Apr 22, 2008
We now have the transcripts of the trial, courtesy of Stanford Law School.
Oh boy. This is going to take awhile. Thanks Kristin.
I am still reading but I have to say that everytime I get to any part that says Mr. Hammer I have to stop to laugh…
oh pottercast at least you brought a little humor into this whole situation
YAY a full transcript!
dives in to read
Thanks Kristin =)
A little statement that JKR made sums this all up: the Lexicon is SVA and RDR’s attempt to sell people what they already own. JKR made numerous points throughout about the multitude of opportunities the Lexicon authors had to expound upon the basic information taken from JKR’s novels, but instead they settled for copy and paste.
Excellent points were made. Her encyclopedia would add information not found in the books. SVA/RDR’s Lexicon does not, it’s merely a reorganised form of existing information in the truest sense, with no added theories or commentary.
I wouldn’t consider the Lexicon to be a transformative work at all. The same facts found in the Lexicon can be found in the original material, there is no additional commentary, nor have they added background information on common mythological creatures that have been mentioned briefly but have recieved no indepth explanation in JKR’s books (ogres were an example used). Nor have they given any further explanation on the real world, or common mythlogical histories of some of the famous witches and wizards, which were only very briefly summed up on the Famous Witches and Wizards Cards. JKR is not kidding, the Lexicon really is a lazy work.
What is worse, it’s not even an index, really, because the Lexicon does not simply tell you where to go to find the information. It virtually copies and pastes that information into the book, most often verbatim or almost verbatim, again without adding anything, which is what sets it apart from those multitudes of companion books that JKR has allowed to pass unchallenged. Those other companion books have added commentary, new perspectives, theories, additional background on creatures and characters wth roots in common mythology is history.
My summary of this case: the Lexicon adds nothing substantial. It not fair use.
this is really interesting to read. so far my favorite is the typo:
THE WITNESS: Roanne Rowling, R-O-W-L-I-N-G.
i expect she didn’t mispronounce her own first name!
I was just about to say the same thing. :)
Okay, so I just finished JKR’s testimony from Day 1. I still have to Rapoport’s testimony Mr. Hammer was really bad here. His cross of Jo was atrocious. The only time he gets close to making a strong argument is when he brings up the Mugglenet book. Then he makes the mistake of asking her if her lawyers “force the removal of any book that might conceivably compete with a companion book that you one day might want to write.” Jo of course gets the lovely oppurtunity to then point out, on the record, the 100s of companion books and guides already in print that have not been forced off the market. Nice job, Hammer. You just walked right into that one.
Or how about when he says, “HBP, what the heck is that?” Yeah, nice one.
Here is my favorite part:
JKR: That’s my language.
Hammer: That wasn’t written by Mr. Vander Ark, was it?
JKR: Well, it probably will be at some point, but no, he hasn’t done it yet.
Thanks Leaky for your great work to keep us posted on what’s going on. You are absolutely fantastic.
Sorry, I meant to say “I still have to read Rapoport’s testimony.” I’m not sure how I botched that sentence so badly.
When I read “Roanne Rowling” I thought it said roena ravenclaw.
....don’t ask me why ^^;;
Not sure how any of this stuff really works, but from what I’ve read Mr. Hammer seems to be purposely acting dumb about the HP-universe to make the point “oh, if only I had a lexicon where I could look these things up… that would be so helpful at this moment.” or “gee, I have no idea what she’s talking about ‘HBP??’ I wish I had an A-Z easy-to-use Harry Potter lexicon…”
Because honestly, why else would he be so obviously ignorant about the series?
I think Mr. Hammer has had been hit in the head with his own hammer…
I support Jo! :D
I’m another one who smirked when I saw Jo say “Mr Hammer” :P I only just got through day 1. Going to take me abit getting through all of it.
Just imagine Noe running in screaming, “Troll in the dungeon…just thought you should know!” It keeps me reading!
Whew! Just finished Day 1.
JKR was great. I thought her best point was in illustrating how her work was copied without adding analysis. I thought the weakness was that she seemed a little evasive in answering about whether the Lexicon could be useful. (this doesn’t bother me because I think under fair use that you can argue that even if something is useful, it is still infringing if it’s made up so completely of stolen parts).
Roger Rappaport was better than I thought he would be. I thought his best point was in coming across as a humble man who was being manhandled by an overzealous corporation. I thought the weakness was that he really appeared to have dealt in very bad faith about providing a manuscript to WB and also appeared very adept at dealing in half-truths with just about everyone he was in contact with, including people he was selling the book to (then acting innocent or clueless when he was called on it).
From day 1, page 75:
13 MR. HAMMER: Exhibit 46? It is not on 46.
14 MS. CENDALI: I believe it is.
15 MR. HAMMER: Well, magically there are two different
16 46s. We don’t have Dagbert Pips.
17 THE COURT: I can’t find it.
18 MS. CENDALI: Does Mr. Pips appear?
19 MR. HAMMER: Of course. Pips always goes by the last
21 MS. CENDALI: P for pips.
22 THE COURT: While you’re talking, I can’t find it.
23 MS. CENDALI: It is in Exhibit 46.
24 THE COURT: Page?
25 MS. CENDALI: Page 15.
I find this particular exchange to be quite telling. What does it tell me? That if I am reading this, I must be overly obsessed.
@mr. blood – right on. i feel the same way!
23 Q. Well, let’s look—let’s put on the screen the entry in
24 the Lexicon Exhibit 1 for Florean Fortescue’s ice crime parlor.
25 Could you read that entry to the Court.
LOL “ICE CRIME” XD
Screw stanford and their transcrips, i want the pottercast’s first hand notes and drawings, including the infamous Mr. Hammer ones!
Urgh, how can Steve Vander Ark cry in court about how he’s been pushed from the fandom if he will literally go as far as to disrespect Jo’s wishes and work to her face in a court of law?
(The piece of the transcript to which I am referring):
14 Q. Do you consider yourself a member of that community?
15 A. I did, yes.
16 Q. Well, I’m sorry, you no longer consider yourself a member
17 of that community?
18 A. Yeah, I do.
19 THE COURT: You no longer do?
20 THE WITNESS: I do. I do.
21 THE COURT: "I do."
22 THE WITNESS: Yes, sir. I do consider myself a part
23 of that community, yes.
24 Q. This is evidently an emotionally-charged question for you.
25 Can you explain why this is so charged?
1 A. It's been --
2 Q. All right. We'll go on. Are you able to answer the
4 A. Yes. It's been difficult because there's been a lot of
5 criticism obviously, and that was never the intention. But --
6 and I understand where that comes from, but it's been very,
7 very difficult. This has been like an important part of my
8 life for the past nine or ten years. And to have it turn
9 into -- can we go on, please?
I am finding it slightly amusing that they’re spelling ‘canon’ ‘cannon’ ... seriously. I am such a nerd. But these transcripts are fascinating, thanks for putting them up Kristin!
The transcripts have been very enlightening. I find it difficult not to side with Jo, and not just because she’s the creator of our beloved Harry Potter.
Even if you don’t talk about the value Steve Vander Ark is adding to the Lexicon, not putting quotation marks around quotations is considered plagiarism. I’d get an F in my college writing class if I did that. Actually, I probably would’ve gotten an F for that even in my high school English class.
I would think that Fair Use refers to the general information in the books. You can talk about it for sure, as the other companion books have done. You can dissect the tiniest little nuance of her words. But if you’re going to quote her, you’d better cite it. And if almost your entire book is made up of these quotations, isn’t that just like….oh, I don’t know….copyright infringement?
“For example, the evidence will show that there are 274 entries in the Lexicon pulled from Ms. Rowling’s 64-page Quidditch Through The Ages … Similarly, in her 63-page book, Fantastic Beasts and Where To Find Them, there are 222 Lexicon entries pulled from this book. As you will hear Ms. Rowling discuss, there is no reason to buy these books if you have the Lexicon”.
This is somewhat of a fair point. I personally am a big fan of Harry Potter and never actually bought the 2 companion books for myself until very recently. I read copies that belonged to others and used the Lexicon web site to find facts from them afterwards. Still, as a big fan, I always intended to buy them and eventually did. The Lexicon is a poor substitute for the books themselves even if it has all of the facts that the book brings. There is value in the book form in which it is written. Had Vander Ark published a book before hand, I probably would have bought it to have as a reference while I was discussing the books, but this would not stop me from buying JKR’s books.
“The same is true with regard to not needing to buy or read her wizard cards that talk about various wizards through history she created, because all of their content is duplicated in the Lexicon.”
This is a good point. I never bought the cards and don’t even know where to buy them. I actually didn’t know that they existed until I saw them quoted on the Lexicon as canon. If indeed the Lexicon quotes the entire contents of the cards then perhaps there is no need to buy them and this is a good complaint by JKR that they are infringing on her rights. On the other hand, a real fan may want to own them as collectors items or just to browse through them when bored as we do the books. This is obviously not so as I don’t own them and don’t plan on it. Had I known about them a year or two ago when I was more into HP I may have actually bought them, but now there is no need because I can get all the facts from the Lexicon web site. But, it is not the site that is being sued it is RDR books who are trying to put it into book form.
Today is, among other things, World Book and Copyright Day!! Hooray!!
Oh, and one other thing. I totally wish JKR had been on my high school Mock Trial team. She’d have torn down the opposing team’s cross in a snap!
hahah mr hammer
Fascinating read. I’ve only had a chance to glance through most of it, but read through all the testimony of JKR (I love her!) and Roger Rapoport.
I’m now actually feeling a little sympathy for poor ol’ Roger. It’s a very tough business being a writer and running a small publishing house. I can’t get out of my mind the image of RDR schlepping from city to city cold-calling at bookstores to drum up sales. (Oh! I just realized why salesmen are called “drummers”...) Hyperbole (I won’t say lies) sales talk to buyers around the world. He must’ve thought he’d caught the brass ring when he got SVA’s signed contract.
My initial picture of the situation hasn’t changed: RDR hoped to make a quick killing by rushing The Lexicon into stores before the copyright holders got wind of it. He was flying by the seat of his pants.
And, he got caught.
“Fair Use” may have elevated him from Easy Money to A Cause, but it’s pretty clear he’d rather have the money.
A few brilliant moments from JKR:
18 Q. Are you concerned that if you were to write your
19 encyclopedia, Mr. Vander Ark might sue you?
20 A. I am very concerned. I have to say there came a day when I
21 nearly choked on my coffee as I looked at, having been told
22 that this was the case, and I went and looked at the Lexicon
23 and suddenly found --
24 Q. The Lexicon?
25 A. Online. I'm sorry. The online version of the Lexicon.
1 And I found that Mr. Vander Ark had peppered the site with
2 "This is my original work. Do not copy."
3 Now, RDR Books have made a great play of the fact it's
4 all free for everyone, everyone is allowed to take whatever
5 they'd like. Except anyone who read the Lexicon online,
6 because Mr. Vander Ark has decided that no one must copy him.
7 Even though what is on there is all my work.
14 A. For that money, I believe you are being resold the Harry
15 Potter books with a negligible amount of attempted commentary,
16 some of it false, and a lot of facetious comments. I quote, I
17 would like to see Hagrid fit himself into a McDonald's booth.
18 For $24.
23 A. Mr. Hammer, to me you seem to be suggesting that what
24 Mr. Vander Ark has produced is an index, a simple listing of
25 everything in my books.
1 Q. No, I'm not. I'm suggesting that it's -- I don't want to
2 get into an argument with you. The Lexicon describes itself as
3 an encyclopedia about the Harry Potter books, is that correct?
4 A. I know it describes itself that way, yes.
5 Q. And it has more than simply an index of names, isn't that
7 A. It lifted my work wholesale, that's very true.
8 Q. Please, Ms. Rowling. Just say yes or no.
9 A. No, that wasn't a yes or no, Mr. Hammer.
13 Q. So you are saying that the entire Lexicon has simply
14 example of Xerox copying of the Harry Potter novels?
15 A. It is very slightly more than that.
16 Q. In any event it has text wherever the source of the text is
17 for every one of the characters of the Potter novels, as far as
18 you know, isn't that true?
19 A. Yes. And is that the best you can say for The Lexicon? It
20 has text?
21 Q. What I'm getting at now is that that amounts to hundreds
22 and hundreds and hundreds of entries within one book. Isn't
23 that true?
24 A. Yes. It was a lot of work. I remember doing it.
4 Q. Have you ever used a dictionary, Ms. Rowling?
5 A. You are telling me Mr. Vander Ark is going to teach me how
6 to spell?
I’ve just got to add that I get the impression Mr. Rapoport is a bit of a rascal. A bit of a con. It must’ve freaked WB’s lawyers out to realize this guy was not going to back down!
sorry for being such a comment hog…
But, it’s also clear that RDR really did have the brass ring with SVA. SVA was a well-respected “authority”, popular with HP fans and having lots of material at hand to work with. If RDR had been willing to nurture the relationship with Steve & play by the rules, they could’ve put out (in time) a series of books that made a tidy little profit for all concerned.
All without the lawsuit. Without the tears. Without the grief for Jo or SVA or, even, Roger Rapoport himself.
Wow. I just transferred it to a Word doc for easier printing: it’s 504 pages! I also just listened to the Pottercast and now I know why poor Melissa’s hand is swollen. :(
Thanks again, Leaky, for covering this issue so well.
Wow, what a read! I’ve been busy so I only just finished reading through Day 1. I am surprised no one on comment board has picked up on this hilarious typo:
Q. That book does not in fact contain listings for all the
14 entries in the Harry Potter novel, isn’t that true?
15 A. No, it doesn’t.
16 Q. Now, why don’t you go through the Idiot’s Guide because you
17 LOOK it so much.
Obviously, thats meant to be “LIKE it so much” but at first I thought, what the…Is Mr hammer saying she looks like an idiot.
Then there is this funny quip from Cendali:
MS. CENDALI: Can you put up on the screen from
5 Exhibit 1, The Lexicon, the first page of the entry for
6 Voldemort. Forgive me for speaking the name.
All in all, Jo is tremendous on holding her ground with vigour. Although, I too laugh now every time I read when she says “Mr hammer” but its must be a mechanism for to help fend off his attack. Perhaps to gain that extra second to construct her eloquent reply (or retort in some cases!). Notice, she does not say “Ms Celandi”, simply because she is at ease and is under no pressure. This is so fascinating although I do feel anxious for Jo but at the same time, I am in utmost admiration for the way she acquits herself.
OK, I’m going to read the rest later when I get home, cant wait.
“Jo has reserved all
publishing rights to her intellectual property. Which means
she is the only one who may publish any book that is a guide or
encyclopedia to her world. And since we’re fans and supporters
of Jo, we wouldn’t do anything that would violate her rights,
even if we could get away with it.”
How can Steve Vander Ark change his mind on something like that? IT MAKES NO SENSE. This is all so frustrating, it’s effing plagiarism! I wish this trial would just be done with, the end result ensuring that Jo’s work is shown the respect it deserves.
Thank you, Leaky & Stanford, for letting read us this on-line!
Just having glanced through what JKR said and thinking of all those having remarked the case should have gone to a mediator.
THANKS SO MUCH for posting these Kristin. I am fascinated to get a first hand account of the court proceedings—I feel like I am right there next to John sniggering at his Mr. Hammer drawings while I listen to everyone testifying.
This is such a cool thing to read. I’m happy to say that so far I feel Jo actually gave a better argument and backed her points a lot better than steve vander ark. I just hope that she wins. Today I did what I swore I would never do, and actually went on the website. It is practically JK Rowling’s work, copy and pasted onto the page. If you buy this book, there’s no need to buy any of Jo’s books. Just read this, it’ll tell you the basic plot and all of the character’s descriptions, and all of her other genious inventions. Except you’ll miss out on all of the rest of it. The linking, the suspense, the excitement, the enjoyment, some of the key storylines (in my opinion) and also you’ll find that he has added a few comments, all of which seem rubbish after reading what Jo says in the transcripts. He has stolen off of Jo, and deserves to have not only his book banned, but his website taken off line. The only bit of it I saw that made it less than utter rubbish, was the one thing all fan sites should include, the comment boards. Other than this, if you have read all 7 Harry Potter books, Fantastic Beasts and Where to find them and also read Quidditch through the ages, there’s no need to read his encyclopedia, however if you haven’t read them, there’s still no need, as his work doesn’t even compare to Jo’s. She is a genious. He is a copycat librarian. Go and buy each of her books, and you’ll enjoy it a lot more than his website. Though I’m guessing most fans on here already have. Rant over.
I would not go so far as to say the Lexicon website should be taken down, as it’s a free resource. The only thing I disagree with with Jo is that it has no usefulness WHATSOEVER to ANYONE, which isn’t true (I’ve been known to kip on there to look up generally whoever you know, say Uric the Oddball was in the books) BUT it is not exhaustive and is not generally very useful. I use it more of a reminder than of getting new information. Plus his entries are more of a mixture of paraphrasing and direct quoting without quotation marks, so it is indeed hard to tell whether he worded something one way or if Jo said did.
However, the book is wrong on many levels and I back Jo 110%.
“I wouldnâ€™t consider the Lexicon to be a transformative work at all.”
You’ve misunderstood the meaning of “transformative”. From the Wikipedia discussion of Castle Rock Entertainment, Inc. v. Carol Publishing Group (the Seinfeld trivia book case):
“The court emphasized that derivative works were based upon preexisting works. They transformed an original work into a new mode of expression, but unlike a work of fair use expression, a derivative work’s purpose was not transformed.”
In the Seinfeld case, the court rule that the critical distinction for the “transformative” test of fair use lay not in the form of expression, but in the derivative work’s purpose. In the Seinfeld case, the judge found the work lacked sufficient transformative quality because the purpose of the book was essentially the same as the show—to entertain.
This is manifestly not the case with the lexicon, whose purpose is substantively different from that of JKR’s work; while the HP books were intended to entertain, the lexicon’s purpose is reference.
“It virtually copies and pastes that information into the book, most often verbatim or almost verbatim….”
I challenge you to substantiate this claim. A substantial portion of the RDR lexicon is available online at Justia.com:
In my reading of the first 100 entries (Abbott – Astronomy) I found a total of only five verbatim citations from canon, comprising a total of 39 words—a far cry from your “copy and paste” allegation, AFAICS.
“Not putting quotation marks around quotations is considered plagiarism.”
True. But plagiarism is NOT copyright violation. Don’t confuse them.
“I would think that Fair Use refers to the general information in the books.”
Only in part. The US Supreme Court set forth a four-part test for Fair Use. It is true that under the first test (the “nature of the copyrighted work”), fictional writing is generally held to be more strongly protected under copyright law than, say, a news report, because it contains a higher concentration of copyrightable property. However, the individual tests were never intended to be taken in isolation. Rather, the courts have traditionally looked at the interplay between them. In Castle Rock Entertainment, Inc. v. Carol Publishing Group (the Seinfeld trivia book case), the court “noted that transformative use can lessen the importance of the nature of the copyrighted work.” In other words, if a derivative work is sufficiently transformative, the mere fact that it copies a substantial portion of the original work may be insufficient for a finding of infringement.
“And if almost your entire book is made up of these quotations, isnâ€™t that just likeâ€¦.oh, I donâ€™t knowâ€¦.copyright infringement?”
Not in and of itself, no. There are other factors to be considered.
“If you buy this book, thereâ€™s no need to buy any of Joâ€™s books. Just read this, itâ€™ll tell you the basic plot…”
I would disagree. I doubt I’ll ever buy an HP encyclopedia (Steve’s or Jo’s) simply because the books just don’t excite me all that much, and I really don’t care to go chasing down HP minutiae. However, I DO have several Tolkien encyclopediae and guides on my shelves, and I can’t even imagine trying to claim that they substitute for Tolkien’s works. “Read the Illustrated Tolkien Encyclopedia and there’s no need to buy Lord of the Rings”?! Not a chance. When I want to be entertained, I read Tolkien’s books; when I want to look up a fact, I go to the ITE. They serve substantively different purposes, and that goes straight to the heart of Fair Use (see Castle Rock Entertainment, Inc. v. Carol Publishing Group, which I’ve cited in a previous post above).
Phew, I’m on the 3rd day now. I find the judge’s opening “statement” quite a sombre warning. If i was either defendant or plaintiff, I would be be bloody frightened at my potential “Bleak House” destiny. Is it normal for judges to make lengthy “off the cuff” comments like that? Not that I object, on the contrary, its refreshing to hear the judge talk this way especially as he seems genuinely concerned about the welfare of the clients and bluntly honest about the “cashing in” lawyers!
You know, I am so tired just reading all of this, how the heck did Melissa and Kristin keep up with transcribing! Kudos guys
Did anyone else catch “Roanne” on p. 42?
and, every time i read Mr. Hammer, all i could think was John saying it in his faux-Jo accent!!
Whew! Just finished Day 2.
Basically, the entire defense is to use the word “reference”. SVA uses the word “reference” 89 times in his testimony (i.e., “reference guide,” “ready reference”), and that’s not even including variations on the word, like “referencing” or “referenced”. Mr. Harris goes time and again to the well, emphasizing that the Lexicon is a reference guide.
Most of us on JKR’s side argue that the lack of analysis or original commentary makes the Lexicon infringing. The defense is arguing that the lack of analysis or original commentary is actually necessary to make the Lexicon a “ready reference”
Again, this is what we have argued about many times. Does the overwhelming copying (oh sorry, “referencing”) of which the Lexicon consists qualify as fair use because a widely used system of organization (the alphabet) is superimposed?
The defense is trying to make the Lexicon look like just another reference book, but they had the opportunity to present similar examples into evidence, and there was not one thing they could find that copied even close to as much copyrighted content as the Lexicon. So the Lexicon is NOT just another reference book, as they are arguing.
This is a huge power grab by the fair use people, seeking to justify any amount of copying with the argument that even the most rudimentary form of re-organization (alphabetization) makes the use fair. And the defense in addition seems to be arguing that, since the alphabetization makes the use fair, it is their duty to copy as much and as closely as possible from the orginal work to make for a better book. Wow.
“It’s not stealing, it’s REFERENCING, now gimme gimme gimme.”
I’ve got to hand it to the defense, they’ve got some brass ones. Hope to God the judge doesn’t buy it, but it’s not up to me.
I’m about 3/4 if not more of the way through Day Two at this point.
I’m having such a hard time formulating my opinions on this trial, it’s not even funny. I mean I agree with everything Jo is doing and am on her side, but I also think that (At first perhaps) Steve had good intentions to make a reference book, but didn’t realize (or didn’t know for sure, rather) the copyright infringement it might cause. I can see it’s use to look up a quick fact. I however also fully agree that it’s wrong, he’s just basically summing and alphabetizing her work.
I forget exactly where, but somewhere in the trial SVA was given Jo’s words on the Acromantula and his Lexicon’s words on the Acromantula, and they were almost the same. He stated that he couldn’t think of how else to put it. I can maybe see that in some cases (such as the tentacle warts he mentioned) that you have to QUOTE specifically (and then you should QUOTE, with quote marks), but other than that, I came up with a couple different ways to explain the information on Acromantulas, even keeping the language eloquent and complication free while not using Jo’s prose almost verbatim. I’m sorry, that just doesn’t hold much water for me, SVA.
At the end of the session, Judge asked for copies of all the Potter-Books and of both Companion books and got them immediately… sigh ... though he said he had very little time for reading, maybe he will get hooked on …
Well I understand the pro-Jo-fraction better now because their arguments have been presented in a broader legal context and their hints to facts as SVA applying to be a co-editor in a broader factual context; I admit I had not read most of the hundreds of pre-trial papers.
I learned there have been reference works since Milton and in the case of Richardson an encyclopedia written by the author himself; the relating questions about copyright infringement in the 17th and 18th century seemed a little odd because I am not sure if the concept of copyright as we understand it today existed then.
Not only faire use would be a “murky” area of law, the same could be said about etymology which some linguists and philologists do not consider as a very exact branch of their respective sciences. It is true that some latin explanations in the lexicon could be better but that does not make them worthless. To this imo more and more pertinent points were made by the defendant’s linguistic expert. In some cases JKR developed a latin-inspired morphology of her own, maybe related to modern roman languages, cf some of the imperatives used in the spells (‘accio’). So I think she was right in pointing out you should not be too rigid and keep open to a reader’s possible interpretation, you cannot say a reader’s association is wrong just because the author had something else in mind, eg aloha. Or, for instance, Remus Lupin. Remus was Romulus’ twin, and in Rome’s founding myth, Romulus and Remus have been raised by the milk of a female wolf; so Remus Lupin would not only have been bitten (destroyed) but also nourished by wolves. When I heard JKR read from a book I was astonished about her pronounciation of ‘Lupin’; when reading I always had the french pronounciation in mind and kept thinking of ArsÃ¨ne Lupin, the all knowing detective. Would I have been entitled to do so? Voldemort’s name, I read in french fashion as well, without pronouncing the T in the end, which then would be similar to the german name Waldemar; was I entitled to those associations and word-plays? By the way, senior tutor Johnson did not point out that in French vol is not only the flight but the theft also. And so you could go on and on, endlessly.
I still do think that the lexicon should be printed. Certainly JK Rowling has every right to take legal action but there is still the question if it was a wise thing to do so. Well the trial is about markets and money, it is about intellectual property which today extends to the human genome (not your own, but big corporations buying and using it), and free speech. The underlying emotions seem to be about nearness and distance. Well our beloved author has every right to define distance. But – though she signalled distance by opening and closing doors on her site, did she not invite us to sit at her desk, virtually? And did it not come out that she was not quite honest to SVA when giving him an ‘award’ and encouraging his ‘obsession’ (and hysterics) while getting better and quicker information on Google? I noted that – at first – she avoided a clear cut answer to the judge’s question who actually wrote the much cited words about the lexicon on her site. So I do hope they’ll settle and that she will write her Scottish book giving an authentic, the author’s, interpretation.
NJCE Culver said: “In the Seinfeld case, the court rule that the critical distinction for the â€œtransformativeâ€ test of fair use lay not in the form of expression, but in the derivative workâ€™s purpose… This is manifestly not the case with the lexicon, whose purpose is substantively different from that of JKRâ€™s work; while the HP books were intended to entertain, the lexiconâ€™s purpose is reference. “
Interesting that you should say that. One of the Defense’s arguments is that the Lexi manuscript is definitely not a derivative work. However, that it is is apparently so clear that even those supporting the Defense take this as a given.
Also, the key point in the Plaintiff’s case is that, according to law, a derivative work such as this is within the exclusive rights of the copyright holder to authorise or create. The only way Steve can publish such a derivative is to either get permission- which he did not- or to create enough original material so that the use of the source material is fair.
Remember, also- and this is important, because I see it overlooked all the time- that Steve himself did not create the Lexicon manuscript. He even admits this himself when speaking of four authors and teams of experts. Technically, it is the amount of material created solely by Steve himself, alone, that will be the sum of original content.
At one point, the definiton of ‘Luna Lovegood’ was shown as ond with a decent amount of nin-JKR material. That’s true- and the bulk of that original material, to the best of my knowledge, was written by Lisa, who si neitehr crdited as one of these other authors, nor was incluced in any consideratiosn of profit.
It’s not jsut Jo’s wok that Steve is cashign in on. It’s everyone who labored to make the Lexicon website what ti is, from the othr ‘authors’ to all the various fan contributors.
I don’t see this case as suppressing a reference work. I see it as a sensible limitation- asking that the material remain exactly as it is, an online resource free for everyone to enjoy. There’s no need fr it to be otherwise, aside from Steve’s need to pay his bills.
I wish these comments had an edit function. Bloody typos. Sorry.
... but Jo’s Wok is almost as nice as the Icecrime Parlour, sorry, I could not resist that one.
If Steve wins, what kind of copyright does he have? Does the copyright entail the entire text of the lexicon? Or added content only? Can Steve stop other reference guides from being published for the reason that it will infringe on his copyright? Even more can Steve copyright his time line, since itâ€™s all JKR based and it has a referencing goal? Will Steve have an indirect claim on JKRâ€™s copyright?
I suppose it’s up to the judge to decide what the purpose of the book is. Certainly it is meant to be a reference guide. But there is quite some difference between what it is meant to be and what it is. I do not believe it uses Ms. Rowling’s work fairly, and while it most certainly can be used as a reference guide, it is takes far more of Ms Rowlingâ€™s material than is necessary for that.
I believe that Mr. Vander Ark could have very easily written a reference guide without adding the extensive amount of detail he has put into the Lexicon. A simple index; listing each concept (which could be a place, character, spell, object etc.) from the books alphabetically, then listing every page on which that concept appears in each of the seven novels plus the two companion books (Fantastic Beasts and Quidditch Through The Ages) would have been far more appropriate.
There is no doubt that it would have been less efficient for the reader. But it would not have been infringing either. It could have referred the reader back to the novels and companion books for the information they sought, to the books which contain the original information in Ms Rowling’s own words. It could have simply made it easier to pinpoint the location of that information in the novels and companion books.
Instead, SVA has authored a work that does not require the reader to own or read any of the novels or companion books to obtain the information they seek, it is all right there, alphabetised and slightly rearranged, in the Lexicon. To learn all about the Harry Potter universe, one no longer needs to own Ms Rowling’s books if they own a copy of the Lexicon. Certainly the worst example of this is the way that the creatures from Fantastic Beasts and Where to Find Them are described in vivid detail in the online Lexicon.
I read about these fictional beasts through the online Lexicon before buying and reading Fantastic Beasts, and found that the amount of information that the Lexicon had left out was negligible. It had well and truly plundered Fantastic Beasts and presented the information for free online. I’m surprised Ms. Rowling didn’t take legal action then (no doubt she felt that the activity was still somewhat harmless as long as Mr. Vander Ark was not seeking to make profit off her own work). I daresay she regrets not doing so now.
I also happen to agree that the availability and completeness of this information through the online Lexicon could very well have been a factor in the comparatively lower sales of the companion books (Fantastic Beasts and Where to Find Them and Quidditch Through The Ages)
Forgive me, I am not a lawyer and cannot speak with any authority on this subject. All I know is that I do believe that the Lexicon book, in a very real sense, does act as a replacement for Ms. Rowling’s books rather than a transformation of them, though only in the sense of itâ€™s use as a reference. A fan fiction writer could use the published Lexicon to find virtually any fact they need to know about the Harry Potter universe without ever having to open one of J.K Rowling’s books (assuming they trust the quality of the book to be of the same standard of the novels). That doesn’t sound fair to me, is that not, after all, cutting out potential sales of Ms Rowlingâ€™s novels? If someone had read the novels in a library for example, but had bought the Lexicon for use as a reference at home rather than buy the seven novels?
What you have failed to grasp in that Ms. Rowling’s books have more use that just entertainment. The companion books are not purely encyclopaedias, they contain jokes and comments from characters in the Harry Potter novels interspersed throughout and are therefore entertaining. In the same way, Ms. Rowling’s novels are not purely for entertainment. They can be used, and have been used, I can guarantee, as references. For example, if I want to write fan fiction, I’m not going to trust the Lexicon for information about the Harry Potter universe (because it has been wrong before). I would personally look up the information in the novel itself. If you trust the quality of the Lexicon it will make things easier for you, but in essence the Lexicon offers very little the book does not, certainly nowhere near enough, in my opinion, to define it as a transformative work.
You see then, how, by simply restating information that can be found in a more complete form within the novel, the Lexicon book is not transformative at all. Indeed, the fact that the Lexicon will never match up to the information that can be gleaned from the original works by Ms. Rowling is another reason why the Lexicon ought to have been a mere index, telling the reader where to find the sought-after information in the novels, as well as perhaps containing some commentary, for example, explaining (or attempting to explain) the folklore roots of certain concepts in Harry Potter.
My conclusion is that the Lexicon is not fair. It may indeed damage sales of Ms. Rowlingâ€™s own planned encyclopaedia and may damage sales of her existing companion books which the Lexicon so thoroughly duplicates.
â€œIt virtually copies and pastes that information into the book, most often verbatim or almost verbatimâ€¦.â€
I have no need to substantiate that claim, because I covered myself when I made that claim. I did say verbatim OR almost verbatim. The key phrase here being â€œalmostâ€. There is no question that Mr Vander Ark could not have avoided duplicating the use of certain words to describe concepts that only exist in Ms. Rowlingâ€™s fictional universe. Which is precisely why he ought not to have even tried to do so at all.
Whew! Just finished Day 3:
From Ms. Cendali’s closing argument:
“Now, one of the issues you may have to address, your
Honor, is what we argue is a circular argument, which is that if they can argue that their purpose was to take everything, does that justify their ability to take everything.”
This was the part of the defense’s argument that made my jaw hit the floor. They basically argue that they should be allowed to copy everything because they MEANT to copy everything. Wow. I don’t know how lawyers keep a straight face when they’re saying this stuff.
NCJE Culver, THANK you for giving us a look at the Lexicon. It finally put to rest any notion in my mind that the Lexicon doesn’t do anything the book doesn’t do. People, read the entry on Dumbledore and tell me again that Steve Vander Ark just copied and pasted from the books. The information in that entry would require hours upon hours of study and analysis and cross-referencing—hours that he has now saved anyone interested in Dumbledore.
For example, despite the number of times I’ve read the books, I did not have the faintest idea how long Dumbledore was headmaster of Hogwarts, and it would t
likely have taken me hours, even with all the books in front of me, to figure it out. Steve provides the answer: about forty years. He also does a good job of cross- referencing the world of Potter with the history of the real world-noting that Dumbledore’s mother (or sister, whichever) died around the turn of the century and that Voldemort began developing his plans in a time when totalitarianism was sweeping across Europe-a connection I and many others already HAD made, but I guarantee you that not every 12-year-old--or even 42-year-old-who might use the Lexicon will have figured that out.
A Lexicon like this will definitely ADD something to the experience of anyone interested in Harry Potter—at least, one who doesn’t already carry around a database of facts in their head after multiple rereadings and long discussions online. So…transformative? YOU BET.
I don’t think anyone’s arguing that there aren’t sporadic bits of new material in the Lexicon, I think what’s being argued is that if you cut out all the parts of the Lexicon that aren’t copying, the published Lexicon would be a pamphlet and not a book.
if you cut out all the parts of the Lexicon that are copying, the published Lexicon would be a pamphlet and not a book.
@Tulsa re: Dumbledore As Headmaster
It really wouldn’t take you that amount of time and is very easy to work out from a few small quotes in POA made by Remus Lupin “I was a very small boy when i received the bite” “But then Dumbledore became Headmaster” (Both quotes are from page 258 of The Prisoner Of Azkaban UK Paperback) and the date of birth of James Potter which is 1960 (Page 268 Deathly Hallows UK Hardback). Easy enough to work out that James Potter and therefore Remus Lupin first attended Hogwarts in September 1971. We know Dumbledore became headmaster before that, probably when Lupin was around 9, so lets say that makes it around 1969 or 1970. Its common Knowledge that Harry went to Hogwarts first in 1991. So its easy to surmise that When Dumbledore died He had been Headmaster for around 37 years. These facts took me around 4 minutes to find.
Now as for the Lexicon, i have visited it around three times, but i find it lacking in any real value. The so called essays add nothing of value and are too simplistic. I have heard SVA speak twice live and heard him on Pottercast and nothing i have heard makes me thinks he really “gets’ Harry Potter. He is OK (not great) on surface facts, but has no imagination and does not understand the underlying themes of the books. Having looked over the court documents over a couple of weeks and read the transcripts, i fail to see what original thought or content this so called Lexicon book adds to the Potter Universe
Mimblewimble wrote: “I donâ€™t think anyoneâ€™s arguing that there arenâ€™t sporadic bits of new material in the Lexicon”
I’m not going to argue that the majority of the material in the Dumbledore article is particularly new. But I WILL argue that it produces a clear, coherent picture of Dumbledore’s life that would take much, much longer to understand if you had only the use of the books.
PJB wrote (after mentioning two quotes that allowed him to deduce Dumbledore’s tenure): “These facts took me around 4 minutes to find.”
Yes, but that’s the thing. Seeing as you were able to find them so quickly, I’m guessing that you already knew those quotes existed. Our of the four THOUSAND-plus pages of Harry Potter’s American hardback editions, you found two quotes you remembered and cross-referenced them.
But I’m sure you’re aware that you - and a lot of other denizens of Leaky - are familiar with the books on a level that many, many people are not. Those people are the ones that will find such a Lexicon useful.
OK, maybe some people ARE arguing that the Lexicon doesn’t add anything new (PJB), but my point is that if the Lexicon is ruled to be sufficiently transformative, anyone will be able to copy any amount of text with the absolute minimum of editing and then say, “Well the Lexicon was ruled to be transformative, so certainly MY (cut and paste) work is also transformative.” And the defense basically argued (especially in the closing arguments) that if something is ruled transformative, that NO amount of copying would trump that factor (ok they argued for “reasonable” taking, but if the Lexicon is their idea of reasonable taking, I would hate to see what they considered to be a bit much).
Indeed their argument seemed to be that if something is transformative (of which their definition is broad to say the least), then lots of copying is actually a good thing to make the book better.
Can you at least see how this is a questionable leap in reasoning?
I stand by my statement that the Lexicon Book has no value. I guess as i spend my life adapting books for Radio mainly i have a head for lines from books, but like i said these 2 facts just jumped out at me when i read your post and just grabed the 2 books i remembered. So anyone who reads the series can make this judgement easily and not ‘spend Hours” Why would a book that gives you facts like this be useful? Seriously a book that gives Character Motivations and themes is much more use than this book would ever be
Mimblewimble, I agree that fair use has to have limits. If someone were to try to sell a children’s book about a magical boy wizard named Perry Hotter who fought an evil Dark Wizard named Moldyvort, and in the process they copied entire passages verbatim from J.K. Rowling’s work, obviously they would be crossing the line and trying to make money that they didn’t deserve. I mean, technically such a book would be “transformative” in the loosest sense of the word, but obviously they’ve crossed a line, and I and everyone else in the “Fair Use” party would be calling for them to receive a punishment like likes of which Filch has never dreamed.
(And, of course, this actually has happened a time or two, in China a few years back and more recently in Russia with the ‘Tanya Grotter” books.)
That’s what copyright law is for. If everyone were avle to create books like “Perry Hotter,” they would—and those books could easily replace Rowling’s original. Rowling would get neither the credit, nor the compensation, that her work deserved.
But a book like the HP Lexicon is never, ever going to replace the Harry Potter books. Which is more exciting, reading a synopsis of Chapter 31 of DH, or reading the chapter itself? (It’s not even going to replace JKR’s OWN encyclopedia, which will have a lot of information no one’s seen before.)
In fact, you could probably argue that it makes no sense for someone to read the Lexicon WITHOUT having read the Potter books.
That’s the point of fair use. For a work to be transformative, there has to be very little chance of it’s replacing the original work in the marketplace. For the Lexicon, there is none, and there is a VERY good argument for its usefulness in the marketplace—
even more so than for, say, the Mugglenet book, which is now obsolete. It does a job that the original books do not do, and IMO it does it well. And for such a reference to be both accurate and comprehensive, yes, it DOES have to do a lot of copying—but as long as there’s no chance if it’s replacing the original, more power to it.
Trosa, despite your arguments i still fail to see what i can learn from the Lexicon that i cant learn from the books, thus as i have said it really adds nothing to the universe.
in the end, this is truly a useless book. it’s senseless, unnecessary for anyone who’s read the books, and merely a ploy for SVA to pretend he’s important, or in some way involved in the creation/perpetuation of harry potter. it’s pathetic.
@ pjb: right on. you hit the nail on the head.
I find the lexicon as it is on the web very useful indeed when I want to get a clear overview of a specific character. I have used it alot. Not only does it put all information from all seven books about a specific character in one easy to find place, it also adds information from interviews with JK Rowling. I think it is excellent, but then again, I don’t know the books by heart. I have read each of them at least twice, though.
So, we can clearly dismiss the argument that a lexicon is useless. To some individuals it might be, but it really is useful to others.
This doesn’t mean I don’t think JK has the right to go to court if she wishes. But I would like Steve to win. Also, I would like to own a copy to have on my shelf. I like books. And Neil Gaiman. And JK Rowling, even though I don’t agree with her in this question (either! She is one of my favourite authors, but I don’t have to agree with everything she says or does. Really. )
OK. You’ve convinved me.
You argue that the fact that the Lexicon does not seek to replace the original novels in the marketplace bolsters its case for being transformative.
I would argue that the amount taken is far greater than needed for the purpose of the book, whatever its audience, and being essentially a re-statement of JKR’s plots (almost the entire books in the case of Quidditch and Fantastic Beasts), it does therefore indeed usurp part of the place of the original novels in the market.
The plaintiffs did a marvelous job of showing that the Lexicon takes far more than is necessary for the purpose of being a reference book, even a comprehensive one. They were able to give many many examples of reference books that took less (with more citations) than the Lexicon, and the defense was not able to produce a single example of any type of reference book that took as much as or more than the Lexicon.
So rather than defending the genre of “reference book,” the defense is actually attempting to re-define what the terms “reference book” and “transformative” mean to fit the Lexicon.
You argue that as long as there’s no chance of “replacing” the original, the more copying the better. I argue that the more copying you do, the less tranformative your work is and the more you DO replace and usurp the use of the original work, even if a different genre name is used.
Falzone argued in his closing arguments that the “transformative” prong of fair use law supercedes the “amount taken” prong. Well, the “amount taken” prong supercedes the “market effect” prong. So by the very definition of fair use law, your argument that more copying is ok as long as it doesn’t replace the original is not a sound legal one.
“if the Lexicon is ruled to be sufficiently transformative, anyone will be able to copy any amount of text”
Not at all. There ARE legal limits to how much may be copied. But those limits differ depending on several factors, including the nature of the original work, the transformative status of the secondary work, and so forth. In the Seinfeld case, the court note that a fictional creation is entitled to greater protection than, say, a news report, and therefore the limits are lower. It then determined that the transformative nature of a secondary work could push those limits higher. But not to 100%.
That some copying has occurred is acknowledged by all sides. The difference between the two sides lies simply in whether the amount of copying exceeds the limits allowed by fair use. Obviously, plaintiffs argue the affirmative, while the defense says no due to the transformative nature of the lexicon.
“The plaintiffs did a marvelous job of showing that the Lexicon takes far more than is necessary for the purpose of being a reference book”
The plaintiffs make a good argument that the lexicon copies extensively. But it is up to the judge to determine whether that copying is a) infringing, and b) excessive. It is perfectly possible for the judge to rule that the lexicon could be published in principle (it being sufficiently transformative) but that in its current form it exceeds reasonable limits on copying. The answer then is simple: rewrite offending passages to reduce the amount of copying. In theory, then the lexicon could be cleared for publication.
“Falzone argued in his closing arguments that the ‘transformative’ prong of fair use law supercedes the ‘amount taken’ prong.”
I haven’t had time to read the transcripts. Did Falzone use the word “supercedes”? If so, precedent does not support him. Courts have traditionally held that the intent of the four tests is complementary. That is, the effect of the tests must be determined as a whole; no single test is determinative. If a secondary work fails a single test without running afoul of the other three, it is generally considered to be considered non-infringing.
“by the very definition of fair use law, your argument that more copying is ok as long as it doesnâ€™t replace the original is not a sound legal one.”
Quite the contrary. Since the courts have already determined (see the Seinfeld case) that the transformative test can mitigate (not “supercede”) the nature test, it is quite reasonable to argue that the market test might do the same.
“I suppose itâ€™s up to the judge to decide what the purpose of the book is…. there is quite some difference between what it is meant to be and what it is…. it is takes far more of Ms Rowlingâ€™s material than is necessary….”
You’ve touched on two separate points. As I said above in reply to Mimblewimble, the judge needs to determine three things: first, whether the lexicon is transformative. Second, even if he finds favorably on the first point, whether the nature of the copying is infringing, and third, whether the amount of infringing copying is excessive. Whether it appears that way to you, me or Mimblewimble is irrelevant.
“What you have failed to grasp in that Ms. Rowlingâ€™s books have more use that just entertainment.”
But “use” and “purpose” are utterly different. I may use my car to run over the neighbor’s dog, but that says nothing about a car’s purpose. To say that the HP books can be read for information is far different from claiming their purpose is to pedagogical.
â€œIt virtually copies and pastes that information into the book, most often verbatim or almost verbatimâ€¦.
“I have no need to substantiate that claim, because I covered myself when I made that claim. I did say verbatim OR almost verbatim.”
My apologies. I was actually more concerned with the “most often” part. Can you substantiate your claim that MOST of the copying the lexicon does is (almost) verbatim? And forgive me, but I’m not of the opinion that hedging one’s bets with equivoques relieves one of the burden of substantiation.
Following is the text in which Falzone argues that the first prong supersedes (my word) the others:
The interesting thing, your Honor, I noted when
21 Ms. Cendali got up to speak to you about the fair use factors,
22 is she switched them around. What do I mean by that. Well,
23 the statute puts them in a specific order.
24 The first one she talked about was the nature of the
25 copyrighted work, that’s the second one in the statute.
SOUTHERN DISTRICT REPORTERS, P.C.
84GVWAR6 Summation – Mr. Falzone
1 The second factor she talked about was the amount of
2 substantiality of the material used; that’s the third factor in
3 the statute.
4 The first factor is the purpose and the character of
5 the use. It’s not just first in the statute, it’s first in the
7 The Supreme Court of the United States has told us
8 that, above all else, what matters in the fair use analysis is
9 whether the work in question has a transformative purpose. And
10 it has gone so far to say, and I’m referring to the Campbell v.
11 Acuff-Rose case that Ms. Cendali cited, the Supreme Court has
12 gone so far to say that the more transformative a work is, the
13 less the other factors matter.
14 So first and foremost, your Honor, we have to talk
15 about whether this work is transformative. And above all, when
16 fair use protects works with a transformative purpose, that
17 means works, the purpose of which is not to substitute for the
18 original copyrighted works, but to provide something useful and
19 valuable that wasn’t there before.
Oh, I see what you were saying. The bit about replacing the original books is actually part of the first prong, the â€œtransformative prongâ€ as I called it, actually it should be called the â€œpurposeâ€ prong, which asks whether a new work seeks to â€œsupersede the original.â€ Well ok, forget about that bit about the market effect being superseded by the amount taken, then.
I see your points, I really do. I still would argue that the amount taken actually undermines any transformation the work has undergone. But while the Lexicon may be laughable as a reference book, the first prong merely asks what the purpose is, not whether the work succeeds in that purpose. The way the law is written, RDR seems to have a case (ok actually the way the interpretation of the law is written that I read on Wikipedia, who themselves probably favor fair use).
LOL. â€œMy work is terrible and copies everything, but my purpose was to make a really good reference book.â€
The other criterion here might be the â€œamount and substantialityâ€ test. For example, a news article using only 300 words from Gerald Fordâ€™s book was ruled infringing because the text used was ruled to be â€œthe heart of the bookâ€. The substance of what was taken was so great that even though the news article was certainly not seeking to replace the book, it was ruled infringement. I mean, this would be an example of something that was not seeking to replace the original and only took a small amount but was ruled infringing anyway. So I still can disagree with your argument that more copying is better as long as the work does not seek to replace the original, canâ€™t I?
I donâ€™t know. The judge will probably come up with some snippet of arcane language from another case and then base his whole decision on that for all we know.
Well, I’ve slogged my way through all three days of testimony. I was taken by the judges statements at the end of the first day about this appearing to be a lawyer driven case. It truly would be best for all if a settlement could be reached. I don’t expect it to happen though.
I waited faithfully to find John Noe’s “Troll in the dungeons!!” entrance and was disappointed not to see it.
It was interesting to see Mr. Rapoports evasions. A true Slytherin indeed. SVA seems to have been mesmerized by RDR and the promise of cash. Someone’s earlier post (sorry I can’t remember whose) observed that if SVA had taken the initiative to write an original work on HP/JKR, done the research, edited it properly, he would probably had a non-infringing, salable book. Perhaps he has not the talent to do it.
Thanks Melissa, John, Sue and everybody else at TLC for covering this so well.
Despite the seriousness of the subject one light note…this would make an intersting fan-list point:
You know you are a Harry Potter fan when you read 24hrs worth of JKR/WB vs. RDR-court-transcripts.
Yeah, you’re right, Lady McB!
Crazy, isn’t it?
Does anyone know when RDR made the manuscript available to Jo/WB? Only after it was submitted in evidence early February?
I can’t help wondering if the manuscript changed at all between what RDR received Sept 1st and what is in evidence?
I just finished reading the Jeri Johnson testimony. Woof! If SVA ever does publish this—he could find her remarks quite helpful for improvements.
I wonder if they’ll settle. And under what terms.
I’ve now got a crush on Judge Patterson, you know.
Mimblewimble wrote: â€œI donâ€™t think anyoneâ€™s arguing that there arenâ€™t sporadic bits of new material in the Lexiconâ€
Iâ€™m not going to argue that the majority of the material in the Dumbledore article is particularly new. But I WILL argue that it produces a clear, coherent picture of Dumbledoreâ€™s life that would take much, much longer to understand if you had only the use of the books.
PJB wrote (after mentioning two quotes that allowed him to deduce Dumbledoreâ€™s tenure): â€œThese facts took me around 4 minutes to find.â€
Yes, but thatâ€™s the thing. Seeing as you were able to find them so quickly, Iâ€™m guessing that you already knew those quotes existed. Our of the four THOUSAND-plus pages of Harry Potterâ€™s American hardback editions, you found two quotes you remembered and cross-referenced them.
But Iâ€™m sure youâ€™re aware that you – and a lot of other denizens of Leaky – are familiar with the books on a level that many, many people are not. Those people are the ones that will find such a Lexicon useful.
Posted by Trosa on April 24, 2008 @ 03:28 PM
Excuse me, you donÂ´t have to remember the exact dates here to have a proper understanding of the general time actions took place.
But where does the info come from that Harry first visited Hogwarts in 1991 or that he was born in 1980? To be honest I learned about james, snapeÂ´s and siriusÂ´s age first on the lexicon-site.
“To be honest I learned about james, snapeÂ´s and siriusÂ´s age first on the lexicon-site.”
And that’s fine. The Lexicon has it’s uses for things like that, I won’t argue. HOWEVER, they can do all of the useful stuff most people use them for WITHOUT taking so much of JKR’s original Prose and explaining the plots and things. You can have an entry on Snape and give a small blurb about him (“Severus Snape has been potions teacher at Hogwarts School for XX amount of years, until the year XX when he became the DADA teacher, the job which he had desired for years. The year XX He became headmaster for the school under the reign of Voldemort, until he abandoned his post shortly before his death…..) Or similar, and you can have things like funfacts (DOB-DOD) - That would be fine, I’m sure, and etymological information (even if some of it is wrong - as long as, in my opinion, it is clear that it is a suggested etymology—unless it comes from JKR’s mouth itself, in which case he could QUOTE it) and in my opinion that would probably not be a problem with JKR as far as legal issues are concerned. But I think the point is how much of JKR’s words/prose themselves he is taking, not to mention the fact not quoting. He may have been that sloppy in regards to credit on his website, but if you’re going to do a book, you need to clean up and do it properly, otherwise you can get into legal issues, obviously.
@ desertwind – “crush on Judge Patterson
I liked very much how he deflated ‘Dean’ Johnson. And just now I have looked around for an online edition of Bleak House. Well, there is. What do I read in the summary?
... bring her to the penniless and illiterate Jo …
Interesting that there is a character named ‘Jo’ in ‘Bleak House’ though Judge Patterson certainly was not aware of fans calling JK Rowling by that name.
Oh… the Jo in ‘Bleak House’ is male. Have to read all of it, I hope Jo Rowling has not got a problem with that :-)
Yup. I’m definitely a Harry Potter fan. erm… freak.
Judge Patterson was good. “You betchum, Red Ryder!”
If anyone recognizes that quote, (not from HP) you’ll have me dated.
Interesting character, Little Beaver.
Okay. I’ve read the transcripts, and one thing in particular stands out from day two.
RDR and SVA have argued that the Lexicon in book form is highly useful and worth selling for $24, and is a wonderful ‘ready-reference’ that shouldn’t be denied to the public. However, in SVA’s questioning, when asked about how he and his Lexicon team scanned JKR’s novels into electronic form, he claimed that they did not do this in order to cut and paste material, but did this because it was so much more efficient to look something up in the books in electronic form, rather than flipping through pages of the actual text. I’m a bit confused, therefore, as to why he and RDR seem to think that a book version of the Lexicon would be worthwhile, if researching things electronically on a computer is so much easier for those who need to look something up for a quick reference. In which case, we already have the free version of the Lexicon online for that. Of course, this is assuming that SVA and RDR are being honest that this isn’t about money, but about providing HP readers with something useful. Because, according to SVA, text is easier to sort through in electronic form anyways.
Got me p.f. Google does work wonders. I’ve used that phrase most of my life.
I don’t know if I’m unusual, given my age (65) within the HP fandom, but I surely have enjoyed every minute I’ve spent reading all things Potter. Including the above transcript.
I certainly hope Judge Patterson sees it JKR/WB’s way. Being so biased toward their case makes it difficult to see merit in RDR’s defense. I feel a settlement would be best, but what would it consist of? RDR not to publish the Lexicon in it’s present form? Have SVA go back and do the real work and research necessary to publish a non-infringing work? That would seem fair, but my take on Mr. Rapoport is the quick cash-in is what he deals in.
Without a settlement, regardless of the verdict at this level I think it will be appealed. It depends on how RDR’s resolve and reserves are.
We will, as always, just have to wait and see.
PS, I hope I live to see “The Scottish Book” in print.
Uhm, pf… Yes, it’s true I now have a crush on Judge Patterson… And, Ms. Jeri Johnson, too!
Of course, we all see into the transcripts what we want to see, but I don’t have the impression “he deflates Dean Johnson”... Not at all.
One of the arguments RDR’s side is using is that The Lexicon Book is a scholarly work and therefore should be allowed under Fair Use. She merely showed that it isn’t a “scholarly” as she knows it.
Me too can play that game. Iâ€™ve come up with a devious plan which will make the defendants proud. Iâ€™m going to put out my own reference guide. Iâ€™ll start with downloading the lexicon from the website or justia.com. With this action Iâ€™ve demonstrated a. I give no respect to people hard work. b. Iâ€™ve shown that as a member of the public when work is in the public, itâ€™s off the public. c. I have no problems with using people’s kindness, generosity, sharing spirit and misfortune. (Warning; all kind deeds can and will be used against you) d. I didnâ€™t break a sweat doing it. I just copy and paste, copy and paste. e. I will not claim this work is entirely mine. No Iâ€™ll give Jo and Steve some credit, also letâ€™s not forget the other contributors to the lexicon who shall remain nameless and forgotten.
The next step will be making a few changes so I can call it mine. I think Iâ€™ll put in an index to catalogue the lexicon. For example Harry Potter (characters p.?), bruise-healing paste (medical magic p.?). Next, I change the order. Instead of arranging alphabetically, I will catalogue mine in categories. With this new content Iâ€™m going to find a publish house to publish my work. Now if my indexicon gets sued I will have to call it a reference guide. The status as being a reference guide will give me the right to use pre-existing work largely. I will be referencing how SVA will be referencing. But in order for me to reference, Iâ€™m afraid I had to use a heavy amount of the lexicon itself. But this huge use of the lexicon is ok, because I intend to do so. Without it I can’t explain the lexicon. Eventually it will look like this: index Abbot, Mrs(characters p..) according to what SVA has learned from the HP books, Mrs Abbot was Hannah Abbots mother who was murdered by Death Eaters and found dead in the fall of 1996. SVA indicated he got this information from HBP chapter 11. What exact page SVA had in mind is not entirely clear. He might have used a hardcover or paperback version, American or Englâ€¦.
Now donâ€™t go saying it wasnâ€™t transformative, Iâ€™ve put in the index havenâ€™t I. Iâ€™ve even created a new format, a reference guide to a reference guide. Hell I even put in some new info. Not to mention I didnâ€™t copy or quoted. ( Compare Steve version: Abbott, Mrs. (d. 1996) Hannah’s mother. She was found dead in the fall of 1996, murdered by Death Eaters (HBP11)).
There maybe some flaws in my plan, but Iâ€™m sure I can get the Stanford group to help stretch the interpretation of fair use a little more. In the lawsuit I will carefully avoid the words, copy, cut and paste, paraphrase, citation etc. Instead I will take every opportunity to use and stress the word reference. Because plagiarism is downright wrong, but itâ€™s not plagiarism if youâ€™re referencing. There is a difference you know (They have to change the dictionary after the case, referencing: to paraphrase or even copy, copyright protected work as an aid to the copyright protected work you paraphrased or copied from.)
Iâ€™ll publish it for money, not for free, because the mugglenet book at least made 5 mln. Iâ€™m quite certain I can top that, especially if I get JKR and RDR+SVA to sue me. Itâ€™ll be great publicity. In addition to that Iâ€™ll go worldwide. I think I can get Canada, France and Italy in. 10.000 copies, thatâ€™s only good for a mini-state. Youâ€™ve got to think bigger, at least 1.000.000 worldwide. Iâ€™ll publish it on the day of the verdict. Again for the extra publicity, but most importantly to beat the lexicon book to the punch. This way I can completely milk the cow before others get near. All Iâ€™ve to do now is keep quiet, so I can launch my surprise attack. Finally I just sit back relax and watch the money come in. Oh no, I just broke the fourth fair use rule. Oh well, if they are willing to overlook rule number 3 then Iâ€™m sure they will overlook rule number 4. I am sure I can come up with something convincing like the indexicon is not meant to be a substitute, instead itâ€™s meant as an explanation. I will not be practising on the same market as the lexicon. After all the lexicon is a reference guide, but the indexicon is a reference to a reference guide.
Thanks Leaky for publishing the transcripts. My observations on Day One:
Mr. Hammer has a bit of an attitude. He reminds me of the guy from Boston Legal who’s always saying “You’re a hoot, that’s what you are.” Or maybe a little bit like Alan Shore. I wonder if he did that in order to get JKR a bit flustered, because if so, he seems to have succeeded. He apparently irritated WB’s attorneys with his opening comment about “The man without whom none of us would be here…” That was unnecessary and probably designed to do just what it did, which was get their backs up. He needs to learn to stand near the podium and not interrupt.
Mr. Shallman doesn’t appear to me to be such a great attorney. He’s watched too much Perry Mason. “Isn’t that true?” and “Isn’t that so?” over and over and over. But unlike Hammer’s quirks, it did NOT do what it was designed to do. Rapoport did not back down; he answered only what was asked and did not get sidetracked. Rapoport was a good witness, it seemed to me, and furthermore it seemed to me that Shallman irritated the judge with the Perry Mason stuff and also with not being able to properly frame a question. The judge got so tired of it that at one point he even stepped in and asked Shallman’s question FOR him. Cendali, on the other hand, appeared to do a good job.
It was interesting to hear Rapoport’s testimony about WB’s attorney Ms. Cendali screaming at him over and over on the phone, particularly in light of the fact that a big part of their original filings prominently mentioned how “rude” they thought Rapoport was to them when he told them to print out a copy of the Lexicon themselves.
If I were Hammer, I would’ve asked JKR “Which is it – did he ‘wholesale copy’ your work, or did he get things wrong?” Because she’s claiming both, and they’re contradictory. She said that he copied every single thing from her work and that there’s nothing at all original there. If that were true, then surely there would be nothing “wrong” in the book, because it would be all her work, which by her definition makes it “right.” However, she seemed quite upset that the book is not written like she thinks it ought to be written, and that things are wrong in it. To me, that indicates it’s not ‘wholesale lifting’ (as she called it) of her work. It would have to be Steve’s original work if she claims it to be ‘wrong.’ In her effort to express her indignation, I think JKR wasn’t the best witness because she left some doors open, such as that one. She argues both sides of the coin a couple times: the book copies my entire work, but it doesn’t have enough information in it. (Huh? How could that be?) Plus the one where she stated that a Lexicon book definitely would have absolutely no use to anyone anywhere ever not-no-way-not-nohow, which she clearly can’t say. And that the Lexicon book does a terrible job, but yet it will cause people to not buy her books. (Huh? If it’s terrible, do you really think the consumer won’t look for a better one? Or not buy the terrible one to start with?) And her claim that if someone owns the Lexicon book, there’s no need to buy her books, because the entire story is contained in the Lexicon. (Seriously? Really, seriously? Even Reader’s Digest Condensed couldn’t get 4000+ pages down into 400.) She said at the start that she’d never testified in a court before, and you could really tell that was true.
Hammer fairly caught her out, I think, in the questioning about her lawyers writing the cease-and-desist letter to Mugglenet. He pointed out (rightly, it seems to me) that she seems to want to scare people from writing books that she even remotely thinks might possibly infringe on her (which she clearly couldn’t determine until after the book has been written) and her lawyers have successfully used some pretty strong-arm tactics with the threat letters to scare people off, and it seemed like they did it on their own without direct input from JKR (which still makes you wonder what might have happened if JKR and Steve had sat down at start and talked it through without there being lawyers and RDR involved.) The strong-arm worked on Mugglenet, it didn’t work on Roger Rapoport. Hammer made her look like she might “go Molly” on dictionary publishers next, because they use the same words that she used. (“Not my words, you B**!” LOL.)
All in all, just as a layman’s opinion, I’d have to give Day One to the defense.
I only skimmed through the transcripts, but there are some things that concerned me.
1. I felt that JKR was a bit too snarky for a trial. I know a lot of fans are cheering her for her comments, but I thought she went too far.
2. It bothers me that she seems to lambast SVA for using an A-Z format, apparently calling it lazy, but yet at the beginning of the trial she testifies that she’s going to use an A-Z format for her own encyclopedia.
3. I’m also bothered by her turnaround on the fan site award. Now she’s saying she only gave it to the Lexicon as an “A for effort”. So what does that mean for other sites that got the award? Are any of them actually good or is she just reneging on SVA’s site award?
4. I felt that the lawyer Ms. Cendali was sucking up to the judge with her continued comments about “Bleak House” LOL
5. On the other hand, I do like the judge and think he’s trying to be fair.
Don’t get me wrong, I love the HP books and had a generally good opinion of JKR before this. But some of the things from the trial really do bother me. I don’t believe it’s a clear-cut case at all.
I’m all for the book form of the HP Lexicon [b]IF[/b] it undergoes an extensive re-write to clean up quotations lifted directly from JKR’s text and to rewrite descriptions of the HP world using phrases and vocabulary that sufficiently distances itself from Jo’s phrasing (and maybe even incorporate some additional etymologies, comparisons to “real world” figures or mythologies, etc.). I honestly think JKR would have [i]approved[/i] a book exactly like that, had they (RDR) worked with her and her agents to look over SVA’s initial manuscript. NONE of these things happened, however, as far as I am able to discern from looking through the posted court documents (the intended HP Lexicon manuscript), following reports since last October on RDR’s and WB/JKR’s interaction, and now skimming through the trial transcripts. As the HP Lexicon book currently stands, though, I’d have to agree with Jo – with no offense meant to the HP Lexicon webstaff (I hope they get their cut) – at best, this looks like a “rough draft” of an A to Z reference, still requiring clear citations and clean up of phrasing and summarization into “original” descriptions.
Posted by MattyJM on April 24, 2008 @ 10:39 AM:
SVA has authored a work that does not require the reader to own or read any of the novels or companion books to obtain the information they seek, it is all right there, alphabetised and slightly rearranged, in the Lexicon. To learn all about the Harry Potter universe, one no longer needs to own Ms Rowlingâ€™s books if they own a copy of the Lexicon. Certainly the worst example of this is the way that the creatures from Fantastic Beasts and Where to Find Them are described in vivid detail in the online Lexicon.
I read about these fictional beasts through the online Lexicon before buying and reading Fantastic Beasts, and found that the amount of information that the Lexicon had left out was negligible. It had well and truly plundered Fantastic Beasts and presented the information for free online. Iâ€™m surprised Ms. Rowling didnâ€™t take legal action then (no doubt she felt that the activity was still somewhat harmless as long as Mr. Vander Ark was not seeking to make profit off her own work). I daresay she regrets not doing so now.
I also happen to agree that the availability and completeness of this information through the online Lexicon could very well have been a factor in the comparatively lower sales of the companion books (Fantastic Beasts and Where to Find Them and Quidditch Through The Ages)[/i]
Ditto. I too read the online Lexicon quite a bit before buying any of JKR’s books (as I was borrowing them from friends and the library). I did find the website highly useful as a reminder of character names, places, items, spells, etc, but IMO, the Lexicon does not offer anything like JKR’s way of storytelling. But when it comes to the two companion books, the online (and book) Lexicon may be reaching too far (and may have to remove those entries entirely) as both books are patterned after reference books or textbooks. (Another reason why the HP Lexicon book would still require another re-write should it be allowed to publish.)
Sorry about the bad html usage in my above post.
I don’t mean to sound greedy, but did you by chance get a copy some pictures of the evidence?
Thanks so much Kristen and thanks to whoever the court reporter is! :)
Lexicons are fair use end of story…JKR will lose, and you will all look like idiots. oh wait you already do…
I’m a wizard hehehehe
“Babbling Banshees” and “Death Agers”... these Muggles trying to pronounce wizards names. They just don’t get it… Like Mr. Dursley saying Lord Voldythingy…
I was for the Lexicon when I saw it as a useful reference, but I had no idea that there were hundreds (literally) of entries about Quidditch and magical beasts taken directly from Rowling’s companion volumes. Those are A-Z format, so this is pure plagiarism, both in form, content, and purpose. It can’t be useful, because unless mentioned in the novels all Quidditch and magical creature details are purely for entertainment value. I had no idea he did this, and am shocked that he kept all those entries. The nerve!
I disagree with those who are totally against the Lexicon, though. I think they are being more Catholic than the Pope. My impression is that even Rowling doesn’t take that attitude (although I was disappointed by her testimony of “useful how?”) An A-Z format of information from her book could be very useful for readers. But it needs to be done the right way. I agree with the Spoiler part, for example. Some or most people won’t use a Lexicon the first time they’re reading the book, but I think it’s possible that some will. Your older sibling has all this reference material, and you’re just getting into Harry Potter. You come upon a name in the first chapter of the first book, and become curious about it, and you pick up that Lexicon. And it tells you everything about Sirius until his death. Talk about ruining things for you.
Now, I think it’d be cool if the Lexicon had three sections withing each entry for dealing with characters: nonspoiler, semi-spoiler, and spoiler, with warning signs of some sort (wouldn’t it be cool if there was a way to do spoiler tags in print? and then have a transparency of some sort that could make the writing appear…). The last sections would be there not to give plot summaries, but provide the most basic ready reference information. The nonspoiler section could have anticipatory information that whets the appetite, as well as a useful index: “Sirius Black, mentioned in passing by Hagrid in SS/PS, will become an important character in Book 3. Harry Potter will meet him and learn more about his family’s past. He will experience intense emotions in relationship with this character. Black also makes appearance in Book 4 in such and such chapters, and in Book 5 again Sirius will play a big role, being involved in a climactic scene towards the end.” Etc. And in the semi-spoiler section I would say things like: godfather of Harry Potter, member of the Marauders who goes by Padfoot and takes an Animagus dog shape. And maybe finally, there could be a third, very brief, very spoilerish section: Sirius dies.
When I think of all the possibilities…
Even if he wanted to be “comprehensive” (I mean, if someone reads somewhere something about Demiguises and knows it’s from Rowling but doesn’t remember a thing about them and doesn’t own the companion books, they could at least find out about this much, say: magical creature whose fur can be used to make invisible cloaks; described in detail in … (abbreviation for book here). But that’s the problem. It would suck if they had the Lexicon and not Rowling’s own books, right?
Actually, the “useful how” bit does fit perfectly and I agree with it as far as entries from Quidditch Through the Ages and Magical Creatures are concerned. I think only entries that can help us grasp the novel better are “useful,” so they would have to limit themselves to details mentioned in the novel or relative to its events/themes. Or, if it can be argued that these things might somehow illustrate something about the novel, the entries should be very brief, with a reference to where one can get for information.
I’m not biased either way. I love hp books but I love many books and that has no pull on whether the lexicon should be published.
I find it hard to explain why it would be useful compared to a much simpler encyclopidia without so much quoting. In fact less would be more useful, you should have books so not giving it all away but pointing a user looking for info to the proper place would be more than acceptable.
As far as not having quotes he can simply add them no big deal. As far as too fair use and how much verbatim he copied whether it was retyping or cut and paste doesn’t matter. In the end I think the discussion and debating doesn’t need any more done the judge should simply look at the lexicon and see if it takes too much, though that’d take him a lot of work. Have some third party person go through and give a percentage of Steve’s words compared to Jo’s….
Can I buy your version of the Lexicon? That sounds exactly the way I would want it to be (besides Jo’s version, of course!).
Maybe they could print the spoilers in blue ink under a mess of red ink, so you have to use those little red spy glasses to read it?
Mr Hammer: Please Ms. Rowling, just say yes…
I wonder if Mr Hammer realise how famous he is now – If you post his pic I bet people will recognise him on the streets. With “Ooh Mr Hammer…” LOLZ
BTW I think it is not at all bad Mr Hammer does not have a clue about HP – he shouldn’t because that would mean he may be biased otherwise than just because of the function he plays. He could have been a fan or a Laura Mallory supporter but like this it is just a next case for him. The same with Judge.
@Emily “Maybe they could print the spoilers in blue ink under a mess of red ink, so you have to use those little red spy glasses to read it?”
That would be cool. Do any books do that already? But I fear this thread is history to get an answer…
@Daniela “Do any books do that already?”
Years ago I got a book titled “The Eleventh Hour” that contains lots of colorful illustrations to provide clues to the mystery of the story/text. They used some sort of red pattern to mask over “the answers” at the end of the book, and they provided a little plastic red colored spyglass that, when you held it over the page, revealed the black (or blue) text printed on the same page.
I think they used to do this for a number of board games as well, before everything went electronic (I think “Outburst” did this too.)
If they could do it in the 90’s, they can still do it – it just would cost a little extra to go back and print over in red ink!
(and sorry my response is so late!)
Found a photo to prove it – I was correct about it being an older version of “Outburst”
I wonder what Mr. Hammer looks like… is there a pic. of him anywhere???
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