A Lawyer’s Take on Embargos and Injunctions

COMMENTARY:
As many of you know, in “real life”, I’m an intellectual property attorney, so I’ve done some work on issues similar, although not exactly like, the injunction/embargo situation we Harry Potter fans currently find outselves in.

And in the past few days, I’ve read a lot about freedom of the press, and a number of editorials and posts saying things similar to what FilmJerk said – that “to date, no other form of media entertainment — film, music, television, or otherwise — has ever attempted such an aggressive and vicious legal movement against the mere opinions and details of its content.”

But that’s not technically the case. Back in the 1970’s, “300 words quoted in a magazine article from approximately 30,000 words in President Gerald Ford’s manuscript of his memoirs was not fair use.” Also, 200 words quoted from the unpublished letters of J.D. Salinger in an unauthorized biography was deemed not to be fair use.” (PubLaw)

Order of the Phoenix is, at this point in time, still an unpublished work under copyright law definitions. While it’s been printed and shipped in sealed boxes to vendors around the world, a work is not published until it’s been distributed by the owner of the copyright to members of the public; accordingly, OoTP needs to be treated as an unpublished work, and the Ford case, as it’s a Supreme Court ruling, has precidential value on the current situation.

While the Court determined that news reporting was favoured under fair use laws in the US, “the fact that a publication was commercial as opposed to nonprofit is a separate factor that tends to weight against a finding of fair use.” Thus, the Court, in determining that The Nation’s publication was not fair use, focused on the Nation’s stated objective of scooping the forthcoming book. Further, there is, per Ford, a higher level of protection for a work of fiction than there is for a fact-based work. Since OotP is a work of fiction, the information in the work merits a higher degree of protection even than the memoirs in Ford obtained.

Now, the Daily News reported this morning that the suit alleges that the paper published “excerpts and details” from the book. While a paraphrase of the text in the form of details is likely not actionable as copyright infringement, if excerpts were published in the paper (and as we haven’t read the book yet, we don’t actually know if they were), and if those excerpts were longer than “short phrases” (which are not protected by the Copyright Act) then an argument can be made that the publication constituted copyright infringement, under the statute and the Ford rules.

Obviously, this is not a situation that happens often – but the Ford case clearly shows that while this situation is rare, it’s not unprecedented, and Scholastic and JKR have this to support their copyright infringement allegations.

Accordingly, while I think that FilmJerk makes some good arguments in favour of freedom of the press, we at TLC, as Melissa and BK have already said, have decided to take an approach to the spoilers published in the Daily News, as well as reviews by people who’ve read the book despite the embargo, which errs on the side of caution.

And we’ll all know what happens within the next 36 hours or so anyway…