An update containing JKR/WB’s response to RDR’s requests for information is at the second half of this post.
A few things of note today in the case by JKR/WB against RDR Books and those who wish to publish a print version of the Harry Potter Lexicon:
Firstly, the schedule has been moved again. RDR requested and received an extension to file their reply to the complaint. It was scheduled to be due on Feb. 5; it is now due Feb. 8. JKR/WB will reply by Feb. 27. There will be a hearing on the matter in New York on March 13.
Secondly, a judge has denied RDR’s request for copies of the notes that would comprise J.K. Rowling’s encyclopedia, but granted that JKR/WB submit statements J.K. Rowling has made in “publications” regarding her plans for her encyclopedia.
The letter, which you can download here in parts one, two, three and four (or view online here), is from David Hammer, lawyer for RDR, and says that the notes are requested in order to “test the merits” of J.K. Rowling’s claims that she is going to write an encyclopedia and that part of the reason for suppressing the HPL would be to suppress potential competition. RDR asked for “copies of any prepatory materials that Ms. Rowling has drafted or authorized to be drafted, including notes, outlines, drafts, marketing proposals, etc.”
JKR/WB indicated to RDR that they would resist the request, and so RDR asked the judge to convene a discovery conference, which occurred on Nov. 30. At the conference RDR argued, according to this letter, that the notes would determine “how far Ms. Rowling had progressed in this project…how similar, and thus how competitive, Ms. Rowling’s guide, and the Lexicon, were likely to be.” At the time, the letter says, the judge “expressly stated that defendant was entitled to anything that Ms. Rowling had so far composed or authorized.”
When RDR made the request for the papers, a lawyer for Ms. Rowling responded that:
“Ms. Rowling has made notes relating to each of the seven Harry Potter books which she will use in writing her long-planned Harry Potter companion guide. In addition, Scholastic’s Harry Potter continuity editor, Cheryl Klein, among others, has indexed the characters, places, creatures, spells and other things from the Harry Potter world which Ms. Rowling created. Ms. Rowling’s U.K. publisher, Bloomsbury, has similarly copiled four huge volumes of material constituting a comprehensive ‘bible’ of the Harry Potter world. Ms. Rowling believes the information from Scholastic and Bloomsbury to be more detailed and accurate than any other outside source (other than herself) regarding the Harry Potter series, including the Lexicon Website. Ms. Rowling would be free to draw on the materials from either of her two publishers should she choose to do so. The process of turning her existing notes into the definitive encyclolpedic Harry Potter companion guide is ongoing and is being continually augmented with the addition of further material from her creativemind on a regular basis.”
The letter states that RDR submitted a request for the materials in that response, and that JKR/WB provided nothing. (However, large portions of the Harry Potter ‘bible’ mentioned are freely available in the public court documents filed on January 16.)
The letter also states that JKR/WB responded that RDR’s request was “irrelevant and not calculated to lead to the discovery of admissible evidence as the status of Ms. Rowling’s planned companion guide is irrelevant to the determination of whether Defendant has infringed Plaintiff’s copyrights in the existing Harry Potter works at issue.”
RDR says, “If plaintiffs no longer assert that the Lexicon must be suppressed to protect Ms. Rowling’s right to publish a future companion guide, they should make a clear and explicit statement to that effect. Absent such a statement, Ms. Rowling’s notes are highly relevant to this case.”
The letter asks for:
1. The notes that JKR has made on the seven novels
2. Cheryl Klein’s full index
3. Bloomsbury’s ‘comprehensive bible’
4. The ‘further material from Ms. Rowling’s creative mind.’
The letter also notes that JKR/WB cited confidentiality concerns and stated they are willing to abide by any ‘lawyers only’ restriction to the review of materials, except for one expert witness.
The note from the judge at the bottom of the letter requires JKR/WB to provide RDR with statements contained in publications listed by JKR/WB in a response to one of RDR’s claims, but denies the rest, saying that RDR has “not shown the Court that any further discovery about Ms. Rowling’s notes would be helpful to Defendant’s position.”
You can read the full breakdown of the complaint filed by JKR/WB here and here. We will provide more information as it becomes available.
UPDATE
We’ve now reviewed the JKR/WB response to RDR’s requests (which also includes the text of those requests), which was sent as a letter to Judge Patterson, the NY judge overseeing the case. This is a 21 page document that says:
1. JKR/WB object to what it sees as RDR’s “pattern of writing the Court whenever it wishes without first making any effort to meet and confer, lte alone giving sufficient advance notice of its intended communication with the Court.”
2. The lawyers on the JKR/WB side called the attempt to access the “top secret, personal, proprietary notes” as “extremely burdensome and unnecessary for the resolution of any issue in this case, particularly in light of Ms. Rowling’s interrogatory responses and the documents that Plaintiffs produced in support of theirm otion for preliminary injunctin.”
3. At the Nov. 30 hearing RDR said it required “expedited discovery” to determine the ‘palpability’ of JKR’s planned encyclopedia, and that the court said RDR could serve interrogatories (which are requests for information) as well as seek discovery on any manuscript. That manuscript would be subject of review inside the judge’s chambers (not handed over). (The Court, according to this letter, did not originally grant full right to JKR’s notes at the Nov. 30 meeting, just gave RDR the right to request it – and presumably prove why they are necessary.)
4. JKR/WB responded to those requests for info by saying there was no manuscript of outline but that JKR had notes, and her publishers had indexes. After this response RDR requested “All COMMUNICATIONS and DOCUMENTS REFERRING OR RELATING TO” [caps in document] JKR’s notes as well as any further material. JKR/WB’s side say they far exceed the scope of discovery that RDR indicated it would require on Nov. 30, and says that they thought the documents from Scholastic and Bloomsbury filed with the motion for injunction would suffice to fulfill RDR’s request.
5. The note calls JKR’s notes and publishers’ materials “completely irrelevant” to the question of whether the Lexicon book infringes copyright. “Obviously, needing to concede copying, RDR’s defense to such copying is based on fair use. It is in connection with RDR’s fair use defense that Plaintiffs have addressed the issue of potential market harm. ... Whether or not the books would be similar or identical and therefore directly competing is not the correct inquiry; it is rather whether or not Ms. Rowling would generally enter the market for companion books, which she already has done with her first two companion guides and has repeatedly stated she will continue to do with her planned encyclopedia to the world of Harry Potter.”
6. Even were the notes relevant, the letter says, JKR/WB is not saying that JKR’s notes are similar to the Lexicon book but that Scholastic and Bloomsbury’s guides that JKR may draw on are similar to the Lexicon book.
7. JKR’s “overwhelmingly sensitive” notes would serve “no legitimate purpose othre htan to harass Ms. Rowling. Rather, the burden of producing these notes far outweighs any benefit to RDR in obtaining them.”
The exhibit attached is an objection to RDR’s requests for then notes, saying that the requests:
-Seek information that is protected by attorney-client privilege, work-prouct doctrine, right to privacy and “any other applicable legal, statutory or constitutional privilege.”
-Seek the disclosure of confidential, proprietary or trade secret informatoin
-Seek information that RDR may otherwise obtain from public sources (ie, whehter JKR plans to write a companion book or not, not the content of her notes)
It also notes the objections don’t constitute acknowledgment of the relevance, importance or admissibility of any issue discussed.
The first request from RDR (No. 1) was for: outlines, proposals, manuscripts, marketing plans, lettres of intent or contracts that JKR has drafted, authorized to be draftd, or received from any of hre employees or agents concerning the encyclopedia. RDR asked that JKR/WB describe each document’s contents in detail, identify when it was composed and where it is presently located, and who holds it. JKR/WB responded that the request was vague and ambiguous, overbroad and unduly burdensome, because it does not seek a response toa question and is supopsed to be part of an expedited discovery process, which “generally only allows for very limited discovery demands.” It is apparently also very different than what was asked for on Nov. 30.
The second request from RDR (No. 2) was for JKR/WB to identify and describe all communications about the encyclopedia involving JKR or “any person that [she] has authorized to act on her behalf, and ay other person,” and to describe the content, idenfity when the communication took place, and identify the parties involved for each communication. JKR/WB’s response was the same as for No. 1, generally – claiming it is burdensome and overbroad, and not relevant, and such information subject to many restrictions, including lawyer-client privilege. It also notes that JKR has told reps from hre literary agency from as early as 2000, of her plans to write such an encyclopedia, and her agency has acted on her behalf to many other parties since 2001 – including pubilshers – though no contracts have been drawn. It also says she has made many public statements to that effect.
RDR, this exhibit reveals, also attached to its requests for information a press report from MTV News that says JK Rowling has not yet started her encyclopedia,and will take a break from writing before she does. RDR requested that JKR/WB state whether that is true, and describe any further public statements – as well as identify by name, address, phone number and affiliation the reporters who were present at that press conference, as well as a transcript of the press conference. JKR/WB responded with similar complaints to No. 1 and No. 2, and says that the quote is not inaccurate in that JKR had not yet, at the time of that conference, started to turn her notes into a manuscript, but she is “augmenting her existing notes.” She took a break after her tour, but “nevertheless penned some additional materials that are intended for inclusion in her Harry Potter companion guide.” The document then lists instances of 88 press reports of her statements on the encyclopedia ranging back to 2001, and mentions television interviews as well as Leaky’s PotterCast interview and several other web site postings that dealt with the possibility of her publishing an encyclopedia. This is the portion of RDR’s requests for info that the judge granted – that JKR/WB describe these statements, most or all of which are public record.
I’ve stated before and I’ll state it again that I completely side with JKR/WB on this one. Copyright law, from what I remember of my college courses, is incredibly complex but it boils down to one thing. Fair use. Jo has been generous in her interpretation of fair use for websites and fanfic and commentary. But you cannot repackage material, tie it up in a different cover, sell it for profit and call it your own. Period.
In literary circles, we’d call it plagiarism…. something librarians are known to frown upon. Oh wait, all except one librarian. Hmm.
If RDR/SVA win this case, this could set a dangerous precedent for protecting copyrights of ALL writers—whether they’re as rich as JKR or as poor as some schmuck on the street peddling his poetry. Writers everywhere should be thankful in some part that JKR/WB have the financial resources to take this fight to court and protect copyright laws.
People, in the end, it’s not so much about JKR/WB’s profits, as it is protecting copyright law. Granted, it’s nice and warm and fuzzy that JKR will donate the proceeds of her book to charity, but a judge won’t decide solely on that argument. In the end, it will come out down to fair use.
It’s amazing that the fandom has learned so much about law, just one more way HP has helped people learn and grow. And, Melissa and the gang, keep the faith. You’re doing well to stay out of the fray, but I really do hope that you end your association with SVA and the HPL quick, fast and in a hurry. He’ll only drag you and the Floo Network into the gutter with him.
It boggles the mind how A) Anyone could be so arrogant and idiotic to think they could take on JKR/WB and win and B) That RDR abslolutely refuses to back down when their case should have been destroyed months ago and C) That they’re only requesting to see her notes because they know they’re not supposed to.
LET IT GO RDR. CUT YOUR LOSSES AND FIND SOMETHING ELSE TO PUBLISH!
I think that RDR is taking things to far. It see,ms to me that some stuff should not be made public. All those notes from the publishing houses that was made for the book use only should be hands off cause obviously lexicon or rdr never used them before it seems as though they are trying to use even more of her world in their book that quite frankly i won’t buy no matter the outcome.
Isn’t all this copywrited by her? She shouldn’t have to give up all the information that RDR is asking for it seems like too much.
Hi could somebody with knowledge on the law (or anyone if they know it) answer my question: Is it legal to buy fan t-shirts or other products online (such as cafe press) even if they are not owned by Jo or WB?
Sorry, I know it’s a silly question but I’m getting rather worried with this case and I lack sufficient knowledge in the law department.
I’m not a lawyer, so take my opinions as what they are – a layperson’s point of view. It’s not a silly question, and very complex, actually. If you bought a t-shirt with a scan of a book cover, that’s probably not such a good idea. If you bought a t-shirt that simply stated “Harry Lives!”, that might – emphasis on might – be okay. The seller would most likely be the liable party, though.
Even lawyers can’t seem to agree on many interpretations of the law, but it’s always best to consult with one, and the trademark or copyright holder, if you wanted to sell a fan type item.
Well, well, well. This has become a quagmire of a thread to negotiate, but I’ve finally finished reading the posts, and inmy own mind, at least, have a sense of what people think and where they stand.
So I apologize in advance for what might be a lengthy post – feel free to ignore it if you’ve reached this point and don’t want to go any further.
There has been much comment on the requests made for all the material. People should be aware that thre is a tactic related to the process of discovery called “the tractor trailer” method. Essentially, one side or the other demands material in such quantity as to make it prohibitive to gather it all up, or, they provide (literally, in some cases) sevral tractor trailers’ wotrth of material, along with the statement that “whatever you’ve asked for is buried in here somewhere – you find it”. It may not be a tactic that we like, but it IS legal and valid, and it is intended to make discovery so onerous that settlement makes more sense. Alternatively, if either of the protagonists wishes to pursue the case, it might make it prohibitively costly, time-consuming or both. So what they’ve asked for is not really surprising.
Futher to this issue, whether the material would be leaked or otherwise made public is very much an open question, and any conclusions drawn by any of us is mere speculation. But, for the sake of argument, let’s say the material DOES become public domain. Well, then anybody can write anything at all using that information because it is publicly available and therefore not subject to copyright or fair use or any of that stuff. It is freely available. That is what the judge in the case agreed to, BECAUSE it is already freely available.
But, think about this. It is this that could open the floodgates to any number of books about HP, regardless of their content. It is for this reason that there is a request for the product of “the creative mind of the author” which implies any FUTURE creations related to HP. And it is this that would raise flags for other authors to protect their works and future rights by not allowing anything other than fair use applications. And as to fair use, I’m not sure, but I remember something about still getting permission, either explicitly or by implication. Perhaps a lawyer can confirm this, but, if true, it would mean that regardless of the use, you need at least some kind of permission from the owner of the Intellectual Property.
As I said, though, we certainly can speculate as to what the lawyers are thinking and doing, but it IS in the hands of the lawyers and they have their own methods that they will follow.
Now, as to “Academic books about HP”, that is not really an issue. Remember that fair use requires that the copyrighted material used for the basis of original analysis, hypothesis or otherwise new thinking, and that simply copying and repackaging is NOT covered under fair use. That’s why Coles Notes can exist. They rely heavily on the copyrighted material, but it is used to train, exmplify or otherwise analyze that material, i.e. new creations of thought or analysis. This IS covered by fair use.
And BTW, they seek, where necessary, permission from the copyright holder or their representatives before using the material. Why? Because whether an application of material falls under fair use or not may still be the domain of a judge to decide, and she may see it differently. So getting permission for the explicit use makes sure that there are no mistakes or surprises. Look, even if copyright permission (or license) is granted, the holder may change her mind if the feeling is the actual use did not match the proposed use, for which permission was originally granted!
(Did someone say “COMPLEX”!!)
My last point, for now, is in regard to the idea of selectively enforcing copyright issues, by allowing websites, but not a book. The issue, as I understand it, is really that if she allows it for one website, it may be assumed she allows it for all (with respect to websites, not a published book for sale). Therefore, because this assumption is so easily made, what is REALLY allowed is the fair use aspect, which requires analysis or some other contribution. The fact is that the Lexicon website is more than just the lexicon, so the material is allowed by JKR. But there is also another, very important reason. The allowance is based not only on the USE the material is put to, but the AVAILABILITY of the output. These sites are free and freely accessible.
I would bet that if Leaky decided to make this a pay-per-use site, JKR’s lawyers would immediately request that all copyrighted material be removed, or may continue to be used pending a mutually satisfactory license/royalty arrangement. This is perfectly within their rights, but is unlikely to happen, unless Leaky decided to try and make money off of the material. Advertising revenue to support the site is not revenue directly generated by the sale of HP stuff. It is provided by advertisers because of the reach and frequency (2 great marketing terms) that a site like this provides.
Reach is how many people the message reaches (lots and lots is good) and frequency is how often the message is received by the people it reaches (repeat visitors see the same message with higher frequency and so have a higher chance of being impacted and possibly purchasing the advertised product).
Whew.. and in all of this, not one nasy name, not one nasty thought. Please my friends, as Melissa has now asked several times, be polite, be neighbourly. It is being rude and/or nasty that has a better chance of shutting down a board or a website than being respectful and courteous.
get’s off soap box, laments the arthritis that is ravaging his hands, and sits back to watch the fireworks!!
M.
Posted by Morton Kaiserman on February 07, 2008, 05:49 PM
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I have to agree with Melissa. We need a sense of proportion and decorum.
Steve is, after all, the epitome of honesty and consistency, a remarkable example of entrepreneurship that needs to be emulated by all our youth, a David fighting a monstrous Goliath, the small town guy taking on the forces of Mammon, the Western hero fighting the very Elements themselves, a Light unto the Nations, a Divine spark in the Darkness, a Pivotal Pole in the vacuum of the Universe itself, the very Nut that holds the Wheel of Life together. Amen.
For absolute confirmation that all the above is true please visit:
http://wiki.fandomwank.com/index.php?title=Lexicongate&redirect=no
I thank sdcurtis for the link.
For SVA’s perspective and its confirmation go to TLC Forum Posts 116 and 132 at:
http://www.leakylounge.com/Lexicon-Steve-Case-Part-t59152.html&st=110
I found something interesting: http://www.stevevanderarkfans.com/
Since they have not stated, posted, or otherwise acknowledged anything about this case and SVA, I wonder if their silence on this matter speaks volumes?
Food for thought.
Based on what everyone has said here, I wonder if SVA has thought about what his appearance at Portus will bring about? If the above comments are representative of the fandom. then a majority of HP fans are at least mildly unhappy with him, if not completely disgusted. I’ve heard him speak before and he’s got such energy and passion about the HP world, but it seems he’s lost touch with what being a fan is about.
This really is great, though. Melissa is an objective journalist to the core. We have budding lawyers and satirists jumping in. I really should have gone to law school, and this all just fascinates me. I guess it’s never too late, eh?
That is one thing I have always loved about the Harry Potter fandom. We question news stories and the validity of opinions. We question right and wrong, moral and immoral. I’m on Jo’s side, but the debate is great and gets all of us researching and thinking.
Just checking back in with an answer to my own question about fair use and permission.
Fair use, which is uniquely US usage of the doctrine/ term in law, allows for the use of copyrighted material WITHOUT permission, but only for certain usage. In Canada, there are similar concepts, as in other countries.
According to the US Copyright Office, there is following:
” One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.
Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. "
Basically, this all means that JKR’s material an be used, without permission, for certain purposes, and that it is extremely complex as to what may or may not be considered fair use, and that it usually DOES rest in a Judge’s hands as to what any outcome might be.
M.
Posted by Morton Kaiserman on February 07, 2008, 06:28 PM
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Oh, and BTW, the Copyright Cffice information goes on to say the following:
” The safest course is always to get permission from the copyright owner before using copyrighted material. The Copyright Office cannot give this permission.
When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation. The Copyright Office can neither determine if a certain use may be considered “fair” nor advise on possible copyright violations. If there is any doubt, it is advisable to consult an attorney. “
There ya go!
Posted by Morton Kaiserman on February 07, 2008, 06:30 PM
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Karen_W, you did yourself a favor avoiding law school! LOL. I kind of regret going myself. Though IP always fascinated me.
Thanks Melissa. The fact that you know your responsibility is what matters. I can understand that you don’t want to comment on this. May be even I wouldn’t if I was in your place.
And yes you are providing great content, I really appreciate it. So, way to go!
P.S: I know it’s too late, but sad that it didn’t workout for you and Emerson ;-)
Posted by Govind Kalburgi on February 07, 2008, 07:34 PM
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"Master was a nasty ungrateful swine who broke his mother's heart --"[br]"My mother didn't have a heart, Kreacher," Sirius snapped. "She kept herself alive out of pure spite."
I’ve stated before and I’ll state it again that I completely side with JKR/WB on this one. Copyright law, from what I remember of my college courses, is incredibly complex but it boils down to one thing. Fair use. Jo has been generous in her interpretation of fair use for websites and fanfic and commentary. But you cannot repackage material, tie it up in a different cover, sell it for profit and call it your own. Period.
In literary circles, we’d call it plagiarism…. something librarians are known to frown upon. Oh wait, all except one librarian. Hmm.
If RDR/SVA win this case, this could set a dangerous precedent for protecting copyrights of ALL writers—whether they’re as rich as JKR or as poor as some schmuck on the street peddling his poetry. Writers everywhere should be thankful in some part that JKR/WB have the financial resources to take this fight to court and protect copyright laws.
People, in the end, it’s not so much about JKR/WB’s profits, as it is protecting copyright law. Granted, it’s nice and warm and fuzzy that JKR will donate the proceeds of her book to charity, but a judge won’t decide solely on that argument. In the end, it will come out down to fair use.
It’s amazing that the fandom has learned so much about law, just one more way HP has helped people learn and grow. And, Melissa and the gang, keep the faith. You’re doing well to stay out of the fray, but I really do hope that you end your association with SVA and the HPL quick, fast and in a hurry. He’ll only drag you and the Floo Network into the gutter with him.