[cc-community] fan sites, fair use, and Harry Potter

Fred Benenson fred.benenson at gmail.com
Sat Mar 1 12:28:37 EST 2008


>  though. If the courts actually upheld it, that would mean that CC-NC would
>  also open authors up to unauthorized commercial derivatives of their
>  works.

At best this point is a stretch and at worst it is misleading.

Your reasoning is that if the publisher prevails in publishing the HPL
on the basis of it being fan work (it was free to create so why
shouldn't it be free to publish?) that this would set a precedent for
people publishing fan work and making a commercial profit off of the
work.

Let's for a moment assume that the HPL is under NC (it's not, there's
some bizarre copyright claim at the bottom of each page that seems
very restrictive) and a publisher were attempting to publish it.   You
make the misleading assumption that this would even be possible. If
the  community had previosuly explicitly stated that their work is not
for commercial exploitation (e.g., publishing) it seems the publisher
would have a much harder time justifying taking it to market.
Furthermore, you seem to be assuming that *even if* the work is under
NC that the existence of a case where a publisher was allowed to
publish fan work would override whatever license the fans had placed
on their own work, effectively rendering NC useless.

There's this tendency to imply that NC is both overly assertive (i.e.,
if you're a blog with AdWords you couldn't possibly post to a NC
licensed mp3) and that it is also totally toothless (a publisher could
come in and do whatever they want, ignoring NC).

Like it or not, the HPL community could have probably on a better foot
with Rowling if they chose a non-commercial license for the lexicon.
It's not free in any sense but it probably would have avoided a clash
over the work's commercial exploitation.

Maybe it's also a good opportunity for a copyleft license but I
certainly don't see it as a case study of where NC would fail an
author's interest.


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