JKR/WB vs RDR Books Trial Day Two: Judge Says “A settlement is better than a lawsuit”

113

Apr 16, 2008

Posted by KristinTLC
Uncategorized

According to the Wall Street Journal Law Blog, Judge Robert Patterson addressed the courtroom at the end of the second day of trial:

“I’m concerned that this case is more lawyer-driven than it is client-driven. The fair use people are on one side, and a large company is on the other side. . . . The parties ought to see if there’s not a way to work this out, because there are strong issues in this case and it could come out one way or the other. The fair use doctrine is not clear.”

Judge Patterson reportedly added:

“I’m bringing it up now so you can think about it before you get into the rest of the case. Maybe it’s too late; maybe we’ve gone too far down the road. But a settlement is better than a lawsuit.”

In addition to Steve Vander Ark taking the witness stand earlier Tuesday, afternoon testimony centered around the impact a published version of website The Harry Potter Lexicon would have on any encyclopedia J.K. Rowling might write. While publishing expert Bruce Davis stated that such a book would likely have a small print run and do little to harm the potential market for a Rowling-penned book, Suzanne Murphy of Scholastic stated that while she finds Vander Ark’s lexicon to be of “poor quality”, she believes it “has potential to do quite well in the marketplace”.





112 Responses to JKR/WB vs RDR Books Trial Day Two: Judge Says “A settlement is better than a lawsuit”

Avatar Image says:

I like this judge…

Avatar Image says:

It seems that the judge is saying, you should settle now, because someone – including everyone affected by fair use laws – is going to lose big time here… I wonderf if there is really any inclination to settle, because if there were, it would have happened long before now.

Avatar Image says:

The judge is smart, but I DO wonder if it isn’t too late. I thought that they had already tried to work it out before it got this far? Wasn’t that whole thing about RDR not giving WB a copy of the manuscript of the book them trying to get this settled befre it came to court? Either way, I support JKR, from everything I have read and heard about the case, but hope that in the end everything works out for the best for both sides…

Avatar Image says:

Just how could they settle? I’m pretty sure JKR/WB’s position is that the book NOT be published, and I’m sure SVA/RDR’s position is that they should be able to. How do you settle that? Where’s the happy medium?

Maybe if they make it so the book had X number of new pages of all commentary or something. But still, I just dont see where there’s a middle ground to settle on.

Thanks, Leaky, for all the great reporting!

Avatar Image says:

The Judge could rule in RDR’s favor. Copywrite law is very messy. I remember the Da Vinci Code case a few years back that went a long time that case went to Brown but it was some non fiction book sueing him, now it is the other way around.

Avatar Image says:

I think the judge wants RDR to withdraw the book and WB to let them do that without demanding any compensation. If they were just the authors left (JKR and SVA), from what I’ve seen of their testemonies they would settle for that. JKR just wants the book not to be published and SVA is working on another (hopefully legal) HP book anyway. RDR wouldn’t lose any (or at least much) money this way (he has a defense fund and some of his lawyers are working pro-bono, if I understood correctly). This would be a solution that would benifit everyone, except the lawyers, so I think this is it and I hope RDR takes it (for his own good) and keeps his publishing firm operational and himself out of debt.

I see it as ‘you lose on facts’ to SVA/RDR side and ‘don’t get too cocky and vindictive, this can still bite you in the behind’ to WB/JKR side. Of course, all in hopes of ending this disaster as soon as possible.

Avatar Image says:

I just cannot believe this is happening. After how generous and interactive Jo has been with the internet community for Steve to do this is unconscionable. if it is a labor of love then no payment is needed. It is selfish and narrow minded. Steve, grow up, labors of love do not return a dollar amount. It feeds your soul.

Avatar Image says:

I hope there’s some kind of settlement that saves face all around. (I go back and forth speculating on which side’s arguments the judge will favor. I am not a lawyer… Right this second, I have no sense who would win.)

Jo deserves to win: but much of the reporting on this does not make her sound good (NYT story tonight; AP story on Huffington Post; the editorial in yesterday’s Independent and more. How’s television news treating her?) The lazy reporting approach says “Rich woman whose fame has gone to her head goes after a mild-mannered librarian who has given everything up in devotion to his idol.” Even the judge refers to her as (part of) “a large company.” OTOH (if RDR doesn’t appeal) she’ll be left in piece to write the Scottish Book at her own pace.

If RDR wins: it will be years of appeals before the Book is allowed to be published. SVA’s value as Potter expert and fan’s fan will be irredeemably shot, therefore devaluating any other HP companion books he wants to write & talks he wants to give, etc. RDR will have enormous legal bills they can’t pay (unless. of course. the “fair use side” lawyers continue pressing the case pro bono).

Man oh Manischewitz…

Avatar Image says:

It would depend on what the judge means by “settle.” If it involves money from Jo/WB to SVA/RDR in any way, shape or form I would say absolutely not. That, in my opinion, is what SVA/RDR have been waiting and hoping for all along.

It’s true that the judge could go either way, but if he votes against Jo/WB they will just appeal it and we’ll keep going. I doubt that RDR has the resources to take this much further.

It seems in the best interest of RDR to get out now, before they lose anything more and try to save a little face. I do not see any incentive for Jo/WB to be the ones to settle it by financial means in favor of SVA/RDR.

Avatar Image says:

Man, that stinks that they brought up that e-mail in court. Meliss’a notes were the BEST. Oh well, don’t know what you’ve got til it’s gone.

Avatar Image says:

I think evalita is right – the judge is simply saying `let’s not turn this into a legal circus. Let’s just shake hands behind the scenes and walk away’.

My overwhelming feeling is of sadness. It’s sad that JKR and a fan have been brought into conflict. It’s sad that a book company seemed to think they could get away with it. It’s sad that so many lawyers stand to benefit. The possible outcomes are sad. I’m just sad about the whole thing. I suspect the judge is too.

Avatar Image says:

I think steve and RDR are so stubborn! they have to know that most of the HP fandom is not for this book.. why are they still trying? If it is all about money… then steve has to seriously reevaluate his ethics.

If this book gets published, I will NOT buy it. period. I hope the rest of the fandom can do the same..

IF RDR WINS, DONT BUY THE BOOK.

that should shut them up.

Avatar Image says:

PS & FWIW—There’s an interesting comment on the previous Day Two post.

Elizabeth (April 15, 2008 @ 10:50 PM) explains (among other things) that the judge’s words are a particularly harsh and public rebuke of the lawyers on both sides of the case.

Avatar Image says:

Suzanne Murphy of Scholastic stated that while she finds Vander Ark’s lexicon to be of “poor quality”

I’m sorry, but that’s one thing you can’t call the HP Lexicon: poor quality. Whether you side with JKR or SVA, I think we can all agree on that. I mean, even JKR herself visited there. Anywho, I don’t want to take sides. I’m just really sad about all this…

Aloha, Johanna A Very Sad HP Fan in Hawaii

Avatar Image says:

Are the court transcripts posted online?

Avatar Image says:

evalita it correct that would be the fairest thing to do, but i really do fear its gone way too far for that and its going to get played out to the bitter end. I support JKR SVA should go to azkaban!

Avatar Image says:

desertwind,

I doubt it—at least, not by the court. Now that court proceedings are recorded, transcriptions are generally made only after the fact for specific reasons (for example, if the case is appealed, a transcript of the hearings in the lower court would go to the appellate court).

Here is the information I could find on requesting court records from the U.S. District Court for the Southern District of New York, which is hearing the case. An interested person might be able to get a recording of the hearings (though someone - likely a judge - would have to approve the release, and there are often exceptions for ongoing cases). But I doubt an official transcript would be available.

And thanks for the compliment. :)

Avatar Image says:

Hmm. I don’t know what I’m doing to cause the strikethroughs, but it’s starting to bug me. :)

Avatar Image says:

And the link is bad, too, so here’s the address:

http://www1.nysd.uscourts.gov/cases_request_records.php

Avatar Image says:

I totally agree with the judge. I also think that Jo and Steve are both wrong and right. I say that Jo can bar people from writing stuff about HP but if she was going to do that she should not have allowed countless other people to do that over the years. It seems a bit unfair they decided to pick this book. Also I really enjoy Ms. Murphy of Scholastic saying that all the work Steve and others have putting into the this book being “low quality” and that HP fans are to stupid to notice the difference. But I don’t really care what anybody says because if and when Steve’s and Jo’s books come out, I will be there standing in line at the book store to buy a copy of both.

Avatar Image says:

One more comment on the merits, then I’ll shut up (always hard for a lawyer to do). My litigation experience is as a prosecutor, not a civil lawyer, and especially not an intellectual property lawyer, so take this with a big grain of salt. (Or completely disregard it, because I could be dead wrong.)

There’s a saying in the law – when you win on the law, argue the law; when you win on the facts, argue the facts. I think Rowling’s arguments are sympathetic, but they seem based more on fact than law. I think RDR and Steve Vander Ark have a more solid legal argument. Part of the judge’s appeal for settlement is based, I think, on his own distaste for having to decide a case when the facts are more sympathetic to one party but the other party’s actions are not contrary to the law.

Obviously it’s not that clear-cut; if the controlling law was that clear-cut and obvious, the case never would have proceeded to trial. But the judge seems to be torn between a compelling set of facts on one side and a compelling legal argument on the other side. My impression is that legally, he’s leaning toward RDR/SVA. But that’s only supposition based on slim knowledge of both the case itself and of the controlling law.

Avatar Image says:

Johanna…

have you even bothered to notice this case is about a print version of the lexicon, which has been found to be nothing more then 90% words copyied word for word from the harry potter books, 2-3% words copyried from other non jk rowling copyrighted works, and the rest inaccurate statements that are contradictory to harry potter, but stated as fact. it contains practically no commentary, and jk rowling ultimately wrote 90% of it without knowing someone was plagerising her words until they tried to publish it.

if you dont understand the case in its simplist forms, then dont attack jk rowling and praise SVA, because clearly you havent paid attention.

Avatar Image says:

Elizabeth, i notice you have legal background.

my question however is how rdr has a better legal case when the lexicon book has been found to contain about 90% of its text taken many times word for word from jk rowlings copyrighted text with little to no commentary at in the entire text, something that became clear to people who read the copy posted on justia as public record.

RDR themselves originally stated that the book wasent commentary, but simple a alphabetical encylopedia of harry potter. then when they got in trouble for that, they started claiming it was commentary, but never filed with the court any list of what they said was commentary.

I have a feeling a settlement wont happen, Roger Rapoport, a famous shister, is not going to cancel the book. that is the only logical outcome, given that they had yet to point out in court any proof there is enough commentary to be fair use.

Saying something is fair use means absolutly nothing unless you prove it conforms to enough of the fair use docterine to qualify under the law. fair use might not be a exact science, but its not rocket science either.

Avatar Image says:

Elizabeth: I wholeheartedly agree with your perspective and it is refreshing to see another lawyer who thinks this way.

As to the folks who wonder how a settlement could possibly happen…RDR can agree to pay JKR a reasonable royalty for the right to use her work or JKR can concede that teh use constitutes fair use. There are a number of options, but because this case is so emotionally charged, it may be hard.

Avatar Image says:

Regarding fair use law not being clear, this seems to be warning against the expectation of any particular outcome. Based on what’s reported so far, if RDR have been hoping for this thing to be pushed through on a technicality, that possibility is looking remote in the harsh light of the court.

If RDR win you will have the absurdity that Vander Ark is free to sue WB/Rowling for breach of “his” copyright, as he as already attempted to do on several occasions. So with this lure of almost unlimited wealth that drives the RDR side, faint though it is, you can see why they are pushing ahead in the face of likely annihilation.

I take the judge’s remarks to mean that if RDR/Vander Ark don’t withdraw they will lose. And in doing so WB/JKR will have to stomach a lot of adverse publicity—though they are obviously committed to wearing that. Recall that the suit is not just to prevent publication, but seek damages. By proceeding with publication, RDR ensure a lose-lose scenario.

Avatar Image says:

‘-it could come out one way or the other’ ... Have many of you considered how we’re all going to feel if it comes out in favour of RDR/SVA and JKR abandons any further HP works (her encyclopedia, ‘and’ any possible future works set in the same world) out of disgust and dispair? This is a very real possibility and people don’t quite seem to have grasped this implication yet.

Avatar Image says:

By the way, in case you haven’t read the transcripts, there isn’t a snowflake’s chance in hell that JKR will permit the so-called “Lexicon” to be published, so no compromise there. That boat has passed. We are only in court now because RDR/Vander Ark not only wilfully ignored earlier approaches, but lied through their teeth about what they were doing. Now we know exactly what Rowling, who has been forced into this whole process, thinks of their miserable plagiarism. The court is going to wipe the floor with them. Whether or not they opt to pull out depends on how many brain cells they have between them.

Avatar Image says:

will orwont I hope you are right! I have seen our courts do too many completely wonky things, even when the law was perfectly CLEAR, to have too much confidence in that, though. I just don’t know. I have read Elizabeth’s comments and guess I sort of understand the distinction the court may be trying to make as she explained it (thank you, BTW) and that makes it look like the potential outcome is even dicier than I thought. What a mess!

All I know for sure is that if that dratted book ever does get published I will NOT be buying it. I feel so terrible for Jo. What a way to repay all her hard work and dedication to the fans.

Avatar Image says:

I wonder if legally the alphabetizing would be considered transformative enough to comply with fair use.

Shawn Adler – MTV.com/news (Apr 15 821 PM EDT) has pretty good article explaining the doctrine of fair use.

http://www.mtv.com/news/articles/1585635/20080415/id_0.jhtml

Avatar Image says:

I agree with the judge…a settlement WOULD definitely be better, but if it had to happen, it’d have happened by now. I doubt it’s going to happen now.

Avatar Image says:

This is informative: http://www.mtv.com/news/articles/1585635/20080415/id_0.jhtml

Thanks MTV!

Avatar Image says:

Whoops! desertwind beat me to it! XD

If Steve Vander Ark had listened to his FIRST gut instinct about publishing the Lexicon site (which was NOT to publish it), he wouldn’t even be in this mess.

Avatar Image says:

The way I see it at the moment the judge is giving RDR and particularly SVA a get-out-of-jail-free card:

SVA’s position is particularly exposed. 1. It appears he does not own the Lexicon or any copyright therein 2. His book is clearly copyright infringing 3. This puts him in breach of his contract with RDR books 4. That in turn exposes him to being sued by RDR 5. SVA could lose the Lexicon site, the book, his Floo Network friends and contacts, and any money and reputation he has left. 6. His other books may also be at risk as they may depend on his relationship with RDR and his contacts (which may have been the original bait offered by RDR to SVA re the Lexicon) 7. His position in the UK may then be exposed as well as he may be declared bankrupt or in perpetual litigation, which may in turn impact upon his current position /relationship within the UK etc.

RDR is less likely to settle. This has always been about the politics of Fair Use (as opposed to its basis in law), and publicity for his cause if not his company. He is naturally combative (judging by his statements on his site and in press interviews) and loves a fight. His legal counsel is free. He will write a book about the experience and it will be his Best Seller. The longer the case goes on the greater the martyrdom angle to the political position he has taken, and the more he hopes to embarrass WB, the corporate bad boy (“Voldemort”).

JKR would in theory be foolish to settle on anything but her terms but she may do so to put the case to bed. So, the best hope for both parties is a non-infringing Lexicon approved by JKR and re-written by SVA with RDR publishing it. Otherwise JKR will have to go for the kill and be prepared to call RDR and the Fair Use group’s bluff and sue them until the best outcome the law will allow is reached.

It is possible that in the current case the court will allow a Lexicon but not in its present copyright infringing form. Costs will be awarded to WB/JKR but the judge may not decide to make them punitive because it will serve no purpose in terms of justice being “seen to be done”. Clobbering a tiny mid-West publishing house and a sobbing fan-author with a substantial fine will not be seen as serving the best interests of justice.

My hope is that JKR can find the strength to call their bluff. But it may be at the expense of the “Scottish Book”.

The cliché about only the lawyers winning is self-evidently true. But in the end it appears to come down to a series of foolish decisions by one individual.

Avatar Image says:

SVA has really messed up, hasn’t he? I bet he’s wishing he never agreed to this in the first place. But yeah to whoever said it, it’ll be horrible if he wins. That would completely undermine copyright laws, and affect not only Harry Potter and our fandom, but all the other authors in the world as well. If RDR wins this case, it means that anyone can copy a book, rearrage it, and then sell it. It’s horrible. I can’t believe someone who is (was?) such an avid fan could do this to JKR.

Avatar Image says:

For an opinion on the proceedings more grounded in reality than sycophantic adulation & misplaced idol worship like that expressed by Micheline & others above, read this: http://nikkistafford.blogspot.com/2008/04/harry-potter-trial-i-just-had-to-wade.html

Avatar Image says:

I am making a stand for the true Harry Potter Fans! If this book is published, I will not purchase it. I will burn all the books in the stores and spit on them >:) JKR is the only one who can write a true and meaningful HP encyclopedia. I will purchase and support hers and hers only, AND YOU ALL SHOULD TOO :)

Avatar Image says:

@tara,

The Nazis recommend not to buy from Jews. Be careful with what you claim from other people.

Avatar Image says:

I agree with Beth when she said that she couldn’t see a settlement coming out of this. Obviously the number one priority for SVA and RDR is to develop some form of monetary reward for their efforts and now legal efforts. Although SVA has a case when he was asked to interview for the CD, WB- Time Warner is a monster business speaking, and if there was no contract entailing SVA to royalties you can’t ask for them after the fact. He can have another interview and negotiate payment, but not after DVD sales and taping, the contracts are written before. The only reason I bring this up is because JKR mentioned SVA requested a lot of money for his interview, more than JKR was paid for her first 3 novels.

The poor quality everyone is discussing happened yesterday when JKR gave her testimony stating that he had copied 90% of her work, of which she cited to the judge. As I stated before, just because you cite a person’s work doesn’t mean you can publish their information to make a profit, it specifically states so on all research journals you read. Additionally, JKR is the owner of Harry Potter if she doesn’t want a book stating this is the world of Harry Potter than she has every right to deny them rights to use her book’s name in the title.

The fair rights issue is because it was an on-line document that JKR didn’t impede until SVA attempted to bring it to print for profit. As far as I know in a legal sense the laws have caught up with technology, so their not sure what to do with a companion book that was once available on-line, but is not recommended by the author of the original series and is copyrighted.

WB has already stated if they have a copy of the manuscript and get a say in what’s allowed to be printed, in essence used from JKR, there would be no issue. Additionally, JKR has already denied books to be printed previously, see yesterday’s leaky article of JKR’s testimony. And Amanda, here’s a wake up call if SVA gets his way whose to say JKR will even go through with writing her “Scottish Book.” On top of that you would purchase something that SVA ripped off not only JKR but the other fans as well, which contains information JKR herself says is false? I mean if you say yes to that it’s your own perogative, but just be careful what you are agreeing to.

To think more critically: perhaps you should read more about the Nazi regime, because none of this has to do with that. The fans coming together to ban a book is considered a protest and has been used multiple times, after all it is us SVA is planning on getting his money from.

Avatar Image says:

Correction: [The fair rights issue is because it was an on-line document that JKR didn’t impede until SVA attempted to bring it to print for profit. As far as I know in a legal sense the laws haven’t caught up with technology, so they’re not sure what to do with a companion book that was once available on-line.] Also Elizabeth if you know anything about copyright laws can you fill us in? Because if the author states that sufficient quotation marks and citation were not used, information was falsified from the original document, and after so many citations are added when is it not breaking the law? I was under the impression if you didn’t cite correctly or have enough original material you were punishable under the law?

Avatar Image says:

Either party, if they lose, will appeal. RDR may not have much money but they’re working with lawyers from Stanford, which has a pro bono copyright/fair use center. I hope this case does continue, that it does get appealed, and that it results in published opinions from the district court in new york and the 2nd circuit court of appeals. The fair use doctrine is totally vague, has been for years, and the only way a legal doctrine is ever made clear is if it gets litigated enough. So while you all may not like to see a lawsuit, it’s not a bad thing at least in some ways.

Avatar Image says:

Jo won’t settle for anything less than this book not getting printed. If RDR, has any common sense they would withdraw. This case can only damage what reputation they have. Also, they must be a bit angry at SVA pointing the finger and blaming them for this situation, in court yesterday.

I understand the judge’s comments, on this being a case about the lawyers. Weren’t RDR lawyers taking this case because they want to change the definition of far use? But, the law is clearly on Jo’s side. This book clearly violates her copyright. It doesn’t even fit under the term “fair use” You just need to compare it to other published books, and you’ll clearly see it’s not.

Avatar Image says:

@orwont:

You are completely misinterpreting the intellectual property law. If RDR wins, SVA CANNOT (and I also suspect would not even if he could) sue JKR based on “his copyright.” If he wins it is because the judge determined that the Lexicon is infringing, but it is acceptable under the fair use doctrine. Based on the judge’s statements about the case going either way, I think this is a possibility.

You also mention that JKR was forced into this process. She’s is the plaintiff so no one forced her to do anything. She initiated the legal action. Your concerns about plagiarism are also irrelevant because this case is about copyright.

Finally your assertions that RDR has no chance of winning and that the harsh court will wipe the floor with them go completely against what the judge actually said. I’ll post the quote as a reminder…

“The fair use people are on one side, and a large company is on the other side. . . . The parties ought to see if there’s not a way to work this out, because there are strong issues in this case and it could come out one way or the other. The fair use doctrine is not clear.”

I don’t see how you reached your conclusion that RDR has no chance when the judge clearly states the case could come out either way.

@NiGHTS:

I agree that it would be awful if JKR stopped writing as a result of this case, but that would be her choice, no the court’s. I hope it doesn’t come to that.

@Snape_n_Lily:

I agree that SVA is probably stressed out about the mess he is in. I disagree with your conclusion that it is bad for the fans if RDR wins. This argument is based on a confusion with the implied license argument and fair use. If RDR wins, it will be because the Lexicon is within the scope of fair use as the law stands. Additionally you state concerns about other companion books, but these things have been around for a long time. As fans I think we have an interest in a broad scope of the fair use doctrine.

@rotfang07:

I think there is no question that the book is infringing, but is it fair use? That’s the question and I don’t think there is a way you can reqork the book so that it does not infringe. So if it is published it will be published as an infringing work which is allowed under fair use.

SVA is only in breach of his contract if RDR loses. And if they do why would RDR sue him? If this $6500 figure is true, he won’t be able to pay the judgment with that and his librarian salary. They won’t be able to recover their costs. It is in the best interest of the parties to settle, but we’ll see if that happens.

Avatar Image says:

And, by the way, in my legal opinion, RDR has a fair shot at winning this. In determining fair use, a court considers a number of factors, including how creative the copyrighted work is, whether the allegedly infringing work merely copies or is instead transformative somehow, whether the infringing work is commercial, how much work is actually copied, whether the copy supplants the market for the original. Here, some of these factors favor Jo, but some favor RDR. Jo’s work is very creative and deserves strong protection. But RDR hasn’t copied the books so much as it has compiled information from them. It has, however, probably compiled a lot of information. And yet can anyone seriously think that someone would buy RDR’s book and not buy Jo’s encyclopedia? The issue is not whether RDR’s book would do well, but rather whether it would harm the market for Jo’s book. And it’s really difficult to think that it would. And, of course, it’s problematic that RDR is clearly trying to profit.

Also, bear in mind that like this case, Jo could, if she wanted, seek to shut down all fan sites and all fan fiction. She doesn’t do so because she doesn’t want to. But she could. And if she tried to shut fan activity down, the fans would find themselves in the same position as RDR now – you’d have to argue that you’re not copying a lot, that it’s not hurting Jo, that you’re doing something transformative and not just copying, and you’re not doing it for commercial purposes. But could fan sites, even Leaky, win such a fight? Leaky may not be a business that sells goods and services, but they do have ads. Right now I see google ads below me for security guard services and real estate. Leaky is essentially trading off the harry potter name to get hits on its website and make money of such ads. Even though they’re not selling books for 25 bucks a pop, they’re still making money. Based on all this, i think it’s kind of funny that Leaky was so apt to cut ties with Steve. I think that Potter fans just get so obsessed and worshipful of Jo that they’re quick to totally side with her even though its contrary to their own interests.

Avatar Image says:

AGAIN, in response to the commentary from the previous thread and now this one: I think people are misunderstanding everything. Back when he claimed that it was illegal and cautione dothers against publishing similar types of projects, it’s most likely because he assumed, and rightfully so, that it must be illegal. It may be that he planned on creating more commentary and patch up the misquotations and such but the publisher may have been like “no it’s fine, it’s legit, really”—I’m only ‘assuming’ ofcourse.

That clause is NOT unusual and suspicious, you silly people. I’m a freelance Illustrator and I deal with this every week. Most companies’ contracts DON’T include it so that they can cover themsleves from any legal trouble. It is up to the discretion of the independant contractor (writer, artist, etc.) to cross that section out and demand the opposite in a sidenote for the SECOND DRAFT of the contract. If you’re not stupid like 80% of peole who get into this sort of thing, you know you have the right to make negotiable changes to ANY contract before you get a final draft and then sign it. Proper smart contracts DO include this clause if you (and SHOULD) ask for it.

It remains the Publisher’s responsibility to act legally. Again I’m assuming on this but: It MAY be that one of the reasons RDR didn’t respond to any of the cease & desists and requests for plagiarism reviews was because they were maybe still in the process of modifying the content in order to not be plagiarist. Although most likely not.

Vander Ark HAS made some valid points: Rowling and WB and their respectful legal representatives WERE aware all these years of the Lexicon’s existence as WELL as the fact that it was obviously profiting SOME type of amount from its web ad revenue, and not only chose not to shut it down, but used it as well (not Rowling, but WB and EA did).

Avatar Image says:

This case isn’t a slam dunk on either side. The judge is trying to tell them this. I hope they settle and Jo stops acting like such a prima donna. What’s she going to do if someone decides to write a scholarly concordance in a few years, say no because she wants to write one herself?

Avatar Image says:

WHO DOES THIS GUY THINK HE IS J.K HAS SPENT YEARS WRIGHTING THESE BOOK NOW SOME EDJET WANTS TO COME ALONG AND RIDE THE BACK OF HER SUCESS I DONT THINK SO !! HE SHOULD HAVE HIS OWN IDEAS R IS HE JUST ONE OF THESE PEOPLE WHO HAVE NO THOUGHT POWER OF HIS OWN OTHER WISE HE SHOULD STICK TO WHAT HE DOES BEST WEB SITES

Avatar Image says:

Kristin, thank you for keeping us informed.

Folks, I realize that the disccussions here at Leaky (or at any open access discussion site) there will be a constant ebb and flow of activity, and of new voices joining in. But, over the past year the copyright, plagiarism, profit, fair use, infringement and other issues have been exhaustively discussed here. Is it really necessary to do so again? Or perhaps someone could go through those discussions, find the relevant claims, quotes and facts, write up a time line? ;-)

The real point that struck me, as others have noted, was ““I’m concerned that this case is more lawyer-driven than it is client-driven.”

As some of have said all along, its not about either SVA or JKR any more, its about the legal teams. so, can we stop talking about JKR and SVA, and try to focus on the evolving legal arguments?

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It isn’t totally about Jo wanting to write her own. It’s about SVA copying her work for financial gain. And if you say it’s all in name of fair use, it’s not. The fact its 90% Jo’s words, and hardly no commentary at all. Doesn’t make it a fair use book.

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@Lawyer:

In my legal opinion, I completely agree with you. :) The facts in this case could result in a judgment either way and I think the judge’s recent statement indicates he is thinking along the same lines. A lot of people look at these pie charts (which are now in question considering that SVA got permission from EA to use some material from the wizarding cards) and think that if 84% or 90% was copied it’s not fair use. I have tried to continually remind people that there are four factors involved here. Both sides bring interesting arguments.

Also I am glad you brought up Leaky and other fan sites. I have always wondered about how a hypothetical case against a major HP podcast would turn out. Although these things are arguably more transformative than the Lexicon, they clearly cut into the potential market for the copyright owner. Remember when WB tried to put out a GOF podcast and it pretty much failed? This was because Pottercast and Mugglecast had already cornered the market. A lot fo fans seem to only look at the amount copied and disregard the other factors involved.

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Ah what a mess this is…I understand JK but I also think this guy didn’t intend to make money either. I just hope this doesn’t stop the “Scottish book”.

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Melissa, please can we have more on Steve Van Der Ark’s testimony?

@ Elizabeth, strikethrough happens in the coments to anything typed between two dashes, – like this -

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Ok, so it didn’t work that time – but it usually does – .

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I get the impression that Jo could very well lose and he really doesn’t want to see that happen since shes donated to charity and basically got children to read again or more than they have been.

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What is Warner Bros’ involvement in this, I thought they were only getting the copyright for the movies ?

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Thanks @ lawyer and akemi42 for some unbiased legal analysis of the issue. I’m an attorney as well, though with no trademark and copyright experience.

Anyone who believes the judges comments somehow favor JKR are fooling themselves: the issue is far from clean cut and could go either way. When judges make comments like this, it’s often because they realize a compromise would be far better for both parties than the all or nothing solution they’re forced to render.

As others have said, the comment about lawyers driving this is dead on, espeically when you hear the testimony. Both JKR and SVA gave testimony with alot of personal relevance, but they were also both clearly well coached by their attorney’s always striking themes that address the elements of Fair Use.

It really is a shame it’s come to this, I suspect a big reason for the dispute is RDR’s refusal to give an advance copy to JKR and accept her comments. Is a settlement possible? I hope so. I doubt RDR will give in completely, they’d rather take their chances with a verdict. The question becomes what would they need to do to allow JKR to let the book be published. Sadly, I think thelines may be so hardened a this point that a compromise isimpossible.

Lastly, one thing I find a bit silly is the idea that the SVA/RDR book will impact JKR’s sales, either of the HP boks themselves or JKR’s encyclopedia. Let’s face it, the RDR book is dead in the water at this point, the vast majority of HP fans won’t buy it out of loyalty to JKR. Even if that wasn’t the case, the book JKR does herself is still going to be bought by the vast majority of those interested in a reference book on the series, regardless of what else is out there.

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I saw in abc news this report that J.k. already went to court to make her statement in her defence for the Harry Potter book and the sadest part of all is that is brought her to tears and I think that is wrong that they have to bring J.k. to this because this is her work and no one has the write to do this to her just because they are big fans and they think that they have the right to it they don’t…... From ABC NEW

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After reading a little closer in these news posts (I nothing about laws and legal stuff so I often skim read) I must say I can’t see what Steve is playing at.

I’m not sure who was going to buy it in the first place, to be honest. What’s the difference between having a book copy and having the internet version? Maybe for people with a Dial-Up connection? lol. They obviously can’t stick everything off the website into a book, so the website is clearly going to be better. And the website’s free. And it’s easier for finding things.

If Steve’s book loses then I can’t imagine how it’d be a big loss to the community. However if Jo doesn’t write that book, there’s a million and one new bits and pieces that we could find out.

When it comes down to it, would you rather have an book full of old stuff which you can find on the internet anyway, or a book full of new stuff from the original author?

There you are, I’ve said my piece.

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smart man…and I agree with him. if RDR is prepared to give up of publication,and Jo “wins”-that would be a nice settlement.

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I wonder if the Judge is right. Is this situation really due to the lawyers, or was it just the ego’s of executives within the companies involved that have sucked their own clients down a path of possible destruction?

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I wonder if thsi whole issue would be avoided if it was aranged that JKR’s book was simply released first.

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The only way I can see a settlement is if RDR/SVA agree not to publish the Lexicon book at all, and to completely waive any notion of claiming copyright on that HP timeline, and JKR/WB agree not to accept or demand any financial damages on the case, because doing so would bankrupt both RDR and SVA.

If I were SVA, I’d be pushing hard for a settlement now, but I suspect that at this point, it’s out of his hands. Falzone and the rest from Stanford want a case to set precedent, so they likely see no reason to settle, and who knows how badly his relationship with RDR has been strained by all this, so a settlement may not be possible at all.

Of course, all of this could have been avoided if RDR and SVA had just acknowledged the C&D letters in the first place and had worked with JKR/WB from the start. It’s their own fault it’s gotten this far at all.

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@budb, Fair Use is different in different countries, and copyright and all those related concepts are confusing enough in one country, so it’s no wonder people go round in circles discussing it! Coming from the UK, I just can’t see how what RDR are doing is Fair Use. I can’t see the justice in a win for RDR.

Most worryingly, if it does go RDR’s way I can see Jo not writing the Scottish Book. This will leave a major bad taste in her mouth and I know what I’d feel like in her place. Why should she bother putting what is bound to be a major effort in only for it to get plagiarized later on by some other greedy swine, or for SVA’s 2nd edition perhaps? I wouldn’t blame her if she turned around and said “right then, noone will ever know the full story behind HP” and to lock her notes up in a secure vault somewhere. Maybe that’s why SVA is upset by all of this because he realises that the real impact of his actions could be that we see no more original HP material!

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As for what we fans can do if RDR wins and the Lexicon is published, a boycott is the answer.

I’m hearing emotional appeals in these comments to “burn” or “ban” the Lexicon, but we are not Nazis or Laura Mallory. We Harry Potter fans are not the kind of people who would deny anyone the right to publish or sell a book. That’s the kind of intellectual freedom that Jo Rowling has been championing in her books, and that she has always wanted for her writing.

If we have learned anything from reading Harry Potter, it is that banning or burning books is one of the first steps toward a fascist, totalitarian society. Think of all the times that the Harry Potter series itself has appeared on the Banned Books list. We don’t want to live in Voldemort’s world; we want to live in Harry’s world.

Therefore, if the judgment turns against Jo and WB and the Lexicon is permitted to be published, we can organize our considerable efforts on the internet and elsewhere to boycott the Lexicon and make one of publishing’s biggest flops. Don’t buy the book, and advise your fellow fans not to buy it.

In fact, before the Lexicon is published, go to the site, and copy and print out every page of it for your own use FOR FREE (because, let’s face it, folks, we all use the online Lexicon). I’m sure that once the Lexicon is published, the free site will be closed so that people would have to buy the book instead. DON’T BUY THE BOOK. COPY IT FOR FREE FROM THE WEBSITE NOW. MAY THE PRINTED LEXICON FILL UP THE “REMAINDERS” BINS AT BOOK STORES NATIONWIDE!

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Why should we burn the books or destroy them? What’s the point of doing something like that? The best way to make sure a book is not successful is not to buy it, to completely ignore it. Resorting to acts such as destroying the books just adds some negative publicity, which may even cause people who don’t really care about Harry Potter to buy the books just out of curoisity. But if the book is completely shunned by the fans, then it’ll just come and go. I know it sounds so heartless and cruel, but if RDR and SVA win this case, there is just no way I’m going to buy the Lexicon book.

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akemi42: SVA is only in breach of his contract if RDR loses. And if they do why would RDR sue him? If this $6500 figure is true, he won’t be able to pay the judgment with that and his librarian salary. They won’t be able to recover their costs. It is in the best interest of the parties to settle, but we’ll see if that happens.

Actually, Steve is no longer a librarian; he has moved to England has secured employment elsewhere and has expressed plans to further exploit the Lexicon by writing other books. There is a small potential for money making on Steve’s behalf, should RDR lose, they would go after {especially after Steve left them flapping in the wind yesterday}.

The contract he signed claims he had clear copyrights to what was in the proposed book and that was the impetus for the indemnification clause from RDR. That, of course, has been complete untruth on his part. Many people have contributed to the Lexicon site, it is a collective work and quite difficult to see who exactly contributed what or when.

A lot of people look at these pie charts (which are now in question considering that SVA got permission from EA to use some material from the wizarding cards) and think that if 84% or 90% was copied it’s not fair use.

Specifically for non-commercial use on the WEBSITE. Nowhere else. Steve secured that permission via Floo connections aka TLCs efforts.

underscore: That clause is NOT unusual and suspicious, you silly people. I’m a freelance Illustrator and I deal with this every week.

Silly people? Please do not try to pass of blatant untruths and then insult people for actually getting it right.

The firm I work at deals in Intellectual Property Law and 5% or less of the publishing contracts that are signed have that clause; in fact, the topic is rarely even broached by either parties as a likely scenario. It is a rare occasion indeed to have a publisher agree to something like that. The reason being is that publishers have a vested interest in protecting themselves from lawsuits. They rely upon the author’s word and ensure the author bears the brunt of legal challenges.

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I’ve only had time to read through the first 2 pages of comments, but I have to say that I was actually delighted to see the thoughtfulness put into the comments; it’s a rare thing.

I’m a lawyer, and with only a cursory knowledge of the facts in this case, I had always thought that SVA would prevail, but now, I’m not so sure.

That said, to the person who wondered about transcripts: yes, they will be available unless one of the parties requests that they be kept confidential or the judge decides that on his own. If available, however, they won’t be free. I do have PACER access (online access to federal court documents), but it wouldn’t be ethical for me to retrieve them for you since it would cost my firm or a client money. I find it likely, however, that some news source would pull them and post them online (since they are, after all, a matter of public record).

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Anonymoose, please. What you’re doing is WRONG. There may be posters reading and contributing to these pages who may be in a position to get their own writing material or freelance artwork published in the near future and you are miseducating them about THEIR RIGHTS by leading them to believe that contracts with one-sided IDEMNIFICATION CLAUSES should simply be accepted and signed without question—WHEN THEY SHOULD NOT. That is wrong and you should be ashamed of yourself.

An Idemnification Clause should always protect BOTH parties. Contracts always have them solely in the company’s favour, like you said, so that those who are ignorant and naive enough not to know better sign it without question. However this clause SHOULD always be altered at the request of the artist(s)/writer(s) so that said Idemnification Clause protects them instead, or both parties in some fari and balanced way.

From my experience as an illustrator, an IDEMNIFICATION CLAUSE is set in place to protect the client/company from work that violates someone else’s copyright.

BUT:

It can also be arranged differently in order to protect an artist, like myself, from prosecution resulting from use of client/company-supplied reference materials that violate someone else’s copyright (such as photographs, paintings, etc.).

I just wanted to make that ABSOLUTELY clear to everyone. And please do not believe just anyone whoe posts here and claims they are involved in law or dealing with contracts. Thank you.

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It’s common practice for judges to encourage the parties to settle.

Is it possible to reach a settlement that would allow Steve to publish some form of the Lexicon? The idea is really intriguing to me.

Or will they simply throw enough money at Steve and RDR just to go away?

Anything can happen here and if it is settled, we may never know the details.

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Whoo! Lots of things to respond to…I’ll try to do it in an orderly fashion.

pottershrink – thanks for letting me know. :)

k – usually if a case goes to trial, it is the fault of the lawyers, not the clients. With very few exceptions, clients have a practical or personal interest that they want to protect – they could care less about legal precedent or anything like that. If they can reach a settlement that would satisfy them, generally they prefer to settle, not only because paying a lawyer to do a trial is very very expensive, but also because trials are emotionally draining and unpredictable, with an uncertain outcome no matter how clear the law is. This is especially true if you’re doing a jury trial, because most jurors care more about doing what they think is right than following the letter of the law. But it is also true of bench trials. Judges are as human as jurors, and whatever they tell you, they’ll do their best to make their decision based on what they think is right, not on what the law says. They’re just sophisticated enough to make it sound like the law supports them. :)

I’m not a lawyer in this case, or the judge, so I don’t know what conversations have been held back in chambers. But if the judge did not think the lawyers were poorly representing their clients, he would not have so strongly and publicly rebuked them. My take on the situation is that the clients are quite emotionally invested in this case (I’ll touch on why later), and the lawyers have taken advantage of that by pushing the case to trial instead of having the “come to Jesus” talk with them. An example of a “come to Jesus” talk I would have with one of my officers: “Look, I know this guy is a jerk wife-beating gangbanger and that he belongs in jail for a very long time, but we’re never going to be able to prove that he did X. The evidence just isn’t there. We need to reduce the charge and settle.” A “come to Jesus” talk that my esteemed colleagues at the public defender’s office might have with their client is: “I know you don’t want to go to jail, but no jury is going to acquit you. If you accept responsibility and seem remorseful, the judge will probably give you a lighter sentence.” And a “come to Jesus” talk that the lawyers in this case could have had with their clients: “This case deals with a vague area of the law, and it’s very possible the other side will win. It’s better to settle and get something out of it than nothing at all.”

My guess is that JKR and WB’s lawyers are rather fond of their clients’ deep pockets and really saw no need to have a “come to Jesus” talk with them. That is – they’d be incompetent lawyers if they didn’t tell their clients about the risks associated with trial, but I doubt they’ve tried to convince their clients to settle, which is obviously what the judge would prefer.

On the other side, you have the lawyers who have an ideological reason for taking on a case. Always, always beware of lawyers who are taking on a case for the sake of principle. The movies make it sound heroic and glamorous, but the interest those lawyers are serving is usually their own – they want to have their name attached to a famous case or a famous cause, rather than serve their client well and faithfully, as they’re supposed to do.

Now, it’s always possible that the lawyers have told their clients all of the weaknesses in the case and urged settlement, and that the clients really are just intransigent. But I doubt that. I doubt that because if the judge, who is much closer to the case than we are, rebukes the lawyers on the record for the case being lawyer-driven, it means he believes the clients want to settle, or are at least willing to settle, and that the lawyers are pressing it forward for reasons of their own.

Make sense?

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rol wrote: “Lastly, one thing I find a bit silly is the idea that the SVA/RDR book will impact JKR’s sales, either of the HP boks themselves or JKR’s encyclopedia. Let’s face it, the RDR book is dead in the water at this point, the vast majority of HP fans won’t buy it out of loyalty to JKR.”

You are making a HUGE assumption here, based on that fact that YOU are on a HP website, and YOU are following this case, and that YOU wouldnt buy based on a loyalty to JKR. And I’m there with ya… I would never buy the SVA book (and you may be right about the SVA book being dead in the water considering one article said that B&N and Borders, I think, have canceled orders for it). But we’re not a proper representative of the entire HP buying public.

There are MILLIONS of fans out there who dont visit these sites, and are most likely not aware of the lawsuit in any way… They are going to wander into a book store one day and see a display with a big ol’ title saying “Harry Potter Lexicon: the ultimate guide to blah blah blah”. And they are going to say “oh, cool” and buy a copy. Then 3 or 4 (or 10) years from now, when JKR’s comes out, and they see a display of books that says “Official Encyclopedia of HP”. They’re going to say “I already have that” and continue on.

And that’s not even mentioning all the moms and grandmoms who are buying a gift for Joey or Suzy and dont know anything about JKR or SVA or HP. They’re just buying what’s on display because they know their loved one loves HP.

It’s incredibly presumptive to think that everyone would stick to JKR’s version. SVA book would have an affect (however small) on The Scottish Book.

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I wonder if either side had considered mediation. That is done, however, before or in lieu of a lawsuit.

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...did anyone else read that and initially think that it said the judge was Robert PATTINSON instead of Patterson? That gave me a shock…. :D

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I only wish to make one comment and then one point (yes, yes, I know that is unusual for me!).

Please remember that SVA is NOT a defendant in this case, and therefore is not a party to any settlement of THIS case. That would be taken up, if ever, between RDR and SVA regarding the contract and related issues, and possibly (but unlikely in my opinion) between SVA and JKR regarding future endeavours. In the latter regard, I suspect that any new works by SVA will have thoroughly and completely passed whatever tests of Fair Use (U.S.A.) or Fair Dealing (Canada) or whatever it is called in other jurisdictions. And to the various lawyers here… please correct me if I’ve erred on this.

As to the issue of contracts and standard clauses and rights, yes, it is true that there are any number of changes that can be attempted to be made to standard contract clauses and inclusions. I stress ATTEMPTED. For essentially innocuous changes, there is usually not a problem. However for such changes as would affect assignment of liability, a small minority of them ever see the light of day. So perhaps Anonymoose might have added to the posting something to the following effect….

“Notwithstanding that the vast majority of impactful changes do not pass muster, certainly anyone entering into a contract negotiation should ensure they try and get what they can, and should, to the extent possible, seek legal advice before signing on the dotted line!” And btw, I am NOT a lawyer, but I too deal with both contract issues and protection of intellectual property rights every single working day as a Risk Manager.

And as for underscore, perhaps YOU could have pointed out that attempting to secure such changes is obviously your right, but that they do NOT always go through, and that, in fact, YOUR experience with such negotiations is just that… your experience. You may also be including anecdotal evidence from your colleagues and a few, maybe many, others whose experience you have been told of or are familiar with, but that is a fracton of all such cases, and cannot be represented as the norm. My experience, which is, after all, only mine, is that almost NONE of the attempts to shift potential libility ever go through. To be sure, there are compromises reached (after all that is what negotiating is really all about.. trying to reach a mutually acceptable compromise).

At least in my humble opinion.

M

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It does seems as though it’s RDR and not Steve who’s being the d*ck here.

From the testimony, it sounds as if RDR saw a chance to make a quick buck and sweet-talked Steve into doing the dirty work.

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Well, I do hope that SVA and RDR back off. It isn’t his right, plain and simple. The fact that Jo let him keep the website in its present form displays her tolerance and support for people wanting to involve themselves in her work, but this just isn’t the same. This is for profit… and JKR’s encyclopedia wouldn’t even be for profit! It’d be for CHARITY.

The noble thing to do would be for RDR and SVA to back off and adhere to JKR’s wishes.

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NotTheHBP, you asked why I think SVA and RDR might have a better legal case, when it looks like about 90% or more of the Lexicon is basically lifted from the HP books.

Ginny, you asked me if I might fill you in on copyright law, and asked if it’s not a violation of the law if you don’t cite correctly or have enough original material.

akemi42 and Lawyer, among others, have already shared some excellent insights on these subjects; I’ll try to add what I can. Fellow reptiles, please correct me if I’m wrong, because I’m on shaky ground whenever I venture into the civil world. :)

First – to understand the law, it’s always important to understand what the law is intended to do. Copyright law is intended to protect creators, as patent law is intended to protect inventors. The government believes the arts are useful and that artists should be rewarded for their efforts so that they will continue producing art. JKR mentioned how this whole thing has made her feel disheartened and has affected her writing, and it’s for that very reason we have copyright law: we don’t want people to stop writing because others can steal their work and profit by it. The person who should profit most from a creation is, ideally, the creator.

But copyright law is not absolute, because the government does not want to stifle innovation. It’s a truism that there’s really no such thing as an original plot. Shakespeare, for example, lifted almost all his plays from other people’s stories or from history. But what he did isn’t considered intellectual theft; what he produced often had more merit than what inspired him. So within copyright itself, you have the tension between wanting to protect creators so that they’ll continue to create – but not to such a point that will prevent innovators from innovating.

Then you have a tension with other areas of the law – First Amendment law, for example. How do you resolve restrictions on writing and expression – for copyrights are government-enforced restrictions on writing and expression – with the guarantee of free speech and freedom of the press? The areas of the law that are the most difficult to deal with are the ones that are balancing acts between rights that most everyone agrees with in principle. What do you do when two rights we believe in conflict?

Answer: the courts balance several factors to decide which right takes precedence. According to the Fair Use Doctrine, in a case asserting violation of copyright, the judge must weigh four factors:

1) the purpose and character of the use of the copyrighted work (in this case, the purpose and character of the Lexicon’s use of the HP novels);

2) the nature of the copyrighted work (in this case, fictional novels);

3) what amount and proportion of the whole work was taken; and

4) the effect of the use on the potential market for or value of the copyrighted work.

If, after weighing these four factors, the judge decides that the use of the copyrighted work is a fair use, then it’s not a copyright violation. If the judge decides that the use is an unfair use, it is a copyright violation. The Fair Use Doctrine is intended to protect legitimate discussion, reference, commentary, etc. It’s a fact-driven inquiry – which is why I think it helps JKR that she has a factually sympathetic case – and it’s really easier if you look at it from a variety of examples, not just trying to understand the doctrine on its own.

Some examples:

1) I publish a book called Larry Hotter and the Fugitive of Alcatraz. The plot and the characters are basically identical to Harry Potter and the Prisoner of Azkaban; I’ve just changed around some names and moved the action to America. I make certain that I don’t lift verbatim passages from the original work.

Fair use? No. Under factor 3, it doesn’t matter that I didn’t steal Rowling’s language, because I stole a huge portion of the whole work. Under copyright law, this is scarcely better than taking Rowling’s novel verbatim and publishing it whole under my own name.

2) I write a review of Harry Potter and the Deathly Hallows for my local newspaper. In the review, I include a few direct quotations from the book, a plot summary, and my comments and evaluation of the work.

Fair use? Yes. Under factor 1, the nature of the use of the copyrighted work is to discuss the work. Under factor 2, my work (an article) is not the same as the copyrighted work (a fiction novel). Under factor 3, though I am commenting on the work as a whole, I am not taking a large portion of it. Under factor 4, depending on the nature of my review and how much the readers trust my judgment, it might inspire additional sales or deter additional sales, but my work is not a direct competitor with the copyrighted work.

3) I’m a college professor and I write a lengthy scholarly article on Tom Riddle, using many verbatim passages from CoS and HBP to support my points. The article is critical of Rowling’s decision to make Riddle more of a powerhungry sociopath than a bright, charming, talented boy whose ambition and bitter life experience destroyed his soul. I say that in COS, Riddle appeared to be more of the latter, though there were hints of the former. In HBP, however, he is mostly the latter. I say that the story as a whole would have been more compelling, and the parallels between Riddle and Harry more pronounced, if Riddle had started out in pretty much the same place as Harry but came to let the defining characteristic of his house (ambition) consume him in a negative way, while Harry let the defining characteristic of his house (courage) shape him in a positive way.

Fair use? Yes. Though I’m using major portions of Rowling’s work to make my points, and though my points may deter prospective readers from reading the book and thus have a negative impact on the market, I’m not trying to pass off the work as my own.

4) I’m fascinated by the characters of Sirius and Regulus Black and want to write a book about their relationship. I’m aware, however, that borrowing Rowling’s characters and writing my own book about them for profit would be unethical, not to mention illegal. So I think about what appeals to me about Sirius, Regulus, and their relationship. Turns out it has little to do with them being wizards, or great players in the wars against Voldemort, or anything like that. What really appeals to me is a story about two aristocratic brothers – the brilliant, charming, rebellious, hotheaded heir, and the dutiful, obedient, envious but ultimately loving younger brother. The end work is a book about two brothers in Revolutionary France; the older one defies his aristocratic, royalist family and sides with the Republicans; the younger one fights faithfully for the crown. In the end, both are disillusioned with their causes; together, they save their parents from the guillotine, and the entire family heads to America to start a new life.

Fair use? Yes. I was both inspired and influenced by Rowling, but my work, though a fictional novel, is meant neither to compete with nor replace hers.

5) I want to write a book about the relationship between Lily Evans and Severus Snape. Other than a very few scenes based on the ones that appear in DH, the plot and the language are my own. I want to be sure to give credit where credit is due, and so I dedicate the work to J.K. Rowling, encourage everyone to read the originals, and make it clear that I’m just a very enthusiastic fan who wanted to tell that part of the story that didn’t really get told.

Fair use? Probably not. However much I credit Rowling, however much I cite her, however much I make clear that the scene where Lily and Severus meet was written mostly by her, I’ve still appropriated her property and tried to make it my own.

6) I read a nonfiction book about the history of alchemy that includes a chapter on the philosopher’s stone. The author of the book argues that the philosopher’s stone really did exist and that it’s been hidden to protect it from powerhungry evildoers. He provides evidence of this fact. Inspired by this argument, I write a fiction book about a heroic boy trying to protect the philosopher’s stone from an evil tyrant seeking immortality. The author of the nonfiction book sues me, claiming I stole his idea.

Fair use? Yes. This is similar, in principle, to the lawsuit over the Da Vinci Code a few years ago. You can’t copyright a fact, you can’t copyright evidence. If you write nonfiction, you are copyrighting your expression of the facts, but you can never copyright the facts themselves.

Leaving the hypotheticals, let’s come to this case, and evaluate it under the four factors.

(1) Purpose and character of SVA’s use. He has taken information from Rowling’s books and arranged it into what is basically an encyclopedia. It seems much of the language is taken verbatim from the HP books. The purpose is not to compete with the Harry Potter books, or to replace them, but to supplement them—to make, basically, an easy and comprehensive reference guide. This works in SVA’s favor. One of the primary purposes of copyright law is to protect the creator from unfair competition. But the Lexicon, if anything, promotes the original.

(2) Nature of the copyrighted work. A reference guide. Again, this works in SVA’s favor. It is not a fictional work intended to compete or replace, nor is he trying to pass of JKR’s work as his own.

(3) Amount and proportion of whole work taken. Apparently substantial. SVA seems to have copied a great deal of material rather than just synthesized it, as reference works usually do. This works in JKR’s favor.

(4)Effect of the use on market and value. To me, this is one of the more interesting issues, because this is where talk of the Scottish Book has come into play. But the work the judge would be comparing the Lexicon to would not be the Scottish Book, it would be the existing HP books. I don’t think publishing the Lexicon will have any effect at all on the market for the series or its value. I also don’t think, realistically, that it will have an impact on the Scottish Book (other than the fact that it might dishearten JKR and lead to her not publishing the Scottish Book). But under copyright law as it’s written now – at least, in my understanding of it – the comparison has to be between works that already exist. You can’t copyright an idea for a book. I think this factor works generally in favor of SVA.

I’m not saying that because I like that. I have a lot of sympathy for JKR’s point of view. But, looking at the Fair Use Doctrine, I’d say three of the four factors support SVA.

Does that mean that the judge agrees with me? No. Even if the judge did agree with me, does that mean he has to decide in favor of SVA? No. This isn’t a mathematical equation. Factor 3 alone is often enough for there to be a copyright violation, if the borrowing is substantial.

What this does say to me is that both parties have a fair shot at winning, and I think the judge believes there are compelling arguments on both sides.

As I said, I’m not a copyright lawyer. There are people in the world with far more knowledge and ability in this subject than I; many of them are involved in this case. The judge is an expert on the law, and even he finds it muddled, especially when you throw in the Scottish Book and whether or not that’s something that can even be properly considered, since it’s not yet a copyrighted work.

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I like this judge too. I think the bulk of the conflict is coming from Warner and from RDR. If you have been following the case, you can see that SteveV himself has not acted with any ill-will or ill-intent.

I think the best solution all-round would be for JKR to PERSONALLY buy the HP Lexicon, and Warner to buy the rights to the printed book. That way, JKR could blend a bulk of the Lexicon into her own book, and that would remove a lot of the tedious portion of the task, and allow her to concentrate on the more personal and intimate knowledge that only she has.

For many years I have assumed that when it came time for JKR to assemble an encyclopedia of her world, she would enlist SteveV’s help since he has already done much of the work. I would still like to see this happen.

Further, I’m not convinced that JKR/Warner can win. Unauthorized ‘reference works’ have generally been allowed. In view of the fact that the case could go either way, I think a settlement is in everyone’s best interest. If JKR/Warner simply bought the Lexicon and the book, then JKR would own all the material including what I believe is SteveV’s own unique creations.

If this can be settled, I would still be thrilled if SteveV were allowed to join JKR in compiling and publishing her own reference, and given his experience and knowledge, I think SteveV would be a very valuable asset in the task.

If JKR/Warner bought out the Lexicon, that would allow everyone, including Leaky and the Lexicon, to rejoin on good terms with no hard feelings. I’m really disappointed that this has gone as far as it has. Again, I blame corporate Warner far more than I blame JKR or SteveV.

I think my suggestion provides the best result for all. Currently, as I see it, the only advantage JKR/Warner have is unlimited money to fight this in court until RDR simply runs out of resources.

Avatar Image says:

sighs Apologies for the bold print. If it’s not one tagging mistake, it’s another.

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for the record, lest you think I am SteveV secretly making his case, I am NOT SteveV. I am SteveB from Minnesota.

I applaud those who support JKR, but I support the Law above fan adoration. I trust the law, and fair and reasonable interpretations in this matter. But I am disappointed by those who blindly choose sides out of fan adoration rather than a regard for the law or the facts. Even this judge said the facts are not crystal clear, and that this case, could go either way.

In the case of Warner vs RDR, I could care less.

But, in the case of JKR vs SteveV, I confess myself heartbroken at this sad turn of events.

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Elizabeth, as one who is following the story as an ‘impartial observer’ (er, I don’t count myself as a fan), I am indebted to you for your post, which sheds a whole lot of light on the subject! ;)

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Thanks for the Update Kristin!

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My question is: Why would any sensible person (a) buy Steve’s book when his website (and others) can be read for free, and (b) why buy this book instead of waiting for Rowling’s to come out? I think it’s nothing but consumeristic and irrational to buy Vander Ark’s.

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Bluewizard, I’m with you on this one (I posted a similar comment on earlier coverage of the trial ;) ).

It would be a win-win situation. Rowling retains control, assures the quality and she can still ensure that her charitable organisations will profit. You HP fans would go mad for the official Encyclopaedia! :P

I have even detected a little love for Vander Ark and his Lexicon since my original post (hey, just a little).

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I really can’t imagine why anyone would want to buy the book anyhow. Perhaps people who have only watched the movies and not read the books, but if It has no new or background material besides what Jo has already put in her books then most of us HAVE all that info in the books we own. Who cares if it is a labor of love…come up with your own ideas or opinions, don’t make money on tail end of someones hard work. IT IS JO’S WORK…She has a right to do this and she should NOT settle. As for the MEDIA…because they’re so reliable in every other area of reporting…Grrr Sad that they are trying to make Jo look bad, but it is nothing new that they put a little “twist” on the news, and most people don’t have any idea that they are being fed a line of garbage. Just an opinion!

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I have to say that the Leaky bias is finally showing itself. I came to your website because you’ve had the most complete information on the trial so far. Yesterday you printed JK Rowling’s testimony in great detail, so I was expecting that SVA’s testimony would receive the same attention. Alas, all I find is this:

“In addition to Steve Vander Ark taking the witness stand earlier Tuesday, afternoon testimony centered around the impact a published version of website The Harry Potter Lexicon would have on any encyclopedia J.K. Rowling might write.”

Shame on you. You’re about as impartial as a Michael Moore “documentary”.

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Laurie,

Melissa was forced to recuse herself from the case because an e-mail to her was brought up in court. Therefore, her notes from Day 2 could not be used. She told us this in the comments in an earlier post and warned us that there would not be equal space given to SVA’s words because she would no longer be allowed to post her notes. If the said e-mail had been brought up on Day 1, Melissa wouldn’t have been allowed to use her notes from that day either.

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@Anonymoose:

You really think Steve’s job is so lucrative that RDR would recover their costs in a suit against him? I am guessing this case is expensive and he is judgment proof.

While interesting from a legal perspective, this indemnity clause issue is irrelevant to the main issue of the case which is whether the Lexicon is fair use. I don’t see the point in discussing it other than to try and somehow make the argument that SVA is terrible because someone could sue him. It’s just not relevant.

@ Elizabeth:

Thanks for getting back to the issues. I think your post illustrates just how fact-based and unpredictable fair use can be.

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Yes I agree with the judge “A settlement is better than a lawsuit” BUT I think that ship has long since sailed. When this whole thing started, JKR expressed her wishes … And it was (and is) her right to say how her property should be treated. Now it is too late for a “settlement” or compromise.

And for those that think a “collaboration” is the answer …. GOOD GRIEF!!!! JKR CREATED IT! Why should she share with that usurper? Shoot she wouldn’t even share details of her unpublished work with her own family!

I am a fan of HP and especially JKR. Not only her generous philantropic activities but her technique and writing talent is remarkable and laudable. But I do have the ability to be objective. As a minimally published writer myself … I totally have to agree with JKR and WB.

RDR and SVA have NO RIGHT to JKR’s hard work. She has been most generous with her fans and allowed them to create unabstructed. And as a teacher she has been proud that her creation has been the springboard to more creative endeavors. Some of the fanfiction I have read is quite good. Others have made valient attempts but in every case it has been a homage to the Creatrix herself. I guess because she has been so generous, SVA thought she would not object to his little endeavor….WRONG!!!!

He stepped over the line. What SVA is trying to do is different ENTIRELY … he is BLATANTLY Stealing her work and contributing virtually nothing.

He wants to be a writer???? What if some opportunistic, no-talent, never-was tries something like this on him? Would he object? He bloody well would! Not that I really think that he is in danger of something like that happening, he has not demonstrated any writing talent, only the ability to steal the work of others FAR more talented!

He is getting his “radiated glory” ... he really is spotlighting his true character!

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Spare me the meladrama, please, and keep the misinformation you’re attempting to spread, as well. Sorry underscore, but you’re incorrect in what you affirm. You work from one aspect of a creative endeavor and I am sure what you state is what you believe based upon contracts that you personally have entered into. I work on the other side of it, in the preparation and witnessing of contracts, not for one specific individual or company but many different clients. Believe it or not, that IS the truth. It is VERY rare for such a thing as an indemnification clause to be contractually offered and agreed, and even rarer still to specifically protect an author from legal action brought by a singular individual {specifically JK Rowling or her assignees} to occur. It is the norm that the Author is solely responsible for copyright lawsuits and their contract will generally state that they, the Author, indemnify the Publisher from copyright lawsuits.

The specific clause that we are discussing says, and I quote:

”...[b]except[/b] that the Publisher indemnifies the Author for any claims of copyright infringement by J.K. Rowling and/or her licensees or assignees.”

No matter how many times you or anyone else would claim otherwise that indemnification of the Author IS very, very odd.

I’ve a comment to post here, from an author of young adult fiction, who gave an opinion of Steve’s contract based upon a post from someone who took the time to list the specifics of Steve’s contract {as can be seen in document 37, attachment 10 on justia.com}:

Caramel said: Publisher indemnifies author from infringement lawsuits; 12% net sales, English version {retail/wholesale} in US; 10% net sales, English version {retail/wholesale} abroad; 10% of foreign language rights; For each book is listed on NYT bestseller list, $500 bonus per week added to royalties; 50% of net income that is derived from ordering book online via 3 site links {Floo Netwook} 50% percent of paperback reprints rights by other publishers or book club editions; All other nonbook subsidiary rights reserved by author; Publisher will provide 500 copies of book at no charge {Author’s copies} additional copies available for purchase at discount of 50% off retail sails; no royalties for Author’s copies or additionally purchased copies of the book.

I guess the reason I’m so intensely curious is that I’ve seen people discuss his contract, people who claim to be in the publishing industry, and they seem shocked at it…so I’d like to hear from some that I “know” are indeed part of the industry and would be able to say if this were a fairly standard first time contract or not.

The question was answered by an author on ‘Smart Bitches’ who said:

Wow, Caramel, that book deal is bizarre all right. (For reference, I’m a UK-based young adult writer with several fiction titles published.) I don’t know the non-fiction side of the business, but the fact that the publisher indemnifies the author from infringement lawsuits strikes me as very, very strange; all my contracts require me to declare that all content is totally original to me, I’ve dealt with any potential copyright issues myself, and that if I haven’t, it’s all on my shoulders and not the publishers’ problem at all. It’s insane for a publisher to overturn that, especially for such a controversial title.

The percentages quoted for net sales are generous, but not wildly out there (7.5-10% is more normal in my experience, but I don’t know what’s typical in the US). Foreign language rights at 10% is also normal. The bonus for the NYT bestseller thing is nothing I’ve ever heard of before, though. And the 50% cut of orders through those links is very off. Assuming there’s a special offer involved, the publisher is getting less of a profit from those copies, so why are they giving a huge cut away? The only time I would ever expect to see a 50% royalty is on an e-book.

As for the 500 author copies… WTF? Is that a real figure or a typo? (Serious question – I can’t load the docs through my dial-up.) 20, sure. 50… well, that would be seriously over the top, but maybe. 500? What kind of publisher gives away more than ten thousand dollars worth of merchandise for no return? I honestly, literally can’t believe that these guys are for real. They’re crazy!

Everything I’ve heard about this case makes me more and more convinced that RDR are not a proper publisher on any level, but a cowboy outfit trying to make a buck off of publishing books with very little grasp of the standard practises or legalities involved. They have no idea what they’re doing, and they’re arrogant and duplicitous on top of it. They’re going to get utterly creamed by JKR’s lawyers, and I for one think they deserve it.

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@Tyler:

Thanks for clarifying. I was astounded not to see the same evenhanded coverage for SVA. I don’t visit Leaky every day, and don’t read all of the comments, so I missed Melissa’s information.

Thanks, again. :)

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inspiralpenguin – thanks. One of these days, I’ll probably give up playing at being a lawyer, and go into teaching. There’s nothing I like to do better than shed a whole lot of light! :)

Mind you, I’m not sure this is quality light I’m shedding, because I’m way outside my area of expertise here. What I know about intellectual property comes from law school and studying for the bar, which is to say: not much. You learn so much more about an area of the law by practicing it.

Anyway, a general trend I’m noticing is that some people are treating plagiarism and copyright violations as if they’re the same thing. I’m sure others have addressed this before, but I think the point bears repeating.

Plagiarism is taking someone else’s work and representing it as your own. This can be a violation of copyright law, but it’s not the only violation of copyright law, and it’s not what SVA has done. SVA has never claimed to have authored the HP series. His argument is that there’s independent value in the way he’s arranged the material, not that the material is his own.

A copyright violation or infringement is distributing material that one does not have permission from the copyright holder to distribute. It’s a broader category than plagiarism in the sense that you don’t have to pass off work as your own in order to violate a copyright. If I opened my own publishing company and started selling my own copies of the HP books, it wouldn’t matter how prominently I displayed JKR’s name on there; I’d still be committing a copyright infringement. But copyright infringement is narrower than plagiarism in the sense that, vague as copyright law can seem sometime, it’s better-defined. Frankly, I think our society has gone off the deep end with plagiarism complaints. I remember reading some years back about a student at Harvard who got in trouble because a book she wrote lifted similar phrasing from other books. I don’t know a lot about the case and haven’t read any of the books at all, but I do know that many times in the past, I’ve written a phrase, only to realize, later on, that I’d unconsciously lifted the phrase from a book I’ve read. No intention to copy without attributing; no intention to pass language off as my own. I have a vivid memory; words stick in my mind, and to say that someone’s copied someone else, wrongly and intentionally, because some phrases appear to be the same or similar is a bit bizarre.

I think it makes a lot more sense to compare the two works as a whole rather than taking phrases out of context and setting them side by side. But maybe that’s just me. :)

One more point: I don’t know if the comment that SVA is not an official party to the action was aimed at me, but if it was, rest assured, I realize that. :) But to me, he’s not a party to the case in the same way that a victim in a criminal case isn’t a party. Criminal cases aren’t “Susie Jones, Battered Wife, Plaintiff, v. Stevie Jones, Defendant.” They’re “State v. Jones.” The victim, nonetheless, is an important player and the reason we’re there, and acting like SVA is not a player in this is, to me, the same as saying that the victim is not a party. Technically true – but too technical to be really true, even to my lawyer’s taste. SVA, not RDR, is the one who wrote the Lexicon; to me, evaluating whether the Lexicon is a copyright violation involves SVA, who produced the work, as much as RDR, who would distribute it.

Avatar Image says:

I also should have said, in my evaluation of this case under the Fair Use Doctrine, that the nature of the copyrighted work is fictional, not a reference guide, since it’s the HP series that’s copyrighted. The reason factor 2 works in SVA’s favor is that his work is a reference guide, not a work of fiction; the two works aren’t meant to compete, and SVA is not trying to pass off the copyrighted work as his own.

I hate it when I leave half the argument in my head!

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Too many people here are arguing from an emotional basis rather than a rational one. For example, earlier in the thread someone made the comment that SteveV copied 90% of the Lexicon from JKR’s books. That is patently absurd, that is absurd beyond reason or logic. I can only conclude that this person has never seen the Lexicon and has no idea what the word ‘copy’ means in any context.

Someone above is shouting “GOOD GRIEF!!!! JKR CREATED IT!” which in the context of the comment is irrational. JKR created the Harry Potter books, but SteveV created the Lexicon. It is wholly and completely his own work written in his own words, and for the record contains something like 30 analytical essays by SteveV.

Let us us an example from the Lexicon, go to the Encyclopedia of Spells, and look at the first entry under the Letter ‘A’ for ‘Accio’.

I see nothing in there that is a direct rip-off of JKR. The Lexicon defines a spell in a way that is implied by never truly explained in the books. It gives a definition, reference to where it can be found in the books, and how it is used, but never is it presented in a format that is found in the books. It is conversation, discussional, and analytical, as it should be for a work like this.

The only word that come directly from JKR’s books, is the word ‘Accio’ itself. This does NOT constitute ‘ripping off’ JKR, but instead constitutes commonly publish and previously allowed ‘reference works’.

Next, what I’ve referenced from the Lexicon is NOT /FROM/ the books or interviews, it is /ABOUT/ the books or interviews written in SteveV’s own words. He does not copy or quote anything from anywhere beyond normal ‘fair use’.

The /From/ and /About/ aspect is at the heart of the matter. You say he doesn’t add critical, philosophical, spiritual, etc commentary to his book, well neither does the World Book Encyclopedia. It, like the Lexicon, is simply a compilation of data arranged in a structured and ordered way that is NOT available from any other source. There is nothing in the example referenced that come DIRECTLY from books or interviews. It is unique and originally written information.

Consider this, the average college student, and even high school student must draw on existing knowledge, that is, existing written works, to write essays and term papers. They are allowed to take information from other written works and include them in their own, and this includes reference and statistical data, but they can’t directly quote their references beyond fair use. They must compile the data and information they collect into their own words, but that doesn’t change the fact that their own words are drawn from other sources.

Their use of other sources does not constitute infringement or copying of those other sources.

Once again, the assertion that SteveV ‘copied’ 90% of the Lexicon from JKR clearly and firmly says you don’t understand the definition of the word ‘copy’ in any context.

‘Reference works’ are allowed under ‘fair use’, and SteveV has a wholly and uniquely original body of work ABOUT the Harry Potter world, but not stolen from JKR.

That is why they are in court. To get a ruling on whether this is infringement, but the answer is far from clear. RDR and SteveV have a very real case supported by existing interpretations of the law. Where as Warner has unlimited money and power, and can drag this trial and the appeals out for decades. That is their only real advantage in this matter.

Personally, I’m hoping for a settlement similar to what I previously described. RDR gets their basic expenses paid and a small profit, they destroy the books or turn them over to Warner, JKR and SteveV join together for a common cause, and everyone is happy.

If things continue on the way they are, in the end, everyone but the fat-cats walk away miserable.

As much as I understand people’s emotional support of JKR, this isn’t matter of emotions or fan adoration, it is a matter of law and must be looked at objectively.

I honestly and truly hope for a benevolent settlement in this matter, a matter that has already gone much too far, and has divided fans in ways that are not productive.

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I’ve got a question for all the legal eagles reading and posting – well it’s a two part question.

First, is it possible that one reason why the judge made the statement he made is because he doesn’t want to create new case law? Meaning, he would rather leave the ambiguity of this part of Fair Use to remain ambiguous rather than creating new case law with his ruling.

And second, further to that, I read in an earlier post that some considered it significant that he asked for a settlement to be ‘on the record’. In the US legal system, would such a settlement, if made on the record, become part of legal precedent?

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@ Elizabeth, if I’m correct, it might have been my comment regarding SVA’s direct involvement vs. being an official (so to speak) participant. And no, it was not directed at you. I know that you are aware of the legality vs. the reality of the situation. I absolutely agree that notwithstanding SVA not being a named defendant, his involvement is central to the issues at hand.

My point was that when it comes to issues surrounding negotiated settlements, particularly in light of the indemnification clause in the SVA/RDR contract, and the fact that SVA is legally at least not a direct party, the issue of settlement can only be between the paintiffs and the defendants.

To be sure, SVA will be lurking somewhere in the minds of the negotiators but any actual settlement that he is a party too will be a separate settlement should there be a necessity … unless, of course, the litigants in this case agree to include him (assuming he wishes to be included).

So let me ask… by his not being a direct party to any case (i.e. as defendant or plaintiff) can’t he be / isn’t he excluded except by agreement, from any settlement activity related to that specific case?

Thanks for any clarification you may have and CERTAINLY for all the clarification to date. My kind of posting, for sure!!

M.

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Medea Callous,

1) It’s possible – but I think it’s more likely that the judge thinks this is a really gray area, and that it would be better for both parties if they compromised rather than demand that he declare a clear-cut winner. If this comes down to a verdict, then either the Lexicon is a copyright infringement, or it isn’t – there can’t be any in-between. The judge probably believes that the fairer resolution would be a compromise settlement. In other words, I think he’s sympathetic to both sides, finds arguments from both sides compelling, and thinks having to hand one an absolute victory that will be challenged in appeals courts for years is going to make for a poor resolution to the case.

Also, this judge is a district judge. In the U.S. federal court system, there are basically 3 levels: the U.S. District Court, the U.S. Court of Appeals, and the U.S. Supreme Court. Though cases from the district court can be cited as legal precedent, that precedent isn’t really binding on other district courts until an appellate court adopts it.

So let’s say the judge rules that the Lexicon is fair use. JKR appeals to the Second Circuit Court of Appeals (which is the appellate court over the United States District Court for the Southern District of New York, which is hearing the case). The Second Circuit overturns the district judge, ruling that the Lexicon is not fair use. That would be considered more established precedent than a district court opinion, because the appellate court is the higher court.

But wait: it gets messier. Let’s say a similar case is preceding in my own, much-reviled circuit, the Ninth. The district court makes a ruling, and the case is appealed to the Ninth Circuit. The Ninth Circuit, being the hotbed of insanity that it is, issues a kooky opinion that is utterly contrary to the opinion of the Second Circuit, not to mention every other circuit court in the land.

What that means is that the binding law in the Second Circuit is utterly opposed to the binding law in the Ninth Circuit, even though it’s the same country, the same law, and technically the same court!

This situation happens a lot; it’s called a circuit split. When the circuits split on an important question of law, that’s pretty much a guarantee that the U.S. Supreme Court will agree to hear the case so that the law can be settled. It sounds like this judge thinks that such a split is possible, if it doesn’t already exist. The IP expert interviewed at the WSJ blog says that the case law is all over the map, which means the Supreme Court needs to step in soon. This case – high profile as it is – would be the perfect one to issue the opinion on. That’s probably why Stanford agreed to take the case on behalf of the defendants.

2) The settlement would not be binding precedent. A settlement is a voluntary resolution between both parties. For there to be a precedent, there would have to be a legal opinion issued by the judge, and it would have to be a “published” opinion (sometimes courts, for reasons utterly unknown to me, will refuse to publish their opinions so that those opinions can’t be relied upon for precedent).

The significance of the judge calling for a settlement on the record is the way in which he did it. Judges often pressure lawyers to settle a case. Sometimes (though not often), they’ll even do so in open court – i.e., on the record, rather than back in the judge’s chambers, where conversations are not recorded. What’s significant here is not only that the judge made an open, public call for the case to be settled, but that he basically trashed the lawyers by saying it’s a lawyer-driven case. He was rebuking the lawyers, implying that they’re driving the case forward for their own reasons, rather than serving their clients’ interests. Such a reprimand from the bench in open court is extremely rare.

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To answer Medea Callous…

With respect to your first question, I think his comments are up for interpretation; however I don’t think he is afraid of creating new case law. This is a judge’s job. They use statutes and common law to make apply the law to new sets of facts. This case is landmark in a number of ways, but I don’t think the judge is “chickening out.” I think he recognizes it is an emotionally charged issue and that fair use is a fuzzy doctrine. He is trying to recommend the best course of action for both parties.

About the second question, my experience is in intellectual property transactions not litigation so I don’t know the answer about the significance of the statement being made “on the record.” If the settlement is agreed upon, the case will be dropped so it won’t be legal precedent because it was not litigated to completion. If negotiations continue and an agreement is not reached, comments or proposals made during settlement offer are inadmissible to show liability under the Federal Rules of Evidence. I am not a New York lawyer and don’t know the procedure they are applying, but I would guess it is similar.

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Got it, Morton. :) I suspected you were talking about the settlement issue – I just wanted to make it clear to those who aren’t that familiar with the law that whether or not SVA is an actual party to it, his work in producing the Lexicon is of supreme importance to the question of whether it’s fair use, since it’s his use that’s being considered. :)

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So let me ask… by his not being a direct party to any case (i.e. as defendant or plaintiff) can’t he be / isn’t he excluded except by agreement, from any settlement activity related to that specific case?

As for your question, Morton – yes. A settlement would most likely be between the named parties, although they would have the option of including him in it, if they wanted to.

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If the decision is made that the Lexicon can be published, HP fans worldwide need to unite and urge a boycott of the book. I support Jo 100%.

ww

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I can’t see this being settled unless RDR backs down. I’m sure Jo’s lawyers have their eye on the money involved but Jo seems to be genuinely hacked off at the content of the Lexicon and I really cannot see her backing down on that. To be honest, I think the judge is just not looking forward to the very awkward and possibly far reaching decision he’s going to have to make – either way, that he decides it, it’s going to cause major issues and if they settle out of court that goes away for him

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Thanks for the replies. Just to be clear, I wasn’t asking if the fact that the judge made HIS request ‘on the record’ would affect the case precedent, but rather the fact that he asked that any settlement they came to be made ‘on the record’. Not sure, but it seems like some folks might have misunderstood me.

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Thank you, Leaky, for covering the trial so comprehensively.

@ Think more critically! I do agree wholeheartedly, posting from a country in Europe where the Nazis burnt books, actually. “They who burn books burn people too.”

@ Elizabeth, lawyer and others with a legal background: Thank you for commenting. I have a legal background as well, though neither experience with US-law nor copyright law. Across the differences in legal culture I hear a dire warning in Judge Patterson’s words to both sides (judges around the world seem to act in a similar way when trying to propose settlements). The remark about advocates seems to be adressed more to the plaintiff’s side, the remark about the uncertainities of fair-use-case law might be adressed to both sides who are likely to appeal. Maybe, later on, he will express himself more clearly about the legal arguments in camera.

Quite unbelievable – witnesses in tears! What does the judge think about it? Courtroom histrionics? Over-emotionality? Pathetic? Authentic emotions?

Part-time, I am in the legal trade, part-time I am writer. The writer in me does not understand why JKR does not accept that you cannot control how other people read or comment your texts, and why she cannot let go of Harry. 17 years, ok, ok, but maybe there are less obsessive ways of dealing with one’s creations. Neither do I understand how she can claim that the documentation of unpublished material would be an encyclopedia. Let the seven books stand as they are, don’t rewrite them. Scholars of course would be keen on the unpublished things…

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Medea,

The only real significance of putting a settlement on the record is that it’s easier for one party to take recourse if the other party violates the agreement. The record is basically proof of the terms of the agreement and the fact that the parties agreed to them.

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sorry for my english, it should read ‘uncertainties’.

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p.f.,

I wouldn’t have known you weren’t a native speaker of English. I have no such excuse for my poor typing – I’m just a poor typist. :)

I’ve seen witnesses cry in court, I’ve seen lawyers cry in court, I’ve even seen a judge cry in court. I’ve seen an entire courtroom in tears – myself, the defense lawyer, and the judge included – when a defendant was pleading guilty in a vehicular manslaughter case. It was just horrible all around. The victim was a baby. The parents of the victim were really nice people, both of them only 21 years old. The defendant was a really nice guy with no criminal history. He wasn’t drunk, he wasn’t speeding, he wasn’t driving carelessly – he ran a brand-new stop sign on a road he drove on every day. Horrible, horrible case.

How a judge reacts to emotion in a courtroom would depend, I think, on the type of case and the judge himself. Judges have seen it all, and a lot of them can get pretty jaded. But it’s pretty easy for them to spot someone who’s genuinely in turmoil and someone who’s just playing for sympathy.

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Cheers Elizabeth!!

Thank you.

An additional question though, if SVA didn’t cite a specific detail or sentence as being part of JKR’s series would that be considered plagarism? Because words withouth citations or quotations are believed to be the author’s own work, or is just putting Harry Potter in the title exempt you from citing in a companion book such as this?

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Ginny -

Like most everything, it depends on the circumstances. With regard to the academic concept of plagiarism – perhaps. In academic settings, you generally have to cite everything you say. So if I lifted a line directly from Rowling, without putting quotation marks around it or including a citation, many professors would likely consider that plagiarism.

The law’s standards aren’t so stringent. The law looks more at the work as a whole, not one or two lines here and there. I doubt a judge would care much if, in a 400 page companion volume, there were five sentences that were identical to Rowling’s that didn’t use quote marks or citations. But if 50% of the book’s sentences were like that, I think the judge would find it a lot more problematic. That doesn’t necessarily mean he would find a copyright violation – there are other factors to consider – but it would be strong evidence in favor of one.

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... hello Elizabeth, thank you for the flowers :-) and thanks again for your answer.

I would not have been surprised about tears in the case you described. What I did not expect in a copyright case ist the given extent of underlying emotional intensitiy, far more tragedy than burlesque.

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@ pf and bluewizard RDR is arguing Fair Use as the basis for the case to publish precisely because they have already conceded they have infringed (i.e. in layman’s terms stolen) JKR’s copyright. This is not disputed by anyone and has been publicly admitted by RDR (see Justia.com) RDR’s lawyers, and I think was mentioned in Falzone’s concluding remarks.

WB lawyers and people on the TLC Forums have gone over the Lexicon book using Justia.com and have shown 91% or more of the text has been lifted directly from the HP books and another 3% or more has been lifted directly from other reference books sometimes without any citation by SVA (I think this was also mentioned in court). The rest, roughly 4-5%, is (mainly infantile) commentary by SVA. SVA stated under oath he never cut and pasted from the books but another Forum member has an email in which SVA baldly says he did.

One section/factor of Fair Use does consider that permission be given by the copyright owner if anything above 5-10% of their work is used in derivative works (i.e. “the amount and substantiality of the portion taken”). This permission was never asked for nor was it given. It also demands that the amount of infringed copyright be taken into account when deciding if it falls under Fair Use. i.e. the quantity infringed is important and relevant in law.

It is true that the judge has hinted that given that Fair Use cases are decided on a case-by-case basis that the nature of the Lexicon may make this copyright infringement rule a lesser consideration in his final judgement because, as he hinted, the book may be useful and, also, not impinge unfairly on JKR’s other projects, so he may be inclined to admit it under Fair Use despite its gross infringement. If he does so he will have set a precedent that can then (and certainly will) be challenged in a superior court.

Then we have the objections to the emotional element in this case. I think if someone had stolen something precious from you and then tried to profit from it, after promising publicly and in writing that they would NOT do so you might become emotional too. The fans are emotional because some basic MORAL issues have arisen that have not been satisfactorily addressed:

1. If SVA says he is a fan why did he not stop the book when asked to by the author he himself says he admires and he calls a “genius”?

2. Why did SVA say in writing that it was illegal (May 2005) to make an encyclopaedia/lexicon and then proceed to do just that?

3. Why did he blame RDR for the court case when he could have pulled the book at any time?

4. Why did he lie to TLC when he said he would have no problem dumping RDR if it came to a copyright infringement case and then argue in an interview that Rowling was making a “power grab” and that she was threatening fansites, wizard rock, and fanfiction?

5. Why did he indemnify himself at all against copyright infringement?

6. Why did he not admit that he has stolen copyright off all the fans that had contributed to the Lexicon and whose work he now hoped to profit from?

7. Why were none of the other authors of the Lexicon mentioned in the book version? Why were they not included in the contract to be remunerated?

8. Why was no effort made to contact the fans who had contributed to the Lexicon and whose work was then used in the book in order to acknowledge or compensate them?

9. Why did he chase after people who had reprinted passages from the Lexicon website threatening legal action against them for copyright theft?

SVA has yet to answer any of these questions satisfactorily, and these are only the tip of the iceberg. Including the fact that he almost certainly has no legal ownership, or copyright, over the Lexicon website itself. He could be challenged by any of the volunteers who have contributed to the site over both ownership and copyright. Not only has he infringed JKR’s copyright he almost certainly has done the same in relation to every contributor to the free fan-based Lexicon site, which RDR stated publicly formed the basis for the book. And, irony of ironies, as a result, he is almost certainly in breach of his contract with RDR as well.

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This is outrageous. I feel like it should come down to the bottom line of, without Jo, Steve Wouldn’t have any material to catalog and publish. The simple fact that Jo’s got more coming should mean that her work should be hands off until total completion and with her permission at that. I loved Steve and the Cannon Conundrums…back when it was all harmless. I appreciated his devotion and interest, its obvious now that the prospects of a payday have blinded him. Seriously, how can you in good faith put up a fight with Jo? This is her thing, she shared it with us. it reminds me of the Yeates poem ” A Coat”.

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NotTheHBP: What I was saying was that you really can’t call the HP Lexicon poor quality, that’s all. We’ve all seen the site. The print version is supposed to be the site in print form. I understand that much of the content is lifted straight from the HP books, but I can appreciate the hard work that went into organizing in a resource-book type fashion. And for years the HP fandom gushed about what a great resource the lexicon was and everyone marveled the hard work that went into it. Now that it’s involved in a lawsuit everyone is quick to change their mind. Forget the years of admiration for Steve and his staff’s work. It’s trash now.

It’s amazing how this fandom can turn their backs on people so quickly. And it’s amazing how a site that’s supposed to be warm and friendly is full of people that attack anyone who isn’t the most hardcore fan. No, I do not post regularly. No, I do not go to the conventions. I don’t write fan fiction or do fan art. However, I do not think that I have any less of a right to love the books that J K Rowling wrote. And by the way, I did not attach JKR at all. I simply mentioned that she visited the site.

Aloha, Johanna

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