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Harry Potter and the Judicial Chamber of Horrors
I haven't read a Harry Potter book since Prisoner of Azkaban but since I intend to catch up eventually I don't want to read any spoilers. Still, I don't think I'd go as far as J. K. Rowling to stop them.
The Real Canadian Superstore in Coquitlam, British Columbia accidentally put Harry Potter and the Half-blood Prince up for sale last week - a week before the official July 16th release date - and sold 14 copies. In response, Rowling and her publisher sought and received a restraining order from a BC judge forbidding anyone who acquired the book from disclosing anything about it and ordering them to return the book to the store immediately. (The full injunction is here.)
I was tipped off to this story by Daniel Radosh, who praises the difference between the First Amendment and the apparently less-robust Canadian equivalent. My first instinct was to agree with him and praise Budweiser for being the first to warn us of the Canadian menace. On second thought, I'm not so sure we are much better.
The BC injunction clearly prohibits anyone (in Canada) from publishing anything that they learned from a book obtained in violation of the embargo. This is a spectacularly broad ban and seems too broad under my understanding of U.S. law. Alas, I'd have to do some actual research to find out if there are any cases where a U.S. court issued an injunction to enforce a publisher-ordered embargo on its distributors against third-parties. (Calling Life, Law, Libido: You have free Lexis access. Can you give me a hand here?) The Canadian case does have echoes of our past, though, so I wouldn't be too surprised if looking around would yield something similar here.
In 1985 the Supreme Court held that The Nation committed a copyright violation by publishing excerpts from Gerald Ford's memoirs before the book was released in an article that revealed Ford's admission that he agreed to pardon Nixon if he stepped down. With all of the hype surrounding the release of the latest Potter book, it too would be clearly newsworthy. If Rowling's publisher were to get word of the pending publication of any of Half-Blood Prince's details, I have no doubt that they would try to stop publication. And very little confidence that they couldn't find a judge willing to help.
Posted by Charles Star on 07/13/2005 | Permalink
Comments
Hmm. Didn't know about that 1985 case -- but while it may (or may not -- I'm no lawyer) be a crap decision on its own terms, it's clearly different from the Harry Potter situation. Indeed, SCOTUS specifically upheld the right to report the information in the book -- what Canada supressed -- ruling against the Nation only as follows:
"The fact that news reporting was the general purpose of The Nation's use is simply one factor. While The Nation had every right to be the first to publish the information, it went beyond simply reporting uncopyrightable information and actively sought to exploit the headline value of its infringement, making a "news event" out of its unauthorized first publication. The fact that the publication was commercial as opposed to nonprofit is a separate factor tending to weigh against a finding of fair use. Fair use presupposes good faith. The Nation's unauthorized use of the undisseminated manuscript had not merely the incidental effect but the intended purpose of supplanting the copyright holders' commercially valuable right of first publication. (ii) While there may be a greater need to disseminate works of fact than works of fiction, The Nation's taking of copyrighted expression exceeded that necessary to disseminate the facts and infringed the copyright holders' interests in confidentiality and creative control over the first public appearance of the work."
While it's true that JK et al may have been able to find A judge somewhere willing to side with them, I can't believe that even our debased Supreme Court would uphold that decision.
Posted by: radosh | Jul 19, 2005 10:35:48 AM
