This is informative: http://www.mtv.com/news/articles/1585635/20080415/id_0.jhtml

Thanks MTV!

Whoops! desertwind beat me to it! XD

If Steve Vander Ark had listened to his FIRST gut instinct about publishing the Lexicon site (which was NOT to publish it), he wouldn’t even be in this mess.

The way I see it at the moment the judge is giving RDR and particularly SVA a get-out-of-jail-free card:

SVA’s position is particularly exposed. 1. It appears he does not own the Lexicon or any copyright therein 2. His book is clearly copyright infringing 3. This puts him in breach of his contract with RDR books 4. That in turn exposes him to being sued by RDR 5. SVA could lose the Lexicon site, the book, his Floo Network friends and contacts, and any money and reputation he has left. 6. His other books may also be at risk as they may depend on his relationship with RDR and his contacts (which may have been the original bait offered by RDR to SVA re the Lexicon) 7. His position in the UK may then be exposed as well as he may be declared bankrupt or in perpetual litigation, which may in turn impact upon his current position /relationship within the UK etc.

RDR is less likely to settle. This has always been about the politics of Fair Use (as opposed to its basis in law), and publicity for his cause if not his company. He is naturally combative (judging by his statements on his site and in press interviews) and loves a fight. His legal counsel is free. He will write a book about the experience and it will be his Best Seller. The longer the case goes on the greater the martyrdom angle to the political position he has taken, and the more he hopes to embarrass WB, the corporate bad boy (“Voldemort”).

JKR would in theory be foolish to settle on anything but her terms but she may do so to put the case to bed. So, the best hope for both parties is a non-infringing Lexicon approved by JKR and re-written by SVA with RDR publishing it. Otherwise JKR will have to go for the kill and be prepared to call RDR and the Fair Use group’s bluff and sue them until the best outcome the law will allow is reached.

It is possible that in the current case the court will allow a Lexicon but not in its present copyright infringing form. Costs will be awarded to WB/JKR but the judge may not decide to make them punitive because it will serve no purpose in terms of justice being “seen to be done”. Clobbering a tiny mid-West publishing house and a sobbing fan-author with a substantial fine will not be seen as serving the best interests of justice.

My hope is that JKR can find the strength to call their bluff. But it may be at the expense of the “Scottish Book”.

The cliché about only the lawyers winning is self-evidently true. But in the end it appears to come down to a series of foolish decisions by one individual.

SVA has really messed up, hasn’t he? I bet he’s wishing he never agreed to this in the first place. But yeah to whoever said it, it’ll be horrible if he wins. That would completely undermine copyright laws, and affect not only Harry Potter and our fandom, but all the other authors in the world as well. If RDR wins this case, it means that anyone can copy a book, rearrage it, and then sell it. It’s horrible. I can’t believe someone who is (was?) such an avid fan could do this to JKR.

For an opinion on the proceedings more grounded in reality than sycophantic adulation & misplaced idol worship like that expressed by Micheline & others above, read this: http://nikkistafford.blogspot.com/2008/04/harry-potter-trial-i-just-had-to-wade.html

I am making a stand for the true Harry Potter Fans! If this book is published, I will not purchase it. I will burn all the books in the stores and spit on them >:) JKR is the only one who can write a true and meaningful HP encyclopedia. I will purchase and support hers and hers only, AND YOU ALL SHOULD TOO :)

@tara,

The Nazis recommend not to buy from Jews. Be careful with what you claim from other people.

I agree with Beth when she said that she couldn’t see a settlement coming out of this. Obviously the number one priority for SVA and RDR is to develop some form of monetary reward for their efforts and now legal efforts. Although SVA has a case when he was asked to interview for the CD, WB- Time Warner is a monster business speaking, and if there was no contract entailing SVA to royalties you can’t ask for them after the fact. He can have another interview and negotiate payment, but not after DVD sales and taping, the contracts are written before. The only reason I bring this up is because JKR mentioned SVA requested a lot of money for his interview, more than JKR was paid for her first 3 novels.

The poor quality everyone is discussing happened yesterday when JKR gave her testimony stating that he had copied 90% of her work, of which she cited to the judge. As I stated before, just because you cite a person’s work doesn’t mean you can publish their information to make a profit, it specifically states so on all research journals you read. Additionally, JKR is the owner of Harry Potter if she doesn’t want a book stating this is the world of Harry Potter than she has every right to deny them rights to use her book’s name in the title.

The fair rights issue is because it was an on-line document that JKR didn’t impede until SVA attempted to bring it to print for profit. As far as I know in a legal sense the laws have caught up with technology, so their not sure what to do with a companion book that was once available on-line, but is not recommended by the author of the original series and is copyrighted.

WB has already stated if they have a copy of the manuscript and get a say in what’s allowed to be printed, in essence used from JKR, there would be no issue. Additionally, JKR has already denied books to be printed previously, see yesterday’s leaky article of JKR’s testimony. And Amanda, here’s a wake up call if SVA gets his way whose to say JKR will even go through with writing her “Scottish Book.” On top of that you would purchase something that SVA ripped off not only JKR but the other fans as well, which contains information JKR herself says is false? I mean if you say yes to that it’s your own perogative, but just be careful what you are agreeing to.

To think more critically: perhaps you should read more about the Nazi regime, because none of this has to do with that. The fans coming together to ban a book is considered a protest and has been used multiple times, after all it is us SVA is planning on getting his money from.

Correction: [The fair rights issue is because it was an on-line document that JKR didn’t impede until SVA attempted to bring it to print for profit. As far as I know in a legal sense the laws haven’t caught up with technology, so they’re not sure what to do with a companion book that was once available on-line.] Also Elizabeth if you know anything about copyright laws can you fill us in? Because if the author states that sufficient quotation marks and citation were not used, information was falsified from the original document, and after so many citations are added when is it not breaking the law? I was under the impression if you didn’t cite correctly or have enough original material you were punishable under the law?

Either party, if they lose, will appeal. RDR may not have much money but they’re working with lawyers from Stanford, which has a pro bono copyright/fair use center. I hope this case does continue, that it does get appealed, and that it results in published opinions from the district court in new york and the 2nd circuit court of appeals. The fair use doctrine is totally vague, has been for years, and the only way a legal doctrine is ever made clear is if it gets litigated enough. So while you all may not like to see a lawsuit, it’s not a bad thing at least in some ways.

Jo won’t settle for anything less than this book not getting printed. If RDR, has any common sense they would withdraw. This case can only damage what reputation they have. Also, they must be a bit angry at SVA pointing the finger and blaming them for this situation, in court yesterday.

I understand the judge’s comments, on this being a case about the lawyers. Weren’t RDR lawyers taking this case because they want to change the definition of far use? But, the law is clearly on Jo’s side. This book clearly violates her copyright. It doesn’t even fit under the term “fair use” You just need to compare it to other published books, and you’ll clearly see it’s not.

@orwont:

You are completely misinterpreting the intellectual property law. If RDR wins, SVA CANNOT (and I also suspect would not even if he could) sue JKR based on “his copyright.” If he wins it is because the judge determined that the Lexicon is infringing, but it is acceptable under the fair use doctrine. Based on the judge’s statements about the case going either way, I think this is a possibility.

You also mention that JKR was forced into this process. She’s is the plaintiff so no one forced her to do anything. She initiated the legal action. Your concerns about plagiarism are also irrelevant because this case is about copyright.

Finally your assertions that RDR has no chance of winning and that the harsh court will wipe the floor with them go completely against what the judge actually said. I’ll post the quote as a reminder…

“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.”

I don’t see how you reached your conclusion that RDR has no chance when the judge clearly states the case could come out either way.

@NiGHTS:

I agree that it would be awful if JKR stopped writing as a result of this case, but that would be her choice, no the court’s. I hope it doesn’t come to that.

@Snape_n_Lily:

I agree that SVA is probably stressed out about the mess he is in. I disagree with your conclusion that it is bad for the fans if RDR wins. This argument is based on a confusion with the implied license argument and fair use. If RDR wins, it will be because the Lexicon is within the scope of fair use as the law stands. Additionally you state concerns about other companion books, but these things have been around for a long time. As fans I think we have an interest in a broad scope of the fair use doctrine.

@rotfang07:

I think there is no question that the book is infringing, but is it fair use? That’s the question and I don’t think there is a way you can reqork the book so that it does not infringe. So if it is published it will be published as an infringing work which is allowed under fair use.

SVA is only in breach of his contract if RDR loses. And if they do why would RDR sue him? If this $6500 figure is true, he won’t be able to pay the judgment with that and his librarian salary. They won’t be able to recover their costs. It is in the best interest of the parties to settle, but we’ll see if that happens.

And, by the way, in my legal opinion, RDR has a fair shot at winning this. In determining fair use, a court considers a number of factors, including how creative the copyrighted work is, whether the allegedly infringing work merely copies or is instead transformative somehow, whether the infringing work is commercial, how much work is actually copied, whether the copy supplants the market for the original. Here, some of these factors favor Jo, but some favor RDR. Jo’s work is very creative and deserves strong protection. But RDR hasn’t copied the books so much as it has compiled information from them. It has, however, probably compiled a lot of information. And yet can anyone seriously think that someone would buy RDR’s book and not buy Jo’s encyclopedia? The issue is not whether RDR’s book would do well, but rather whether it would harm the market for Jo’s book. And it’s really difficult to think that it would. And, of course, it’s problematic that RDR is clearly trying to profit.

Also, bear in mind that like this case, Jo could, if she wanted, seek to shut down all fan sites and all fan fiction. She doesn’t do so because she doesn’t want to. But she could. And if she tried to shut fan activity down, the fans would find themselves in the same position as RDR now – you’d have to argue that you’re not copying a lot, that it’s not hurting Jo, that you’re doing something transformative and not just copying, and you’re not doing it for commercial purposes. But could fan sites, even Leaky, win such a fight? Leaky may not be a business that sells goods and services, but they do have ads. Right now I see google ads below me for security guard services and real estate. Leaky is essentially trading off the harry potter name to get hits on its website and make money of such ads. Even though they’re not selling books for 25 bucks a pop, they’re still making money. Based on all this, i think it’s kind of funny that Leaky was so apt to cut ties with Steve. I think that Potter fans just get so obsessed and worshipful of Jo that they’re quick to totally side with her even though its contrary to their own interests.

AGAIN, in response to the commentary from the previous thread and now this one: I think people are misunderstanding everything. Back when he claimed that it was illegal and cautione dothers against publishing similar types of projects, it’s most likely because he assumed, and rightfully so, that it must be illegal. It may be that he planned on creating more commentary and patch up the misquotations and such but the publisher may have been like “no it’s fine, it’s legit, really”—I’m only ‘assuming’ ofcourse.

That clause is NOT unusual and suspicious, you silly people. I’m a freelance Illustrator and I deal with this every week. Most companies’ contracts DON’T include it so that they can cover themsleves from any legal trouble. It is up to the discretion of the independant contractor (writer, artist, etc.) to cross that section out and demand the opposite in a sidenote for the SECOND DRAFT of the contract. If you’re not stupid like 80% of peole who get into this sort of thing, you know you have the right to make negotiable changes to ANY contract before you get a final draft and then sign it. Proper smart contracts DO include this clause if you (and SHOULD) ask for it.

It remains the Publisher’s responsibility to act legally. Again I’m assuming on this but: It MAY be that one of the reasons RDR didn’t respond to any of the cease & desists and requests for plagiarism reviews was because they were maybe still in the process of modifying the content in order to not be plagiarist. Although most likely not.

Vander Ark HAS made some valid points: Rowling and WB and their respectful legal representatives WERE aware all these years of the Lexicon’s existence as WELL as the fact that it was obviously profiting SOME type of amount from its web ad revenue, and not only chose not to shut it down, but used it as well (not Rowling, but WB and EA did).

This case isn’t a slam dunk on either side. The judge is trying to tell them this. I hope they settle and Jo stops acting like such a prima donna. What’s she going to do if someone decides to write a scholarly concordance in a few years, say no because she wants to write one herself?