Rowling plagiarism row rattles on; the sound of a broken system

Paul Raven @ 22-02-2010

Blind Justice?Remember me mentioning a plagiarism lawsuit filed against J K Rowling, wherein some dude claims prior art of the Harry Potter books because of his self-published work, and tries to take her for a whole lot of money?

Well, it’s soon to arrive in court, and Teresa Nielsen-Hayden has a good summary of matters from the publishing perspective; in a nutshell, the guy doesn’t have much of a hope of winning, and most commentators on the case demonstrate a massive misunderstanding of the authorial process. Or, in other words, the likelihood of two authors coming up with a similar idea is pretty high, and so you can’t really sue someone for publishing a book that uses an idea you once used. Or at least you shouldn’t be able to; nothing seems to stop people from trying, though. [image by hans s]

The problem is, as I’ve mentioned before, that copyright law (like most law) tends to favour the party which can afford the better legal respresentation, and that in the case of written fiction, precedents for the roadblocking of vaguely similar works by an author or their estate (a la the late Salinger) are corrosive to the creative process that copyright law is nominally intended to protect; stealing the work of others is wrong, certainly, but is reworking their themes or ideas only to be permitted within the limited (though flexible) framework of satire?

The imminent ebook explosion and recent high-profile flaps about critically-acclaimed works which involve some degree of plagiarised content only serve to emphasise how badly copyright law needs a comprehensive overhaul for the age of digital abundance. Left the way it is, the only people who’ll see any long term benefit will be specialist lawyers to media moguls, and most of them are currently busy making sure we have no idea what’s being decided in the ACTA treaty

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One Response to “Rowling plagiarism row rattles on; the sound of a broken system”

  1. Nancy Jane Moore says:

    When I was in law school, my torts professor once set out a scenario and then asked, “Can A sue B?” And being smart little students who’d been copiously taking notes on everything he’d said about proximate cause and burden of proof, we all said, “Oh, no. A can’t possibly sue B. There’s no cause of action, the law doesn’t cover this wrong, he can’t prove B did anything” and so on ad infinitum.

    Wrong, said the professor. A can always sue B. You can always sue someone else. You may lose. The case may get dismissed. A’s lawyer might even get hit with sanctions for bringing a frivolous lawsuit. But A can sue B.

    An incredible amount of court time is wasted on cases where A can, but shouldn’t, sue B.