JKR/WB vs. RDR Books Trial: Summary Reports

114

Apr 17, 2008

Posted by KristinTLC
Uncategorized

From various sources, articles on this week’s trial:

The BBC

The Sydney Morning Herald.

The International Herald Tribune

UPDATE:

The New York Post

The Guardian

The Telegraph

Other reports from the trial can be found here. If you have find an article on the trial that you believe Leaky should link to, please contact us, or leave them in the comments section.





118 Responses to JKR/WB vs. RDR Books Trial: Summary Reports

Avatar Image says:

Well, having quickly scanned through those first three links, the one thing that stood out to me is that the judge seems predisposed to be in favor of the SVA book because he found SS/PS difficult to “navigate” himself when he read half of it out loud to his grandchildren years ago, and the unfamiliar names, etc., were stumbling blocks for him. He seems to think the SVA book would help people with the same problem to “understand” the books better. If that is the case, then wouldn’t it be even better to have the true encyclopedia, the Scottish Book, straight from the horse’s mouth, so to speak? Not a plagiarized copy of the original author’s work?

It may bode ill for Jo that they were unlucky enough to get a judge who must be one of the seven people left in the world not really familiar with her books, and one whose mental capacity was such that he couldn’t handle a few unfamiliar names. I mean really. The average 9 year old has no such problem!

Avatar Image says:

“Well, having quickly scanned through those first three links, the one thing that stood out to me is that the judge seems predisposed to be in favor of the SVA book because he found SS/PS difficult to “navigate” himself when he read half of it out loud to his grandchildren years ago, and the unfamiliar names, etc., were stumbling blocks for him. He seems to think the SVA book would help people with the same problem to “understand” the books better. If that is the case, then wouldn’t it be even better to have the true encyclopedia, the Scottish Book, straight from the horse’s mouth, so to speak? Not a plagiarized copy of the original author’s work?”

Is the judge serious? If he found PS “difficult to navigate” then how on Earth did he manage to work his way through the lawbooks and finally to become a judge?! I mean no disrespect to the judge at all but to me it sounds a bit ignorant of him …. PS if after all a book millions of children were able to read and “navigate” easily in their first read …

Avatar Image says:

The judge must learn the concept of context. Read the first book from start to finish!!

Avatar Image says:

This is the quote from the Sydney morning Herald (written with the AP):

“As the day wore on, however, he [the judge] seemed fascinated by the subject material, interrupting the lawyers at one point to question the experts himself.

In an exchange with Johnson, Patterson explained that his firsthand experience with the Harry Potter novels was limited.

During a visit by his grandchildren, he read them the first half of the first book in the series, Harry Potter and the Sorcerer’s Stone.

But, even in that quick read, he said, he found Rowling’s “magical world’’ hard to follow, filled with strange names and words that would be gibberish in any other context.

“I found it extremely complex,’’ he said – even more so than the Dickens his own father read to him as a child.

The judge suggested there is genuine worth in a book like Vander Ark’s, even if does nothing more than index the somewhat ridiculous sounding names of Rowling’s characters.”

Scary, eh?

Avatar Image says:

Honestly, guys, if there was one thing I learned durng the trial it’s that the judge was really shrewd. He kept referring to small specific points that happened sometimes a whole day previous that I couldn’t remember or pick out, or think to mention. If he judged this case based on his like or dislike for the series I’d be shocked; let’s give him a little more credit. :) For the record, he did then say his grandchildren had loved the series.

Avatar Image says:

Wow is this judge serious??? He had difficulty reading PS??? I read it alittle bit at a time to my 5 year old and he can still tell me from months ago who was who and what happened. He cant be serious!

Avatar Image says:

Thanks Melissa, I would be incredibly worried if I were WB & Jo. If the judge came across like that. I would be pressing for a vote of no confidence in the judge (if there is such a thing possible)

Avatar Image says:

Wait?! Did the judge REALLY say “I found (Philosopher’s Stone) extremely complex”!? What, did he forget to put on his reading glasses? I don’t mean to sound rude…But come on! My brother’s read them when they were eight…And loved them!

Uh oh…This doesn’t sound too good for J.K. Rowling, I hope she’ll come through and win.

Avatar Image says:

Yeah, Melissa is right; we should wait and see before we bash the judge (even if his comment is odd). Perhaps he was trying to be funny?

Avatar Image says:

Thanks Melissa. But it sounds like his grandchildren can understand more then he can… I’m just sayin’!

Avatar Image says:

Sorry, Melissa! I don’t mean to bash the judge, really. Its just that based on that comment, I found it a bit worrying. Not even so much what it may or not say about his shrewdness, but that he was predisposed to be in favor of SVA’s “book.”

Avatar Image says:

I think anyone trying to make that comparison in a news story is doing so very irresponsibly. The comment came up when talking about how many characters there are in Potter and whether a Lexicon aided better understanding and memory of who is where. That’s when Jeri Johnson re-brought-up Bleak House to the judge and reminded him how many characters are in that story. People calling it an overall comment on the case are flatly deceiving, or taking the simple way out of the thought process that goes into writing one of those stories.

Avatar Image says:

My father is a Harvard Ph.D. who became a college president at age 34 and served in that capacity until he was 72. He’s a brilliant man. One evening some years back, my brother and I were watching an episode of Buffy the Vampire Slayer, and my dad sat down to watch it with us.

He demanded to know why Angel, a vampire, didn’t bite Buffy.

Me: “Well, Dad, he’s a vampire with a soul.”

Later in the same episode, Dad asked why Spike, another vampire, didn’t bite Buffy.

My brother: “He has a chip in his head.”

My Harvard-educated academic of a father was utterly befuddled at something that made complete sense to my brother and me.

Not everyone is into fantasy; not everyone is even into fiction. My father rarely reads fiction. I can easily see him being confused by the Harry Potter books.

Stupid people do not receive lifetime appointments to the federal bench. Ideologues often do, but not stupid people. Just because the judge had a hard time understanding something that we understand fluently, and just because he might rule against JKR and WB, does not mean he’s stupid. I’m guessing everyone here, even the ones with a legal education, would have a hard time slogging through the thousands upon thousands of cases establishing precedent that the judge must consider in this case. Those who do not have the analytical mind that a judge requires would, I wager, have an especially difficult time. That wouldn’t make you stupid. That just means you think in a different way than the judges who wrote those cases.

Avatar Image says:

To tell you the truth, my biggest fear from the outcome of this case, is if JKR loses and ends up deciding she is too disgruntled by having a “Lexicon” book on the market, as well as opening floodgates for other cheap imitations, that she doesn’t see a point or desire to finish the “Scottish Book”. This would be a horrendous result for her true and loyal fans.

So please Judge, get this one right…it is far too important for future artistic ventures in the world.

Avatar Image says:

Can I just say right now how much I heart Melissa and Elizabeth?

- And, now, back to our regular programming…

Avatar Image says:

I don’t think the Judge is stupid at all, I’m saying he should think out-side the box a little…Thats all…

Avatar Image says:

... He had trouble reading SS? What kind of judge is this? If he wants a reference book he should give the win to Jo so that she can start writing the encyclopedia.

Avatar Image says:

“Not everyone is into fantasy; not everyone is even into fiction. My father rarely reads fiction. I can easily see him being confused by the Harry Potter books.”

And, while names like Rubeus Hagrid and Bathilda Bagshot may sound ridiculous to him, legal terms like “habeas corpus” and “stare decisis” sound pretty silly if you haven’t spent years trying to understand them in their proper context. (Actually, “habeas corpus” could almost be a spell….)

No offense, Elizabeth, but I’ve always thought that legal people used Latin terms like that in order to make the language they spoke into something exclusive and elite. Only now has it occurred to me that there are elements of fantasy fiction that serve, if only unintentionally, the same purpose—it’s clear who’s “in” and who is “out.”

Avatar Image says:

I don’t get it. I don’t understand why the quality or utility of the Lexicon is relevant. I would think the entire case (as the Wall Street Journal) has pointed out revolves around whether or not its multiple references to JKR’s work fall under Fair Use. Whether the books are simple or complex has no bearing, I would think. The amount of the books that is referenced in the Lexicon does have bearing.

In the end, this will be a very long, drawn out case about what constitutes a reference book that is protected under Fair Use Doctrine.

Avatar Image says:

“The amount of the books that is referenced in the Lexicon does have bearing.”

Well, the American Scholastic hardcover editions of Harry Potter run over 4,000 pages put together. If SVA’s Harry Potter reference is anywhere near that length, Jo need not worry about anyone wanting to read it.

What’s more, peading Steve VanderArk’s summary of the climax of Deathly Hallows cannot possibly have the same empotional impact as reading it on the page, and this is actually a very imoortant point in RDR’s favor. Copyright law looks down on stealing the “heart” of someone’s work, and there’s no way the Lexicon could do that. When the facts of Harry Potter are taken out of a literary context and changed into a reference work, they stop being a story and become simply data.

So the amount of Harry Potter text he used, both qualitatively and quantitatively, when measured against the whole, can’t be that substantial.

Avatar Image says: And, while names like Rubeus Hagrid and Bathilda Bagshot may sound ridiculous to him, legal terms like “habeas corpus” and “stare decisis” sound pretty silly if you haven’t spent years trying to understand them in their proper context. (Actually, “habeas corpus” could almost be a spell….)

Trosa, those are only the ones we inflict on the public! My favorites are the ones we keep mostly to ourselves. Like res ipsa loquitur, which means (quite amusingly) “the thing speaks for itself.” :)

Actually, “habeas corpus” could almost be a spell….)

It is. When invoked correctly, a defendant disappears from jail and reappears back on the street to menace the public. :)

No offense, Elizabeth, but I’ve always thought that legal people used Latin terms like that in order to make the language they spoke into something exclusive and elite.

That’s part of it. The other part is that we’re all much, much too lazy to translate concepts we stole from the Romans into English. :)

But I’ll maintain to my dying day that we’re not as bad as doctors. There needs to be a class in law school on how to read a medical chart and doctor’s notes. You’ll spend an hour puzzling over some report full of a bizarre and alien lingo, only to realize that what the doctor is actually saying is that the victim’s wrist is broken. There was a trial where a doctor was on the stand, testifying about the victim’s injuries; the prosecutor kept trying to get the doctor to speak in regular English, and the doctor continually slipped back into medicalese. Finally, the prosecutor started asking leading questions – “So that means she broke her arm in three places?”, and the defense lawyer objected. The judge overruled the objection, saying, in exasperation, that some leading was apparently necessary. :)

Avatar Image says:

“People calling it an overall comment on the case are flatly deceiving, or taking the simple way out of the thought process that goes into writing one of those stories. Posted by Melissa on April 17, 2008 @ 01:28 PM”

I agree with you, Melissa. I want to point out to everyone that I was not the one making that comparison or comment, I merely quoted the article and gave my own opinion of what was said in it. I did not write the thing.

And to Elizabeth and anyone else, just to be clear, I was not inferring that the judge is stupid. I simply gave an opinion based on the direct quotes in the articles linked on this page. I do have a hard time believing that anyone as educated as the judge clearly is had trouble getting through the first half of PS/SS, the simplest of the 7 books which was written for young children, because of a few odd sounding names/spells. Maybe the truth is that it just didn’t interest him so he didn’t pay close enough attention to it, but he didn’t want to say so in front of Jo. Whatever, that does not really matter. Without calling his intelligence into question, I do still find it a worrying statement ONLY insomuch as I personally am firmly on the side of Jo and WB and this seems to me to say that the judge is leaning the other way because he does “see a benefit” to having a book like SVA’s around. Fine, that is what he is there for, to judge, not to agree with me. That doesn’t mean that I have to like it.

Avatar Image says:

I think the idea is if its useful to just have a comprehensive dictionary to help people keep track of spells/people/etc then that adds to RDR’s fair use case. (Not a lawyer! I could be wrong about this)

I will say that when I was 8 or 9 and read Lord of the Rings for the first time, I ended up giving up half way through the last book because I couldn’t remember who the various characters popping up were. I certainly would have liked a lexicon at that point – no need for commentary – just remind me of who this guy is again! :)

Some of the points that WB/JKR have made are a little silly in my opinion. The Lexicon sales hurting JKR’s encyclopedia? Can anyone honestly say that because someone bought a companion book they wouldn’t buy an original work with new information from JKR? Generally if someone is a big enough fan to buy a companion book (which I never have), my guess if they would be there with bells on for the midnight launch.

Avatar Image says:

I like this judge. Hope that Lexicon wins.

Avatar Image says:

I know that quality is not relevant, but citing inaccurate sources can play havoc on a research paper (if you’re studying children’s literature or going to library school this would be important). There have been occasions that I have consulted SVA’s website only to find out later that his conjecture was off the mark.

Judge Patterson is a seasoned and respected member of the bench. I am sure he will do his utmost to interpret the law as it applies. I’m just as certain that this won’t end here or soon.

No matter what the outcome, I will wait for the Scottish book as it will be the most factual representation.

Avatar Image says:

the judges personal feelings toward Jo’s work and the fact he had trouble with some of the names most likely would not figure into legalites on trial here, as for his say a book like SVa’s would be helpful, I hope thats not a tip off to which way he is leaning towards going inthe case, admitted a HP encyclopedia ( the Sottish Book not SVA’s Trash) would be helpful in that respect.

Avatar Image says:

If the judge thinks he would have read ‘HP’ easier with an encyclopaedia like the Lexicon, he’s only part of a tiny minority: how many millions of children haven’t read this book and fully understood it??? Isn’t this something like prejudice? His taste should not matter. It’s not about whether he liked the book or not.

Avatar Image says:

And Judge P also says that a settlement is possible and would be best, but it’s either print or no-print…

Avatar Image says:

I hope if the book is published nobody buys it. Its wrong, and its illegal. Not to mention it might hurt the Scottish Book, which we are all dying for. If this really does hurt it I’m going to be really pissed.

Avatar Image says:

I agree with Shelli.

Avatar Image says:

? Does anyone know whether other writers have expressed their opinion about this? Like Stephen King or someone else who really always liked the HP series

Avatar Image says:

I’m with you, Sam. You’re completely right, it is “Wrong” & “Illegal”... Personally, I won’t by S.V.A.’s Lexicon either….I’m totally and utterly on J.K. Rowling’s side…Not only because I’m a Humongous fan, but because I truly believe that S.V.A. is doing something very, very wrong…

Avatar Image says:

The judge clearly understands how unsettled the copyright laws are. I think he knows that a decision by him, particularly in favor of Steve and RDR, will be appealed. The law can be very strange sometimes and this case could go on for a very long time. Very Depressing.

I’ve read a lot of comments on this topic about JKR’s charity giving. I think her generosity is wonderful and she should be commended for it. And I don’t see why her prospective charitable donations should have any impact on this case. She has given so much pleasure to so many people and she’s made a lot of money as a result. In the end, how she chooses to spend her well-earned money is her business. Fortunately for a lot of people, JKR has chosen to be very generous.

Avatar Image says:

After reading the news coverage it occurred to me that the judge is doing something that I don’t believe many people are picking up. This is unresolved case law which will drag through the courts for years. However if a very smart/dedicated judge plays it just right both sides will be sufficiently concerned with loosing that a reasonable compromise can be reached between the sides that will create new case law and prevent a nasty fight that will serve no ones best interest. Just a thought!

Avatar Image says:

@ daddyfrog

But how can you make a compromise? It’s either, yes you can print the book, or no you can’t.

Avatar Image says:

The only way a compromise could be struk is when the book DOES get published, but with some alternations or something… Meaning judge P thinks the book should be published.

Avatar Image says:

“But how can you make a compromise? It’s either, yes you can print the book, or no you can’t.”

A judge normally looks at “money” as being the reason for a lawsuit . He probably cannot understand why both sides can’t just agree to payment of a royalty to the Plaintiffs by PDR. The lawyers probably have been paid more then what a fair royalty would have been.

Avatar Image says:

It totally agree with you guys. I read an article in Newsday that said he had only read half of SS/PS to his grandchildren, then gave up. I mean seriously, Ireasd these when I was 5/6ish and I got it!! PLEASE! How pathetic! if he couldn’t understand the series, which has many latin based words, how does he understand law terms, which are also neavily based on latin? What a jerk. If he rules against Jo….. he will have a serious uprising on his hands. If he found it so difficult to understand he should wait for JO’S scottish book to clarify things, not SVA’s book, which is just blatent plaigerism of the books. He wouldnt even gain anything from reading it and ruling for it.

Inconsiderate Dolt!

(rant over)

Live, Love, Harry Potter!! and Jo!! and Long Live the Scottish Book!!!!

Avatar Image says:

Wow! Tell us what you really think Lindsay!! ;o) I just threw that up as a thought and there is no one more inspired by JK than I – having had a momentary long distance encounter with her a few years back. i just don’t want to see a world so finely crafted that the likes of it will probably never be duplicated drug through the muck for an extended length of time.

Avatar Image says:

One possible compromise is to allow publication of the book with all proceeds to benefit the charity of Jo’s choosing. (Or some variation thereof.)

Avatar Image says:

@ Mr. Blood on April

Yes, but that would make the Lexicon people the ‘winner’, since Jo doesn’t just worry about the money, but also genuinely thinks it’s plagiarism… Hence me thinking that, if the judge suggests this, he probably sees the book published.

Avatar Image says:

I am completely behind J. K. Rowling on this. RDR books, or whatever they are, are terrorizing a creator for her works! How would you like it if you created a WORLD and then some people who think they know better than you go and start making an encyclopedia? I deeply admire Ms Rowling for her courage and cleverness to stand up to these people who are doing a wrong thing to what she created! And in one of the links I read that she is 42. I was a little suprised. She doesn’t look a year over 30. To anyone in RDR or siding with them, I don’t mean any offense, but I completely back Ms. Rowling up.

Avatar Image says:

How about a guest contributions section in JKs book edited by her if she wishes. Might now be a good thing for RDR but something could be arranged there too. After all they got a ton of name recognition out of all of this? That might be a bit far out but what do you think?

Avatar Image says:

This is an extremely difficult case for all involved. It’s difficult because of the copyright laws that are already in place and also because there are so many laws that AREN’T out there when it comes to information on the internet, which is where the original Lexicon resided. And let’s be real, Jo didn’t mind the Lexicon when it was on the Internet because no one was profiting from it. And I agree with her wholeheartedly. When things are on the Internet, and no profit is being made from it – then it’s not hurting her or the franchise. This isn’t about money, it’s about HER. The fact of the matter is, SVA took advantage of the fact that she had given him an award for his site and then allowed himself to get swept up in that and taken away.

SVA is 50. He’s not in his early 20s. He’s not even in his early 30s. He’s 50 years old. He’s more than old enough to be my father (in fact my father is only 6 years older than him). My dad does not have a degree in law. He doesn’t work in law, he dabbles in politics (on the small town level) but other than that, my dad has a bachelor’s degree in Communications Engineering. SVA more likely than not has a masters in Reading Literacy, which is what my mother, an elementary school teacher, and most librarians, have. SVA should have known better. What upsets me most is that SVA claims to love HP and Jo so much and yet is putting her through all of this, to profit.

Jo isn’t asking him to dismantle the website (though I wouldn’t blame her if she did now). She just wants to stop the production of his book. Once you start profiting on someone else’s words, that is when you have crossed the lines. I’ve started looking at the scans. It’s sickening how much of Jo’s work is in there, without being cited. Even if you paraphrase, you damn well better cite. I go to a top 30 school. Do you know how much we get spoken to about citing our sources? Every single paper we write. Down to the two page nothing papers we write. I have to quote movies if I use them as a source. No matter what I use I quote it, cite it whatever. I’m 21 years old. SVA has 30 years on me. And probably more education. He should have known better.

I don’t envy Judge Patterson. I have a minor in Law. He’s an intelligent man, there is no question about that. He may not have understood Harry Potter, but it’s not everyone’s thing. He got to the bench by getting his degree and working his way up. You don’t become a Judge by stepping out of law school and just deciding you want to be one (though I know many wish it were that easy). He has a really difficult decision to make on a case that doesn’t have predecessors to back it up.

For everyone’s sake (and by everyone I mean all readers, writers, and those to come) I hope Jo wins this one. It would be a shame to see the rest of the writers out there have to fight for their property to stay under their name because of one book.

Avatar Image says:

Yes, maybe… But I don’t think either party would want that. And especially – who of us would want stuff from the Lexicon book in Jo’s Scottish book? Jo’d be the first to not want that: she doesn’t need SVA, she knows better! She knows more, too- she wrote it.

Avatar Image says:

woops, my last piece was a reply to daddyfrog

Avatar Image says:

yea your right it would be a bit unlikely. But, surely there is a way to get back to just plain enjoying HP.

Avatar Image says:

I truely hope, for Jo’s sake most of all, that this case won’t take years. She thought she could have a break from it all…

Avatar Image says:

Amen!

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Hmmm. I wonder how the different Supreme Court Justices would feel about this. I wonder if for example a more conservative justice would be more likely to rule in favor of stricter copyright protection and a more liberal justice would be more likely to rule in favor of more liberal fair use laws.

No matter which way the court rules, I believe SVA has acted unethically. I believe this because someone had the goodwill to allow him license to make a living off a website free of copyright restriction, and then, in spite of being asked by that person not to do it, he has gone ahead and put that person in the position where her goodwill is being used against her. I believe this is unethical behavior. This doesn’t mean squat in terms of the outcome of the trial, because people acting unethically receive favorable court rulings all the time, but I like to believe that people who behave this way tend to have their behaviour come ‘round and bite them in the backside at some point. Call it karma or whatever.

And when JKR said (paraphrasing here), “they might not read the book for entertainment, but there are entertaining things in the book and I wrote them,” it really brought home to me the principle at stake here. It’s probably hard for the average person to imagine how much work and effort she put into each and every one of those anecdotes and descriptions that basically constitute the text of the Lexicon. But I am sure as JKR is reading the Lexicon, on just about every entry, she is seeing something that she remembers working very hard to create, probably remembering what she was doing at that point in her life when she wrote it and the particulars as to the effort involved. The courts may rule that the “synthesis” is transformative, but SVA is not winning any victories for fair use, he is more setting an example of how one can cash in on something with just a fraction of the talent and effort of the original creator. He is like a George Washington for slackers.

Anyway, I realize loads of people vehemently disagree with me, but this is why I feel the way I do about the two sides.

Avatar Image says:

My first thought was also “The judged said they books were gibberish. What a dumb* “, but then I thought that while I got “sucked” into PS straight away some people just didn’t. Fantasy is not for everyone.

Last week I tried to read The Giver after reading about it on here but I just could not get into it. It wasn’t gibberish but it just wasn’t for me.

HP can be “extremely complex” to some people but isn’t that a good thing. That person will then pick up a dictionary or encyclopaedia and learn more.

Avatar Image says:

If fantasy isn’t your thing and you find it hard to follow, looking things up will only take you out of the story every time you look something up. If fantasy isn’t your thing, then don’t read it. That’s how I see It.

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If there was a settlement, would that include that the Lexicon can be published but with many corrections and revisions? If that is the case, they should resort to citing the text phrase by phrase properly and calling it an unofficial guide. No way am I will be buying that book since there are numerous resources online that can accompany the reference needed. The HPL is not the only online encyclopedia out there. The reason why I would buy “the Scottish book” is to read about more backstories and explanations written by the HP author herself. I would not depend on facts rehashed by SVA since there are factual errors in the site itself.

It is a shame indeed that it has all been brought to this. I agree that I would really want to hear takes from other famous authors out there such as Stephen King and see how he would handle this situation as well. So far the reports see Jo as the monster, Goliath and SVA as the little innocent victim, David. So sad!

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Ah Melissa… How I wish you (and I’ll bet I’m not alone) were still taking notes and giving us the rundown on proceedings. You can put all this in a context relative to what fans want to know, not what will sell newspapers or increase audience size. BBC, WSJ et al don’t tell all. They tell us a titillating part.

I just hope the judge will see it our way.

OMT

Avatar Image says:

I honestly think the judge made the remark about finding the first book confusing as small talk in between the trial examinations etc. Even though, I find this judge asking too many questions that appear like “cross examination” on JK/WB, (Elizabeth kindly corrects me that is not the case) I have faith that the judge will be fair as possible as far as this completed law allows him to.

Btw A cheer to Elizabeth who has been quite the heroine on these comment boards, straightening out our legal naivities with some pretty indepth explanations without patronising. Thanks Elizabeth.

OK, now lets continue bashing SVA and the judge….just kidding.

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“So far the reports see Jo as the monster, Goliath and SVA as the little innocent victim, David. So sad!”

- It’s because they don’t know Jo the way we do. They don’t realize that she doesn’t try to stop everything or everybody.

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Yes I’m another who would love to hear Stepehn King’s opinion. But I bet he is wanting to remain quiet, for the moment. Perhaps he will give his thoughts once a judgement has been made.

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It should be noted that they likely choose a judge who wasent a fan of the books for the obvious reason that it would be unfair if the judge was a fan. a judge can not have a personal view of the case, he has to be impartial and give the law its chance. i dont feel worried about him cause he didnt rather enjoy the first harry potter book, but i definatly do not think it will ultimately matter. the encylopedia, having read a great chunk of it, can do nothing to help people get used to the names. thats not a issue. seeing as 91% of it apperently is simply jk rowling’s own words.

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Reading all your comments over the last few months, I feel that WB should have allowed publication! How many of you would ever have heard of this book if it wasn’t for the court case. I know that I wouldn’t, also I would n’t buy it not because of some great JKR worship (sorry I know this is the wrong word) but because I like my H.P. to come from JKR. If this book had been published without WB contesting it would not have sold nearly as many copies as it will if the court case goes thier way. We should all be allowed to enjoy the Harry Potter experince in our own way and if the Lexicon helps by bringing out a book so be it. Both W.B. and J.K.R. have in the past praised and used the Lexicon site. I only found it through J.K.R’s site and through that the L.C.

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I have to also say that, whatever the outcome, this is one riveting saga since it begun in October and thanks to Melissa’s and Kristin’s journalism, and Leaky readers opinions, I have learnt so much. But at the same, I share the pain of Jo’s distress in all this (and poor Melissa too who seems to be affected by all this due to being implicitly involved somehow), and you know what, I’m beginning to feel a little sympathy (just a little mind you) for SVA too, despite what I think of him. This is looking painful for everyone.

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Yes, Gobblydeduke, but is it only about how much it sells? JK feels betrayed. And someone stealing your blood, sweat and tears…

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Thanks for the links, p.f.!

Avatar Image says: Even though, I find this judge asking too many questions that appear like “cross examination” on JK/WB, (Elizabeth kindly corrects me that is not the case) I have faith that the judge will be fair as possible as far as this completed law allows him to.

Professor Potter, even though this is a bench trial, it has shades of an oral argument to it.

I realize I might be speaking legalese here, so I’ll try to explain. There are many different types of court proceedings; people are most familiar with jury trials, because that is their chief exposure to the legal system. If you watch TV shows or movies about the law, the stories generally revolve around a jury trial, and, of course, citizens of the United States have a legal obligation to serve as jurors.

In a jury trial, the jurors are the finders of fact – that is, they are there to determine what, factually, happened. The judge is the finder of law – that is, he’s the one who chooses what law is applicable in the case. In a jury trial, the judge’s role is fairly limited. He is there to make preside over the trial, make evidentiary rulings, and instruct the jury on the law.

JKR/WB v. RDR is not a jury trial, it is a bench trial or court trial, in which the judge is both the finder of law and the finder of fact. The judge, not a jury, is the one who determines what, factually, happened, if any facts are in issue. A judge’s role is much more active in a bench trial, and judges will question the lawyers, parties, and witnesses in ways that they wouldn’t in a jury trial, because the judge is the one who has to understand everything. Frequently, in cases where there isn’t much of a factual dispute, and the case turns more on a question of law, the parties will choose to have a bench trial, because bench trials are faster, more efficient, and less costly than jury trials.

Often, there will be a case where there is no factual dispute at all, or the facts in dispute are so minor that the case wouldn’t turn on them. In such a case, the parties can stipulate to the important facts and ask the judge for a judgment as a matter of law: basically, they’re asking the judge for a verdict without having to go through a trial. Instead, they’ll present legal argument to the judge, citing the relevant statutory and case law. They’ll do this through briefs and often through oral argument. In an oral argument, both parties will have a set time frame – often 30 minutes – in which to make their arguments to the judge. During the argument, the judge will often interrupt the lawyers and ask them questions about their case. Frequently the questions are probing the weaknesses in the case, because the judge wants to see how the parties respond to his concerns.

When a case is appealed, there is no new trial before the appellate court. Instead, the advocates on each side will write briefs, and the appellate judges will decide the case based on the briefs. If it’s a particularly important case – usually a high-profile case dealing with a murky, unsettled area of the law – the appellate court will also hold an oral argument. So if you take a case all the way to the U.S. Supreme Court and are allowed to do oral argument, you will have nine justices, not just one, pummeling you with questions while you’re attempting to present your arguments. For that reason, the art of oral advocacy is a lot more about the ability to respond quickly and persuasively on your feet and anticipate the questions in advance than it is being able to give a pretty speech.

JKR/WB v. RDR is, as I said, technically a bench trial. But judges often treat bench trials the way they treat oral arguments – that is, as an opportunity to ask questions probing the weaknesses in each side’s case. The reason why the judge’s questions might seem like cross-examination to you, Professor Potter, is because in a sense, they are. :) The judge has to decide this case – but he’s doing the parties a favor by asking these questions. He’s giving them the opportunity to respond to his doubts, to let them see where his problems are, and to give them the chance to respond to those before he has to make a decision. Likely he asked RDR’s witnesses similar questions as well, and those questions just didn’t make it into the news articles. But it’s not a sign of hostility, and it’s not indicative of which way the judge will rule. It’s indicative only of what he thinks the murkier areas of this case are, and he was giving the parties a chance to respond to his concerns.

Hope that makes sense. :)

A cheer to Elizabeth who has been quite the heroine on these comment boards, straightening out our legal naivities with some pretty indepth explanations without patronising. Thanks Elizabeth.

Aw, thank you. :)

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gobblydeduke. You certainly have a point regards to this case being a big exposure for the Lexicon and likely to result in bigger sales if RDR win. Remember the Da Vinci Code case. 2 authors of a non fictional book about the search for the truth in Jesus/Mary Magdalene history (sorry forgot the book was called) took Dan Browne to court for plagiarising or copyright infringement. It was a ridiculous case for them to sue Dan Brown, they had almost no solid evidence and their book was researching facts which cant be copyright in the first place. So the judge came to an easy conclusion, whereby Dan Browne was cleared. But guess what? even though they loss the case and looked like idiots, there was a massive surge in sales in their factual book, so the 2 authors were laughing all the way to the bank

So RDR/SVA could reap rewards in the same way except, if they lose, there is no book to make profit from plus they have to cough up court fees.

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Thanks to Elizabeth for giving us an inside look of the law. You have done so without sounding patronising as others have been in other posts. Thanks ; )

Yes the will def give alot of publicity to the Lexicon book, if RDR wins and are allowed to publish. I’m sure it won’t be true fans like the rest of us who will buy it, but, other’s who have heard about through the media. I just hope Jo win’s, and I think she should win. This is nothing but a copyright violation.

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I think that the judge is right about how murky of an area this part of the law is and how it could go either way, but many fans have decided for themselves that it shouldn’t be published. It’s seems simple to us because I myself can’t understand how someone who calls themselves a true fan would do something that the author specifically asked you not to do. Even tho this has drawn a lot of media attention, I have hope that it won’t lead to high sales of this “book”. If this “book” does end up getting published I will definitely not buy it and I will do anything within my power to organize a massive boycott so any true Potter fan does not buy it either.

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Who is going to be “the winner” here? SVA has shown himself to be duplicitous , RDR have come across as utterly hopeless and Jo Rowling has been destroyed in comments in the mainstream press. I would imagine all the parties want ot bury themselves under their bedcovers and never appear again.

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Most of the news articles are terribly incomplete or sensational. That stupid Telegraph headline! the judge didn’t say the books were gibberish (which makes it sound like he was saying they’re rubbish), but that, to some readers certain words are gibberish. Or something.

Oh, Melissa won’t you reconsider writing something up for us? Maybe you could set up a separate page with some sort of discaimer that it’s personal and not the view of Leaky Cauldron? I guess not really, huh?

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This whole thing is just sad. My heart goes out to Jo. {{{hugs for Jo}}}}

Melissa, my heart goes out to you too. {{{hugs for Melissa}}} Treat yourself at a spa then try to relax at home with Moochka on your lap and a cup of hot tea. Purring cats are great way to relieve stress. :o) ..

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Melissa’s involvement consisted of her providing an email to JKR’s side in which SVA expressed regrets in taking the deal with RDR books. That’s it. My sources that were at the trial indicate that is all of her involvement, and that further the email was not admitted into evidence.

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To be clear on what happened (and nothing else, because anonymouse was not there, by his/her admission, and the only parts of it I’m commenting on are addressed below):

The email was indeed not admitted into evidence in its entirety, but the conversation (which included reading of the relevant bit) remained. In other words: The part that mattered stayed and the rest stayed private, won’t become a public exhibit. And I am glad for that.

The e-mail was read directly after SVA said he had not felt RDR had lied or misled him; the e-mail, from January, said the direct opposite.

Thank you to all who have been so kind.

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I find this very disgraceful. Rowling could of easily asked the publisher and SVA for 10% of the profits that is from the book. And did any of you notice that Scholastic and Bloomsbury aren’t in the fight? You would think that these two publishers of the books would be in this trial as well. Considering that their the ones that published the Potter series.

I think Rowling has honestly fell off the edge of sanity and having her feet on the ground. I have been a fan of her books since I was 14 and now 22. I do feel betrayed by her. I feel that this book was meant for the fans and written by the fans. It feels like she’s going against her fan base that got her where she is not. She should be delighted that someone is that devoted to her work, but Rowling ended up bringing them to court.

I read in my local paper that she is having second thoughts on encouraging websites (like the Leaky Cauldron) that are devoted to her books. My point is…you don’t just go out and sue your fans. And there are also other books similar to this one…..And yet I remember she didn’t sue them. Rowling also sued a small town in India because they had a model that was from her books. What? I for one will go out and buy this book just cause to make a point.

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To be clear on what happened (and nothing else, because anonymouse was not there, by his/her admission, and the only parts of it I’m commenting on are addressed below):

The email was indeed not admitted into evidence in its entirety, but the conversation (which included reading of the relevant bit) remained. In other words: The part that mattered stayed and the rest stayed private, won’t become a public exhibit. And I am glad for that.

The e-mail was read directly after SVA said he had not felt RDR had lied or misled him; the e-mail, from January, said the direct opposite.

Thank you to all who have been so kind. Posted by Melissa on April 17, 2008 @ 09:00 PM

Melissa, I understand and appreciate if you do not want to answer this, or can’t answer this, but did the email from SVA to you come up in discovery of papers or did you provide it to JKR/WB’s legal team of your own action?

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I think what we are seeing here is a judge who is very interested in the specifics surrounding a world that for some who are not fans of fantasy is very hard to navigate. I think this bodes well for Jo and WB. I believe that in the end the intention of the scottish book will be the deciding factor. In the case there are a couple of truths that we as the public eye will never see. We will never see a contextual manuscript of the trial. We may get snippets here and there but we may never know exactly what is said, how it is said, and why it was said. If Jo loses this case it will be a tragedy, but in reality it will not be a loss to fans or to Jo. Jo has done very well with her career and will continue to. The Scottish Book will still be a best seller and will ultimately be purchased by fans of the series and new fans alike.

Believe in justice and in fairness. But to paraphrase a great author other than jo…over love, money, fame, power, and fairness, give me truth. And as Arthur said in the Order movie…”Truth will out”

Be courageous and passionate in your fandom, but also be intelligent. When the case plays out, if Jo loses then we can bash judges and speak opinions, but until then we don’t know what it will do.

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It sounds like he is close to ruling in favor of SVA, but could change his mind. He recognizes that however he rules, it will be appealed and more than likely, given the complex nature of the case and conflicting case law, end up in the Supreme Court. In that case, both sides lose since the costs of litigation would far outstrip any procedes made by both JKR and SVA, even if SVA wins and JKR goes ahead with the Scottish Book.

After the trial, JKR offered an olive branch that if SVA improves the book, and adds some content, she would be willing to drop the suit. SVA and RDR would be idiots to pass this up (although that is a possibility). These cases end up looking like a duck swimming on a pond: Nothing happening on the surface, but furious work going on underneath just out of sight.

No matter who wins, it will be a very phyrric victory.

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No Sam, not everybody is “dying” for the Scottish book. That is too extreme. I would buy it if I can afford it. I have a life outside the HP fandom and mouths to feed, my priorities.

I agree with basketcase. As I’ve said before, how much loyalty does the queen need her subjects to give her until she says “off with their heads” which is what queen JKR is doing now to one of her most loyal subjects. Where does loyalty end?

Let this book be publish and let the public/fans decide what to do with it – buy it, burn it, support it, ban it, boycott it. Respect the wisdom and intelligence of fans to know the difference and decide for themselves what to do with it. Let it see the light of day and give the public an option, a choice, to critique it, to express their own feelings about it. That’s called freedom. No to supression.

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Just another thank you to Elizabeth. I’m constantly impressed by all the literate and knowledgable people on this website, and it has sure helped to have a lawyer/law student or two here, as well as Melissa with her journalist training.

Thanks, everyone . . .

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And no, I dont think this is outright plagiarism, stealing, copyright infringement. Because if so, then there would be no case at all and RDR would go directly to jail. The reason why this is in the courts is because their is contention, there is reason to say that there has been no violation on copyright issues.

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Tom; I’m willing to bet that ever since the judge urged them to settle Neil Blair (JKR’s [other] lawyer) and I’m assuming a WB lawyers and the RDR lawyers have been talking to see if some sort of settlement can be reached. Whether or not JKR and/or SVA and Rapoport agree to it is another story.

In the end, though, I think that the ruling could go either way – both sides have good points (impact on the market of the book likely minimal on JKR sales, it does expand on the books on one side, the amount of entries that are very similar if not exactly like JKR’s words in the lexicon on the other). As much as we, the fans, would like JKR’s emotional plea to play a factor (how the lawsuit is affecting her writing) I know I don’t like the idea of her not writing, or having difficulty writing, I don’t think it plays a part in whether or not the book infringes on her copyright. What is copied from her books in the Lexicon is.

Since I haven’t seen the lexicon book, I can’t comment on what is in it, but my first thought was how it would compare to Cliff Notes/ Coles Notes, which students have used for years, and are apparently legal, though after the suit, my guess would be that it doesn’t have the analysis that those aids do.

What I do find worrying is that JKR has been lenient about fan use of her work, which could work against her. If she and the WB are knowingly allowing the use of her characters in other publications and on the web, and I’m not sure if that sets a precedent, or not, or if it matters. Because if online encyclopedias won’t hurt sales, or already published ones won’t (which may not be complete but still are on the market), then I suppose a case could be made that, there are already all these online ones, and all these ones already in print, however they have not affected sales therefore this one won’t either. This is just speculation on my part though, since I don’t understand copyright law.

If this is not settled out of court, no matter which way the judge rules, there’s likely going to be an appeal, which will just drag this out.

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I find it very amusing how many people are branding the judge “stupid” because he couldn’t get through HP…when the people posting most likely could not understand even the most basic of the many laws and precedents that are Judge Patterson’s bread and butter. Seriously, guys…different strokes for different folks.

As for the case itself, I’m with the Judge here…I think that a settlement really would be in everyone’s best interests. Most of the arguments WB has made are pretty far out, if you ask me; and while I do think that SVA and co currently have the better case, there’s almost no way they’re going to get out of the courts anytime within the next 10 years. Whatever side loses is doubtless going to appeal, doubly so if it’s JK and co; and that fight, stretched out and ugly as it will be, certainly won’t be pretty. Slightly altering the book (perhaps adding some of the excellent essays on the Lexicon website, if they aren’t already included) would seem to be a relatively reasonable conclusion.

We’ll see…

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[This is my third comment. My other two were posted on April 17, 2008 @ 3:26 a.m. and 3:57 p.m. respectively to the following article: http://www.the-leaky-cauldron.org/2008/4/17/jkr-wb-vs-rdr-books-trial-day-three-a-partial-settlement-reached-wsj-law-blogger-dan-slater-speaks-to-ip-expert]

J. K. Rowling could easily turn a blind eye to the Harry Potter series, if she wanted to. With a few dollars, she could take a sabbatical, find a far away place to become permanently hidden, and forget about the world. What is it that motivates her to stay and continue to stick out? I don’t think it is something as frivolous as toying around with fans who stand to make maybe six-figures, maybe more, maybe less, riding the back of the Harry Potter roller coaster. Although, portraying her as some wealthy monster raring to attack “a weak and nerdy fellow (with all due respect)” is not accurate either. Lest anyone forget, hours and hours have been spent by her writing thousands of pages about Harry Potter, who himself is characterized as an orphan, “nerdy,” and with the whole death of hell on his shoulders as the odds were stacked against him. She herself might answer that she is doing it for Harry, and anyone who has wrinkled the pages of her books could understand wholeheartedly why. She could turn a blind-eye to this, but according to the notes taken about her testimony in court, she mentioned in someway the “principle of it all.” Something of principle that stands out to me is the implication that the defendants were cordially asked not to pursue an Encyclopedia about her work. If Jo had asked me something like that I think I would feel obligated. I mean, maybe my effort and time could be spent creating my own series of books, and then I wouldn’t have to ask or answer to anyone. J. K. R. alluded at the end of Deathly Hallows, that Harry Potter’s story should end, and hopefully that might keep others from trying to continue Harry’s story. It is obvious that a firm line had been drawn. It could be portrayed as an attack on fandom, but considerate fans think twice and seek counsel about whether or not to cross lines, especially when interacting with the author of their stories. It seems that crossing that line and pursuing an Encyclopedia was rather deliberate, but that isn’t entirely the principle at stake; that could be solved easily with a well constructed settlement. The principle IS that Harry deserves to eat his sandwich and rest in peace at the end of the story; he deserves to be respected. There is a precedent to be set. Whether or not the defendants will respect Harry Potter, even after they’ve crossed the line, probably goes with out saying, but can anyone give a definite answer to that one? What about others who may or may not be fans that decide to exert literary freedom all over Harry Potter? I say Harry Potter fans deserve to have a Harry Potter that is protected by J. K. R. The rules now in place, considering the lines have been crossed, should be to write something extraordinary, or don’t write it at all. Pay the luxury penalty to import the fur. Harry Potter fans will have ribbons and pearls, and Harry Potter can have his sandwich. I don’t mind J. K. R. being a mother goose, if it means that the story will be always respected. As Hermione might say, “That is the reason. That is why J. K. Rowling came back to protect Harry.”

Avatar Image says: Because if so, then there would be no case at all and RDR would go directly to jail.

I-in the skye, this is a civil case, not a criminal case. Regardless of what happens, no one’s going to jail. :)

Just another thank you to Elizabeth.Professor Lily

Thanks to Elizabeth for giving us an inside look of the law.Neil

You’re welcome. And thanks. :)

I believe that in the end the intention of the scottish book will be the deciding factor. erictipton

And that prospect gives me serious pause about the case that JKR and WB are advancing. It seems that they’re arguing, basically, that JKR has a copyright in a book she has not yet written, and that is extremely disturbing to me. To rule that someone could have that sort of copyright would, as I’ve said before, open a legal Pandora’s Box, because it would basically be saying that you can copyright an idea. I wish JKR and WB had stuck on the firmer ground of the works that already exist. Unfortunately, I think this case is driven, in large part, by plans for the Scottish Book; if the Scottish Book already existed, I think the argument for copyright infringement would be much stronger.

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There was virtually no argument at all that the copyright of Jo’s to-be book was at question. It was mentioned, probably more as a tactic to get the full scope of the issues at stake out there, but the actual arguments focused on whether the book in question, the HPL, was fair use. JKR said repeatedly that her main point was how much of her phrasing and plots is taken and put right into the HPL; if the SB plans were driving her testimony that’s what she would have focused on. The unwritten book is more of a side issue and was resolutely treated that way by everyone involved.

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@ Copperhead

Your post has brought me, a grown man and very proud father of a wonderful young man to tears. I fully well remember reading Harry Potter and the Sorcerers Stone with my son, not to him but with him and we both began on a journey that I would not give back, not even one second of it!

Thank you for your beautiful words and understanding of what I hope so many other lovers of J.K. Rowling and her fictional characters of the Harry Potter series have brought to all of our lives.

No matter what side of the fence we find ourselves on at the moment, I hope we can all remember the boy who lived under the stairs, made life long friends, learned to trust and became someone others could trust in as well.

So Copperhead, the Leaky Cauldron and of course J.K. Rowling, let me say Thank you… You have done things that have bettered my life and the lives of others I believe. That is what truly matters.. Our deeds, our choices in life and our actions and the understanding of how they affect others, not just ourselves. For these simple things are what I hope we will be remembered for long after we have left our Carbon Footprints upon this place we call home.

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Does anyone have a link to The Lexicon (Book) as submitted in evidence.

I’ve tried to troll through Justia looking for it, but I got a headache and had to stop!

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I read PS/SS when I was seven, and I definitely had no problem understanding it! But then, I agree with Elizabeth. I guess people’s thinking differs a lot, and some people aren’t able to follow fantasy or fiction. It doesn’t make them stupid. My dad’s brilliant at Physics and Maths, was a top ranker in Maths in his university but couldn’t understand head or tail when he read HP. I guess the names just baffled him!

It depends, I guess, on a specific interest and a specific bent of mind to understand fantasy like this. This said, I doubt the judge would really take his personal feeling into consideration while reading out the final verdict in a case. I mean, he hasn’t been made a judge just like that! And Melissa said he said his grandkids loved the books!

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Melissa, I understand why you wouldn’t want to report on yourself (when your name was brought into court), but I would love to read about what happened. Do you know if anyone else has reported on this?

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@ Elizabeth and Melissa:

My take on the relevance of the Scottish book was that it needs to be considered in the fourth factor of fair use: the effect of the use upon the potential market for or value of the copyrighted work. This is often stated as “the effect of the use upon the potential market for or value of the copyrighted work AND DERIVATIVE WORKS.” The Scottish book can be seen as a derivative work of the orignal work (the HP books) to which JKR and those she has assigned rights to under copyright law have some control over. However, Elizabth, I do see your point about the idea vs, expression issue.

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I know DorisCrockford raised this on a previous thread but it seemed such a common sense idea that I thought I’d raise it again. Couldn’t someone just go through the SVA book with a highlighter pen and literally highlight all the lines that are direct or close quotes or paraphrases and see what’s left over? That should graphically demonstrate percentage of stolen text. Has noone thought to do this to show the judge? If the judge isn’t familiar with HP then how can he tell what’s original text and what’s stolen otherwise?

Personally, I see no use at all in a Lexicon that’s incorrect, but if SVA agreed to iron out errors, acknowledge all quotes and paraphrases (book title and page numbers), and then publish the work as an unofficial guide, I wouldn’t object to it. (I wouldn’t buy it either but there you go)

I’d like to add my thanks to Elizabeth for explaining so much :)

On ideas; I thought there was a way of protecting ideas and ‘unpublished’ work as long as there was some concrete record of the idea? For instance fashion designs that don’t make it to fabric (I remember a news item recently on CrimeWatch UK, in which someone’s designs were stolen and appeared later on a catwalk, which included advice on how to protect such designs). So I would think that Jo’s notes count, just because they exist on paper, along with a record of what she’s said relating to the proposed layout of the SB??

I found this in a legal question and answer session on The Stage (UK theatre newspaper):

“There is no copyright in an idea as such but there may be in the manner in which the idea is expressed, provided such expression is ‘original’ and provided it is recorded in writing or in some other permanent form such as film or electronic record.

Accordingly, if you wish your ideas to have any chance of qualifying for copyright protection, you should put them down in writing and flesh them out into a ‘treatment’ in as much detail as you can muster.” (May 2003)

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Melissa,

That’s relieving to hear. Therein lies the danger of relying on media accounts to find out what’s going on in a trial. :)

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I’ve brought part of this argument over from the Day Two comments thread because if still applies to some of the points raised here:

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 may have been 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 3-10% 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 tell TLC that 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 possibly taken 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 worked on/contributed to the site over both ownership and copyright. Not only has he infringed JKR’s copyright he almost certainly has to some degree 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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rotfanf07, you’ve pretty much summed up I and many others arguements from this whole week.

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I think the most important aspect is that there needs to be a ruling. When the law is unclear then clarification is needed. If it winds up in high courts all the way up to Supreme Court then so be it. And if they don’t like the way the courts have decided then they can write new law to set the rules and the courts will decide it those new laws are clear enough.

One could look at all the Star Trek related material, both official and unofficial and see what was fair use or not… Paramount tends to have a tight leash on it.

If JKR wins then she’ll be able to write her book. I don’t see her having any problems with fan-fiction or websites as they have been.

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rotfang07 thanks for that great summary! You’ve cleared up some doubts I was having because I wasn’t impressed with the court testimonies on either side. Can you tell me how SVA would be in breach of his contract with RDR (your last sentence) with regard to other contributors?

I think what SVA seems to have done with regard to other HPL contributors makes it especially bad (besides what he’s done with Jo’s work) and I hope if RDR wins the others club together to sue. I would be absolutely hopping mad if I contributed something good to a website to find it was to be published later on without my consent and unacknowledged!

I’m still having difficulty with the notion that potential usefulness of a book should be a factor in any case of such gross infringement. An infringement this bad is just not ‘Fair Use’ in my opinion because it just isn’t ‘fair’, and how popular a work of literature is is irrelevant imo.

Avatar Image says:

anne,

The usefulness of the book would come into play under the first prong of the fair use test, the nature of the use of the copyrighted work. That prong exists so that the judge may consider what purpose a work using the copyright serves, and if that purpose is different than the purpose of the copyrighted work itself. If the borrowing work serves a legitimate purpose (say, a scholarly analysis of a book that quotes passages from the book in order to support various points), then the use is more likely to be considered fair use. If the borrowing work does not really serve a legitimate purpose (like if I took Deathly Hallows, changed a few things, and published it under my own name), then it would not be fair use.

One of the things the judge must consider, then, is whether the Lexicon serves a different and legitimate purpose that justifies using copyrighted material. A book review serves a different and legitimate purpose than the book itself, an analytical article serves a different and legitimate purpose than the book itself. A reference guide might very well serve such a purpose.

That’s not the only factor the judge can or should consider, but it is an important one. That’s why the judge is considering it. But in considering it, the judge will also evaluate other important factors, such as prong 3 of the fair use test (what proportion of the copyrighted work is taken). I think this is the point that works most in JKR’s favor, because it sounds like a significant portion of the Lexicon uses JKR’s language almost verbatim.

how popular a work of literature is is irrelevant imo

How popular a work is comes into play under prong 4 of the fair use analysis – whether the work using copyrighted material will have an impact on the market performance of the copyrighted work. The reason this is part of the Fair Use Doctrine is that it goes to the heart of the policy behind copyright law – protecting writers so that others don’t profit more from their work than the writers themselves do. The more likely a potential copyright infringement is to have a negative impact on the writer’s ability to profit from her creation, the more likely a court is to rule that it’s not fair use. Again, this is not the only factor that courts consider, but again, it’s a legitimate and important one.

Avatar Image says:

Hey Kristin the WSJ.com has a new post up here’s the link http://blogs.wsj.com/law/2008/04/18/final-for-now-reflections-on-the-harry-potter-trial/?mod=WSJBlog

Avatar Image says:

rotfang07,

Thanks for that wonderful summary. There’s just a tiny distinction I want to make (we lawyers are obsessed about that sort of thing!):

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 may have been mentioned in Falzone’s concluding remarks.

My understanding of the Fair Use Doctrine (correct me if I’m wrong, other lawyers out there!) is that it’s an affirmative defense: basically, RDR is saying that SVA used copyrighted material in his work, but his use was fair use. When RDR concedes that, they are not conceding an infringement, they are merely conceding use. If they were conceding infringement, which is contrary to the law, there would be no need for a trial; they would have admitted liability. Merely using copyrighted work is not an infringement if it’s fair use. In some copyright cases, the argument is whether a copyrighted work was used at all; in this case, no one’s denying that copyrighted material was used, but the defense is arguing that the use was fair and therefore not an infringement.

It’s basically a copyright equivalent of self-defense. If, as a murder defendant, you are asserting the affirmative defense of self-defense, you are acknowledging that you killed someone, but you are not acknowledging that you murdered someone. Again, if you were, there would be no need for a trial.

Minor point, but like I said, we lawyers thrive on that sort of thing. :)

Avatar Image says:

anne,

I also meant to respond to your question about the possiblity of copyrighting ideas, and then I posted too soon. :) I’m not a practitioner or an expert in copyright law, so I don’t know all the details. My understanding is that there has to be a tangible work in order for it to be copyrighted.

So – to go with the idea of the fashion designer – let’s say I come up with an idea for a dress, and I draw up fashion plates of what I have in mind. My competitor steals the fashion plates and rushes to complete the dress before I can get done with mine. That, I believe, would be a copyright violation, because I already made the work tangible by drawing up the fashion plates.

But if I merely had a dress idea floating about in my head, and mentioned to a friend that I thought I’d design a blue sheath for my spring fashion show, and then my competitor produced a blue sheath, I couldn’t sue her for stealing my idea. Having an idea, even talking about the idea, isn’t enough to establish a copyright, because copyrights are intended to protect actual works, not mere ideas. There are numerous policy justifications behind that rule, but I’ll only go into one here. Ideas are too general. Let’s say I want to copyright the idea “brave hero rescues beautiful princess from evil villain.” That basic plot covers everything from numerous Greek myths to Disney’s Aladdin to the Legend of Zelda. Lots of people have the same or similar ideas; it’s the expression of the idea that makes a work original, not the idea itself.

Avatar Image says:

Thanks Elizabeth.

Avatar Image says:

But they’re not only saying they stole her idea though. Because that IS a bit difficult. She also talks about the ‘crumbs’ of her ‘cake’ that they took and repackaged it, without adding any of their own ingredients.

I just hope the verdict’ll come soon.

Avatar Image says:

Melissa:

Like so many others, I admire and appreciate your comprehensive and objective summaries.

I know it’s asking a lot, but I’d love to see you include the lawsuit and trial in your book. As painful as that might be for you, your perspective would be unique and, I believe, extremely valuable to everyone who cares about Ms. Rowling and her books. We need someone who can put it all – both sides – into the context of the wider Potter phenomenon, and I can’t imagine anyone who could do it better.

Avatar Image says: But they’re not only saying they stole her idea though. Because that IS a bit difficult. She also talks about the ‘crumbs’ of her ‘cake’ that they took and repackaged it, without adding any of their own ingredients.

Understood, emmy. :) I believe anne’s question was more of a general question about copyrights and whether they ever protect ideas instead of tangible works. My understanding of copyright law is that the answer is generally no.

The issue came up because, based on some media coverage and law blog coverage of the trial, I was under the impression that one of JKR/WB’s major arguments was that the Lexicon would be an unfair competitor to the Scottish Book. This troubled me, as a lawyer, because the law does not protect works that are not yet in creation. Melissa cleared up my misconception by saying that the Scottish Book was mentioned in passing, but the focus of the case was very much on the existing books and what the Lexicon took from them.

Admittedly, now I’m a little confused about why people are acting like this is such a pioneering case. It will still be a difficult decision, because any case relying on a totality-of-the-circumstances test, where the case law is all over the map, requires the judge to do a difficult balancing test, and he almost assuredly will be appealed regardless of who wins. But while the case is difficult, I don’t really see how it’s pioneering anymore. Earlier those arguments made sense to me, because it sounded like one of JKR/WB’s main arguments was that this was not only an infringement of already-existing works, but an infringement of a future work that would use the same information as the Lexicon (in addition to information that JKR herself only knows). Basically, it sounded like JKR was arguing that she had a copyright not just on the actual works, but on information within the works that she planned to use in a future work. It was an interesting idea, because JKR does have a copyright on the characters, events, and much of the information in her books. It was also a troubling idea, because it did sound like she was trying to take out a copyright on something that’s planned but not yet in existence.

That would have been a pioneering case, and an extremely difficult one for the judge to decide, because I don’t think he would have much guidance in established precedent. But if that’s what the arguments are – if the arguments are solely that the Lexicon exists on the already existing books – then the analysis will be a straightforward application of the Fair Use Doctrine. Factually difficult because of the nuances of the case, but not legally difficult, because the Fair Use Doctrine is already well-established in American law. A higher court might rule that the judge misapplies the Fair Use Doctrine, but this isn’t going to be a case that will result in new law.

But perhaps there’s some additional nuance that I’m missing. I’d’ve liked to see the trial. :)

Avatar Image says:

[This is my fourth comment. My third was posted on April 17th 11:51 p.m. The first two were posted April 17th 3:26 a.m. and 3:57 p.m. respectively to the following article: http://www.the-leaky-cauldron.org/2008/4/17/jkr-wb-vs-rdr-books-trial-day-three-a-partial-settlement-reached-wsj-law-blogger-dan-slater-speaks-to-ip-expert]

Re: Comment posted by rotfang07 on April 18th, 2008 @ 9:44 a.m.

@ rotfang07 –

I agree in spirit and principle with the things that you have written in your post.

It’s rather rational and logical indeed. Then, there are others that are presenting a crisp Legal clarification to these commentaries, which is pretty refreshing, as well. Their views may not be consistent with my own, but as long as the Legal sources they are quoting are accurate, I’m glad to read them. However, as to all things Law, sometimes there is no real “right” answer no matter how much Legal authority you’ve cited; both sides could be more or less “right” or “wrong,” then it nevertheless boils down to who is more eloquent with their argument.

As for me, I’m fighting for Harry Potter. It feels a bit like the scene in Lord of the Rings where one is required to “speak Friend and enter,” only to encounter goblins seeping out of all points of the woodwork. While everyone should feel welcome here, it is rather hard to understand that anyone would not support anything, at least in this forum, that is in the best interest of Harry Potter, which includes supporting J. K. Rowling the author. That contrary position, honestly, is rather offensive to the hours and hours of commentary and news spent by fans through the years, reading books, and being audience to the Harry Potter series, J. K. Rowling, and fan sites. If you have already turned your back now, where does your argument lie? It certainly doesn’t belong at Hogwarts, although maybe Slytherin; it belongs in the sterile fictionless realm of the Federal Court.

Avatar Image says:

@ Neil. Thanks.

@anne I’m no lawyer (thank G-d) but my understanding of Fair Use (which in this form is unique to the USA), is that it is a legal device to allow copyright infringement, or in strictly layman’s terms: stealing copyright against the author’s wishes for the greater good, hence, no doubt, the term “Fair”. The author has to just like it or lump it.

Originally one of its purposes was as an educational tool; i.e. to allow poor students, for example, to study an author’s work from a copied page. But politics has recently intervened and RDR, who has links to liberal-left organisations and issues on his site, has linked up with associates from the Stanford Fair Use Project (I think) to attempt to expand Fair Use parameters.

The idea is that authors should not have ownership rights over their work but only minimal rights such as the right to sell individual copies of their work, anything else should be fair game. It is also a way of attacking corporations that the Fair Use groups have explicitly stated they are against on principle. The irony is that JKR is identified with the liberal-left in the UK (Amnesty International; Human Rights abuses and causes etc).

Rowling is a real target for them because of her association with WB. If they can defeat a corporation and a rich author they will have scored a double whammy for their cause.

SVA has just got caught up in it for his own reasons, which as he testified in court have more to do with “recognition” from his idol JKR. He got what he wanted: JKR told him as he stood at the back of the court she had no problem with his publishing his book but she pleaded with him (“please”) don’t use so much of my work to do it. In other words JKR wants him to work at creating an original book and not to just cut and paste so that 91% is taken directly from her 9 books.

The judge hinted, as I said, that he could make a case under Fair Use because it is such a grey area of law. He could argue that the 91% of essentially cut and pasting is necessary for the type of book SVA has made, but that this would be a unique case, and any decision he made may not apply to other books in future Fair Use cases. He was essentially telling the parties to settle, he wasn’t just exposing the weakness of JKR’s case. His mention of Bleak House was a direct reference to SVA’s position in my view, and his rebuke to the lawyers that they were not serving the best interests of their clients was a direct attack on the Stanford lawyers, as well as a strong hint to Celani to not be tempted by WB’s apparently bottomless coffers, and to settle.

As to SVA’s being in breach of his contract with RDR, a copy is apparently available in Justia.com, the contract explicitly states that he as the author of the book is liable if he knows he has infringed copyright. We know SVA has explicitly and in writing stated that he is well versed in copyright law and that he has given advice to others about it. Hence his May 2005 statement it was “illegal” to print a Lexicon in the format he had chosen i.e. essentially a cut and paste job.

But, Fair Use is now in play and it is such a grey area of law that the judge could decide anything he wanted as long as he made a good case for it based on legal technicalities that are gibberish to the layman but make perfect sense in Lega-Land. It is vital to grasp that the law is not set up for the layman to understand, nor is it concerned with justice or common sense. To put it crudely the law stands and falls on its own rules and merits. The fact that no one outside the law can understand it speaks volumes for the mess we as citizens have allowed ourselves to get into, never mind poor JKR and SVA.

In essence we (i.e. mainly in the West) have allowed lawyers to have a monopoly over the law. We cannot change it without the lawyers’ consent, and, to make matters worse, a huge disproportion of legislators are also lawyers. So justice for Jo is as likely as it is unlikely. It is in essence Russian roulette with a handful of lawyers dictating the outcome. What should be a system to serve the community is to the layman an incomprehensible maze that serves lawyers first and last. The first thing an honest lawyer tells you is never to go to law if you can avoid it, and, thank goodness, that is precisely what the judge is suggesting in this case: to settle. Better that than a crapshoot.

Avatar Image says:

I’m reading this and seeing a lot of comments in the vein of “SVA is evil” and “Poor JKR”. That and “SVA wants to make a profit, how horrible.”

I’m having a hard time with a lot of these comments, because they make this a black and white situation, which it is not.

First: I found it interesting that SVA had to be approached by RDR to publish his work, and that SVA first made sure they would protect him against copyright infringement. That says to me that he was pretty certain he really shouldn’t be publishing at all, but RDR insisted otherwise.

Because it’s so very easy to dismiss the concept of making a profit when the possibility isn’t there for yourself. The fact remains that SVA put in – on an unpaid basis over many years – a resource that was good enough for JKR herself to praise and admit she used herself.

While I’m really not 100% sure where I come down on this (if SVA is actually quoting huge swaths of book in his published version, that is pushing Fair Use quit a bit – I’m friends with too many intellectual property lawyers to let that slide), this is hypocritical of JKR. Especially if SVA’s claim of WB using his timeline verbatim on the DVD’s without his permission is true. His unique assembly of data from JKR’s books – something she does not provide herself – is actually his intellectual property. He took the time to create a guide to the world she created – that took time and energy on his part. If used on the DVD’s – of which I’m sure she sees some of the profits – well, she and WB are profiting the tiniest bit off of his work.

The temptation to recoup some money for his efforts is/was probably large, and SVA is only human. If a publisher convinced him he wasn’t violating copyright law, and he’s had the implicit support of JKR over the years…well, to put it bluntly, talk is cheap. Declaring you her favorite Harry Potter site of the Month on her site is nice, but I’m guessing that fact doesn’t pay the hosting bill. And when you reach 50 (as some of you have pointed out), labor of love vs. paying the bills is a question that becomes a bit more important.

Also, I’m curious – Melissa – you are writing a book about your experiences within the fandom of Harry Potter, yes? So in a sense, aren’t you also profiting off of JKR’s words, albeit indirectly?

Let me make this perfectly clear: I’m not trying to be mean or dismissive of your writing talents, as I understand you are a freelance writer, and probably more qualified in general than SVA to write a book. Indeed, over the years, the high quality of the posts on this site have shown you are an excellent writer. And I really like seeing excellent writers get book contracts – there’s so much horribly written garbage out there right now.

But did you write a book and shop it around? Or did Simon and Schuster approach you and ask you to write the book? If it was the latter, your situation is not too far removed from SVA’s. A publisher asked you write about your knowledge of the Harry Potter universe, based on your stewardship of a well-known Harry Potter fan site. This site differs in that you do a lot of event reporting, true, but there’s a lot of your personal experience in here as well…which I’m guessing makes it into the book. Even though you wrote it for TLC originally.

I’m guessing what I’m trying to say here is that perhaps the fandom should cut SVA a little bit of slack, and stop thinking JKR is completely in the right. We’re all human and all fallible.

JKR has her own admitted admiration for SVA’s work on record. To turn around and actively damage one of the people who probably helped increase her popularity through his efforts and fandom? I’m sorry – I don’t find that admirable. Much like I don’t find her continuing lawsuit against the paparazzi admirable either (I realize the fame she didn’t seek must be trying to her and I think paparazzi are scum, but Edinburgh is not her private, walled city, and this is how modern celebrity works in an open society, regrettably). No matter your achievements, wealth, power or relative goodness, you cannot create a world of your own making – you must share it with the others around you as best you can.

Because let’s face it – as others have noted, if the HPL is published in book form, is that going to stop you from buying her “Scottish Book” down the road? Most likely not.

If anything, this trial has meant that people who may never have heard of the book may now buy it. So even if hard-core JKR supporters don’t buy it, that may not hurt its sales significantly (something I’m willing to wager RDR knows). By giving this book more attention than any press campaign by RDR would have brought to it, she is giving it a ton of free, GLOBAL publicity. If she loses and the book does sell well, WB and JKR really only have themselves to blame.

Had she and WB simply ignored the book, how many sales would it probably have accrued? I think the highest Amazon sales rank any Harry Potter companion book remotely similar to this is something like 29,000 – most are in the 100,00++ category. These are hardly a books jumping off the shelves.

That RDR appeared to not play by the rules shows a lapse in judge of character for SVA – he could have not followed their direction and decided not to publish, but the inertia of the project may have clouded his judgement. And I think many of us have made mistakes we’d absolutely, positively adore to take back. We just didn’t have to have them displayed and reported on and commented on by half the globe.

Personally, I would say RDR is the bad guy here. And the only “winners” are the lawyers.

Avatar Image says:

It should not be relevant if the judge approves of the Harry Potter books or if he finds Jos books are overly successful or whatever he thinks of her writing as this trial is about violation against copyright law or not. As a writer I can only hope that Jo wins this case because if she doesn’t everyone can steal everybody else’s intellectual property for personal gain without being punished.

Avatar Image says: However, as to all things Law, sometimes there is no real “right” answer no matter how much Legal authority you’ve cited; both sides could be more or less “right” or “wrong,” then it nevertheless boils down to who is more eloquent with their argument.

Copperhead, the dean of my law school liked to say that the most difficult cases aren’t matters between right and wrong, they’re matters between right and right. Most people can see the difference between obvious right and obvious wrong and act accordingly. It becomes more difficult when two things that are right come into conflict. Essentially, right vs. right is a lot more difficult than right vs. wrong.

The Fair Use Doctrine may appear to belong to copyright law, but its very heart and spirit lies in the First Amendment guarantee of the right to free speech. You have a right to write and publish a book, and you, as a creator, have the right to profit from your creation. But I, as a citizen, have a right to speak without government interference or reprisal – and that includes the right to speak about your book. Or to write about it. To say it’s sublime, or to say it’s utter trash not worthy of the public. I have the right to study it, evaluate it, examine it – and share my findings with the public. The Fair Use Doctrine is meant to protect such legitimate speech and activities, and the reason the law is vague and murky is because Congress can’t possibly anticipate every case that copyright vs. free speech will come into conflict. So Congress has given judges guidelines of what factors they should consider, and then left it to the judges to do what it is they’re supposed to do – judge.

People are cynical about the legal system, and I don’t blame them; it has deep flaws, and the media love to talk about them. Nevertheless, I have never met a judge who bases his decision on which party is more eloquent. Such a person would not be qualified to be a judge. Judges can take numerous things into account when making a decision, including:

1) What the statute says; 2) What any controlling case law (that is, case law dealing directly with the point at issue) says; 3) What related case law (not directly on point, but analagous in some way) says; 4) What Congress intended by adopting the statute (this means going back through congressional records to attempt to glean the intent of Congress); 5) What the consequences of the judge’s ruling would be – for the parties, for future litigants, and for society; 6) Academic opinion of the law, if the law is, as in this case, murky and unsettled; 7) What the judge himself thinks is right.

Eloquence in lawyers comes in handy, no doubt about it – but only in the sense that eloquent lawyers clearly convey compelling arguments to the judge. No judge worthy of the title would ever base his opinion on the fact that one party has a better lawyer than the other. It’s very common for very good lawyers to lose to lesser lawyers. Judges are a lot less susceptible to eloquent lawyers than jurors are, because judges see eloquent lawyers everyday. You might say that judges are immune to them. :)

In close cases, what it more often than not boils down to is 1) what the judge thinks is most fair under the circumstances, and 2) what the judge thinks would be the fairest rule for society. The latter is always an issue, because the United States is a common law system, and courts are bound to follow established precedent.

It is vital to grasp that the law is not set up for the layman to understand, nor is it concerned with justice or common sense. To put it crudely the law stands and falls on its own rules and merits. The fact that no one outside the law can understand it speaks volumes for the mess we as citizens have allowed ourselves to get into, never mind poor JKR and SVA.

rotfang07, this isn’t entirely fair. Every profession has its shibboleths. We have to communicate ideas in shorthand because it would take too long to describe things in layman’s terms every time I’m in court just so people who happen to be there for the day may or may not understand. If I say “OR” or “res ipsa” to a judge, he’s going to understand exactly what I mean, and it saves us a lot of time. There are days when I have a hundred hearings. Those days are pretty typical. It makes no more sense for the judge and me to talk to each other in layman’s terms, which would take far longer, than it would make for doctors performing surgery to talk to each other in layman’s terms when barking out their medicalese to each other achieves the same purpose more quickly and efficiently.

Now, when professionals start talking to laymen and dropping in their terms of art, either expecting the laymen to understand or trying to show off, that’s boorish, rude, and condescending. But on motion day, when I have 20 criminals in custody on bond reduction motions and sixty more defendants in the gallery waiting to be sentenced, there’s absolutely no need to say, “I object to releasing the defendant on his own recognizance” for all 20 when saying, “No OR” will not only get my point across but save everyone time.

And while our legal system has its faults, it’s not because the law is not concerned with justice or common sense. It’s not because judges and legislators are not concerend with justice or common sense. It’s because judges and legislators have to take far, far more things into account than whether J.K. Rowling is a nice lady. Judges and legislators have to try to draft and interpret general laws to deal with numerous specific situations, many involving circumstances unforeseen at the time the law is adopted. Even the laws that can seem extremely absurd or just nitpicky were at least adopted with good intentions in mind, and usually are a lot more important than they appear to the public. If you get a ticket for driving without insurance, you might think that’s stupid and nitpicky and wrong. I doubt you would feel that way if you, while walking on the street, were plowed into by an uninsured driver and paralyzed for life.

Avatar Image says:

@ Chasmosaur I think you’ve accidentally hit the nail on the head as to what makes SVA’s position untenable and Melissa’s position replete with integrity.

Everything SVA has done has been wholly based on rearranging Jo Rowling’s fictional furniture (to paraphrase Scott Fitzgerald). The whole argument has been about SVA metaphorically cutting and pasting his book from JKR’s fictional world.

All everyone is asking is that SVA write an original book. He COULD have done so but CHOSE not to. We have all been asking: Why? You conveniently forget that the Lexicon IS NOT SVA’s. IT WAS WRITTEN, ORGANISED, DESIGNED, AND CORRECTED BY HUNDREDS OF FANS AS A FREE-USE SITE FOR FANS TO HAVE FUN ON AND TO EXPRESS THEMSELVES IN ORIGINAL WORKS SUCH AS FAN ART, ESSAYS, AND FOR QUICK REFERENCE.

SVA does not own the copyright to any of the hundreds if not thousands of corrections and amendments that make up the A-Z section of the Lexicon that SVA turned into a book for profit. It is not SVA’s work on 2 levels: 1. it is all JKR’s work. 2. it is the fan’s and volunteers work, as well as Steve’s.

Melissa has written a book that is 100% her own work. There is no plagiarism or copyright infringement because there was never any need, it is based on old-fashioned journalism: research, note taking, interviews, and hanging out with the fandom, as well as a hell of a lot of travelling. Don’t worry, I am not making a case for Melissa Martyrdom or Sainthood, I know perfectly well the lady concerned is more than capable of partying during the arduous process that is the making of Harry a History.

JKR was explicit she felt she had to fight this case on principle because the book is dross and grossly infringing as it stands at the moment. But she said in court she is happy to accept any book published by SVA as long as he made the effort to write an original work and did not essentially cut and paste 91% of her 9 books. She attempted to negotiate but RDR and SVA blocked all advances unless WB were prepared to cough up more money than JKR received for her first 3 books for his precious copyright infringing Timeline posted on the copyright infringing Lexicon free use fan site which SVA does not own or have copyrights over and from which he has stolen the free fan contributions to line his own pocket !!!!

RDR we know has his own political and financial agenda. SVA has his own personal recognition and financial agenda. I think its evens in the amorality stakes (see my 09.44AM post for details of SVA’s tenuous position).

As for Melissa her book is about the fans, for the fans, out of love for the fandom, and, tellingly, that love and enthusiasm is reciprocated.

Avatar Image says:

Rotfang -

Sorry – I hope I didn’t mean to say that Melissa’s situation is untenable. I believe quite the opposite. I was just pondering that if she was approached by a publisher to write a book based on her experience with the web site – as opposed to writing one and getting it published under her own efforts (I honestly have no idea which one it is) – then the situations have the same broad base – someone with a vested interest in profiting off of their Harry Potter experience asked them to create a publishable work that the HP fan-base would mostly likely purchase. The details are obviously quite different.

As for the HPL – I was not under the impression that it was purely written by SVA, much as this site is not wholly written by Melissa. There are contributors to both sites. However, as I understand it, he did create it, still does much of the writing, and is still the steward. Is that not correct? Also, he obviously cannot cram all of the HPL in one volume – at a full sale price of $24.95, I’m thinking he’s going to do some very heavy editing and take selections. (There is a cost ratio between publication and point of sale price tag.)

Is the actual manuscript content known to anyone outside of RDR and WB? Or is everyone just assuming the worst? (These are honest questions, not snarky ones…)

Avatar Image says:

sigh so tired, forgive me. I’ve been sick with a norovirus this week.

I meant to say in the first sentence that I hope that it didn’t come across that I thought Melissa’s situation was untenable. Typos, typos, typos.

Avatar Image says:

Rotfang, from what I’ve gathered, RDR’s publishing list (mostly his own work) is not centered on a political ideology (travel books, etc).

RDR just happened to read a profile about SVA and the Lexicon website that his local newspaper printed during the weeks building up to release of DH and thought: Hot damn. A Lexicon out for Christmas will be a goldmine! Must contact this chap.

Although he (and SVA) addressed fair use in SVA’s contract, RDR didn’t bother getting a lawyer (besides Cousin Vinnie) until after the suit was filed against him. Only then did he contact Stanford Fair Use (or did Stanford contact him?) and start his “Rights for Writers” (or whatever he calls it and feature Fair Use Manifestos on his home-page.

IMO there’s a reason why the guy doesn’t get much good press, even in articles that favor his case. He’s a sleazeball whose original scheme didn’t work out, but he’s going to hang on for the ride.

IMHO.

Avatar Image says:

@Elizabeth Sorry Elizabeth, we see the world through our own experiences. I’m in my 6th decade on the planet, have worked in roughly 20 professions in 3 countries and speak 3 languages. In none of those professions, in none of those countries using any of those languages did I ever meet a single individual who had anything nice to say about the law or the legal profession.

The examples you mention are not what I was addressing. The opacity of the law, and the monopoly/closed shop of the legal fraternity, were the main issues I was concerned with as they applied to Fair Use and its incomprehensibility in common sense or layman’s understanding.

I repeat, it’s a crapshoot, which is why all honest lawyers’ first words to a client are: try anything and everything else before you get involved with the legal system. That is why I could tell that the judge in this case is honest. He repeatedly advised: settle. The law is a “Bleak House”.

The only other profession I have experienced that advises its participants to avoid it at all costs is soldiering. And, even then, there is always the adrenalin rush before you ascend to meet your Maker or get wheeled into the operating room to say au revoir to familiar parts of one’s all too precious anatomy. Actually that’s not a bad metaphor for the law: Death and Injury At Your Service (a tad harsh you might imagine unless you have been the victim of the legal system of course, in which case it is no where near harsh enough).

@Chasmosaur Yes we have all been reading the Lexicon book via Justia.com and there are dozens of posts citing examples in the Forum on the case. That is how everyone knows the figure of 91% essential cut and pasting is correct. It mind numbingly parrots the books and offers no insights, analysis, or commentary of any kind, unless you think the occasional childish aside passes muster of course. That is not to say it cannot be defined as useful in some way; I have no doubt it is. That is the basis in fact for the judge saying there might be a Fair Use case here.

Again, the point about Melissa is misplaced. Melissa, in order to do what SVA has done, would have to copy and paste chunks of the TLC site that referred to and solely quoted JKR’s 9 books to have produced an equivalent book.

And, Melissa would have to have avoided mentioning any of the contributors to TLC, take their contributions without permission, remuneration, or acknowledgement, and do it for profit. Instead, Melissa left the confines of TLC, went out into the REAL world, and did the spadework necessary to write an original work in HER OWN WORDS. No cut and pastes, no stealing, no dissembling, no hypocrisy, no plagiarism. One will hear only Melissa’s twitterings in between those of the fans in her book; thank goodness, as Melissa’s twitterings are worth listening to.

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PS @ desertwind davidenglish on the Forum covering the case posted a kind of chart linking RDR to various liberal left publications and organisations from when he worked as a jouno back in the 70s and 80s I think, maybe later. That’s how he knew all the Stanford crowd from when he lived and worked in California. He also wrote a not very flattering book on Michael Moore just out. I agree he appears to have a finely honed political and opportunistic streak. I’ll try and dig the link out.

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@ desertwind (@Chasmosaur below)

This is the link to the rundown on RDR’s friends Part VIII Page 47 scroll to Post 469:

http://www.leakylounge.com/WB-JKR-vs-RDR-SVA-Part-V-t60496.html&st=460

The relevant bit is this:

Alas, I see this as all about politics. That’s why Stanford is involved: they have a political agenda. And all of Roger Rapoport’s supporting friends have roots in the Old Left or what may be called Progressive Liberalism. On the Right to Write board we find Arend Lubbers and Dan Royer of GVSU, the former who helped establish The Spirit of Solidarity monument to the Great Furniture Strike of 1911 and the latter, who combines his creative writing courses with Alfred Whitehead’s New Liberalism and Black Liberation. We find Mother Jones board members Meredith Spear and Adam Hochschild. And then there’s Ann Zill of the Center of Ethics in Action and Lizbeth Hasse with her concerns for constitutional liberties in emerging democracies. I think this group has become convinced that this can be turned into a cause for expanded liberty and free expression; they share an antipathy toward Big Business and the Rich. And, of course, I think they are wholly misguided and are attacking a friend.

@ Chasmosaur

The link to the Lexicon book in Justia.com is below Attachment 2 onwards:

http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2007cv09667/315790/52/2.html

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Rotfan07 - you’re a peach!

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In regards to Chasmosaur’s post above, I believe SVA’s hosting was to be paid for by TLC up until the end of the trial. http://www.the-leaky-cauldron.org/2008/3/24-trial-updates-and-important-announcement-about-floo-network Also, JKR’s paparazzi fight has to do with her son, David. http://uk.reuters.com/article/domesticNews/idUKL1043120020080310

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Thanks for posting the links to the Articles.

I am concerned that the Judge is biased in opinion, and therefore is slanting the Harry Potter Books as “not readable without a guide”. I do not think SVA provides an adequate guide for readers without the work being seen as a rip-off of written material protected under Creative Rights of the Author.

J.k.Rowlings would provide the best resource material guide, adding information, humor, and character to it to make an enjoyable read.

J.K.Rowlings does not have a problem with papers written about Harry Potter, or works that add insight or perspectives.

SVA’s work is a cut/paste of the best bits of Harry Potter, which I feel robs the readers of the joy of reading the Harry Potter Books on their own.

J.K.Rowlings Scottish Book would be a wonderful, friendly, helpful guide to understanding more in-depth the characters and plot line of her 7 Book Harry Potter Series.

The Sales of SVA’s book would hurt sales of J.K.Rowlings Scottish Book, which is to be set up to help charities.

This court case is an attempt to punish a successful Female Writer, and rob her of her rights over her creation. I do not think even a settlement would ever end the hassles. This is why this case needs to be fought. I don’t like seeing funds to pay for Court Costs that would be better spent in charities.

I am displeased how this is affecting J.K.Rowlings with her new writing, with her own personal life. She put in all these years of work to have her hard earned rest period ruined by an obsessive fan. This is hindering progress on the Scottish Book, as well as new work by J.K.Rowlings, also affecting her private and personal life with her family.

I would see if another Judge could be appointed to the case, due to his biased comments.

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@ rotfang07: “they have a political agenda”. wb, being a media concern, wanting to enforce intellectual property rights, haven’t?

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