scale that it didn’t matter.

Actually, the fair use doctrine had little to do with professional thieves, when it first came up in the U.S. in the early 19th century. It developed further in response to the steady expansion of copyright protection throughout the 19th and early 20th centuries to allow re-use of printed material, scholarly criticism, reviews, etc. Most “ordinary” people did not have the means to copy until the late 20th century. Most of the doctrine was developed in response to rival publishers taking advantage in advances in technology and “holes” in the copyright law. Sound familiar?

Vander Ark fits between these two stools because he put in most of his work into compiling the website, then started charging for a version of that work in a different format. He didn’t start charging until he started incurring costs … yet the content was OK in one form and not in another? Maybe that’s legally right, but that’s where the law may require reform before more artists try damaging themselves like this.

That’s not quite the case. Vander Ark put up his lexicon on a web site free of charge over many years and eventually had a number of editors working on it. He sold some advertising but pretty much covered his costs. Rowling had no problem with that. Soon before the publication of the last Potter book, Vander Ark was approached by a publisher about rushing out a print edition to hit stores about 4 months after the Potter book. The publisher started aggressively marketing and pitching the book not only to sales outlets but also to foreign publishers, including the U.K. Included in that marketing and pitch material, as well as the proposed cover for the book (which are produced well in advance as sales material), was a quote from Rowling that she used the Lexicon herself, implying her endorsement of the printed book (she made the statement about the web site).

When contacted by Rowling’s agent and later agent and Warner Bros., the publisher simply ignored them. When he did speak to them, he really wouldn’t discuss the matter. Lawsuit was filed. The court found that Vander Ark copied pretty much verbatim much of Rowling’s original words beyond fair use.

I feel sorry for Vander Ark, as I think he was led astray by his publisher; that he was rushed in preparing the manuscript probably led to too much copying. That the publisher was so eager to cash in, there didn’t seem to be much of an editorial process that might have caught the copying.

The idea of the original article here and my own posts is to point out that absolute protection of one’s own property in order to exclude everyone else is not always a good thing.

This is where we seem to be disconnecting: this really isn’t a case of absolute protection. Rowling was okay with the free web site. She apparently wasn’t okay with an aggressive publisher seeking to exploit the fans’ work.

I agree that “absolute” protection is not a good thing. I’d probably agree that some current protections should be relaxed. But even if this were only a matter of an author’s injured ego (that the publisher wouldn’t even discuss the matter), she’s still within her rights. Hell, duels have been fought over bruised egos!

As with most of these cases, such as the Fox/Warners Watchmen suit, when you dig beneath the surface, the issues are rarely as simple as a brief news article or blog post makes out (though not as complex as lawyers will like to make them).