lunes, septiembre 29, 2008

No hay "uso lícito" de la obra de Rowling

Aqui está el fallo judicial al que me refería en el post anterior.
El 8 de septiembre el juez Patterson, de Nueva York, acordó negar el derecho de

Aqui está un resumen. Via Here are some of the key parts of the decision:
  • Purpose and Character of the Use: The court concluded that the Lexicon’s use is "slightly transformative in that it adds a productive purpose to the original material by synthesizing it within a complete reference guide that refers readers to where information can be found in a diversity of sources." Slip Op. at 45 But its transformative character is diminished because "it copies distinctive original language from the Harry Potter works in excess of its otherwise legitimate purpose of creating a reference guide." Slip Op. at 49.

  • Nature of the Copyrighted Work: The court found that this factor clearly favored the plaintiffs because "highly imaginative and creative fictional works are close to the core of copyright protection, particularly where the character of the secondary work is not entirely transformative." Slip Op. at 58. Note that Judge Patterson concluded that the Lexicon is not entirely transformative because it takes too much of Rowling's works.

  • Amount and Substantiality of the Use: The court conceded that in order for the Lexicon "[t]o fulfill its purpose as a reference guide to the Harry Potter works, it is reasonably necessary for the Lexicon to make considerable use of the original works." Slip Op. at 53. However, the court concluded that the Lexicon’s "verbatim copying and close paraphrasing" of language from Rowling's works weigh heavily against it on this factor, explaining that the "phrases [taken] are, as Rowling testified, the 'plums in [her] cake.'" Slip Op. at 54.

  • Market Harm: Judge Patterson held that "there is no plausible basis to conclude that publication of the Lexicon would impair sales of the Harry Potter novels." Slip Op. at 60. But he then takes a strange turn and posits that "[a]lthough there is no supporting testimony, one potential derivative market that would reasonably be developed or licensed by Plaintiffs is use of the songs and poems in the Harry Potter novels," which the Lexicon harms "by reproducing verbatim the songs and poems without a license." Slip Op. at 61-62. Huh? In any event, the court held that the Lexicon could harm sales of Rowling's two companion books, Quidditch Through the Ages and Fantastic Beasts & Where to Find Them, and in view of this market harm, the fourth factor tips in favor of the plaintiffs.

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