JKR/WB vs. RDR Books Trial Rescheduled

112

Mar 13, 2008

Posted by Melissa Anelli
Uncategorized

The trial for the JKR/WB vs. RDR Books was rescheduled to April 14 today, following a meeting with Hon. Robert Patterson, Jr., the judge on the case.

The trial for the case had been previously scheduled for March 24, 25, 26 and was taking the place of a hearing on a preliminary injunction.

Also, RDR Books filed a standard Answer to the main complaint in the case, which goes through point-by-point and either admits, denies, or says it does not have enough information to do either, for each charge. This apparently sets up the scope of charges to be determined at trial.

Two points of confusion have come up in the document: The first is that RDR says in the Answer that it had not sold the rights to the book in England and Australia at the time the suit was filed, though the Publisher’s Marketplace listing and several emails from RDR turned over as evidence in the filings explicitly say otherwise. We’re unsure whether this is an error and have contacted RDR‘s lawyer for an answer (but he has been in a conference this morning and it may take awhile for him to get back). Also, there is the question of the Hogwarts Timeline; before the case was brought, RDR sent a letter about it to Warner Bros., claiming WB had infringed the Lexicon by using a timeline on its DVD that RDR claims was too similar to the Lexicon’s; in this filing, RDR says it asserts that it has withdrawn all claim that their rights had been infringed in any way by the Plaintiffs.

The answer, while 21 pages, gives very little new information and basically does the required-by-law admissions and denials to each point raised by the Plaintiffs. To summarize point by point would be extraordinarily repetitive.

The “affirmative defenses” (which serve to limit RDR‘s culpability if JKR/WB’s claims are true, according to online definitions) listed in response to the charges brought by the Plaintiffs are that JKR/WB’s case is without basis because:

-A failure to state a claim upon which relief may be granted
-Principles of equity including laches, waiver, and/or estoppel (and if you said “huh?” to that, here are defnitions of laches, waiver, and estoppel.
-Plaintiff’s claims being barred by the “doctrine of unclean hands,” which basically says the Plaintiff may not seek legal remedy because they are acting unethically themselves
-Defendant’s use is lawful and falls under fair use
-The trademark is only used as necessary to identify the book as a Lexicon, and does not use “Harry Potter” as a trademark
-Plaintiff’s claims barred by the First Amendment right to free speech
-Since JKR/WB allowed the Lexicon Web site, it has also allowed a for-profit book
-Plaintiff’s claims are barred by the “doctrine of copyright misuse
-Plaintiffs don’t have “standing” to prosecute claims of trademark infringement, false designation of origin, false advertising, unfair competition and deceptive trade practices between the book had not been released or sold at the time the suit was brought
-An “injunction is improper where an explanation or disclaimer will suffice”
-Plaintiffs, RDR argues, cannot claim damages because they have not suffered actual financial harm
-JKR/WB have “failed to mitigate” their damages and as such “damages, if any, must be reduced accordingly”
-RDR’s actions were “innocent and non-willful”
-RDR has not reaped any profits on the Lexicon book yet
-RDR reserves the right to plead more defenses as they become known

Several arguments crop up repeatedly, and they are:

-That the Lexicon is fair use, and has not infringed any rights belonging to JKR/WB, nor would if it were published. Also that RDR has the right to “use such material for new and transformative purposes, and Defendant’s Lexicon is new, original an transformative, presents factual information, and creates substantial public value.”

-RDR says often that it is without information or knowledge sufficient to “form a belief” on a charge (which may not mean anything other than that the point is not within their power to dispute, or that the point was a rote statement setting up a later one, and as such they aren’t arguing it). They also say often that certain charges are arguments and conclusions with which they are not required to argue. (It seems the point of this document is to go sentence by sentence, paragraph by paragraph, and so certain paragraphs do not merit an answer but are nonetheless addressed.)

-RDR says it has, as of the revised cover of their book that they submitted in their filings in January, removed J.K. Rowling’s name from the cover and back cover completely except for in a disclaimer, and that the quote from JKR endorsing the Web site will not appear anywhere on or in the book.

-It says RDR does not use “Harry Potter” as a trademark, but “only uses Harry Potter to the extent necessary to identify Defendant’s Lexicon,” and any use of the trademark is “therefore lawful based on the doctrine of fair use,” and the use of the word Unofficial in the revised cover is a “favored way of alleviating any alleged consumer confusion as to source or sponsorship” and removing potential confusion.

-It maintains repeatedly it has not caused any harm, nor will.

-RDR claims that since the Lexicon book has not been released, any claim of damages by JKR/WB are without basis. RDR also says the book would not compete with the Harry Potter books or films and “notes that Plaintiffs have not even alleged otherwise,” then denies any basis for JKR/WB’s allegations that a lexicon would compete with one by J.K. Rowling “ad note that Ms. Rowling has not released any lexicon or encyclopedia concerning the Harry Potter books.”

The denials and admissions of note are:

RDR “admits that” JKR/WB allege claims under the Copyright Act, the Lanham Act and NY state law and “asserts that this case is really about Plaintiffs’ effort to suppress Defendant’s publication or an original literary reference guide.”

It also takes exception to the JKR/WB’s side referring to the book as an Infringing Book.

It denies it has rebuffed or treated the plaintiffs rudely in any dealings, and “vigorously denies” the allegation that it misrepresented a family tragedy for “some strategic advantage.” RDR then admits that it did conduct negotiations with foreign publishers during the time period in which he petitioned JKR/WB for more time to answer their allegations (due to the death of RDR Books’ owner’s brother-in-law), and admits it accused WB of infringing the Lexicon’s rights on a Hogwarts Timeline used in a Harry Potter DVD, but that the accusation was not “audacious or in any way a fabrication.”

It says that this paragraph of the JKR/WB filing:

“Defendant’s main excuse for its blatant conduct is to argue that the Infringing Book is merely a print version of Mr. Vander Ark’s free-of-chrage Lexicon Website. Even if this were the case – which is most certainly is not – there is a significant difference between giving the innumerable Harry Potter fan sites latitude to discus the Harry Potter Works in the context of free-of-charge, ephemeral websites and allowing a single fan site owner and his publisher to commercially exploit the Harry Potter Books in contravention of Ms. Rowling’s wishes and rights and to the detriment of other Harry Potter fan sites. In any event, the Infringing Book is a 400-page dictionary taken from the world of Harry Potter that does not include any of the vibrant fan art, graphical interfaces, fan fiction or discussions from the 700+ Internet page Lexicon Website and thus is not a mere print copy of website.”

…is an “overheated legal argument that does not require a response,” but does admit that not the whole web site was included in the book.

RDR opposes the idea that JKR/WB “had no choice but to file this lawsuit.”

It admits that JKR is a respected and famous author, that WB “purports to hold rights in certain trademarks associated with the Harry Potter films,” based on records; that RDR is a publishing house; that the HP books are a modern day publishing phenomenon; that the timeline of publication of the books offered by JKR/WB is correct; that the books are popular and have sold well; that JKR is the author of “Quidditch Through the Ages,” and “Fantastic Beasts and Where to Find Them”; that WB has released films based on the HP books; that the HP movies have been successful, and that the Lexicon website contains materials related to Harry Potter.

It admits that at the time the lawsuit was brought, it had sold rights of the book to France and Canada, but denies Australia and England (I’ve checked this twice; perhaps the rights were sold to Methuen, in the UK, after the lawsuit began); that it receive an email from the CLLA but did not return it because it had been told by “Ms. Rowling’s agent to expect a call from Ms. Rowling’s attorney.”

It admits correspondence with JKR/WB’s reps on Sept. 19, and that on Oct. 3, JKR/WB sent RDR a letter; that it informed the JKR/WB reps that there had been a death in the RDR owner’s family. It denies, however, that the complaint correctly characterizes the letter, “which in fact demanded that ‘RDR Books cease its efforts to publish the Book’ and that it identify any parties who had purchased rights to the book.’” (The complaint said the letter was ‘emphasizing their clients’ concerns and the impending publication date and asking for a prompt and substantive response. The letter says:

“As indicated in our previous letter, our clients are very concerned about RDR Books plans to publish Mr. Vander Arks’ book, entitled The Harry Potter Lexicon (the “Book”), because it appears to constitute an unauthorized derivative work in violation of our clients’ rights under copyright law and because the public may be misled to believe that the Book has been authorized by or is affiliated with them.

“Accordingly, we ask that RDR Books cease its efforts to publish the Book. In addition, we request that you forward this letter to the parties that have purchased the rights to the Book in England, France, Canada and Australia, and identify them to us so that they may be contacted directly. Given the advertised publication date of late October, 2007, we need a prompt response to allow our clients to protect their rights.”

The letter in response to this letter is the one requesting time to attend to a family member’s death.

It denies the ability to respond to questions of Steve Vander Ark’s attempts to be hired by the Christopher Little Agency, or the question of the amount of time he was planning to publish an encyclopedia, based on them being actions of Vander Ark’s and not RDR‘s.

RDR admits that it sent a letter to WB on our about Oct. 11, “in hopes of finding a solution favorable to the parties. This letter, however, was not a ‘cease and desist’ letter, nor did it claim that WB had violated any rights beong to RDR Books. Rather, the letter stated that RDR Books was representing Mr. Vander Ark, that WB had used MR. Vander Ark’s timeline, and that ‘you will surely agree it is only fair and just that he…receive acknowledgment and tangible rewards for his contribution.’”

RDR admits that JKR/WB wrote to RDR on or about Oct. 24, asking for confirmation that RDR Books would not publish, but “vigorously denies that it has refused to be ‘above-board about its intentions and engage in reasonable discussions,’ or that ‘it cannot be trusted.’” It further denies that it has been “hypocritical.”

RDR admits it has produced a manuscript for the Lexicon in response to a court order, and that the book is a 400-page lexicon comprising an alphabetical listing of hundreds of elements from all seven of the HP books and two companion books JKR wrote. It denies that it has provided “no analysis or commentary” and says the book is “replete with both analysis and commentary, as well as etymology, reference material and interpretation.” It further “specifically denies that the Lexicon contains ‘lengthy plot summaries, spoilers…synopses of the major plots and story lines of the Harry Potter Books’ and other materials that together ‘constitute the heart of the Harry Potter Books.” It also “further denies the melodramatic contentions…that it has infringed any right belonging to Plaintiff Rowling, or sought to ‘make money off the back of Ms. Rowling’s creativity.’”

RDR admits its disclaimers are inconspicuous, and denies that JKR‘s name is featured anywhere except in disclaimers or in marketing materials.

Everything else is denied, and there is a clause stating that anything not specifically addressed is also denied.


For those interested, here is a summary of the case so far:


On Oct. 31, JKR and WB filed a suit against RDR Books, which was attempting to publish a print for-profit version of unofficial online encyclopedia, The Harry Potter Lexicon. The book would be an encyclopedia of the Harry Potter universe, which JKR/WB said violated her copyrights and trademarks.

JKR made a statement on her Web site regarding the case. The Lexicon did also.

Deadlines for filings regarding a preliminary injunction on the book were set, and a judge issued a temporary restraining order to prevent publication while the merits of the preliminary injunction request were reviewed. RDR took the book down from pre-ordering on their site; the TRO demanded it be removed from Amazon as well.

Amidst announcements of postponed filing dates, Stanford’s Fair Use Project joined up with RDR Books to provide legal assistance. In late December J.K. Rowling discussed her encyclopedia, jokingly referring to it as “The Scottish Book,” on our podcast, PotterCast.

In January, JKR/WB made their full filing requesting a preliminary injunction (part one, part two).

RDR Books requested copies of JKR‘s notes for her encyclopedia and was denied.

Fan zine Ansible published a letter from the Lexicon author stating his case; the New York Times also published an opinion piece favoring RDR (later rebuffed by a Harvard law blogger and faculty at the U. of Mich).

In early February, RDR filed its response to the complaint.

In late February, JKR and WB responded.

On March 7, the judge on the case consolidated the hearing for a preliminary injunction with a trial on the merits of the case, and set dates of March 24, 25 and 26th at 9:30 a.m. for the trial.

On March 13, the trial was rescheduled to April 14.





66 Responses to JKR/WB vs. RDR Books Trial Rescheduled

Avatar Image says:

I just hope that they get the bloody thing over and done with! The only ones getting rich from this is the lawyers. RDR Give It Up!

I will be quite content to wait until JKR writes the REAL, DEFINATIVE and OFFICIAL book about the world that she created and has been so generous as to share with us!

Avatar Image says:

I agree. RDR, give it up! You’ve obviously overstepped boundaries and are being a complete jerk. These characters and this universe are NOT YOURS!!!!!

I am a fanzine published and fan story author. I would never in my wildest dreams think I could get away with what you think you are going to do. It’s time to STOP!!!

Avatar Image says:

This is nonsence. The right belong to JKR . CASE CLOSED

Avatar Image says:

Go RDR! This is what the 1st Amendment is all about!

This is going to be an interesting case to follow and a test of freedom of speech/press.

Avatar Image says:

Wow, I was waiting for RDR to say what was obvious – they have ETYMOLOGY, COMMENTARY, and INTERPRETATION.

Hope they win (though against WB the Giant, I’d be surprised.)

Avatar Image says:

I cannot believe they are pursuing this. A lot of the stuff on the Lexicon was either provided by users of the site, or errors/suggestions to the content were provided by the uers and used by SVA, therefore not all the ideas and work on the Lexicon itself was his to publish and make money from, let alone all the stuff which he did write himself which is, lets face it, just a glorified list of all of the elements from Jo’s books. I have ‘voted with my feet’ and no longer visit the Lexicon; the only way available to me to protest against his actions and support Jo!

Avatar Image says:

I am so over this whole thing. If it wouldn’t give them website hits, I’d look up all books published by them and start my own crusade to never read them. Although that isn’t fair to those authors who got in with a shady company like RDR.

As always thanks Leaky for all the info. I say I am “so over it,” but really I just want to know how it turns out one way or the other.

Avatar Image says:

Wow, I was waiting for RDR to say what was obvious – they have ETYMOLOGY, COMMENTARY, and INTERPRETATION.

LOL

No they do not.

Unless you consider misrepresenting “Portus” as “door” instead of “harbor” valid etymology.

And unless you can find commentary and interpretation in more than the 20% of the documents experts said it had.

Nice try but not backed up, there, RDR. People are smarter than that. Yes, even judges.

Avatar Image says:

Are you upset that all the others are not getting a cut, or are you really with Jo?

Avatar Image says:

sim, try reading the Lexicon’s Encyclopedia of Magic, or its timeline. Or maybe you don’t read it as a form of protest, like karen. . .

By the way what does puerta mean in Spanish?

Avatar Image says:

I’ve read it. Not commentary. Clever, yes. Not commentary or interpretation unless you count doing math anyone can do as interpretation.

Avatar Image says:

@ RJ:

I’m with the law. Unfortunately the law does NOT support RDRs case.

Interpretation? No. Mis-interpretation, misrepresentation, misappropriation, yes. Commentary? Pffft. There’s more commentary on a bathroom stall door! Etymology? Poorly and rarely cited and not Steve’s work but like the compilatoins of Rowling’s work, the etymologies are copyrighted to someone else.

Out of 2437 entries by SVA only 403 do not outright lift text verbatim or quote in poor paraphasing, the copyrighted text themselves. That’s a jaw-dropping 84% of entries that are severely infringing.

To give you an idea, things like Cliff Notes or SparkNotes generally use about 30-45% of a copyrighted work to analyze and comment upon within its context of scholarly study. The Lexicon book would not even begin to qualify as SparkNotes and it uses twice as much copyrighted text.

An absolutely clear and outrageous amount of infringement.

Avatar Image says:

Puerta is translated as ’’gate, gateway, or portal’.

Avatar Image says:

And etymology has nothing to do with spanish. etymology has to do with latin, or ORIGINS, of words. The book claims the origin of the word meant “door,” from the Latin. It did not.

This is not scholarship. Or even cited commentary.

Avatar Image says:

Melissa, thanks for subjecting yourself to wading through the legal documents, for moderating this conversation, and for keeping us so well informed. b

Avatar Image says:

RDR is right about one thing: This book will not significantly affect JKR/WBs’ profits. Most (if not all…I’m looking at you, RDR supporters)member of the fandom will boycott this book. We will “educate” the average fan of this book. We will contact sellers.

Avatar Image says:

Melissa, thanks so much fo rdigesting all of these arcane legal documents and putting this into language we can wrap our heads around. Never have your “reporter skills” been so needed . . .

Avatar Image says:

The argument isn’t whether or not it’s well written. Perhaps it’s not, I don’t know. I haven’t spent a lot of time at the Lexicon. However, I don’t think it would hurt JKR/WB very much if they did publish. I don’t know anyone in the world who would say, “Oh, I’m not buying the Scottish book. I already have the Lexicon book.” I sort of feel like this may be a case of sour grapes for JKR/WB, but if the law says 70% or more must be original content then the case is pretty clear. I’d also say it would be wise not to make this a case of who’s a better fan based on who they do and do not support in this case. It’s silly and unfair.

Avatar Image says:

If WB/JKR should happen to lose this case, my response would be to have a massive worldwide campaign of all HP websites to urge all HP fans to boycott RDR’s Lexicon book. It would be like any HP site you go to the first page would ask all visitors to not buy the RDR book but wait until JKR’s official encyclopedia is published. Just my 2 cents…

ww

Avatar Image says:

keep it up melissa …

interesting to sit back and see how this plays out.

Avatar Image says:

Any real fan will wait until Jo writes the real “Scottish Book” so why are they even trying? Give it up! Go home!

JO ROX!

Avatar Image says:

“And etymology has nothing to do with spanish. etymology has to do with latin, or ORIGINS, of words.”

well said, sim

congratulations, Melissa for all that amazing summarizing.

Avatar Image says:

RDR Books has had very little credibility. this new filing wont stand in court. it contains perjures lies in it, like their claim the book is commentary. first they say the book isent, then they say it is fully commentary. now they are claiming jk rowlings claim of it not being commentary are bad faith and the book is pure commentary and new insight. everyone outside of rdr and their lawyers who have read the lexicon manuscript are saying the same thing, it isent commentary.

so jk rowling has unclean hands because she is useing the law as it stands to defend her rights?

RDR, enjoy being bankrupts by your own greed.

Avatar Image says:

“However, I don’t think it would hurt JKR/WB very much if they did publish. I don’t know anyone in the world who would say, “Oh, I’m not buying the Scottish book. I already have the Lexicon book.” I sort of feel like this may be a case of sour grapes for JKR/WB, but if the law says 70% or more must be original content then the case is pretty clear.”

There’ s more to it than just that, Anna. Sure, I don’ t think this book would sell well at all, but that is beside the point. First off, any person out there who picked up the Infringing Book might not be willing to buy another. Maybe this person isn’t a great fan, maybe they bought it as a gift. Either way, that’s money that would have gone straight to the charity. Not to mention, as JKR so rightly pointed out, how arrogant is it to assume that everyone can spend money on both books. Especially if they thought the Lexicon had been endorsed by JKR. Secondly, she must protect her copyright. If that book goes to print, then it opens up a whole host of problems for her. There will be precedent that by allowing stuff to be published over the net for free, she has loosened her rights. Anyone who has produced a webpage, could conceivably try to cash in on that. Personally, I don’t care if the book only sold 2 copies. It just isn’t right to steal from her. She said no and that should be enough.

Avatar Image says:

For those saying that RDR has the 1st Amendment behind them:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

This amendment was made to the Constitution of our United States so people could speak their minds freely and write whatever they want. Therefore Jo can write what she wants, as it is of her own imagination. However, it does not say it’s legal for a person to take someone elses words and put them in a book for their own profit, without putting their own commentary in it. Jo has produced something ORIGINAL for all of us lucky people to read, but RDR is doing no such thing.

Avatar Image says:

thomas j. even worse for RDR, the manuscript itself those not qualify under fair use even though they say it does.

Avatar Image says:

sorry about double posting this, but RDR Books is being handled by the stanford fair use project.

I looked up the stanford fair use project, and my impression was that the one thing they are against is protecting fair use laws as they stand. their mission seems to be to extend fair use laws to the point that copyright holders have little to no power. the way they talk about what they are doing implys they are against the fair use of copyright.

Avatar Image says:

weasleywarrior, why should we boycott it? I honestly think Jo and Steve’s book are two opposite things. I would certainly buy both. Steve’s book would have lots of great stuff that I could easily look up in my books, like timelines and character birthdays. A lot of Jo’s encyclopedia, I think, is going to contain new information.

And didn’t WB use Steve’s timeline in one of the movies?

Avatar Image says:

“Not to mention, as JKR so rightly pointed out, how arrogant is it to assume that everyone can spend money on both books.”

I’m not sure that’s a completely valid point. It’s doubtful that someone may only have money to buy one book ever relating to a HP encyclopedia/dictionary/whatever. If they can only buy one book, chances are they’ll wait for the official one. I really do believe that if anyone wanted to buy the Lexicon book, they would also buy the actual JKR approved and written book, if only because one is derivative and the other is not. Other than that, I totally agree with setting precedents. It’s absolutely true that if they didn’t win this case it would open a Pandora’s Box of bad legal precedent. It would be a bad idea if they didn’t even address it, which I’m not sure would be option in the grand scheme of things. It’s like they’re compelled or something. :) And this isn’t directed to you, Sarah, but I will reiterate that it is a bad idea to start assessing who is a better fan and who isn’t because of this. Because it’s not really a good measure.

Avatar Image says:

Thanks for this excellent summary, Melissa! Apart from legal expertise, it must have taken a ton of work.

I am a lawyer too, which is the only reason why the complaint and answer make any sense to me, and why the whole thing doesn’t just give me a huge headache. Which brings me to a related point: I wonder if Van Ark has any idea what he’s up against legally. Legally, the HP franchise WILL win—if not in April, then later. Better for Van Ark and RDR to lose now and abandon the publication. Otherwise, they might very easily end this litigation in a bankruptcy court. Regardless of whether RDR’s lawyers think the Copyright Act is “good,” I sincerely hope they are being very, very honest with their clients about the existing state of the law.

Avatar Image says:

First, let me thank Melissa and Leaky, for the best coverage and detailed inforfmation on this. It’s a lot to sort through and a lot of work…thank you. Second, I want to go on record, as saying the following: Point blank: this is NOT about who’s gonna make money, get publicity, or is a better writer. It is about the rights of one person [JKR] to determine the use of her creation [Harry Potter, et al] and prevent her rights as the sole author of something that is HER creation.. As I understand it, after many, many, many, many arguments [pro Jo and Pro RDR] there is supposed to be additional material [commentary, analysis, scholarly work] in this proposed book, for it NOT to infringe on the copyrights of JKR/WB. As I understand it, it does NOT. I confess, I don’t know anything about the alleged “timeline dispute”. Given this other debacle, I tend to think it is another “figment” of SVA/RDR’s imagination.I am assuming, on this last point, so I may be wrong entirely. But I believe what Thomas J. pointed out. No one has the right to take someone else’s work, of their own creation, and put it into a book, with no commentary or other additons to it. [making the book, they propose to print THEIR own work Plain and simple: It’s stealing. It’s wrong, immoral and twenty other words I can’t think of, right now. Again, thank you Melissa, and Leaky…you’ve done a hell of a job putting this in some kind of understandable format…for those of us who don’t speak “leagalese”

Avatar Image says:

You know, I’m a fan-fic author and a couple of years ago – to keep from constantly switching web pages to verify spellings and what-not, I would go to the lexicon and print out whole sections of it as a reference work. Why buy it from RDR when I can do that on my own?

If I want the reasonings behind the words she used, and the explanations as to the background – I’ll wait for the definitive work from the Goddess herself. It will be much more interesting to read. I’ve always looked at SVA’s site as a glorified Wikipedia of HP fandom. Nothing more – and we all know how accurate Wikipedia can be. ;-)

Avatar Image says:

“I’m not sure that’s a completely valid point. It’s doubtful that someone may only have money to buy one book ever relating to a HP encyclopedia/dictionary/whatever. If they can only buy one book, chances are they’ll wait for the official one. I really do believe that if anyone wanted to buy the Lexicon book, they would also buy the actual JKR approved and written book, if only because one is derivative and the other is not.”

I understand your point, Anna, and I agree to an extent. I just believe someone could have been mislead into thinking the Lexicon was endorsed by JKR in some way because of her approval of the website. RDR was banking on that to help sell it. The arrogance I was speaking about is that the common answer given in this scenario is, “Oh well, they can just buy the official book when it comes out” Not everyone who reads HP is reading every interview she gives or is following her every news story. They may not be aware that she plans on an encyclopedia. I don’t know, I’m just trying not to think from the mindset of the fanatic that I am.

Avatar Image says:

Crap. It’s this kind of news on an otherwise glorious day (2 DH films!!) that makes you want to vomit. Give ‘em hell Jo!

Avatar Image says:

I LOVE the idea of splitting the lawsuit into two (or three) parts…. oh, whoops.

Avatar Image says:

Copyright, infringement… blah, blah, blah.

But didja’ hear Deathly Hallows is going to be two movies? :o)

Avatar Image says:

@ Anne, who said: I’m not sure that’s a completely valid point. It’s doubtful that someone may only have money to buy one book ever relating to a HP encyclopedia/dictionary/whatever.

Part of RDRs so-called reason for publishing the book was to help the poor, underpriviledged of the world who may not have access to the internet—-but would, of course, have the money to drop $24.99 US on the book.

If its target is the poor and underpriviledged, how can anyone turn around and say they’d have the money to buy an encyclopedia not just once, but twice?

Beyond that, this is Rowling’s exclusive market. Any money’s made off it would quite literally be stealing from JK.

Avatar Image says:

Melissa, thanks for taking the time to go through all of this and give us the run down

i hope Jo wins this case, i think it seem like the law is mostly in her favor. i think a writers rights are very important, and i dont want to see them infringed upon, regardless of if its a no-name author, or the richest author in the world.

if she someow doesnt win, i will not buy the lexicon book. not really even out of protest, just because…i know Jo’s will be so much MORE definitive, and im not gonna buy a second rate version of a book that Jo has told us she absolutely plans to put out.

i think the lexicon is a great site, and i use it at least once a week. there i a lot of info there and its nice to have it all organized in one easy to get to place. but i just know that Jo’s encyclopedia will have so much more infomation in it than the lexicon’s ever could, just based on the fact that we know she has all her notes, backstory, etc. to include in her book.

Avatar Image says:

Everyone who’s ever submitted material to the Lexicon should get together and start a class action suit against RDR. Afterall, they’re publishing for profit your material and aren’t going to compensate you.

Avatar Image says:

I just wish to point out that oneof RDA’s attorneys is a law professor who is world reknown for his writings and teachings of copyright and trademark laws. All that Melissa has quoted is his filings, not his briefs in support of his legal contentions. It has been claimed that although JKR and WB do claim violation of copyright laws that their factual allegations don’t allege violation of copyright laws, but instead alledge facts and legal theories of violation of trademark laws. It was this mixing of these two legal theories in a confusing manner that caused this professor to agree to represent RDA free of charge. He has stated that he was afraid that RDA’s attorneys would be out lawyered and fail to properly point out the harm that would be caused by applying copyright rules to trademark claims.

It is also this attempt by JKR and WB to apply copyright laws to trademark infringement claims that has caused most legal authorities and publications to oppose the judge accepting JKR’s and WB’s claims by over 2 to 1.

For example: If the judge accepts JKR’s claim then no one would be allowed to state in a book that a person was in a “catch 22 situation” or “It feels like I have a horcrux in my head.” Neither copyright or trademark present laws would prohibit this statement, but if you apply copyright rules to trademark laws then this would be prohibited.

Thanks

Paintball

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@paintball

the thing is one sencence like “It feels like I have a horcrux in my head.” wouldnt be a problem. Other people have used words or passages in books because and that’s okay, because they used like 90% original context beside this sentence. But what RDR/SVA are doing is 90% Jo’s words…and maybe 10% interpretation.

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Thanks for this useful post.

What does being ‘so over’ mean? Is the writer happy or unhappy?; I think we should be told [even if we don’t care].

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I’m with J.K. all the way in this case because this guy really went over the line this is her work and something that she has worked hard for years and for someone to come out and gain profit from your work. and for being a big fan and calling J.K. Greedy when all she has done is help so many people. I think that RDR’s is not going to win the case and that maybe after all this they are going to be the one that have to pay for damages.

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RDR Books is in the wrong on so many things. steve vander ark did not create anything of value with the manuscript. he simply ripped off word for word from other copyrighted and trademarked works.

also, unrelated, but look at rdr book’s book covers, most of them are things a 6 year old could do in paintshop pro in five minutes. the one that is a fap fap fap off for micheal more is just a picture of moore with a paintshop pro filter applied to it. i could do that in 5 seconds. the books are extremely poorly written, and hardly edited at all. they arent a legitamate publisher when you get down to them because they dont even understand law.

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Nice try, sim.

Here’s Latin if Spanish won’t help:

porta -ae f. [a gate]. from University of Notre Dame’s website

http://www.archives.nd.edu/cgi-bin/lookup.pl?stem=port&ending=

Not that this really matters. . . but whatever

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Not again!! Can’t they just get this over with, so that Jo can write her encyclopedia in peace? Give it up RDR, you’re going to lose this thing anyway, if there is some justice in the world!

Thanks a lot Melissa for subjecting yourself to all this legal torture and going throught these documents to bring it to us in a language we can understand!

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You’re right, RJ, porta does mean “gate” or door in latin.

Too bad the Lexicon said PORTUS meat gate or door, and it doesn’t.

Nice try.

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Once again, Melissa, you ROCK! Your coverage of this case has been my savior from all the boring times at work for a while now. (Not to mention that you do an OUTSTANDING job with translating the legalese and giving us a completely non-biased account of what’s going on. AND linking to every bit of source material you use. But I digress.)

@ another lawyer: I completely agree. RDR would have to be less sophisticated than some frat guys glued to their Madden 2007 to even imagine that they could fight JKR and WB over this and even come close to breaking even. It’s a no-brainer, even for a paralegal such as myself.

The worst thing is that SVA got mixed up with the idiots at RDR in the first place. Either that or SVA’s been a money-hungry-not-really-a-fan kinda person this whole time. Whatever it is, it’s causing a lot of grief for us fans who just want everyone to get along. In my non-professional opinion, we fans should do nothing but band together to support and protect this wonderful woman whose given us all an amazing gift by writing the books in the first place.

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I’m not even sure why I’m continuing this arcane discussion. . .

But yes, you are right about portus. I’m only left wondering why an object that moves people from place to place would have a meaning of harbor/port. I’m thinking that JKR’s meaning of portus was probably from the same stem as teleport/transportation/portal – all of which are closer to porta than portus. (And who cares about the Latin grammarians?)

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Understand, those who wave the first amendment around, that should RDR win this case, the repurcussions will be felt by those right here, in the fandom.

This case does not liberate some surpressed right, it is trying to uphold the rights of the creator. Think about it: If RDR wins, will WB/JKR cease and desist fansites next in order to protect themselves from further exploitation? Remember when WB tried to stop The Leaky Caudron’s use of their materials on their site at first, then dropped the pressure by seeing the value to themselves (aside from the fair use argument)? Things may not be so good for us in the future. I am no legal analyst, but it is not as simple as win/lose, big-guy-versus-little-guy. We may lose, too.

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It would help, RJ, if you read the entries. It wasn’t in reference to Portkey. It was in reference to Colloportus, which is used to seal a door.

It’s really hard to say “who cares about the Latin grammarians” in the same breath that you claim the book is full of etymology.

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i used to like the lexicon it was one of my favorite harry potter websites (besides leaky of course) but when they messed with my favorite author that really pissed me off they need to know there limits and I feel bad for JKr because she was so supportive of the lexicon and this is the thinks she gets i hope they win and the hope the lexicon goes to hell because they are pushing there limits to far and they are also braking Copyright laws so they are bound to lose….

whoever agrees with me say this “hall J.K. rowling the best author in the world”

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There is motive for why steve vander ark has been so spiteful and abusive of jk rowling. we know from the court case he was denied a job he asked for, a job that never existed to begin with. clearly, those wounds are still smarting, which explains why he did a complete 180degree about face after telling everyone it would be against the law and disrespectul for jo to publish the lexicon. however, it those not mean his actions against her and wb was justified.

to remind people, steve was asked by RDR in august of 2007 to publish the lexicon. we can give steve that much in that he didnt seek publication. however he was still in the wrong for agreeing to publish. however we can prove he knew it was wrong by the fact that he required RDR Books in the contract between them to indeemify him, meaning RDR Books takes full and total legal resonciblity, and that Steve will not be held responcible if jk rowling and wb take action. no legitamate publisher would do that, because if steve had actually written a real work of commentary instead of a rip off of word for word passages stolen from jk rowling, websters, and encylopedia brittanica, then there would be no need for steve ahead of time to ideemify him.

legitamate publishers understand the law, and work top ensure that the books they publish are within the law. RDR has proven by the fact that they tried to force a illegal book to be published and have no copyright attourney, even just on call in the rolodeck, that they are not a legitamate publisher.

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First of all – I have to say that I am with others who have ‘voted with their feet’ and stopped visiting the Lexicon since this started (thanks Karen for the phrase). I once visited the Lexicon quite frequently to verify a point in the books or to look up the particulars of a character, but no more. I could understand if Steve had decided to publish a compilation of the editorial articles posted there – but from what I gather this is not the case. So far, this entire ‘book’ smacks of plagarism.

In addition, I too am worried about what this case will mean to fandoms everywhere. JKR allowed fansites because they paid tribute to her world. If RDR wins on even one point, I see authors shutting down sites like TLC and MuggleNet just to protect themselves from this in the future.

Thank you Melissa, for keeping us informed on an issue that may have repercussions for fans of any series.

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exactly, if steve had sought to write a book filled with editorials from the lexicon with permission of course from the essaist, jk rowling would have supported it full heartedly.

instead, he create a work that was 84% jk rowlings copyrighted text, a unknown % of copyrighted text from other publications, and a few poorly made and inaccurate entries.

this case has made me think about my series, and if anyone tried to do this after the complition of the first series, they would be naturally filled with innacuracies where the person filled in details for areas not fully explained because the proper and correct information is being saved for something else. it would frustrate me to have a writer push through a illegal enclopedia and have it be predominatly wrong information because the person drew their own conclusions.

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Thanks again to Melissa + Leaky Staff for continuing to post on the trial information and enduring having to moderate all of our heated posts on the topic!

Some questions I have, based on RDR’s answer/response:

RDR admits it has produced a manuscript for the Lexicon in response to a court order, and that the book is a 400-page lexicon comprising an alphabetical listing of hundreds of elements from all seven of the HP books and two companion books JKR wrote. Yet… [RDR] further “specifically denies that the Lexicon contains ‘lengthy plot summaries, spoilers…synopses of the major plots and story lines of the Harry Potter Books’ and other materials that together ‘constitute the heart of the Harry Potter Books.’’

So, if the HP Lexicon book includes any listings regarding either of JKR’s companion books, wouldn’t those particular listings be “spoilers” of those books? I don’t happen to have “Fantastical Beasts” in front of me, but if I recall correctly, the format of that book was very reminiscent of a reference book… so any listing in the HP Lexicon would have to at least include additional research into myth, etymology, or speculation on why JKR would include said creature in her books in order to avoid appearing as a direct quotation or paraphrase. Which, IMO, if the listing did not do so, is violation of copyright law in this instance.

Assuming that all of the listings from JKR’s “Fantastical Beasts” are referenced in the HP Lexicon book, potentially 18% of the book (75 of the 400 listings) may be in violation of copyright law… and that only includes one of JKR’s companion books, and just barely getting into material included in the main HP storyline.

IMHO, RDR & SVA are treading on thin ice.

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My mistake in misreading “400-page” as 400 entries. But still… one can speculate that the HP Lexicon book would include many entries similar to those already written out by Newt Scamander and Kennilworthy Whisp. Which doesn’t bode well for RDR/SVA calling the HP Lexicon’s version of these definitions “original”.

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Emily, that is the major issue. the book has about 2400ish entrys, and over 2000 of them, about 84% were found to have passages taken directly from jk rowlings works word for word. a few of them are nearly word for word, with steve vander ark throwing in a adjective here and there trying to make it appear his work.

this really is a question of if a creator of a original work has any rights or ownership once that work is published. according to RDR, jk rowling has no rights or ownership over harry potter now that it is published, because they claim that useing 84% copyrighted material in a book is allowable.

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Just a comment on the “portus” discussion. JK used many different languages and forms of words that are not necessarily accurate so trying to identify an exact etymology would be impossible. That said, the word “port” in english (while referring to a harbor and a gate) is also a verb meaning to carry (they used to port [carry] boats if they came across a section of river that couldn’t be navigated… it’s also where we get the word porter [so one who carries bags and sometimes people]). I’m sure any connection to Portkey comes from that definition. Since I don’t know latin I’m not sure if portus also has the same definitions.

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Indie, we’re not referring to the root of “Portkey,” we’re referring to the root of “Colloportus,” which the Lexicon said came from ‘Portus,” and meant “door,” which it did not.

JKR can do whatever she ilkes in terms of twisting old words to make her own vernacular. When the Lexicon tries to say it’s scholarly, and misrepresents such simple etymology, as if they hadn’t done any research on it at all but instead took it for granted that because they thought that’s what it was, that’s what it was, then it becomes a point of contention. You can’t say you’re scholarly and then have that kind of egregious error, of which I’d believe this was just one of many examples.

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I’m adding this here “just because”, and because I agree that the level of accuracy and amount of work that is done may very well be an indication of just what value there is to any piece of work.

Colloportus, is a combination of a French and a Latin root.. collo from the French for “to stick” – Coller (hence the term “collage” for a lot of independent material all pasted together to form a whole) and porta, the Latin for “gate” or “door”.

Also, It has been speculated (and actually I think JKR herself has noted) that a lot of words have been given Latin suffixes or prefixes, and in some case made to SOUND Latin, like an ending to give it an action sound, that is to make it sound like a command or a verb, as in this case. So, Colloportus literally can mean “Glue the Door” – and so the spell which Hermione used to seal the doors in the OOTP at the MOM does just that; it glues the door shut!

Now, my point in making this entry is that it took me all of 5 minutes to research this, determine the roots, research their origins, determine that the possible root sources could in fact, be put together to make a word that translates as what the spell is intended to do, make this entry and comment on the possibility that JKR made a statement surrounding how she put some of the spells together. And I am NOT a lexicographer – just thorough enough to try and make sure I get it right, or at least right, in MY opinion, so that I can defend my opinion.

Does this tell you something?

M.

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whats even more frustrating is that steve is the only person at the lexicon who would profit from his encylopedia, even though it rips off work done by others at the lexicon who wont see a cent, nor did they have any idea the encylopedia existed at all until the lawsuit was filed to halt publication pending a court decision on if it is illegal or not.

if they push back the date for the trail again im going to scream. i want this over with.

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Just a few final points to add to the good ones made by paintball and others. It’s true that RDR is being represented by the Stanford Fair Use Project, a group which includes professors renown for their writings and teachings. This nonprofit group has a lot of muscle. In some cases, they have used that muscle to help protect true scholars who just want to be free to quote from copyrighted materials in a way that is perfectly consistent with existing laws.

In some cases, however, lawyers-especially ones who work for nonprofit groups-take cases not because they think their client’s legal position will prevail, but because they think the law should be changed, and want to use litigation to push for that change. It’s no secret, for example, that Lawrence Lessig-the biggest name behind the Fair Use Project-believes that many existing copyright laws are either bad or do not work the way they should. He has testified frequently before the US Congress, always arguing either for broader interpretations of the First Amendment, or narrower understandings of copyright law.

Many legal scholars-including, I think, Professor Lessig-simply do not believe that creations such as the Harry Potter characters should be treated as the property of the creator. Also, Lessig believes that many existing copyright laws simply funnell money into corporate pockets, and do virtually nothing to help artists. For example, see this article about Lessig: http://www.dougbedell.com/lessig.html

Academics such as Lessig are often cynical about the ways laws enrich corporations. But think about the practical upshot of his views. How many of us would have picked up a Harry Potter Book if not for corporate dollars, and corporate publicity? Speaking for myself, I came late to the books, only after watching the second movie in a theater. I might never have had the joy of losing myself in J.K. Rowling’s novels if not for corporate promotion. Shouldn’t those corporations get a large return on the gazillions of dollars they risked to bring the Harry Potter characters to a wide audience?

At some level, I think this case is really about academic elites disliking the relationship between art and the marketplace. Which is all good and well, but things have gone too far here. The Harry Potter franchise is not just another example of hype and commercialism gone wild—as I think many academic and publishing highbrows secretly believe. Instead, the books (and the movies) are ART on a lavish and hugely popular scale, and no less fabulous for being so.

Regardless, Professor Lessig’s views haven’t carried the day. Under existing law, you can’t just take characters and concepts invented and copyrighted by others, re-describe them in your own words, and then sell them. And that is CLEARLY what the Lexicon does. Of course the Lexicon is helpful as a handy-reference guide—that’s not the point. The point is that ALL of the characters and concepts used in the Lexicon are taken from copyrighted works.

Professor Lessig should be commended for devoting his brilliance and life’s work to championing his ideals. That does not mean that his clients will win in this case. On the contrary, I think they are virtually certain to lose, if not in April, then in later stages of the case, or on appeal.

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My question is what is the difference between what the lexion is doing and say someone who has written cliff notes for books? I am not sure I see the difference!

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A good poing Cristine, I wonder why no one is responding to that question!

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Cristine and Undecided: I can see how it could be tempting to compare the proposed RDR books with CliffsNotes. There are a couple of reasons why I think the two things are quite different, though.

To begin with, not every work of literature enjoys copyright protection. There are quite a few that do not, especially older works. These are in the public domain, although any modern translation, editing, or other recent alteration or additions (such as cover art, or internal photos/illustrations) are likely copyright protected.

Second, and more importantly, CliffsNotes are not just summaries of the players and events within the work of literature. They contain a lot of analysis. What do I mean by “analysis”? By “analysis,” I mean inference, or reading between the lines. Examples of “analysis” would be exploring the “theme” of the book. E.g., what is Moby Dick really “about,” besides a guy obsessed with hunting a whale? How are the characters “changed” as a result of what happens in the book (other than obvious facts such as “this one dies, that one lives, etc.”)

Despite their simplicity, CliffsNotes actually present very GOOD analyses of the underlying works. If they didn’t, students wouldn’t find them useful. To get an “A” on a college exam, students need to know a lot more about Moby Dick than the fact that it is about a guy hunting a whale. They need to know things about the book that are not stated directly in the text.

The distinction between “summary” and “analysis” can be slippery at times, but you’ve got to be able to make that distinction to understand and apply US copyright laws. That’s just the way they are written. We can’t just throw up our hands and decide there’s no real difference there at all, or that it’s too hard to tell what is “summary” and what is “analysis.” The law presumes the distinction exists and that courts will be able to tell which is which.

Hope this helps.

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