Comment by whamlastxmas a day ago
This isn't correct. It is infringement, for example, to write Harry Potter fan fiction in private on a typewriter, even if another soul never sees it. Copyright includes creation, not just distribution
Market harm is not required for something to count as infringement, but it matters for certain defenses and damages.
Simply writing new adventures for existing copyrighted characters is usually treated as creating an unauthorized derivative work. Writing Harry Potter from the perspective of the Weasley twins, for example, is not fair use.
Distribution is one part of fair use but it isn't the focus of it - fair use is a defense against infringement, but it's still infringement.
You're really missing the crux of fair use:
"Noncommercial, educational, critical, or transformative uses (like commentary, criticism, news reporting, parody, or research)"
How closely does writing Harry Potter fanfiction align with commentary, criticism, news reporting, parody, or research?
Fair use is more about: writing a critique about Harry Potter. Or a Weird Al style song about it. Or presenting parts of it in a paper you're writing for class.
This is all easily searchable stuff. Copyright is extremely draconian when you really look into it.
https://en.wikipedia.org/wiki/Fair_use#4._Effect_upon_work's...
Seems to say that market harm is the single most important factor in fair use, and it's basically impossible to show that a person writing their own fan fiction without any distribution would prevent an author from exploiting their own work.
If you think about it, writing “Harry Potter” on the internet could be infringement because those words might be in the book, and most worrisomely you are inducing people to make “copies” of the books in their minds. There’s no way to calculate what you owe Rowling from this post, it could be infinite.
(Thankfully I’ve never read those books so I can say the name without infringing)
Because people insist on discussing copyright as if there is any part of it that makes sense, and as if it operates how they think it should.
They derive a history of it from all of these principles that they made up, then propose a future which is always a moderate compromise between the guiding principles that they made up and the history that they made up from the guiding principles that they made up.
Things are as they are because powerful people made them that way, and built on that. The length of copyright is justified by the fact that it got past Congress and judges. What you're allowed to do is vague know it when I see it stuff, and has always been a patch on top of what you're not allowed to do which is always very clear: anything you don't have a written grant of permission to do.
People talk about "fair use" like it is a real abstract principle, rather than being some weird legal wording by a judge from a few court cases where something felt just too minor and silly to be a violation but was obviously, by the letter of the law, a violation.
I'm fairly sure that under the letter of the law you're allowed to read a book you own or listen to a record you own more than once, but I wouldn't bet on it. For all I know it could be an exception called "private repeat performance of licensed material" which is not a law but actually guidance written by the counsel for the Librarian of Congress based on two court cases from the 1930s.
edit: when I was a kid, you wouldn't put the song "Happy Birthday To You" in a movie, and you would edit it out of a documentary. This was never determined not to be a violation, it just got so embarrassing that it was somehow determined that the copyright had lapsed. Archive.org was in a years-long kerfuffle about 78s. It's not about sense, it's about power.
Fair use and the 4 criteria for determining if it applies to usage is literally written into the letter of the law, passed by congress in 1976: https://www.law.cornell.edu/uscode/text/17/107
Its squishy and specific application relies on interpretation guided by precedent, but that's true of just about everything in legal systems guided by common law.
What you describe would almost certainly be considered fair use until point of distribution - it’s non commercial, transformative and has no meaningful impact on the market value of Harry Potter.
Copies for private use are going to be similar, and while I’m not a lawyer it feels like it’d be a hard case to make that work being conducted in private is going to have a meaningful impact on the market for Nancy Drew novels in the next 30 days.