This is an example of creative, derived work that should be enriching the public commons, when the original is quite old, by a long dead author, yet is still troubled by potential copyright claims.
And it could have been written straightforwardly as a roman-a-clef without incurring copyright hazards. The reason it wasn't is probably the reason it's at risk: marketing.
Although I'm not against the idea of people writing in other peoples' universes, ie. fan fiction. In fact I hate the snotty attitude (seemingly) almost everyone takes towards fan-fiction: it's a win for everyone, like the literary equivalent of forking open-source software, but it's never encouraged.
"Literal" retellings of stories can be jarring; everything needs to sync up or you get stuck on the details that are wrong (like, apparently, "no hobbits"). And, especially with nerd fiction, figuring out who the characters are can be fun.
Slight tangent: Here's a secret about forking. When you fork a project, you anger the loyalists. A lot of large open source projects fork because of deep disagreements / polarization within the team. For minor stuff, it usually just gets settled internally. If the project does get forked, it usually ends with either the original project dying or the fork dying. I can't recall any projects off the top of my head that were forked and both the fork and original remained successful.
I think the trend is shifting at least when it comes to projects hosted on Github. Forking there is less of a divergent path, but more of a way to tinker and make changes and push them back to the main code source. At least that is what most people do, and I think it is better for it.
Regarding XBMC / Plex and Emacs / xemacs, instead of a fork it looks like it's more of adding feature X that the original devs didn't want (not being derogatory here, it's substantial work). I'm sure that they merge in new code continuously and the codebases haven't diverged so much as to be independent. It doesn't look much like a fork in that sense.
I'd argue that KHTML is fairly dead. No one really uses Konqueror (I worked for a shop that developed a KDE based distro and even there everyone used Firefox / Chrome), which is probably KHTML's largest user apart from some internal KDE stuff. Hell, even Konqueror has had webkit mode since about a year ago. Qt supports webkit. Tons of other browsers, mobile and otherwise, use webkit.
I see the same downward trend for Debian, from being all over the place to being reduced to mostly a server distro. Meanwhile, Ubuntu is coming up with its own server version with pre-made virtualization images and stuff.
So, maybe the "weaker" forks just didn't die fast? Of course, this whole idea isn't a law or anything and I can't expect it to apply to everything, but that's the general trend I see anyway.
Also, I guess another thing I could claim is selection bias: You've probably never even heard of most of the forks that died. Of course, I don't have the data to prove it either.
There are two activities that can change a nerdy fourteen-year old's life: reading The Lord of the Rings and learning emacs. One is a childish fantasy that often engenders a lifelong obsession with its unbelievable inaccessibility, leading to an emotionally stunted, socially crippled adulthood, unable to deal with the real world. The other, of course, involves orcs.
Is Ubuntu a fork of Debian or a polished package based on Debian? I ask because the Ubuntu update schedule is based around the Debian update schedule in such a way that new Ubuntu releases remain synchronized with new Debian releases.
The book probably couldn't stand on its own. But it was quite interesting as sort-of commentary on Tolkien - even with Tolkien characters completely shifted, it needed to have Tolkien characters to be worth anything. And suppressing that kind of speech is problematic.
>And it could have been written straightforwardly as a roman-a-clef without incurring copyright hazards.
I'd not heard of a roman a clef before, a story with a key to translate the characters/figures/places to refer to something else.
I don't think this would help - if you provide me with the parts to make a copyrighted work and you know that is what they are to be used for or you designed them specifically for that use then you are committing contributory infringement (YMMV depending on specifics of copyright law in your country, save to say that legislatures aren't idiots).
In the same way you can't sell your cover of a pop song by encoding the song as an MP3 ("it's not a song it's just bits").
No, you really don't. You just have to be modestly creative.
Fiction is full of allusions and references and expies of older works' characters and settings. Rather a few stories have been written as answers or counter-arguments to other works without having to use the same names or be explicitly set in the same setting.
Um, because the original work is still being sold and is making money for its owners--specifically, the direct relatives of the original author, including one who continued his father's work and released The Silmarillion.
The question is not if the Tolkien estate makes less money.
The question is if the Tolkien estate has the freedom to decide what derived works they want to allow.
Copyright is not about 'if it makes money for the rights holder, it should be allowed'. It's about the freedom of the holder to decide what they think is the 'best', be it in monetary form, or artistic integrity, or whatever.
Let's say I'm an author and I feel that my work is best served with no derivatives like fan fiction or translations. That I feel that my novel is a work of art that only be appreciated in its original language. Should I have the right to prohibit translations? I think so. It's about the freedom and the rights of the author (or creator of other sorts), not about the supposed entitlements of others.
I see no public good served by an author being allowed to decide what other people do with their characters. Should Tolkien have the right to constrain what people imagine with his characters? The right to constrain what stories I tell my friend? Never mind physical possibility - if Tolkien had left a note saying that nobody was ever allowed to imagine Legolas/Eowyn, would you obey that note in the privacy of your imagination, because you thought it was his right?
IMO copyrights, like patents, should have a mandatory licensing rule - it should not be possible to say "you can't do that", only ever "I get a cut of the profits." (This wouldn't fix either system, which allow for copyright and patent of many things that just shouldn't be patented, but it'd be an incremental improvement.)
Not everything is about 'the public good being served'. That was my point. Individual freedom usually trumps the public good, imo. Thinking about things has never been under (serious) discussion. The line is roughly at the point where 'public performances' or 'reproduction for the public' is done. Of course you can argue about where things are exactly 'public', but you can do that with anything.
Individual freedom against the public good isn't entirely what's at stake here. What's at stake is the individual freedom of the original author against the individual freedom of other authors who want to use similar characters, and the individual freedoms of the potential consumers of the derivative work. It's nice to talk about "individual freedom", but you're obscuring the truth in cases like this. It's not about the rights of individuals against some faceless collective. It's about freedoms for one person trumping freedoms of the other.
If you restrict the use of any ideas from an original work by anyone else, you're severely restricting the speech of others. If I need your permission before I can write about the characters in your book, what's to stop you from disallowing anyone to write bad reviews of your book? This is an important issue, especially when the laws are vague and you have a massive legal war chest. Your expensive lawyers can argue about where things become "public", too, so me telling my friends about how much your book sucks could get me sued.
Overly strict copyright laws have serious chilling effects on free speech. Free speech may be a collective good, but it is also an individual freedom, too, and I think my freedom to speak is more important than anyone else's freedom to silence that speech. Everything can be cast in terms of individual freedom, but more often than not, increasing one person's freedom means decreasing someone else's. That's why you can't just say that individual freedom is necessarily more important than the public good.
Nonsense, because the supposed 'freedoms' of the others (anyone except the author) hinge on the author creating it in the first place. They're all derived from the work of the original author, giving that author ownership of his creations, and therefore the right to determine what happens to his property.
I'm not sure where your 'free speech' argument is coming from. Reproducing the words (or music or whatever) of someone else is not free speech. Free speech is about ideas, copyright about a specific incarnation of ideas.
I don't see what creating something has to do with owning it. If I have kids, they are not my property, even though their existence entirely depends on me.
The whole point of copyright is that the government decided that people would be more willing to create works of value if they economically protected the creators of those works. This was designed specifically to benefit the public good at the expense of individual freedom. Copyright does nothing but restrict freedom, but it does it so that people will have an incentive to create things of public value.
The free speech argument comes in whenever a content creator has the power to keep other people from saying certain things because he doesn't like them, rather than because he deserves to capitalize on the use of his content. The ideas you create don't belong to you; only the right to make money from them does.
Not everything, but the public good is in fact what copyright is about: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (U.S. Constitution, Article 1, Section 8)
Humorously enough, the "Individual freedom" you desire consists entirely of the freedom to prevent others from doing things (translate works, create derivative things).
Thus you are saying public laws should exist to give private individuals the right to restrict other private individuals...
This is just phrasing it in a disingenuous way. My 'freedom' to own my car consists of the my right to 'restrict' others from taking it as they see fit. My 'freedom' to walk around consists of preventing others from beating and locking me up. The whole concept of ownership means that you can restrict others from doing things that infringe upon that freedom.
So yes of course law exists to regulate what individuals can do to each other or each others' property.
>Thus you are saying public laws should exist to give private individuals the right to restrict other private individuals...
Did you stop to think about the repercussions of your last statement? Should you be allowed to stop me taking your things, parking on your land or living in your home?
Copyright is not about 'if it makes money for the rights holder, it should be allowed'. It's about the freedom of the holder to decide what they think is the 'best', be it in monetary form, or artistic integrity, or whatever.
I disagree. Copyrights (and patents for that matter) are a temporary monopoly we grant to a creator to give the incentive for people to create new things.
We believe that the cost of taking away the rights of other people to reproduce those ideas for a limited time is worth the benefit of the new works that are being created as a result.
Should I have the right to prohibit translations? I think so.
I think not. Especially 30 years after your death. When does it end? If Shakespeare had left a note asking that his work never be translated into other languages, and never performed outside of England, should we continue to honor that today?
We do not have an inherent right to the ideas we express and the words we pen such that we can always control what other people will do with them. We've merely decided as a society to temporarily create such a right because the tradeoff is worth it.
