My best calibrated guess is that MoR has a chance at best novel somewhere between ‘not a chance in hell’ and 5%, while best fanwork moves the odds of victory to 50+%. Which one do you think is better?
I expect you meant that as a rhetorical question, but I’m not sure it is. I generally agree with your confidence estimates, but of course it’s also worth looking at the payoffs. It’s also worth comparing the payoffs for being a Hugo nominee for best novel and a Hugo award winner for best fanwork.
I don’t have an informed opinion about those payoffs, just saying that it’s not as simple as “50+% chance of winning an award” vs “<5% chance of winning an award.”
Which is precisely why I am asking these questions, because there are many ways Eliezer could conclude it’s a good idea:
maybe, as I already suggested, best novel nominee > best fanfic award
perhaps Eliezer likes the idea of being a best novel nominee or winner so much that he doesn’t mind the significantly reduced expected-value
he has non-public information
eg. there are famous writers who have told him they will propagandize for MoR and order their fans to vote for it
he has not thought about it in any detail or come up with calibrated probabilities like I have
he plans to publish MoR as multiple books (given its length) and first books in series are the best to go for best novel and later books can shoot their wad on less prestigious awards
the rules favor MoR in some way I am unaware of
eg. he thinks he can issue a call for MoR fans to attend and vote, erasing the disadvantages I otherwise accurately assess
All you need to vote is a supporting membership, cost $60 or so. You don’t have to attend.
As soon as HPMOR is finished (hopefully not soon), I will buy a supporting membership to the next year’s worldcon. On that note, let me urge Eliezer to finish HPMOR in the summer of some year, so enough supporting memberships can nominate it by January 1.
That page is old, as I noted in my other comment, and if you read the Constitution (article 3) which governs the Hugo award, the nomination is not so numeric; for example:
Except as provided below, the final Award ballots shall list in each
category the five eligible nominees receiving the most nominations. If there is a tie including fifth place, all the tied eligible nominees shall be listed.
and
3.8.5: No nominee shall appear on the final Award bnominatallot if it received fewer nominations than five percent (5%) of the number of ballots listing one or more nominations in that category, except that the first three eligible nominees, including any ties, shall always be listed.
Going back to the 2011 data (and being mindful the vote counts have set records frequently in the 2000s as the convention apparently grows), we see the last place novel is 306 ballots. pg17 gives us the original nomination votes: last place novel there was 78 ballots.
So, yes, MoR could probably get on the ballot if >78 people all remember to register by 31 January of that year (good thing MoR isn’t finished yet because it’s too late for 2012) so they are eligible to vote on nominations, and actually put MoR #1 on their ballots; see the Constitution again:
Each member of either the administering or the immediately preceding Worldcon as of January 31 of the current calendar year shall be allowed to make up to five (5) equally weighted nominations in every category.
I also think this is a good idea, and hereby vow to buy a membership when HPMoR is finished for this purpose of voting it for Best Novel. As pointed out, even being nominated would get it a lot more attention.
I’m hoping for something like Neil Gaiman had when he won and then they banned comics/graphic novels afterwards.
I think the main thing you’re missing is that nothing bad happens to me if I don’t win. This could serve as a mantra for a whole lot of things in life that are worth trying.
Yes. First, the Constitution specifies that if a work is ever successfully nominated, it cannot be nominated again, so MoR can only be done once. (Examining the categories carefully, pg 6-7, it may or may not be technically possible that MoR could be nominated in one year for Best Novel and then Eliezer himself—on the strength of fandom arising from MoR—nominated for ‘Best Fan Writer’.)
Second, the rules get very complex on pg 8 about multiple categories, which is why I did not bring it up before:
3.8.2: The Worldcon Committee shall determine the eligibility of nominees and assignment to the proper category of works nominated in more than one category.
3.8.3: Any nominations for “No Award” shall be disregarded.
3.8.4: If a nominee appears on a nomination ballot more than once in any one category, only one nomination shall be counted in that category.
3.8.5: No nominee shall appear on the final Award ballot if it received fewer nominations than five percent (5%) of the number of ballots listing one or more nominations in that category, except that the first three eligible nominees, including any ties, shall always be listed.
3.8.6: The Committee shall move a nomination from another category to the work’s default category only if the member has made fewer than five (5) nominations in the default category.
3.8.7: If a work receives a nomination in its default category, and if the Committee relocates the work under its authority under subsection 3.2.9 or 3.2.10, the Committee shall count the nomination even if the member already has made five (5) nominations in the more-appropriate category.
I… don’t actually know what all that means. Clause 3.8.4 seems to indicate that putting MoR up into multiple award categories would have the effect of splitting and diluting all votes, which seems like a bad thing.
Actually I’m pretty sure that’s not what Clause 3.8.4 is saying. I think it means that you can’t have two entries on the ballot for MoR under the same category just like you can’t have two entries for “Obama” for president.
That would be kind of funny though. Would you like to vote for:
5) is not a believable option, since the legalities of fanfic prohibit any conventional sort of publication, and just slapping “Book 1“/”Book 2”/etc. on top of chapter headings does very little.
since the legalities of fanfic prohibit any conventional sort of publication
No, they don’t. They just mean it takes a publisher with a little guts, willing to defend it under fair use grounds (in MoR’s case, parody)
They would lose, and probably correctly so. If that defense worked for MoR, it could be applied to any situation where someone just made up their own story using someone else’s characters, and the whole concept of copyright would be effectively abolished.
(Not that abolishing copyright wouldn’t be a policy worth considering...)
Actually, in fact, it seems obvious to me that any publication at all—“conventional” or not—of fanfiction is blatantly illegal, just like distributing your own modified version of Microsoft Windows would be.
(Note that “is illegal” is not the same thing as “should be illegal”.)
They would lose, and probably correctly so. If that defense worked for MoR, it could be applied to any situation where someone just made up their own story using someone else’s characters, and the whole concept of copyright would be effectively abolished.
Are you under the impression that fair use has never worked before or parody in particular? Because otherwise I don’t understand why you are so certain of what you are saying.
I think it’s clear that MoR is not (merely) parody, but a literary work in its own right that happens to be derived from an existing work by someone else.
It’s a kind of thing that I think ought to be allowed, but which I don’t think actually is.
I think it’s clear that MoR is not (merely) parody, but a literary work in its own right that happens to be derived from an existing work by someone else.
Something that could be said with equal justice of _The Wind Done Gone_.
In brief, someone used elements of Dr. Seuss to criticize the OJ verdict. Held: not parody fair use because the target of the parody was not the infringed work.
So, how reasonable is it to say that MoR is a parody of canon!Potterverse? I honestly don’t know the answer, but I suspect it would be dispositive of the fair use analysis.
How reasonable? I think pretty reasonable; MoR directly criticizes canon on numerous occasions, from the exchange rate to Hermione being Sorted into Gryffindor to Harry using random curses on Slytherins and on and on. Reading through one link on that, I see nothing about the Seuss parody parodizing Seuss, and plenty that fits MoR, eg.:
Parody achieves its status as social commentary by disparaging the original work, however slightly, by “pointing out faults, revealing hidden affectations, emphasizing weaknesses, and diminishing strengths.^1^
or
The court concluded that the infringing work broadly mimicked Dr. Seuss’ characteristic style, but it did not ridicule that style. 170 The court noted that Penguin’s use of the Cat’s stove-pipe hat, Dr. Juice as a narrator, and a title similar to the original’s title were all means of drawing attention to the new work, perhaps “to avoid the drudgery in working up something fresh.”171
Finally, with regard to the purpose and character of use, the Ninth Circuit considered whether The Cat NOT in the Hat! merely superseded the Dr. Seuss originals or whether it “transformed” those works. 172 The court did not recognize any effort to create a transformative work. 173 As a result, under the first factor, the court concluded the scale tipped against fair use because the infringing work was neither a parody nor transformative. I74
...When considering a parodist’s claim to fair use, a court must first determine if an infringer’s work meets the threshold requirement for the defense: “whether a parodic character may reasonably be perceived. >7232 Courts have recognized parody as a work containing a discernible direct comment on the original. 233 Although the Ninth Circuit conceded Penguin’s work did broadly mimic Dr. Seuss’ style, it concluded that the work was not a parody because The Cat NOT in the Hat! did not target the “substance” of the original work.234
There’s surely some kind of sliding scale. My HP fanfic:
Harry took the machine gun, and gunned down the Dursleys for being abusive parents. The End
is critical of something—but if it isn’t the Potterverse, then it isn’t parody. That doesn’t mean that the work is not fair use (I think the third and fourth factors weigh heavily in my favor).
In short, I don’t think that an interpretation of fair use (of which parody is the relevant type) that protects all fanfic is likely to be adopted, even if MoR was fair use of the Potterverse.
In short, I don’t think that an interpretation of fair use (of which parody is the relevant type) that protects all fanfic is unlikely to be adopted, even if MoR was fair use of the Potterverse.
As I was trying to say, it is hard to articulate a test that is both (1) sufficiently clear ex ante and (2) correctly divides works like MoR from the mass of fanfic. Specifically, I doubt that there is sufficient consensus on where the dividing line should be.
And in general, the major critique of fair use is how unpredictable it is in practice.
Courts have recognized parody as a work containing a discernible direct comment on the original.
Thanks for the data, that’s very helpful.
But imagine you had to defend MoR as parody. What would you say is MoR’s discernable direct comment on the original? Would you say that this comment is leveled specifically at JKR’s world? Is this comment the central aim of MoR?
What would you say is MoR’s discernable direct comment on the original? Would you say that this comment is leveled specifically at JKR’s world? Is this comment the central aim of MoR?
My thesis would be something like ‘the world of JK’s HP is ill-thought out, inconsistent, and bears a message with regards to death with characters & ideals that is morally repugnant’. This is easy to defend as Rowling has been kind enough to specifically state that the overall theme of her books is accepting death, and Eliezer has been kind enough to have Harry explicitly assail this theme.
Is it the central aim? I don’t know. (I think it is, but I could be wrong.) Depends on where MoR goes. If it ends with a world transformed and enriched by use of, say, Elixir of Life and all Dementors destroyed, well, the argument practically makes itself.
That does sound plausible, thanks. My sense is that MoR is written with the aim of demonstrating rationalist principles and cognitive biases. Many (maybe all?) of the chapters are titled so as to indicate the principle or biases they discuss. I see your point about death, but I guess I get the impression that the structure of the work is centered around educating people in a certain philosophy. That said, one of the fair use categories is ‘educational’.
It can do both—it’s not just asserting that ‘death is bad, mmkay?’, but explaining/demonstrating the facts & reasoning which lead to that conclusion so you understand why death is bad.
(Somewhat like how canon sort of tries to justify death: fearing death makes you do bad things and yields a fate worse than death, to state it baldly.)
It can do both—it’s not just asserting that ‘death is bad, mmkay?’, but explaining/demonstrating the facts & reasoning which lead to that conclusion so you understand why death is bad.
I know it’s a pain, but could you point me to a chapter in which the badness of death is argued for? I thought to look in ‘pretending to be wise’, but the badness of death was very much assumed there. There’s a diagnosis of Dumbledore’s view on death as being a reaction to fear, but that’s obviously not a valid argument against his position, or a valid argument in support of the view that death is bad.
Also, what does the topic of death have to do with the stanford prison experiments, the fundamental attribution error, the scientific method, the efficient market hypothesis, delayed gratification, Bayes theorem, Dominance hierarchies, locating the hypothesis, etc.? These chapters, for the most part, just don’t discuss death at all.
ETA:
(Somewhat like how canon sort of tries to justify death: fearing death makes you do bad things and yields a fate worse than death, to state it baldly.)
Hmm, should I be worried that I think this is right? It seems straightforward to me, if there’s any such thing as courage: to be courageous is ultimately to value some good over your own life. If this valuation is rational, than fear of death can make you choose your life over the good thing, and that’s bad. And it can lead to a fate worse than death: namely, your being alive and the good thing not being achieved.
Privileging the hypothesis of a meaningful afterlife rather than Occam’s razor that it doesn’t exist or it is the same as ghosts and photographs. (This is one argument against death being good: the wizarding world is in a vastly epistemically superior position to Muggles as far as evidence for life after death goes, but Harry pokes holes in it anyway.)
The mechanisms by which religion and other sadistic beliefs can spread.
the scientific method...Bayes theorem
Do I really need to explain this one?
delayed gratification
Useful for having the patient to investigate and hold off on conclusions (which lead to confirmation bias & backfire effects—you missed those).
the efficient market hypothesis
That one’s just criticizing canon’s worldbuilding. (I think. Imaginative suggestions about how that could be related are welcome—perhaps an argument from silence that if the afterlife existed the market would be exploiting it somehow?)
Privileging the hypothesis of a meaningful afterlife rather than Occam’s razor that it doesn’t exist or it is the same as ghosts and photographs.
Okay, against an opponent who says that death is good because there is a good afterlife, I can see how this one would work. That’s not an argument that death is bad, of course, or clearly an argument against ‘accepting death’ (whatever JKR meant by that), but it’s progress. The chapter itself doesn’t mention death at all though.
The mechanisms by which religion and other sadistic beliefs can spread.
And your thought is that it’s ‘sadistic beliefs’ that teach that death is not bad? Why does explaining these mechanisms show that death is bad? I’m afraid this seems very indirect to me.
the scientific method...Bayes theorem
Do I really need to explain this one?
Yes, that one especially, if you have the time and inclination. I recognize that I’m imposing on you here.
Useful for having the patient to investigate and hold off on conclusions (which lead to confirmation bias & backfire effects—you missed those).
The question was, ‘how does this relate to the thesis that death is bad’? I mean, if we think death is bad, then in some sense we could take any good epistemic principle as relating to that thesis, insofar as good epistemic principles relate to true beliefs. Is this as direct as we can get?
The chapter itself doesn’t mention death at all though....I’m afraid this seems very indirect to me.
Education frequently is indirect. If you want direct statements, you wouldn’t be reading MoR, you’d be… well, here, reading LW articles and stuff. Not everything is directly relevant, of course; for example, we could view Harry negotiating with the Sorting Hat as isomorphic to negotiating with an Omega in various precommitment scenarios devised for discussing the advanced decision theories like UDT/TDT. Is this directly relevant to arguing against theism and deathism and pro-agism? Not that I can think of.
The question was, ‘how does this relate to the thesis that death is bad’? I mean, if we think death is bad, then in some sense we could take any good epistemic principle as relating to that thesis, insofar as good epistemic principles relate to true beliefs. Is this as direct as we can get?
Is that such a bad thing? If good epistemic principles don’t lead to true beliefs, then that would make MoR more propaganda than anything...
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.)
EY originally wrote the thing while (on record) attributing the characters and context to JKR, and then (on record) mentioned that JKR said she is fine with fan works and doesn’t require attribution, after which he stopped.
I’m no lawyer, but I expect this means that EY is on record acknowledging his creative debt to JKR, and doing so because he thought he was legally obligated to. It seems like it would be hard to argue that MoR is fair use. This shows that the intent of the work was something the author thought was in range of her copyright, and thus not something like parody.
I’m no lawyer, but I expect this means that EY is on record acknowledging his creative debt to JKR, and doing so because he thought he was legally obligated to. It seems like it would be hard to argue that MoR is fair use. This shows that the intent of the work was something the author thought was in range of her copyright, and thus not something like parody.
This makes no sense to me.
EDIT: and specifically, acknowledging the debt is more of a good thing; from one discussion:
Whether the infringer copied the original in good faith or for a commercial interest may contribute to the court’s understanding of the context of the infringement.72 Any aspect of the infringer’s conduct, including whether the infringer acknowledged the copyright owner or whether the infringer sought permission, can be considered.73 Acknowledgment of a source, however, does not excuse infringement when other § 107 factors are present. 74 Additionally when the second work is a parody, the parodist is neither expected to seek nor obtain the copyright holder’s permission.75 Understandably, few authors would grant permission to have their character or their work mocked.76
I just looked up JKR’s statements on fan fiction, and I got the impression that she would sue in case something were published for profit, or just published in some print medium (I suppose a book or magazine).
I don’t think you could defend MoR as a parody with JKR’s original books as the target. Some MoR chapters point out absurdities in JKR’s work, but EY doesn’t make it his business to lampoon the original series. Judging from the wiki page on fair use, this makes MoR a ‘satire’, and these fare much worse in fair use cases.
The point about acknowledging debt is just that EY apparently went in with the intention of publishing something within range of JKR’s copyright. This would speak against an argument that the intention was parody: if the original intention were fair use parody, then why the legal disclaimers at the heading of each chapter? If that was out of respect only, then why the word ‘disclaimer’, and why stop doing it after JKR had given legal permission to FF writers?
The point about acknowledging debt is just that EY apparently went in with the intention of publishing something within range of JKR’s copyright. This would speak against an argument that the intention was parody: if the original intention were fair use parody, then why the legal disclaimers at the heading of each chapter?
Parody is by definition ‘within range of JKR’s copyright’; anyone wanting to write a parody is going in with that express intention. Attribution is just common courtesy and useful metadata. Per my previous quotes, this probably only would matter to the judge as indicating that the author’s intent is not malicious.
If that was out of respect only, then why the word ‘disclaimer’, and why stop doing it after JKR had given legal permission to FF writers?
JKR hasn’t given legal permission, she’s merely made some intent clear which at most, from what I recall of my classes on the topic, gives fanficcers a weak promissory estoppel. Why stop? Because he did it a few dozen times before, and the purposes have been served.
Some MoR chapters point out absurdities in JKR’s work, but EY doesn’t make it his business to lampoon the original series. Judging from the wiki page on fair use, this makes MoR a ‘satire’, and these fare much worse in fair use cases.
Exclusively focusing on criticizing canon is not necessarily helpful; original content helps pass other criterion like being a transformative use of the original and not being a replacement but a complement:
The Ninth Circuit also found Penguin’s use of The Cat in the Hat non-transformative based on its conclusion that Penguin made no effort to incorporate “new expression, meaning, or message” into the secondary work.323 As a result, because market substitution was more certain, the court was willing to infer market harm under the fourth factor. 324 The Ninth Circuit, in its failure to analyze what would constitute “new expression, meaning, or message,” at the very least, missed an opportunity to clarify the nature of a transformative work. This consideration was important because if The Cat NOT in the Hat! was transform ative , the first factor may not have weighed against fair use, despite the commercial character of the infringing work.325 Additionally, market substitution would be less certain and market harm might have been less readily inferred.326
...The Ninth Circuit cut short its analysis, or at least any presentation of its deliberations, regarding whether The Cat NOT in the Hat! was transformative.351 The court did not explain how the new work failed to incorporate original expression, meaning, or message.352 The court also failed to indicate how this new work would have superseded the original work.353 A full consideration of these subfactors under the analysis of purpose would have led the court to recognize the new work as transformative.354 As a transformative work, The Cat NOT in the Hat! could have been considered a fair use, after a full examination of the other statutory factors. 355
It wouldn’t abolish the whole concept of copyright—just characters-and-scenarios copyright, of which I am not sure what the actual legal basis it originates in is, or to what extent it has been tested in court.
Yes, I meant for the word “whole” to modify the word “concept”, not the word “copyright”. That is, my sentence was meant to be read as:
[T]he whole concept of copyright would be effectively abolished.
Distinguish between the scope of copyright (i.e. what kinds of items it applies to) and the force of the same (how much activity it prohibits within its scope). The emphasis of my claim was on the force rather than the scope.
I expect you meant that as a rhetorical question, but I’m not sure it is. I generally agree with your confidence estimates, but of course it’s also worth looking at the payoffs. It’s also worth comparing the payoffs for being a Hugo nominee for best novel and a Hugo award winner for best fanwork.
I don’t have an informed opinion about those payoffs, just saying that it’s not as simple as “50+% chance of winning an award” vs “<5% chance of winning an award.”
Which is precisely why I am asking these questions, because there are many ways Eliezer could conclude it’s a good idea:
maybe, as I already suggested, best novel nominee > best fanfic award
perhaps Eliezer likes the idea of being a best novel nominee or winner so much that he doesn’t mind the significantly reduced expected-value
he has non-public information
eg. there are famous writers who have told him they will propagandize for MoR and order their fans to vote for it
he has not thought about it in any detail or come up with calibrated probabilities like I have
he plans to publish MoR as multiple books (given its length) and first books in series are the best to go for best novel and later books can shoot their wad on less prestigious awards
the rules favor MoR in some way I am unaware of
eg. he thinks he can issue a call for MoR fans to attend and vote, erasing the disadvantages I otherwise accurately assess
etc.
My theory is that Eliezer is overestimating his chances of winning best novel.
All you need to vote is a supporting membership, cost $60 or so. You don’t have to attend.
As soon as HPMOR is finished (hopefully not soon), I will buy a supporting membership to the next year’s worldcon. On that note, let me urge Eliezer to finish HPMOR in the summer of some year, so enough supporting memberships can nominate it by January 1.
I’m not sure that materially increases the number of votes one could expect. Gee, only $60...
You only need 100 votes to get nominated, and then the nomination itself will get more people reading it.
That page is old, as I noted in my other comment, and if you read the Constitution (article 3) which governs the Hugo award, the nomination is not so numeric; for example:
and
Going back to the 2011 data (and being mindful the vote counts have set records frequently in the 2000s as the convention apparently grows), we see the last place novel is 306 ballots. pg17 gives us the original nomination votes: last place novel there was 78 ballots.
So, yes, MoR could probably get on the ballot if >78 people all remember to register by 31 January of that year (good thing MoR isn’t finished yet because it’s too late for 2012) so they are eligible to vote on nominations, and actually put MoR #1 on their ballots; see the Constitution again:
I also think this is a good idea, and hereby vow to buy a membership when HPMoR is finished for this purpose of voting it for Best Novel. As pointed out, even being nominated would get it a lot more attention.
I’m hoping for something like Neil Gaiman had when he won and then they banned comics/graphic novels afterwards.
I think the main thing you’re missing is that nothing bad happens to me if I don’t win. This could serve as a mantra for a whole lot of things in life that are worth trying.
‘Nothing bad happens to’ two-boxers either. Do I really need to explain that loss of a gain is as bad as a gain of a loss?
Dumbledore would say that is why you go for multiple gains in parallel.
I didn’t understand what you meant so I asked on IRC and you seem to be referring to multiple plots.
Yes, that is the story reference. As it applies here, is there any reason that Eliezer could not attempt to win multiple awards?
Yes. First, the Constitution specifies that if a work is ever successfully nominated, it cannot be nominated again, so MoR can only be done once. (Examining the categories carefully, pg 6-7, it may or may not be technically possible that MoR could be nominated in one year for Best Novel and then Eliezer himself—on the strength of fandom arising from MoR—nominated for ‘Best Fan Writer’.)
Second, the rules get very complex on pg 8 about multiple categories, which is why I did not bring it up before:
I… don’t actually know what all that means. Clause 3.8.4 seems to indicate that putting MoR up into multiple award categories would have the effect of splitting and diluting all votes, which seems like a bad thing.
Actually I’m pretty sure that’s not what Clause 3.8.4 is saying. I think it means that you can’t have two entries on the ballot for MoR under the same category just like you can’t have two entries for “Obama” for president.
That would be kind of funny though. Would you like to vote for:
Obama
Obama
Obama
Romney
Obama or
Obama
“Have you got anything without spam?”
Why, so you did. Careless reading of me… my apologies.
5) is not a believable option, since the legalities of fanfic prohibit any conventional sort of publication, and just slapping “Book 1“/”Book 2”/etc. on top of chapter headings does very little.
The rest is good analysis, though.
No, they don’t. They just mean it takes a publisher with a little guts, willing to defend it under fair use grounds (in MoR’s case, parody).
They would lose, and probably correctly so. If that defense worked for MoR, it could be applied to any situation where someone just made up their own story using someone else’s characters, and the whole concept of copyright would be effectively abolished.
(Not that abolishing copyright wouldn’t be a policy worth considering...)
Actually, in fact, it seems obvious to me that any publication at all—“conventional” or not—of fanfiction is blatantly illegal, just like distributing your own modified version of Microsoft Windows would be.
(Note that “is illegal” is not the same thing as “should be illegal”.)
Are you under the impression that fair use has never worked before or parody in particular? Because otherwise I don’t understand why you are so certain of what you are saying.
I think it’s clear that MoR is not (merely) parody, but a literary work in its own right that happens to be derived from an existing work by someone else.
It’s a kind of thing that I think ought to be allowed, but which I don’t think actually is.
Something that could be said with equal justice of _The Wind Done Gone_.
But see Dr. Suess Enterprises v. Penguin Books.
In brief, someone used elements of Dr. Seuss to criticize the OJ verdict. Held: not parody fair use because the target of the parody was not the infringed work.
So, how reasonable is it to say that MoR is a parody of canon!Potterverse? I honestly don’t know the answer, but I suspect it would be dispositive of the fair use analysis.
How reasonable? I think pretty reasonable; MoR directly criticizes canon on numerous occasions, from the exchange rate to Hermione being Sorted into Gryffindor to Harry using random curses on Slytherins and on and on. Reading through one link on that, I see nothing about the Seuss parody parodizing Seuss, and plenty that fits MoR, eg.:
or
There’s surely some kind of sliding scale. My HP fanfic:
is critical of something—but if it isn’t the Potterverse, then it isn’t parody. That doesn’t mean that the work is not fair use (I think the third and fourth factors weigh heavily in my favor).
In short, I don’t think that an interpretation of fair use (of which parody is the relevant type) that protects all fanfic is likely to be adopted, even if MoR was fair use of the Potterverse.
Naturally, but we’re discussing MoR here.
As I was trying to say, it is hard to articulate a test that is both (1) sufficiently clear ex ante and (2) correctly divides works like MoR from the mass of fanfic. Specifically, I doubt that there is sufficient consensus on where the dividing line should be.
And in general, the major critique of fair use is how unpredictable it is in practice.
Thanks for the data, that’s very helpful.
But imagine you had to defend MoR as parody. What would you say is MoR’s discernable direct comment on the original? Would you say that this comment is leveled specifically at JKR’s world? Is this comment the central aim of MoR?
My thesis would be something like ‘the world of JK’s HP is ill-thought out, inconsistent, and bears a message with regards to death with characters & ideals that is morally repugnant’. This is easy to defend as Rowling has been kind enough to specifically state that the overall theme of her books is accepting death, and Eliezer has been kind enough to have Harry explicitly assail this theme.
Is it the central aim? I don’t know. (I think it is, but I could be wrong.) Depends on where MoR goes. If it ends with a world transformed and enriched by use of, say, Elixir of Life and all Dementors destroyed, well, the argument practically makes itself.
That does sound plausible, thanks. My sense is that MoR is written with the aim of demonstrating rationalist principles and cognitive biases. Many (maybe all?) of the chapters are titled so as to indicate the principle or biases they discuss. I see your point about death, but I guess I get the impression that the structure of the work is centered around educating people in a certain philosophy. That said, one of the fair use categories is ‘educational’.
It can do both—it’s not just asserting that ‘death is bad, mmkay?’, but explaining/demonstrating the facts & reasoning which lead to that conclusion so you understand why death is bad.
(Somewhat like how canon sort of tries to justify death: fearing death makes you do bad things and yields a fate worse than death, to state it baldly.)
I know it’s a pain, but could you point me to a chapter in which the badness of death is argued for? I thought to look in ‘pretending to be wise’, but the badness of death was very much assumed there. There’s a diagnosis of Dumbledore’s view on death as being a reaction to fear, but that’s obviously not a valid argument against his position, or a valid argument in support of the view that death is bad.
Also, what does the topic of death have to do with the stanford prison experiments, the fundamental attribution error, the scientific method, the efficient market hypothesis, delayed gratification, Bayes theorem, Dominance hierarchies, locating the hypothesis, etc.? These chapters, for the most part, just don’t discuss death at all.
ETA:
Hmm, should I be worried that I think this is right? It seems straightforward to me, if there’s any such thing as courage: to be courageous is ultimately to value some good over your own life. If this valuation is rational, than fear of death can make you choose your life over the good thing, and that’s bad. And it can lead to a fate worse than death: namely, your being alive and the good thing not being achieved.
I don’t think you’re trying very hard here.
Privileging the hypothesis of a meaningful afterlife rather than Occam’s razor that it doesn’t exist or it is the same as ghosts and photographs. (This is one argument against death being good: the wizarding world is in a vastly epistemically superior position to Muggles as far as evidence for life after death goes, but Harry pokes holes in it anyway.)
The mechanisms by which religion and other sadistic beliefs can spread.
Do I really need to explain this one?
Useful for having the patient to investigate and hold off on conclusions (which lead to confirmation bias & backfire effects—you missed those).
That one’s just criticizing canon’s worldbuilding. (I think. Imaginative suggestions about how that could be related are welcome—perhaps an argument from silence that if the afterlife existed the market would be exploiting it somehow?)
Okay, against an opponent who says that death is good because there is a good afterlife, I can see how this one would work. That’s not an argument that death is bad, of course, or clearly an argument against ‘accepting death’ (whatever JKR meant by that), but it’s progress. The chapter itself doesn’t mention death at all though.
And your thought is that it’s ‘sadistic beliefs’ that teach that death is not bad? Why does explaining these mechanisms show that death is bad? I’m afraid this seems very indirect to me.
Yes, that one especially, if you have the time and inclination. I recognize that I’m imposing on you here.
The question was, ‘how does this relate to the thesis that death is bad’? I mean, if we think death is bad, then in some sense we could take any good epistemic principle as relating to that thesis, insofar as good epistemic principles relate to true beliefs. Is this as direct as we can get?
Education frequently is indirect. If you want direct statements, you wouldn’t be reading MoR, you’d be… well, here, reading LW articles and stuff. Not everything is directly relevant, of course; for example, we could view Harry negotiating with the Sorting Hat as isomorphic to negotiating with an Omega in various precommitment scenarios devised for discussing the advanced decision theories like UDT/TDT. Is this directly relevant to arguing against theism and deathism and pro-agism? Not that I can think of.
Is that such a bad thing? If good epistemic principles don’t lead to true beliefs, then that would make MoR more propaganda than anything...
Fair enough. Thanks for taking the time.
...and sure enough, there was a lawsuit.
Which they won, paying nothing to the plaintiffs and continuing to publish The Wind Done Gone. Which is why I am using it as an example!
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.)
EY originally wrote the thing while (on record) attributing the characters and context to JKR, and then (on record) mentioned that JKR said she is fine with fan works and doesn’t require attribution, after which he stopped.
I’m no lawyer, but I expect this means that EY is on record acknowledging his creative debt to JKR, and doing so because he thought he was legally obligated to. It seems like it would be hard to argue that MoR is fair use. This shows that the intent of the work was something the author thought was in range of her copyright, and thus not something like parody.
This makes no sense to me.
EDIT: and specifically, acknowledging the debt is more of a good thing; from one discussion:
I just looked up JKR’s statements on fan fiction, and I got the impression that she would sue in case something were published for profit, or just published in some print medium (I suppose a book or magazine).
I don’t think you could defend MoR as a parody with JKR’s original books as the target. Some MoR chapters point out absurdities in JKR’s work, but EY doesn’t make it his business to lampoon the original series. Judging from the wiki page on fair use, this makes MoR a ‘satire’, and these fare much worse in fair use cases.
The point about acknowledging debt is just that EY apparently went in with the intention of publishing something within range of JKR’s copyright. This would speak against an argument that the intention was parody: if the original intention were fair use parody, then why the legal disclaimers at the heading of each chapter? If that was out of respect only, then why the word ‘disclaimer’, and why stop doing it after JKR had given legal permission to FF writers?
Parody is by definition ‘within range of JKR’s copyright’; anyone wanting to write a parody is going in with that express intention. Attribution is just common courtesy and useful metadata. Per my previous quotes, this probably only would matter to the judge as indicating that the author’s intent is not malicious.
JKR hasn’t given legal permission, she’s merely made some intent clear which at most, from what I recall of my classes on the topic, gives fanficcers a weak promissory estoppel. Why stop? Because he did it a few dozen times before, and the purposes have been served.
Exclusively focusing on criticizing canon is not necessarily helpful; original content helps pass other criterion like being a transformative use of the original and not being a replacement but a complement:
On the issue of transformation, I can now see how a case would be made. Thanks for the post.
It wouldn’t abolish the whole concept of copyright—just characters-and-scenarios copyright, of which I am not sure what the actual legal basis it originates in is, or to what extent it has been tested in court.
Yes, I meant for the word “whole” to modify the word “concept”, not the word “copyright”. That is, my sentence was meant to be read as:
Distinguish between the scope of copyright (i.e. what kinds of items it applies to) and the force of the same (how much activity it prohibits within its scope). The emphasis of my claim was on the force rather than the scope.