According to the Wall Street Journal Law Blog, Judge Robert Patterson addressed the courtroom at the end of the second day of trial:
“I’m concerned that this case is more lawyer-driven than it is client-driven. The fair use people are on one side, and a large company is on the other side. . . . The parties ought to see if there’s not a way to work this out, because there are strong issues in this case and it could come out one way or the other. The fair use doctrine is not clear.”
Judge Patterson reportedly added:
“I’m bringing it up now so you can think about it before you get into the rest of the case. Maybe it’s too late; maybe we’ve gone too far down the road. But a settlement is better than a lawsuit.”
In addition to Steve Vander Ark taking the witness stand earlier Tuesday, afternoon testimony centered around the impact a published version of website The Harry Potter Lexicon would have on any encyclopedia J.K. Rowling might write. While publishing expert Bruce Davis stated that such a book would likely have a small print run and do little to harm the potential market for a Rowling-penned book, Suzanne Murphy of Scholastic stated that while she finds Vander Ark’s lexicon to be of “poor quality”, she believes it “has potential to do quite well in the marketplace”.
evalita it correct that would be the fairest thing to do, but i really do fear its gone way too far for that and its going to get played out to the bitter end. I support JKR SVA should go to azkaban!
I doubt it—at least, not by the court. Now that court proceedings are recorded, transcriptions are generally made only after the fact for specific reasons (for example, if the case is appealed, a transcript of the hearings in the lower court would go to the appellate court).
Here is the information I could find on requesting court records from the U.S. District Court for the Southern District of New York, which is hearing the case. An interested person might be able to get a recording of the hearings (though someone - likely a judge - would have to approve the release, and there are often exceptions for ongoing cases). But I doubt an official transcript would be available.
I totally agree with the judge. I also think that Jo and Steve are both wrong and right. I say that Jo can bar people from writing stuff about HP but if she was going to do that she should not have allowed countless other people to do that over the years. It seems a bit unfair they decided to pick this book. Also I really enjoy Ms. Murphy of Scholastic saying that all the work Steve and others have putting into the this book being “low quality” and that HP fans are to stupid to notice the difference. But I don’t really care what anybody says because if and when Steve’s and Jo’s books come out, I will be there standing in line at the book store to buy a copy of both.
One more comment on the merits, then I’ll shut up (always hard for a lawyer to do). My litigation experience is as a prosecutor, not a civil lawyer, and especially not an intellectual property lawyer, so take this with a big grain of salt. (Or completely disregard it, because I could be dead wrong.)
There’s a saying in the law – when you win on the law, argue the law; when you win on the facts, argue the facts. I think Rowling’s arguments are sympathetic, but they seem based more on fact than law. I think RDR and Steve Vander Ark have a more solid legal argument. Part of the judge’s appeal for settlement is based, I think, on his own distaste for having to decide a case when the facts are more sympathetic to one party but the other party’s actions are not contrary to the law.
Obviously it’s not that clear-cut; if the controlling law was that clear-cut and obvious, the case never would have proceeded to trial. But the judge seems to be torn between a compelling set of facts on one side and a compelling legal argument on the other side. My impression is that legally, he’s leaning toward RDR/SVA. But that’s only supposition based on slim knowledge of both the case itself and of the controlling law.
have you even bothered to notice this case is about a print version of the lexicon, which has been found to be nothing more then 90% words copyied word for word from the harry potter books, 2-3% words copyried from other non jk rowling copyrighted works, and the rest inaccurate statements that are contradictory to harry potter, but stated as fact. it contains practically no commentary, and jk rowling ultimately wrote 90% of it without knowing someone was plagerising her words until they tried to publish it.
if you dont understand the case in its simplist forms, then dont attack jk rowling and praise SVA, because clearly you havent paid attention.
my question however is how rdr has a better legal case when the lexicon book has been found to contain about 90% of its text taken many times word for word from jk rowlings copyrighted text with little to no commentary at in the entire text, something that became clear to people who read the copy posted on justia as public record.
RDR themselves originally stated that the book wasent commentary, but simple a alphabetical encylopedia of harry potter. then when they got in trouble for that, they started claiming it was commentary, but never filed with the court any list of what they said was commentary.
I have a feeling a settlement wont happen, Roger Rapoport, a famous shister, is not going to cancel the book. that is the only logical outcome, given that they had yet to point out in court any proof there is enough commentary to be fair use.
Saying something is fair use means absolutly nothing unless you prove it conforms to enough of the fair use docterine to qualify under the law. fair use might not be a exact science, but its not rocket science either.
Elizabeth: I wholeheartedly agree with your perspective and it is refreshing to see another lawyer who thinks this way.
As to the folks who wonder how a settlement could possibly happen…RDR can agree to pay JKR a reasonable royalty for the right to use her work or JKR can concede that teh use constitutes fair use. There are a number of options, but because this case is so emotionally charged, it may be hard.
Regarding fair use law not being clear, this seems to be warning against the expectation of any particular outcome. Based on what’s reported so far, if RDR have been hoping for this thing to be pushed through on a technicality, that possibility is looking remote in the harsh light of the court.
If RDR win you will have the absurdity that Vander Ark is free to sue WB/Rowling for breach of “his” copyright, as he as already attempted to do on several occasions. So with this lure of almost unlimited wealth that drives the RDR side, faint though it is, you can see why they are pushing ahead in the face of likely annihilation.
I take the judge’s remarks to mean that if RDR/Vander Ark don’t withdraw they will lose. And in doing so WB/JKR will have to stomach a lot of adverse publicity—though they are obviously committed to wearing that. Recall that the suit is not just to prevent publication, but seek damages. By proceeding with publication, RDR ensure a lose-lose scenario.
‘-it could come out one way or the other’ ... Have many of you considered how we’re all going to feel if it comes out in favour of RDR/SVA and JKR abandons any further HP works (her encyclopedia, ‘and’ any possible future works set in the same world) out of disgust and dispair? This is a very real possibility and people don’t quite seem to have grasped this implication yet.
By the way, in case you haven’t read the transcripts, there isn’t a snowflake’s chance in hell that JKR will permit the so-called “Lexicon” to be published, so no compromise there. That boat has passed. We are only in court now because RDR/Vander Ark not only wilfully ignored earlier approaches, but lied through their teeth about what they were doing. Now we know exactly what Rowling, who has been forced into this whole process, thinks of their miserable plagiarism. The court is going to wipe the floor with them. Whether or not they opt to pull out depends on how many brain cells they have between them.
will orwont I hope you are right! I have seen our courts do too many completely wonky things, even when the law was perfectly CLEAR, to have too much confidence in that, though. I just don’t know. I have read Elizabeth’s comments and guess I sort of understand the distinction the court may be trying to make as she explained it (thank you, BTW) and that makes it look like the potential outcome is even dicier than I thought. What a mess!
All I know for sure is that if that dratted book ever does get published I will NOT be buying it. I feel so terrible for Jo. What a way to repay all her hard work and dedication to the fans.
"Sibyll Trelawney has predicted the death of one student a year since she arrived at this school. None of them has died yet. Seeing death omens is her favorite way of greeting a new class. If it were not for the fact that I never speak ill of my colleague
evalita it correct that would be the fairest thing to do, but i really do fear its gone way too far for that and its going to get played out to the bitter end. I support JKR SVA should go to azkaban!