The only way I can see a settlement is if RDR/SVA agree not to publish the Lexicon book at all, and to completely waive any notion of claiming copyright on that HP timeline, and JKR/WB agree not to accept or demand any financial damages on the case, because doing so would bankrupt both RDR and SVA.

If I were SVA, I’d be pushing hard for a settlement now, but I suspect that at this point, it’s out of his hands. Falzone and the rest from Stanford want a case to set precedent, so they likely see no reason to settle, and who knows how badly his relationship with RDR has been strained by all this, so a settlement may not be possible at all.

Of course, all of this could have been avoided if RDR and SVA had just acknowledged the C&D letters in the first place and had worked with JKR/WB from the start. It’s their own fault it’s gotten this far at all.

@budb, Fair Use is different in different countries, and copyright and all those related concepts are confusing enough in one country, so it’s no wonder people go round in circles discussing it! Coming from the UK, I just can’t see how what RDR are doing is Fair Use. I can’t see the justice in a win for RDR.

Most worryingly, if it does go RDR’s way I can see Jo not writing the Scottish Book. This will leave a major bad taste in her mouth and I know what I’d feel like in her place. Why should she bother putting what is bound to be a major effort in only for it to get plagiarized later on by some other greedy swine, or for SVA’s 2nd edition perhaps? I wouldn’t blame her if she turned around and said “right then, noone will ever know the full story behind HP” and to lock her notes up in a secure vault somewhere. Maybe that’s why SVA is upset by all of this because he realises that the real impact of his actions could be that we see no more original HP material!

As for what we fans can do if RDR wins and the Lexicon is published, a boycott is the answer.

I’m hearing emotional appeals in these comments to “burn” or “ban” the Lexicon, but we are not Nazis or Laura Mallory. We Harry Potter fans are not the kind of people who would deny anyone the right to publish or sell a book. That’s the kind of intellectual freedom that Jo Rowling has been championing in her books, and that she has always wanted for her writing.

If we have learned anything from reading Harry Potter, it is that banning or burning books is one of the first steps toward a fascist, totalitarian society. Think of all the times that the Harry Potter series itself has appeared on the Banned Books list. We don’t want to live in Voldemort’s world; we want to live in Harry’s world.

Therefore, if the judgment turns against Jo and WB and the Lexicon is permitted to be published, we can organize our considerable efforts on the internet and elsewhere to boycott the Lexicon and make one of publishing’s biggest flops. Don’t buy the book, and advise your fellow fans not to buy it.

In fact, before the Lexicon is published, go to the site, and copy and print out every page of it for your own use FOR FREE (because, let’s face it, folks, we all use the online Lexicon). I’m sure that once the Lexicon is published, the free site will be closed so that people would have to buy the book instead. DON’T BUY THE BOOK. COPY IT FOR FREE FROM THE WEBSITE NOW. MAY THE PRINTED LEXICON FILL UP THE “REMAINDERS” BINS AT BOOK STORES NATIONWIDE!

Why should we burn the books or destroy them? What’s the point of doing something like that? The best way to make sure a book is not successful is not to buy it, to completely ignore it. Resorting to acts such as destroying the books just adds some negative publicity, which may even cause people who don’t really care about Harry Potter to buy the books just out of curoisity. But if the book is completely shunned by the fans, then it’ll just come and go. I know it sounds so heartless and cruel, but if RDR and SVA win this case, there is just no way I’m going to buy the Lexicon book.

akemi42: 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.

Actually, Steve is no longer a librarian; he has moved to England has secured employment elsewhere and has expressed plans to further exploit the Lexicon by writing other books. There is a small potential for money making on Steve’s behalf, should RDR lose, they would go after {especially after Steve left them flapping in the wind yesterday}.

The contract he signed claims he had clear copyrights to what was in the proposed book and that was the impetus for the indemnification clause from RDR. That, of course, has been complete untruth on his part. Many people have contributed to the Lexicon site, it is a collective work and quite difficult to see who exactly contributed what or when.

A lot of people look at these pie charts (which are now in question considering that SVA got permission from EA to use some material from the wizarding cards) and think that if 84% or 90% was copied it’s not fair use.

Specifically for non-commercial use on the WEBSITE. Nowhere else. Steve secured that permission via Floo connections aka TLCs efforts.

underscore: That clause is NOT unusual and suspicious, you silly people. I’m a freelance Illustrator and I deal with this every week.

Silly people? Please do not try to pass of blatant untruths and then insult people for actually getting it right.

The firm I work at deals in Intellectual Property Law and 5% or less of the publishing contracts that are signed have that clause; in fact, the topic is rarely even broached by either parties as a likely scenario. It is a rare occasion indeed to have a publisher agree to something like that. The reason being is that publishers have a vested interest in protecting themselves from lawsuits. They rely upon the author’s word and ensure the author bears the brunt of legal challenges.

I’ve only had time to read through the first 2 pages of comments, but I have to say that I was actually delighted to see the thoughtfulness put into the comments; it’s a rare thing.

I’m a lawyer, and with only a cursory knowledge of the facts in this case, I had always thought that SVA would prevail, but now, I’m not so sure.

That said, to the person who wondered about transcripts: yes, they will be available unless one of the parties requests that they be kept confidential or the judge decides that on his own. If available, however, they won’t be free. I do have PACER access (online access to federal court documents), but it wouldn’t be ethical for me to retrieve them for you since it would cost my firm or a client money. I find it likely, however, that some news source would pull them and post them online (since they are, after all, a matter of public record).

Anonymoose, please. What you’re doing is WRONG. There may be posters reading and contributing to these pages who may be in a position to get their own writing material or freelance artwork published in the near future and you are miseducating them about THEIR RIGHTS by leading them to believe that contracts with one-sided IDEMNIFICATION CLAUSES should simply be accepted and signed without question—WHEN THEY SHOULD NOT. That is wrong and you should be ashamed of yourself.

An Idemnification Clause should always protect BOTH parties. Contracts always have them solely in the company’s favour, like you said, so that those who are ignorant and naive enough not to know better sign it without question. However this clause SHOULD always be altered at the request of the artist(s)/writer(s) so that said Idemnification Clause protects them instead, or both parties in some fari and balanced way.

From my experience as an illustrator, an IDEMNIFICATION CLAUSE is set in place to protect the client/company from work that violates someone else’s copyright.

BUT:

It can also be arranged differently in order to protect an artist, like myself, from prosecution resulting from use of client/company-supplied reference materials that violate someone else’s copyright (such as photographs, paintings, etc.).

I just wanted to make that ABSOLUTELY clear to everyone. And please do not believe just anyone whoe posts here and claims they are involved in law or dealing with contracts. Thank you.

It’s common practice for judges to encourage the parties to settle.

Is it possible to reach a settlement that would allow Steve to publish some form of the Lexicon? The idea is really intriguing to me.

Or will they simply throw enough money at Steve and RDR just to go away?

Anything can happen here and if it is settled, we may never know the details.

Whoo! Lots of things to respond to…I’ll try to do it in an orderly fashion.

pottershrink – thanks for letting me know. :)

k – usually if a case goes to trial, it is the fault of the lawyers, not the clients. With very few exceptions, clients have a practical or personal interest that they want to protect – they could care less about legal precedent or anything like that. If they can reach a settlement that would satisfy them, generally they prefer to settle, not only because paying a lawyer to do a trial is very very expensive, but also because trials are emotionally draining and unpredictable, with an uncertain outcome no matter how clear the law is. This is especially true if you’re doing a jury trial, because most jurors care more about doing what they think is right than following the letter of the law. But it is also true of bench trials. Judges are as human as jurors, and whatever they tell you, they’ll do their best to make their decision based on what they think is right, not on what the law says. They’re just sophisticated enough to make it sound like the law supports them. :)

I’m not a lawyer in this case, or the judge, so I don’t know what conversations have been held back in chambers. But if the judge did not think the lawyers were poorly representing their clients, he would not have so strongly and publicly rebuked them. My take on the situation is that the clients are quite emotionally invested in this case (I’ll touch on why later), and the lawyers have taken advantage of that by pushing the case to trial instead of having the “come to Jesus” talk with them. An example of a “come to Jesus” talk I would have with one of my officers: “Look, I know this guy is a jerk wife-beating gangbanger and that he belongs in jail for a very long time, but we’re never going to be able to prove that he did X. The evidence just isn’t there. We need to reduce the charge and settle.” A “come to Jesus” talk that my esteemed colleagues at the public defender’s office might have with their client is: “I know you don’t want to go to jail, but no jury is going to acquit you. If you accept responsibility and seem remorseful, the judge will probably give you a lighter sentence.” And a “come to Jesus” talk that the lawyers in this case could have had with their clients: “This case deals with a vague area of the law, and it’s very possible the other side will win. It’s better to settle and get something out of it than nothing at all.”

My guess is that JKR and WB’s lawyers are rather fond of their clients’ deep pockets and really saw no need to have a “come to Jesus” talk with them. That is – they’d be incompetent lawyers if they didn’t tell their clients about the risks associated with trial, but I doubt they’ve tried to convince their clients to settle, which is obviously what the judge would prefer.

On the other side, you have the lawyers who have an ideological reason for taking on a case. Always, always beware of lawyers who are taking on a case for the sake of principle. The movies make it sound heroic and glamorous, but the interest those lawyers are serving is usually their own – they want to have their name attached to a famous case or a famous cause, rather than serve their client well and faithfully, as they’re supposed to do.

Now, it’s always possible that the lawyers have told their clients all of the weaknesses in the case and urged settlement, and that the clients really are just intransigent. But I doubt that. I doubt that because if the judge, who is much closer to the case than we are, rebukes the lawyers on the record for the case being lawyer-driven, it means he believes the clients want to settle, or are at least willing to settle, and that the lawyers are pressing it forward for reasons of their own.

Make sense?

rol wrote: “Lastly, one thing I find a bit silly is the idea that the SVA/RDR book will impact JKR’s sales, either of the HP boks themselves or JKR’s encyclopedia. Let’s face it, the RDR book is dead in the water at this point, the vast majority of HP fans won’t buy it out of loyalty to JKR.”

You are making a HUGE assumption here, based on that fact that YOU are on a HP website, and YOU are following this case, and that YOU wouldnt buy based on a loyalty to JKR. And I’m there with ya… I would never buy the SVA book (and you may be right about the SVA book being dead in the water considering one article said that B&N and Borders, I think, have canceled orders for it). But we’re not a proper representative of the entire HP buying public.

There are MILLIONS of fans out there who dont visit these sites, and are most likely not aware of the lawsuit in any way… They are going to wander into a book store one day and see a display with a big ol’ title saying “Harry Potter Lexicon: the ultimate guide to blah blah blah”. And they are going to say “oh, cool” and buy a copy. Then 3 or 4 (or 10) years from now, when JKR’s comes out, and they see a display of books that says “Official Encyclopedia of HP”. They’re going to say “I already have that” and continue on.

And that’s not even mentioning all the moms and grandmoms who are buying a gift for Joey or Suzy and dont know anything about JKR or SVA or HP. They’re just buying what’s on display because they know their loved one loves HP.

It’s incredibly presumptive to think that everyone would stick to JKR’s version. SVA book would have an affect (however small) on The Scottish Book.

I wonder if either side had considered mediation. That is done, however, before or in lieu of a lawsuit.

...did anyone else read that and initially think that it said the judge was Robert PATTINSON instead of Patterson? That gave me a shock…. :D

I only wish to make one comment and then one point (yes, yes, I know that is unusual for me!).

Please remember that SVA is NOT a defendant in this case, and therefore is not a party to any settlement of THIS case. That would be taken up, if ever, between RDR and SVA regarding the contract and related issues, and possibly (but unlikely in my opinion) between SVA and JKR regarding future endeavours. In the latter regard, I suspect that any new works by SVA will have thoroughly and completely passed whatever tests of Fair Use (U.S.A.) or Fair Dealing (Canada) or whatever it is called in other jurisdictions. And to the various lawyers here… please correct me if I’ve erred on this.

As to the issue of contracts and standard clauses and rights, yes, it is true that there are any number of changes that can be attempted to be made to standard contract clauses and inclusions. I stress ATTEMPTED. For essentially innocuous changes, there is usually not a problem. However for such changes as would affect assignment of liability, a small minority of them ever see the light of day. So perhaps Anonymoose might have added to the posting something to the following effect….

“Notwithstanding that the vast majority of impactful changes do not pass muster, certainly anyone entering into a contract negotiation should ensure they try and get what they can, and should, to the extent possible, seek legal advice before signing on the dotted line!” And btw, I am NOT a lawyer, but I too deal with both contract issues and protection of intellectual property rights every single working day as a Risk Manager.

And as for underscore, perhaps YOU could have pointed out that attempting to secure such changes is obviously your right, but that they do NOT always go through, and that, in fact, YOUR experience with such negotiations is just that… your experience. You may also be including anecdotal evidence from your colleagues and a few, maybe many, others whose experience you have been told of or are familiar with, but that is a fracton of all such cases, and cannot be represented as the norm. My experience, which is, after all, only mine, is that almost NONE of the attempts to shift potential libility ever go through. To be sure, there are compromises reached (after all that is what negotiating is really all about.. trying to reach a mutually acceptable compromise).

At least in my humble opinion.

M

It does seems as though it’s RDR and not Steve who’s being the d*ck here.

From the testimony, it sounds as if RDR saw a chance to make a quick buck and sweet-talked Steve into doing the dirty work.

Well, I do hope that SVA and RDR back off. It isn’t his right, plain and simple. The fact that Jo let him keep the website in its present form displays her tolerance and support for people wanting to involve themselves in her work, but this just isn’t the same. This is for profit… and JKR’s encyclopedia wouldn’t even be for profit! It’d be for CHARITY.

The noble thing to do would be for RDR and SVA to back off and adhere to JKR’s wishes.