the case was settled in 2002 when Houghton Mifflin agreed to make an unspecified donation to Morehouse College in exchange for Mitchell’s estate dropping the litigation.
...thus in effect purchasing the right to publish, which is what they were supposed to have done all along.
As I understand it, that was an appeal of an injunction, not the merits of the case (despite the WIkipedia article’s implication that it was a ruling on the merits).
Is there a legal distinction between a “nuisance payment” and an ordinary settlement?
Injunctions are decided in part by whether there is a reasonable likelihood of success on the merits. Saying that one isn’t entitled to injunction often means that the court thinks you will lose if the case went to final judgment. In this case, the appellate court directly addressed the fair use issue. Text of decision here
If I’m a doctor, and you sue me for medical malpractice, and we settle for $5 million (the cost of treating your injuries) - probably not nuisance settlement. Same amount of injury, but we settle for $5,000 - that’s “go away so I don’t need to spend more on legal fees.” (A more realistic Pascal’s mugging).
Injunctions are decided in part by whether there is a reasonable likelihood of success on the merits
Agreed.
Saying that one isn’t entitled to injunction often means that the court thinks you will lose if the case went to final judgment.
Agreed. But that judgement on the court’s part is not, itself, a ruling on the merits of the case. It represents nothing more than their probabilistic prediction about what the verdict will or would be. Vacating an injunction does not dismiss the suit.
Text of decision here
Should be interesting, I’ll take a look. But already, on p.3, I notice the following:
Alice Randall, the author of TWDG, persuasively claims that her novel is a critique of GWTW’s depiction of slavery and the Civil-War era American South.
If that is the case, then I agree that that is fair use. But I see that as different from fanfiction. If you don’t, I don’t want to get into a detailed argument here about what the difference is. But, in short, if the primary purpose of MoR were to serve as commentary on Rowling, I would see it as fair use. As it is, however, it seems to me that that isn’t the primary purpose of MoR (although it does do that among other things). Primarily, MoR is another great and compelling story by Eliezer Yudkowsky, but which happens to have used J.K. Rowling’s universe as its setting in order to take advantage of the popularity of the Harry Potter books in order to attract readers. Now, I don’t think there’s actually anything inherently wrong with that (and even if I did, I would make an exception for MoR because it’s just so damn good) but it is my empirical opinion that current copyright law is in fact (unfortunately) designed to make this kind of thing illegal.
If I’m a doctor, and you sue me for medical malpractice, and we settle for $5 million (the cost of treating your injuries) - probably not nuisance settlement. Same amount of injury, but we settle for $5,000 - that’s “go away so I don’t need to spend more on legal fees.” (A more realistic Pascal’s mugging).
My question was whether there was a legal difference. So far as I know, there isn’t, and in neither case does the outcome serve to establish jurisprudence.
As I stated here, I think you are correct that fair use protection for MoR turns substantially on whether MoR is interpreted as parody of canon Potterverse.
Regarding settlements, I agree that there is no legal difference based on the amount of settlement. My point was that the fact of a settlement was not evidence of who won the court case, particularly because the appellate court discussed likelihood of success on the merits in evaluating the preliminary injunction.
Edit: and if you think “likelihood of success on the merits” is a prediction about the future rather than a legally binding statement of the content of the law, then I assert my expertise to say that you are legally incorrect.
If that is the case, then I agree that that is fair use. But I see that as different from fanfiction. If you don’t, I don’t want to get into a detailed argument here about what the difference is. But, in short, if the primary purpose of MoR were to serve as commentary on Rowling, I would see it as fair use. As it is, however, it seems to me that that isn’t the primary purpose of MoR (although it does do that among other things). Primarily, MoR is another great and compelling story by Eliezer Yudkowsky, but which happens to have used J.K. Rowling’s universe as its setting in order to take advantage of the popularity of the Harry Potter books in order to attract readers. Now, I don’t think there’s actually anything inherently wrong with that (and even if I did, I would make an exception for MoR because it’s just so damn good) but it is my empirical opinion that current copyright law is in fact (unfortunately) designed to make this kind of thing illegal.
I don’t think that’s quite right.
MoR can be construed as parody of Harry Potter—in fact, a lot of reviewers point specifically to where it pokes fun of holes in Rowling’s worldbuilding, and (as noted elsewhere hereabouts) a major theme is the reversal of Rowling’s stance on death.
Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses.
In practice, it lets the courts say “I would make an exception for MoR because it’s just so damn good”.
MoR can be construed as parody of Harry Potter—in fact, a lot of reviewers point specifically to where it pokes fun of holes in Rowling’s worldbuilding, and (as noted elsewhere hereabouts) a major theme is the reversal of Rowling’s stance on death.
Actually, I will say that I thought of it as a parody myself at first, and even described it to other people as a “spoof”. However, I feel that it has grown into more than that over time, as the story has developed. At this point, the original seems almost irrelevant. (My personal familiarity with the canon is limited, but people have told me that it pales in comparison.)
(Understand that I find it utterly perverse that what ought to be a profound compliment amounts in this peculiar context to an argument “against” the story.)
When a court looks at the binding precedent of Suntrust v. Houghton Mifflin in which fair use and parody specifically was upheld for novels, will they care about a settlement in which the plaintiff received not one penny? I don’t think that’s how precedents work...
No, settlements are not precedent, only court rulings are. The point is that merits of this case were never ruled upon by a court. The appeals court ruling in Suntrust was about the injunction that had been granted, not the merits. So, yes, the next time someone sues over this in the Eleventh Circuit, there won’t be a preliminary injunction granted, and whatever work is being disputed will able to be published until the case is resolved by a jury (or settlement). But that doesn’t bind how the jury will rule. And it certainly doesn’t bind other circuits—in fact, a court in a different circuit could even issue an injunction, in which case there would probably be a Supreme Court case about the injunction issue.
EDIT: To put it succinctly: the precedent is “the book can be published until the case is decided”, not “writing a new novel using someone else’s characters constitutes fair use”. (And it is only binding in the Eleventh Circuit.)
No, it says they settled:
...thus in effect purchasing the right to publish, which is what they were supposed to have done all along.
Given that the Mitchell estate lost on appeal, I’m not sure the settlement after that decision is evidence of anything but nuisance payment.
As I understand it, that was an appeal of an injunction, not the merits of the case (despite the WIkipedia article’s implication that it was a ruling on the merits).
Is there a legal distinction between a “nuisance payment” and an ordinary settlement?
Injunctions are decided in part by whether there is a reasonable likelihood of success on the merits. Saying that one isn’t entitled to injunction often means that the court thinks you will lose if the case went to final judgment. In this case, the appellate court directly addressed the fair use issue. Text of decision here
If I’m a doctor, and you sue me for medical malpractice, and we settle for $5 million (the cost of treating your injuries) - probably not nuisance settlement. Same amount of injury, but we settle for $5,000 - that’s “go away so I don’t need to spend more on legal fees.” (A more realistic Pascal’s mugging).
Agreed.
Agreed. But that judgement on the court’s part is not, itself, a ruling on the merits of the case. It represents nothing more than their probabilistic prediction about what the verdict will or would be. Vacating an injunction does not dismiss the suit.
Should be interesting, I’ll take a look. But already, on p.3, I notice the following:
If that is the case, then I agree that that is fair use. But I see that as different from fanfiction. If you don’t, I don’t want to get into a detailed argument here about what the difference is. But, in short, if the primary purpose of MoR were to serve as commentary on Rowling, I would see it as fair use. As it is, however, it seems to me that that isn’t the primary purpose of MoR (although it does do that among other things). Primarily, MoR is another great and compelling story by Eliezer Yudkowsky, but which happens to have used J.K. Rowling’s universe as its setting in order to take advantage of the popularity of the Harry Potter books in order to attract readers. Now, I don’t think there’s actually anything inherently wrong with that (and even if I did, I would make an exception for MoR because it’s just so damn good) but it is my empirical opinion that current copyright law is in fact (unfortunately) designed to make this kind of thing illegal.
My question was whether there was a legal difference. So far as I know, there isn’t, and in neither case does the outcome serve to establish jurisprudence.
As I stated here, I think you are correct that fair use protection for MoR turns substantially on whether MoR is interpreted as parody of canon Potterverse.
Regarding settlements, I agree that there is no legal difference based on the amount of settlement. My point was that the fact of a settlement was not evidence of who won the court case, particularly because the appellate court discussed likelihood of success on the merits in evaluating the preliminary injunction.
Edit: and if you think “likelihood of success on the merits” is a prediction about the future rather than a legally binding statement of the content of the law, then I assert my expertise to say that you are legally incorrect.
I don’t think that’s quite right.
MoR can be construed as parody of Harry Potter—in fact, a lot of reviewers point specifically to where it pokes fun of holes in Rowling’s worldbuilding, and (as noted elsewhere hereabouts) a major theme is the reversal of Rowling’s stance on death.
But that’s just a special case of transformativeness:
In practice, it lets the courts say “I would make an exception for MoR because it’s just so damn good”.
Actually, I will say that I thought of it as a parody myself at first, and even described it to other people as a “spoof”. However, I feel that it has grown into more than that over time, as the story has developed. At this point, the original seems almost irrelevant. (My personal familiarity with the canon is limited, but people have told me that it pales in comparison.)
(Understand that I find it utterly perverse that what ought to be a profound compliment amounts in this peculiar context to an argument “against” the story.)
When a court looks at the binding precedent of Suntrust v. Houghton Mifflin in which fair use and parody specifically was upheld for novels, will they care about a settlement in which the plaintiff received not one penny? I don’t think that’s how precedents work...
No, settlements are not precedent, only court rulings are. The point is that merits of this case were never ruled upon by a court. The appeals court ruling in Suntrust was about the injunction that had been granted, not the merits. So, yes, the next time someone sues over this in the Eleventh Circuit, there won’t be a preliminary injunction granted, and whatever work is being disputed will able to be published until the case is resolved by a jury (or settlement). But that doesn’t bind how the jury will rule. And it certainly doesn’t bind other circuits—in fact, a court in a different circuit could even issue an injunction, in which case there would probably be a Supreme Court case about the injunction issue.
EDIT: To put it succinctly: the precedent is “the book can be published until the case is decided”, not “writing a new novel using someone else’s characters constitutes fair use”. (And it is only binding in the Eleventh Circuit.)