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RDR Books Files Response to JKR/WB in Lexicon Suit
LegalRDR Books has filed its response to the full request for an injunction to the Harry Potter Lexicon book filed by WB and J.K. Rowling three weeks ago. There are in all declarations from six people and several hundred papers of exhibits, most of which are copies of text from books (including almost the entire Lexicon book).
As a reminder of the current schedule: Feb. 27: WB/JKR file a response to this response March 13: A hearing will be convened with Judge Robert P Patterson
Edited to add: The full content of the filings has just been uploaded at Justia.com (by the ever-vigilant Nicholas, saving us a lot of bandwidth – thank you!).
The overarching document – the opposition brief – in this case says:
1. That J.K. Rowling “appears to claim a monopoly on the right to publish literary reference guides, and other non-academic research, relating to her own fiction,” and that “this is a right no court has ever recognized,” and if accepted it would “eliminate an entire genre of literary supplements,” as well as threaten “encyclopedias, glossaeries, indexes and other tools that provide useful information about copyrighted works.” It says JKR’s rights “simply do not extend so far” and she hasn’t shown that this guide poses a significant threat.
2. After giving background on the Lexicon, is describes the beginnings of the Lexicon book, which is later backed up in a declaration by Rapoport: It says Rapoport called Vander Ark after reading about him in an article, and Vander Ark “expressed interest in publishing a book version of the website. Rapoport said he thought the A-Z index was the best part to publish.
3. The brief recounts the history of the action by saying, “Shortly after RDR Books announced its intention to publish the Lexicon, Plaintiffs commenced this action.” There is no mention in this brief of the cease-and-desist letters that have been detailed by JKR/WB.
4. The brief says it is “far too late” for JKR to be the “first to publish” a Potter companion books, citing “nearly 200 Harry Potter companion guides,” “many of which incorporate A to Z listings.” RDR provides six of these books as evidence:
a. The Unofficial Harry Potter Encyclopedia: Harry Potter A-Z, by Kristina Benson
b. Field Guide to Harry Potter, by Colin Duriez
c. The J.K. Rowling Encyclopedia, by Connie Ann Kirk
d. A Muggle’s Guide to Exploring the Wizarding World by Fiona Boyle
e. Fact, Fiction and Folklore in Harry Potter’s World, by George Beahm
f. The End of Harry Potter? by David Langford
The documents do not list the 200 companion books. but count these six as the ones that had “especially striking similarities to the Lexicon in both format and content: At first flush, (a) appears to be out of print or unavailable on Amazon, (b) is about 2/3rds non-encyclopedic work, (c) seems to not be listed on Amazon, (d)’s title is actually “An Unofficial…” etc. and (f) is a predictions book.
5. Prof. Janet Sorensen declares in favor of RDR, and the brief says she says that “lexicons like this one have an important and distinguished place in the literary world…it organizes a tremendous amount of information into a concise and readable form…[and] provides a significant amount of original analysis and commentary.” It also says the HPL takes information from “painstaking collection” of Ms. Rowling’s interviews and statements, and Sorensen says it “helps readers to construct the universe of the Potter books in their minds, to understand its rich connections to the wide world in which we live, and to encourage the impulse to imagine a universe beyond the one depicted in the books.”
6. The brief maintains the HPL is “highly transformative,” and an example of work that has “always been held to constitute fair use.”
The argument of the brief states that to get this preliminary injunction, JKR/WB would have to show irreparable harm in the absence of it, and either “a likelihood of success on the merits or…sufficiently serious questions going to the merits and a balance of hardships tipping decidedly in the movant’s favor.”
It maintains that:
1. JKR/WB has not shown a case of infringement: “the Lexicon does not ‘reproduce’ the Harry Potter Works (or any one of them) in any meaningful sense of the word’ and claims examples of derivative works include ‘a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted,” and then says the Lexicon does not fit in those categories because “reference guide” is not among them. It also says the Lexicon does not “recast, transform or adapt copyrighted works in comparable ways.”
2. It claims, based on a declaration from the Lexicon is a “supplementary work, the purpose of which is ‘explaining…commenting upon [and] assisting in the use of’ the Harry Potter Works, citing Benjamin Kaplan’s An Unhurried View of Copyright.
3. “Even if” it was a ”’reproduction’ or ‘derivative work,’” JKR/WB would have to “show substantial similarity between the Lexicon and Harry Potter Works.
4. The Lexicon is protected by Fair Use, the document says, because it is “a valuable reference tool that helps readers to better access, understand and enjoy the Harry Potter works.” The brief argues that fair use is not a “narrow exception” but an integral part of the Copyright Act incorporating the need to ‘allow others to build’ upon copyrighted works. It claims Fair Use is a ‘First Amendment safeguard’ that prevents copyright law from burdening free speech.
5. That fair use is governed by four factors that are non-exclusive:
a. The “purpose and character of use,” ie, whether the nature of the work is ‘transformative.’ The brief says a transformative work ‘adds something new, with a further purpose or different character, altering the first with new expression, meaning or message,’ citing Campbell and a case against Amazon, Inc. a decision involving a search engine’s ability to produce thumbnail images.
The brief says a “thoughtful review of the Lexicon reveals significant, transformative functions that add extensive value, understanding and insights to the original works,” and claims the “organizational value” of the book makes it transformative.
It also says the Lexicon has a “significant amount of commentary and analysis,” citing the entry on Neville Longbottom and Luna Lovegood, talking about his bravery and leadership and Luna’s observations about her nature, decodes meaning of geographical and historical references and revealed “myriad errors and inconsistencies in the Harry Potter Works,” citing the example of Marcus Flint appearing as a seventh-year after he was to have graduated. (As an aside, this discovery was not made by nor is unique to this book; it is frequently spotted by fans and the first public record of it comes from 2000 ago on the HP for Grown Ups list by a user named Stephanie.)
The brief says “any fair reading” reveals significant transformative value, and that attempts to compare it to the case of the Seinfeld trivia book are inaccurate because of the nature of a trivia book not being a reference guide.
The brief compares the Lexicon to the Beanie Baby collector’s guide that was the subject of a lawsuit as well.
b. “Nature of the copyrighted work”: The brief says, again, that the Lexicon helps readers better “access, understand and enjoy” the Potter books.
c. Amount of the work used: This factor assess the portion of the original work used in the accused work, and this brief says that relies on “whether the extent of copying is reasonable in light of its purpose,” citing a search engine’s need to produce photographs and the Beanie Babies’ collector’s guide depicting the Beanie Babies products. It claims JKR/WB have ignored the purpose in their claim that the work relies too heavily on the original HP books. It also points out that the Lexicon does not borrow the overarching plot sequence or story ark, pace, setting, or dramatic structure, only “short quotes,” and “no more than what is necessary to its purpose.”
d. Market Effect: The brief says this depends (quoting Bill Graham from the MCA, Inc. v. Wilson suit) upon “balancing the benefit the public will derive if the use is permitted” versus “the personal gain the copyright owner will receive if the use is denied.” It says there can be “no dispute” the Lexicon gives “substantial public value,” citing J.K. Rowling’s and WB’s use of the web site (though it says “Lexicon,” without distinguishing the book from the site), claims based on a declaration from Steve Vander Ark. It also claims there can be no market harm because JKR/WB did not argue that the Lexicon book would be bought instead of one of the seven HP novels or seeing an HP movie. It also says that derivative works are “eligible for fair use protection.” It also says that it is incumbent on JKR to prove that the Lexicon is a substitute for the guide she wants to publish, and says that J.K. Rowling does not suggest anyone would purchase the Lexicon guide instead of hers.
The brief then goes on to say that the contents of the Lexicon being made available for free negates any market harm, and that the fact that it has existed online for free for six years should mean it is able to be sold in printed form.
“If and when Ms. Rowling decides to publish a companion guide, it will undoubtedly be unique,” the brief says, citing the Leaky Cauldron’s interview with J.K. Rowling in December 2007. It specifically mentions (multiple times throughout these documents) that she anticipated it might take as many as 10 years to produce, and that her ideal layout would be “facing pages” with backstory and extra details on characters on the left-facing pages and extra information that wasn’t in the books on the right. The brief repeatedly – outside of the exhibit in which is prints the enitrety of the transcript – leaves out the portion of the interview in which J.K. Rowling said it would be a definitive, give everyone-everything sort of guide. Here is the relevant text from the PotterCast transcript:
JKR: I’m just gonna say, “This might change,” but I imagined it as half of it, maybe on facing pages, but that might be difficult just through layout. But the ideal would be to have- say on the left hand side you’ve got a page showing all your back story, extra details on characters, or an entry on wands, showing what every character’s wand was and all of this stuff. And I think also it might be interesting to have information about the actual writing and what I discarded. So on one side it’s acting like the whole world is true and it’s giving you extra information on that real world and on the other side we’re admitting that it’s actually fiction and I’m showing yeah, discarded plots, characters that didn’t make it, problems in the plot. I think both lots of information are interesting so it would be nice to unite both of them… I think the only- the point of doing it, if I’m going to do it, it’s about doing the absolute definitive, giving people everything guide. ... [E]verything that I’ve got, put it that way. That’s what I aspire to do at the moment. It might, for practical reasons not be possible to do both sets of information in that way but I would like to, that would be the ideal. ... I think there’s no point in me doing it unless it’s amazing. And I think there’s no point in writing it unless it is everything and the last thing that I want to do is to feel that I have to rush something out because (SU: Right.) do you know what I mean? My hand is being forced or there’s demand and other people will fill it first. I think, I just want to do it right or not do it at all. And I really do want to do it right.
The brief claims her idea of the guide focuses largely on what is not in the books.
6. This brief claims there has been no bad faith on the part of RDR Books or Steve Vander Ark. It dismisses the JKR/WB “smoking gun” email in which Steve Vander Ark said a book of the HPL would be illegal and against Jo’s wishes, by saying, “Vander Ark is a layperson, not a lawyer, and his speculation as to the legal status of the Lexicon (since corrected) is beside the point.”
7. The brief says the quote in question from the Harry Potter Lexicon web site has been removed from the book’s cover – but it does not mention in this brief (only later, in Rapoport’s declaration) that it wasn’t removed from the Lexicon cover until after JKR/WB’s filing. It also claims if the quote remained the false endorsement evidence offered by JKR/WB would not apply because the quote does not have “the potential to mislead anyone,” and maintains the survey in which an independent consultant showed people the cover of the book and determined that 38-55 percent of them had been falsely mislead by the fansite award text, was fatally flawed because there was a disclaimer underneath it. It claims JKR/WB instructed respondents to look only at the quote and invite them to ignore the disclaimer.
8. The brief says JKR/WB has not met the burden of showing “irreparable harm.”
Further information not addressed above in the remaining documents:
1. Steve Vander Ark’s declaration says that:
a. Approximately 10 percent of the material included in the Lexicon book is part of the original postings on the web site when it was created. The remaining is material added to the web site since 2000.
b. No one has ever demanded a “cease-and-desist” for material on the web site that is now in the book.
c. The staff compiled an A-Z index of the site in 2005.
d. It has been his goal to present “a comprehensive encyclopedia, a single source in which they can find descriptions and definitions of all the characters, places, spells, creatures and physical objects in the world of Harry Potter.”
e. He says his contributions are about 60 percent of entries, and 40 percent by staff or other contributors and editors “and also fans whose comments and emails have proved useful and informative.”
f. In making the web site he says he has used general fable and myth research tools as well as the Potter books.
g. The only revenue has come from the “very limited advertising I allow. About three years ago, I began accepting ads from Amazon.com in return for a payment of approximately $15 per month. About 18 months ago I began accepting ads from Google for a payment of approximately $100 per month. Together, these ad revenues have covered the cost of operating the web site.” [The Leaky Cauldron houses and runs the Harry Potter Lexicon for zero charge, and has since it came under its current domain name. That is true as of this posting. The original intent before this response was filed was to transfer the Lexicon to its own server; because of this question of ownership and cost, we will refrain from changing any variables where sworn statements are concerned, and will not transfer the domain until litigation has been completed. At that time we will be happy to do so.]
h. The web site gets approximately 350K pageviews per month on its index page and 1.5 million per month on its entire site.
i. “Beginning in about 2003, I received regular requests from fans for printed copies of the Lexicon website, proof of a demand for a print version…At the same time, a number of people contacted me with proposals for using the material on the Lexicon website in a printed encyclopedia. For a considerable time I declined these suggestions…There were two reasons for this. First, until the summer of 2007, Ms. Rowling had not completed the series of Potter books, so that any encyclopedia published before that point would be incomplete. Second, until August 2007, I believed that an encyclopedia, in book form, would represent a copyright violation. This was an assumption on my part, however, as a layperson.”
j. “Before visiting London in July of 2007, I requested a fifteen-minute meeting with the Agency [Christopher Little] to discuss both the work visa [ that he was trying toget] and the possibility of using material from the Lexicon for a book and was told they didn’t have time.” [There is no document in the filing proving this, unless it refers to this letter, as cited by JKR/WB, which does not mention his wish to publish the Lexicon as a book.] “I made no further plans for a book until Roger Rapoport of RDR Books contacted me.”
k. Roger Rapoport told Vander Ark that he had consulted with an expert who said the publication would be legal, during discussions about the book. Steve then requested RDR indemnify him against lawsuits.
l. Work on the book began after August 20, 2007, and was completed on Sept. 15. It contains half the web site.
m. The book is smaller than the online resource because of space issues. “Entries in the book are often condensed versions of corresponding sections of the web site.
n. “It is true that, in a few places, the book employs phrases or sometimes whole sentences that are similar to phrases or sentences in the Potter books…in those cases, however, the similarity in language was unavoidable.”
o. “Over the past several years, I have gained widespread recognition as an expert on the Potter world. I have been interviewed about various Harry Potter subjects by the School Library Journal, Time magazine, the BBC, the New York Times, the Detroit Free Press…and several other publications whose names I do not recall.”
Vander Ark claims David Heyman, producer of Harry Potter, said the Potter flimmakers use the Lexicon web site almost every day. This was supposed to have been said during a set visit in which many fan outlets were invited to see the Order of the Phoenix lot.
q. The Electronic Arts Studio, the declaration says, has printouts of the reader’s guide on its walls.
r. After the release of the sixth book, Cheryl Klein of Scholastic sent Steve a thank-you note on behalf of his staff which is included as an exhibit. It reads: “Steve Vander Ark for the HP Lexicon: Dear Steve and the rest of the Lexicon team – On behalf of the Scholastic Half-Blood Prince editorial staff, I’d like to say thank you for the wonderful resource your site provides for fans, students, and indeed editors and copy editors of the Harry Potter series. We referred to the Lexicon countless times during the editing of HP6, whether to verify a fact, check a timeline, or get a chapter and book reference for a particular event…We’re all HP fans ourselves, of course, but you made our work immeasurably easier through the one-stop searchable HP encyclopedia the site offers. Please accept this as a token of our admiration and appreciation, and ever so many thnanks again – All best wishes, Cheryl Klein.”
s. The sole purpose of the Lexicon website and book, Vander Ark says, “is to encourage fan interest in, and serve as a reference to, the Harry Potter books…the Lexicon book cannot be financially successful or profitable if the Harry Potter works are not financially successful or profitable….I believe that Harry Potter fans will buy a similar work written by Ms. Rowling even if they have purchased a copy of the Lexicon book because her fans are very loyal to her and will always want what she writes.”
t. He deems many declarations from JKR/WB to be inaccurate and says that the books referenced by JKR/WB have been “carefully chosen to exclude” what has been seen in the case as other HP encyclopedias. It also says Neil Blair has never asked Vander Ark to remove from the website any material which is now part of the Lexicon book, and says that means the same content in a for-profit book is therefore not infringing. It says Diana Birchall’s claim that no outside sources were used to write the book is incorrect, and gives a few examples. It also goes on to illustrate what he deems as analysis in specific entries.
u. “Fans of Harry Potter, and ultimately Ms. Rowling her self, will only benefit,” from publication of the book.”
Further declarations are from Shawn Malhotra, a first-year law student at New York University, who summarized press statements J.K. Rowling has made regarding her encyclopedia, which quotes a significant portion of the statements J.K. Rowling made in the PotterCast interview:
The quote they use is this:
“The ideal would be to have- say on the left hand side you’ve got a page showing all your back story, extra details on characters, or an entry on wands, showing what every character’s wand was and all of this stuff. ...And I think also it might be interesting to have information about the actual writing and what I discarded. So on one side it’s acting like the whole world is true and it’s giving you extra information on that real world … and on the other side we’re admitting that it’s actually fiction and I’m showing yeah, discarded plots, characters that didn’t make it, problems in the plot. I think both lots of information are interesting so it would be nice to unite both of them.”
[To be fair, the next thing she says in the transcript, however, is:
“Well, exactly, to be honest, I think the only- the point of doing it, if I’m going to do it, it’s about doing the absolute definitive, giving people everything guide.”]
There is also a declaration from David Harris, another first-year law student, who has provided summaries of the six books listed as also uncontested HP encyclopedias.
Roger Rapoport also provides a new mockup of a cover for the book, which was designed in “late January.” The title has been changed to The Lexicon: An Unauthorized Guide to Harry Potter Fiction and Related Materials and consists of a plain white cover. The front and back now list extensive disclaimers.
Janet Sorensen, a tenured professor at the English Department at UC Berkeley, made a declaration that says the Lexicon is “part of a long tradition of lexicons and guidees,” and mentions as a comparable example Charlotte Lennox’s Shakespeare Illustrated, in which she presented a guide to the public domain characters and plots of Shakespeare, and Samuel Richardson’s own guide to his own work, Pamela Illustrated. Most of the beginning of the declaration involves guides and lexicons in the 19th century and early 20th. It also mentions 20th-century examples of guides to JRR Tolkien and CS Lewis’s work, and notes that the works were published while still under Tolkien and Lewis’s copyright but doesn’t address the level to which permission was sought or granted for each. The Lexicon, she says, is a “ready resource” for J.K. Rowling’s creations; Sorensen mentions her own need to have her memory jogged while reading, etymological information in the book and citations. She says the Lexicon is helpful for the youngest readers of the book, referring to a six-year-old she knows who might find value in it. She also says that the Lexicon’s pointing out of mistakes is likely to be unique to it, and not included in Rowling’s version, adding value. She also attests to the light moments of critical interpretation and analysis.
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That’s all for now. Apologies if it was too long, and you didn’t read. More in a few weeks. We hope, at least…
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I’m no fan of RDR, and feel similarly about SVA. In any case, the difference between print rights and internat rights is profound. US copyright law changes over time, and applies, theoretically, to all forms of copying, print and internet. There is also China, where they’ve operated for decades with NO copyright laws. And there are countries with more stringent laws, where ‘fair use’ is not protected. If I publish a book in the US, US copyright laws apply. But if I publish on the internet, what laws apply? The country where my workstation is? The web server? The Pay Pal server? The legal environment is totally different. It’s hard to litigate in the internet environment. I am hoping the judge in this case does not publish an opinion that makes such litigation easier—or frankly, even APPEARS to make such litigation easier. I think that is less likely if the ruling is for SVA/RDR (regardless of the merits of either side’s case, neither of which looks particularly strong to me).
“Had you read the briefs you’d have read statements declared from both Jo and Steve, as well as attorneys and many others.” And you think that an attorney haven’t had any say in what Steve’s and Jo’s statements said? If Steve has tried, as you say, to make money by illegal means it IS awful, but it seems to me that any attorney worth his pay would have counselled RDR to drop the book if the matter is as doubtful as that.. They won’t make money on a lost lawsuit and certainly not on a book which never is published. Yes we will have to wait and see, luckily it will soon be over, and we can go back to discussing whether Harry was master of the three hallows (and so of death) or not ;-).
Copyrights are protected by laws in the country of origin and also by the Berne Convention and the Universal Copyright Convention.
JK has copyrights registered in the UK and in the US, and when infringement occurs, whether internationally in print or on the internet [such as ebook format] it is stringently defended WORLDWIDE. WB provided information in regards to cases they’ve pursued worldwide in the protection of Jo’s copyrights, and there have been several well publicized instances of infringement lawsuits internationall on behalf of JK, specifically one involving ebooks being sold on India’s ebay.
Should you publish on the web, that creation is your own, provided no one else has copyrights to material you’ve published. It is your responsibility to protect it. You have to declare no one can copy or imitate it without your express permission. If you find that someone has done so and are making money off of your creation, then you are entitled to remuneration. If no money is forth coming, then you are entitled to seek legal remedies to halt the infringing behavior and be compensated for it. Yes, it may be harder to pursue, but it isn’t impossible, and certainly no reason to alter the status quo.
If RDR wins it would dramatically alter the law, making it more difficult to defend copyrights of everyone, and ultimately make things worse for the internet.
Say Steve gets to publish his book. Say that some people take his book, make their own website dedicated to it, using 95% of material attributed to him. Then say the owners of that website, who’ve copyrighted their site BTW, decide to slightly alter it and then print a small portion of iit and sell it in book format. SVA, as a course of winning this suit, would have no legal remedy to stop that infringement of his work. Why? Because this suit would have loosened copyrights, making them even harder to defend than they already are.
No one’s work would be safe, despite copyright laws. That’s not being an alarmist. It’s speaking the plain truth. A win would have chilling consequences that have the potential to alter the internet detrimentally.
“And you think that an attorney haven’t had any say in what Steve’s and Jo’s statements said?”
As a legal secretary, I can honestly say that attorneys walk clients through testimony and help them polish it, this allows one to give clear and concise testimony without appearing nervous, fidgity, or unreliable. This in no way means the attorneys have told their clients to lie under oath. Those declarations were made under penalty of perjury. It also in no way alters the evidence submitted by attorneys of both plaintiff and defense.
As for whether RDRs attorneys would/would not have counseled their clients on proceeding to publish is open to debate. Especially when you realize that RDR did not employ an Intellectual Properties attorney or for that matter even have regular council to represent them at all. They didn’t get council until AFTER WB/JKR filed for the preliminary injunction.
How could they reassure SVA this book was legal, when they apparently never employed an IP attorney to check it out in the first place?
Anon1, I don’t disagree with any particular point of law. I disagree with your opinion as to whether an SVA/RDR victory or a JKR/WB victory would have a more detrimental effect to the free flow of information on the internet as we know it. That will depend greatly on how the judge applies the law to the evidence presented. For what it’s worth, I hope you’re right and I am wrong. But I still wouldn’t be willing to bet on it.
“How could they reassure SVA this book was legal, when they apparently never employed an IP attorney to check it out in the first place?”
Good question, but wouldn’t you, with your opinion of the case, have counselled RDR to drop it as fast as possible, when your counsel was sought?
Of course attorneys don’t tell their clients to lie under oath, or at least no honest attorney would, but as you say, they will help ‘polishing’, you can’t really say anything about anyone’s feelings about the case from what they say in court. The statement will be what the client have told the attorney, shaded, more or less heavily, by what the attorney believe will be to his clients advantage. (Or at least that’s my experience. In Denmark, not in USA, if that make any difference )
JKR/WB would be right if they’d injuncted other books as well. RDR/SVA would be right if they’d abode by the first questionings of JKR/WB and they ‘d still be sued. Now it’s just a cat fight.
anon1 said – A website can copyright itself, what it cannot do is copyright material which is already copyrighted by someone else. It also cannot legally take copyrighted materials, put it into a different medium thereby claiming it as uniquely their own, and then sell it for a profit.
(block letters below are mine, for emphasis)
This is only partially true. The issue, as I’ve always maintained, comes down to permission. My organization routinely publishes material already under copyright under OUR copyright as well, AND sells it for money (we are a not-for-profit so we don’t make a profit, although we do earn excess revenues over expenses to plow back into our business).
There are 2 key point. The issue, first of all, is not only the actual intellectual property, but the presentation of that property. So when we publish, we are copyrighting the material IN OUR FORMAT , which is a recognized format that is automatically associated with us. If another organization wants to publish all or part of the material from OUR format in THEIR format and copyright it, they can ….
As long as the second, OTHER issue is taken care of, which is the matter of PERMISSION. We cannot simply repackage the other material and publish in our format and claim copyright, and we certainly cannot sell it, UNLESS we obtain either copyright permission or license from the holder of the copyright.
This is what I have contended really is the crux of this whole matter. And even the US Copyright office points out that because Fair Use is such a difficult concept to interpret at times, it is best to get copyright permission ALWAYS.
Having clarified this point, I have also always agreed that a win for RDR could have exactly the chilling effect you describe for exactly the same reasons (and I have posted as such earlier in this thread and in the thread that ensued from the earlier report in the Leaky news). Please note: this MY opinion, and it may be shared by others, but it does not necessarily represent the reality that will arise once the final ruling is made and any subsequent appeals are dealt with.
Snape’ Mistress said JKR/WB would be right if they’d injuncted other books as well. RDR/SVA would be right if they’d abode by the first questionings of JKR/WB and they ‘d still be sued. Now it’s just a cat fight.
Well, maybe yes and maybe no. It is not usually a good idea to try and use circumstances that are similar but not quite the same as sources of support, which I think WB lawyers understand. Each case has to be judged on its own merit and there are ALWAYS differences that will play a role. I think in this instance, you have other HP-related books, yes. But they are CLEARLY under the Fair Use principle, because they contain substantial original material and/or analysis and/or commentary – the very reason for the Fair Use principle. Further, we have no real idea in any of the other cases whether permission was sought and granted, or not. So to say one or the other side would be right if… is simply not as simple as it may seem. And you are absolutely correct. Regardless of the circumstances, the paperwork already filed has “cat fight” written all over it. Sadly, this is not unexpected.
I’d like to start off by thanking Melissa for sharing and summarizing all of the legal information and details surrounding this case. I feel I’ve learned way more about copyright law than I’d ever imagined I’d need to know through reading these articles and posts, and offer my appreciation to those who dare to share “material from [their] creative mind[s]” with the rest of the world.
As I’ve been quietly following along through the news posts and comments, and I’m starting to believe that there are NO winners to this case anymore.
I am particularly new to the “fandom” aspect of Harry Potter, though I’ve enjoyed the books and movies all along (well, since 2001, anyways), so I haven’t invested much of my own time into fan fiction, fan videos, websites, commentary, podcasts, or wizard rock. I DO love what other fans have taken time to put together, and don’t mind supporting their efforts monetarily so that they can continue doing what they love to do – for example: by buying CDs from WRock bands or by using the Floo Network’s links to purchase HP related items.
That being said, would I purchase SVA’s printed version of the Lexicon should it be published? Most likely not. I’ve only just recently purchased a full set of the HP series for myself, so I won’t have to keep borrowing from friends or libraries when I want to reread the series, and haven’t bought or read any of the other commentary books currently available. If it had successfully slipped under the radar and was published without JKR/WB consent, I wouldn’t have even thought to pick it up at my local bookstore, since I can use the web version for all of my needs should they arise – and most of the time, that was before I had my own copy of the books to go reference. Would it have cut into any profits for WB/JKR/JKR’s charities? Probably not. Would SVA/RDR have made a quick buck? Probably so. Would ALL of the HP fandom have cared? Most likely not.
But here we are today, sitting on the sidelines of a legal battle that could have easily been avoided had RDR/SVA initially complied with WB/JKR’s request to review [and possibly edit] the book in the first place. And that’s when everything starts to turn fishy for SVA/RDR’s case. Sure, the legal battle brought attention to the publication of the book – and could potentially have been good publicity, as I wasn’t even aware of the book until I heard about the case being brought up (on LeakyNews.com, in fact). But now, this case appears to have escalated to the point where it could potentially bring in all of the HP fandom – including Leaky – and other fandom communities. And what’s even more disappointing to me is that it appears it may force JKR to do something she probably never wanted to do in the first place (either rush the “Scottish Book”, not write it at all, or force tighter restrictions on her fans). Which ultimately hurts her fans as well.
Regardless of what happens now, I hope we’ve all learned (including SVA & RDR) that as much as we enjoy being entertained by artists of all sorts and following their works and lives, they aren’t truly ours to tamper with, and everything that they do and are could be gone tomorrow (and whatever association you may have with it). I think most of those involved in the HP fandom (from my short experience) understand that none of what they do, whether it be fanfic or WRock songs, would exist had it not been for JKR, and that should the interest in Harry Potter ever die out (God forbid!) their notoriety would disappear with it. So appreciate it today!
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@ Loren: Print, as in book format? Books are just one medium of printed expression. Internet is another medium of printed expression. Why should the law apply to one medium and not the other? They both print, they both publish, they both copyright.
Copyright exists to protect IP owners in EVERY medium, not just book print. Copyrights exist for the internet as well. Laws for copyright use have been adjusted through the courts over the centuries as legal necessity has demanded.
A website can copyright itself, what it cannot do is copyright material which is already copyrighted by someone else. It also cannot legally take copyrighted materials, put it into a different medium thereby claiming it as uniquely their own, and then sell it for a profit.
If that were to change via a win for RDR, then anyone can take copyrighted materials off of the web and sell them, with the copyrights of the owners being trampled in the process. They’d have no recourse but to crack down to prevent further loss to themselves. Nothing that you’ve stated has altered that reality.
Had you read the briefs you’d have read statements declared from both Jo and Steve, as well as attorneys and many others.
As to his making a quick buck, illegally, off of Jo, WB, and the Floo Network [which includes TLC], then YES, that’s awful. People don’t like being used, stolen from, or lied to.
Now, could all of this be out of his hands? Absolutely. Court documents show that he took precaution against infringement lawsuits, by having RDR take the added, and highly unusual step, to indemnify him. Court documents also show his contract with RDR, in which it clearly states he’d make a profit off of people clicking links in the Floo Network to purchase his book. That information was not disclosed to Melissa Anelli, one of the webmasters of the Floo Network, profits to be split equally between RDR and SVA. Could he have just forgot to mention that to her and always intended to profit share? Sure. But ask yourself this: If he signed this contract in August of 2007, why did he not disclose that information to all of the Floo Network Webmasters? It’s been six months now, surely that is sufficient time to have done so.
Frankly, RDR is fairly shady in their practices, that is clearly shown in the court documents. One could hope SVA just got in over his head. As you’be said, we’ll just have to wait and see.