inspiralpenguin – thanks. One of these days, I’ll probably give up playing at being a lawyer, and go into teaching. There’s nothing I like to do better than shed a whole lot of light! :)

Mind you, I’m not sure this is quality light I’m shedding, because I’m way outside my area of expertise here. What I know about intellectual property comes from law school and studying for the bar, which is to say: not much. You learn so much more about an area of the law by practicing it.

Anyway, a general trend I’m noticing is that some people are treating plagiarism and copyright violations as if they’re the same thing. I’m sure others have addressed this before, but I think the point bears repeating.

Plagiarism is taking someone else’s work and representing it as your own. This can be a violation of copyright law, but it’s not the only violation of copyright law, and it’s not what SVA has done. SVA has never claimed to have authored the HP series. His argument is that there’s independent value in the way he’s arranged the material, not that the material is his own.

A copyright violation or infringement is distributing material that one does not have permission from the copyright holder to distribute. It’s a broader category than plagiarism in the sense that you don’t have to pass off work as your own in order to violate a copyright. If I opened my own publishing company and started selling my own copies of the HP books, it wouldn’t matter how prominently I displayed JKR’s name on there; I’d still be committing a copyright infringement. But copyright infringement is narrower than plagiarism in the sense that, vague as copyright law can seem sometime, it’s better-defined. Frankly, I think our society has gone off the deep end with plagiarism complaints. I remember reading some years back about a student at Harvard who got in trouble because a book she wrote lifted similar phrasing from other books. I don’t know a lot about the case and haven’t read any of the books at all, but I do know that many times in the past, I’ve written a phrase, only to realize, later on, that I’d unconsciously lifted the phrase from a book I’ve read. No intention to copy without attributing; no intention to pass language off as my own. I have a vivid memory; words stick in my mind, and to say that someone’s copied someone else, wrongly and intentionally, because some phrases appear to be the same or similar is a bit bizarre.

I think it makes a lot more sense to compare the two works as a whole rather than taking phrases out of context and setting them side by side. But maybe that’s just me. :)

One more point: I don’t know if the comment that SVA is not an official party to the action was aimed at me, but if it was, rest assured, I realize that. :) But to me, he’s not a party to the case in the same way that a victim in a criminal case isn’t a party. Criminal cases aren’t “Susie Jones, Battered Wife, Plaintiff, v. Stevie Jones, Defendant.” They’re “State v. Jones.” The victim, nonetheless, is an important player and the reason we’re there, and acting like SVA is not a player in this is, to me, the same as saying that the victim is not a party. Technically true – but too technical to be really true, even to my lawyer’s taste. SVA, not RDR, is the one who wrote the Lexicon; to me, evaluating whether the Lexicon is a copyright violation involves SVA, who produced the work, as much as RDR, who would distribute it.

I also should have said, in my evaluation of this case under the Fair Use Doctrine, that the nature of the copyrighted work is fictional, not a reference guide, since it’s the HP series that’s copyrighted. The reason factor 2 works in SVA’s favor is that his work is a reference guide, not a work of fiction; the two works aren’t meant to compete, and SVA is not trying to pass off the copyrighted work as his own.

I hate it when I leave half the argument in my head!

Too many people here are arguing from an emotional basis rather than a rational one. For example, earlier in the thread someone made the comment that SteveV copied 90% of the Lexicon from JKR’s books. That is patently absurd, that is absurd beyond reason or logic. I can only conclude that this person has never seen the Lexicon and has no idea what the word ‘copy’ means in any context.

Someone above is shouting “GOOD GRIEF!!!! JKR CREATED IT!” which in the context of the comment is irrational. JKR created the Harry Potter books, but SteveV created the Lexicon. It is wholly and completely his own work written in his own words, and for the record contains something like 30 analytical essays by SteveV.

Let us us an example from the Lexicon, go to the Encyclopedia of Spells, and look at the first entry under the Letter ‘A’ for ‘Accio’.

I see nothing in there that is a direct rip-off of JKR. The Lexicon defines a spell in a way that is implied by never truly explained in the books. It gives a definition, reference to where it can be found in the books, and how it is used, but never is it presented in a format that is found in the books. It is conversation, discussional, and analytical, as it should be for a work like this.

The only word that come directly from JKR’s books, is the word ‘Accio’ itself. This does NOT constitute ‘ripping off’ JKR, but instead constitutes commonly publish and previously allowed ‘reference works’.

Next, what I’ve referenced from the Lexicon is NOT /FROM/ the books or interviews, it is /ABOUT/ the books or interviews written in SteveV’s own words. He does not copy or quote anything from anywhere beyond normal ‘fair use’.

The /From/ and /About/ aspect is at the heart of the matter. You say he doesn’t add critical, philosophical, spiritual, etc commentary to his book, well neither does the World Book Encyclopedia. It, like the Lexicon, is simply a compilation of data arranged in a structured and ordered way that is NOT available from any other source. There is nothing in the example referenced that come DIRECTLY from books or interviews. It is unique and originally written information.

Consider this, the average college student, and even high school student must draw on existing knowledge, that is, existing written works, to write essays and term papers. They are allowed to take information from other written works and include them in their own, and this includes reference and statistical data, but they can’t directly quote their references beyond fair use. They must compile the data and information they collect into their own words, but that doesn’t change the fact that their own words are drawn from other sources.

Their use of other sources does not constitute infringement or copying of those other sources.

Once again, the assertion that SteveV ‘copied’ 90% of the Lexicon from JKR clearly and firmly says you don’t understand the definition of the word ‘copy’ in any context.

‘Reference works’ are allowed under ‘fair use’, and SteveV has a wholly and uniquely original body of work ABOUT the Harry Potter world, but not stolen from JKR.

That is why they are in court. To get a ruling on whether this is infringement, but the answer is far from clear. RDR and SteveV have a very real case supported by existing interpretations of the law. Where as Warner has unlimited money and power, and can drag this trial and the appeals out for decades. That is their only real advantage in this matter.

Personally, I’m hoping for a settlement similar to what I previously described. RDR gets their basic expenses paid and a small profit, they destroy the books or turn them over to Warner, JKR and SteveV join together for a common cause, and everyone is happy.

If things continue on the way they are, in the end, everyone but the fat-cats walk away miserable.

As much as I understand people’s emotional support of JKR, this isn’t matter of emotions or fan adoration, it is a matter of law and must be looked at objectively.

I honestly and truly hope for a benevolent settlement in this matter, a matter that has already gone much too far, and has divided fans in ways that are not productive.

I’ve got a question for all the legal eagles reading and posting – well it’s a two part question.

First, is it possible that one reason why the judge made the statement he made is because he doesn’t want to create new case law? Meaning, he would rather leave the ambiguity of this part of Fair Use to remain ambiguous rather than creating new case law with his ruling.

And second, further to that, I read in an earlier post that some considered it significant that he asked for a settlement to be ‘on the record’. In the US legal system, would such a settlement, if made on the record, become part of legal precedent?

@ Elizabeth, if I’m correct, it might have been my comment regarding SVA’s direct involvement vs. being an official (so to speak) participant. And no, it was not directed at you. I know that you are aware of the legality vs. the reality of the situation. I absolutely agree that notwithstanding SVA not being a named defendant, his involvement is central to the issues at hand.

My point was that when it comes to issues surrounding negotiated settlements, particularly in light of the indemnification clause in the SVA/RDR contract, and the fact that SVA is legally at least not a direct party, the issue of settlement can only be between the paintiffs and the defendants.

To be sure, SVA will be lurking somewhere in the minds of the negotiators but any actual settlement that he is a party too will be a separate settlement should there be a necessity … unless, of course, the litigants in this case agree to include him (assuming he wishes to be included).

So let me ask… by his not being a direct party to any case (i.e. as defendant or plaintiff) can’t he be / isn’t he excluded except by agreement, from any settlement activity related to that specific case?

Thanks for any clarification you may have and CERTAINLY for all the clarification to date. My kind of posting, for sure!!

M.

Medea Callous,

1) It’s possible – but I think it’s more likely that the judge thinks this is a really gray area, and that it would be better for both parties if they compromised rather than demand that he declare a clear-cut winner. If this comes down to a verdict, then either the Lexicon is a copyright infringement, or it isn’t – there can’t be any in-between. The judge probably believes that the fairer resolution would be a compromise settlement. In other words, I think he’s sympathetic to both sides, finds arguments from both sides compelling, and thinks having to hand one an absolute victory that will be challenged in appeals courts for years is going to make for a poor resolution to the case.

Also, this judge is a district judge. In the U.S. federal court system, there are basically 3 levels: the U.S. District Court, the U.S. Court of Appeals, and the U.S. Supreme Court. Though cases from the district court can be cited as legal precedent, that precedent isn’t really binding on other district courts until an appellate court adopts it.

So let’s say the judge rules that the Lexicon is fair use. JKR appeals to the Second Circuit Court of Appeals (which is the appellate court over the United States District Court for the Southern District of New York, which is hearing the case). The Second Circuit overturns the district judge, ruling that the Lexicon is not fair use. That would be considered more established precedent than a district court opinion, because the appellate court is the higher court.

But wait: it gets messier. Let’s say a similar case is preceding in my own, much-reviled circuit, the Ninth. The district court makes a ruling, and the case is appealed to the Ninth Circuit. The Ninth Circuit, being the hotbed of insanity that it is, issues a kooky opinion that is utterly contrary to the opinion of the Second Circuit, not to mention every other circuit court in the land.

What that means is that the binding law in the Second Circuit is utterly opposed to the binding law in the Ninth Circuit, even though it’s the same country, the same law, and technically the same court!

This situation happens a lot; it’s called a circuit split. When the circuits split on an important question of law, that’s pretty much a guarantee that the U.S. Supreme Court will agree to hear the case so that the law can be settled. It sounds like this judge thinks that such a split is possible, if it doesn’t already exist. The IP expert interviewed at the WSJ blog says that the case law is all over the map, which means the Supreme Court needs to step in soon. This case – high profile as it is – would be the perfect one to issue the opinion on. That’s probably why Stanford agreed to take the case on behalf of the defendants.

2) The settlement would not be binding precedent. A settlement is a voluntary resolution between both parties. For there to be a precedent, there would have to be a legal opinion issued by the judge, and it would have to be a “published” opinion (sometimes courts, for reasons utterly unknown to me, will refuse to publish their opinions so that those opinions can’t be relied upon for precedent).

The significance of the judge calling for a settlement on the record is the way in which he did it. Judges often pressure lawyers to settle a case. Sometimes (though not often), they’ll even do so in open court – i.e., on the record, rather than back in the judge’s chambers, where conversations are not recorded. What’s significant here is not only that the judge made an open, public call for the case to be settled, but that he basically trashed the lawyers by saying it’s a lawyer-driven case. He was rebuking the lawyers, implying that they’re driving the case forward for their own reasons, rather than serving their clients’ interests. Such a reprimand from the bench in open court is extremely rare.

To answer Medea Callous…

With respect to your first question, I think his comments are up for interpretation; however I don’t think he is afraid of creating new case law. This is a judge’s job. They use statutes and common law to make apply the law to new sets of facts. This case is landmark in a number of ways, but I don’t think the judge is “chickening out.” I think he recognizes it is an emotionally charged issue and that fair use is a fuzzy doctrine. He is trying to recommend the best course of action for both parties.

About the second question, my experience is in intellectual property transactions not litigation so I don’t know the answer about the significance of the statement being made “on the record.” If the settlement is agreed upon, the case will be dropped so it won’t be legal precedent because it was not litigated to completion. If negotiations continue and an agreement is not reached, comments or proposals made during settlement offer are inadmissible to show liability under the Federal Rules of Evidence. I am not a New York lawyer and don’t know the procedure they are applying, but I would guess it is similar.

Got it, Morton. :) I suspected you were talking about the settlement issue – I just wanted to make it clear to those who aren’t that familiar with the law that whether or not SVA is an actual party to it, his work in producing the Lexicon is of supreme importance to the question of whether it’s fair use, since it’s his use that’s being considered. :)

So let me ask… by his not being a direct party to any case (i.e. as defendant or plaintiff) can’t he be / isn’t he excluded except by agreement, from any settlement activity related to that specific case?

As for your question, Morton – yes. A settlement would most likely be between the named parties, although they would have the option of including him in it, if they wanted to.

If the decision is made that the Lexicon can be published, HP fans worldwide need to unite and urge a boycott of the book. I support Jo 100%.

ww

I can’t see this being settled unless RDR backs down. I’m sure Jo’s lawyers have their eye on the money involved but Jo seems to be genuinely hacked off at the content of the Lexicon and I really cannot see her backing down on that. To be honest, I think the judge is just not looking forward to the very awkward and possibly far reaching decision he’s going to have to make – either way, that he decides it, it’s going to cause major issues and if they settle out of court that goes away for him

Thanks for the replies. Just to be clear, I wasn’t asking if the fact that the judge made HIS request ‘on the record’ would affect the case precedent, but rather the fact that he asked that any settlement they came to be made ‘on the record’. Not sure, but it seems like some folks might have misunderstood me.

Thank you, Leaky, for covering the trial so comprehensively.

@ Think more critically! I do agree wholeheartedly, posting from a country in Europe where the Nazis burnt books, actually. “They who burn books burn people too.”

@ Elizabeth, lawyer and others with a legal background: Thank you for commenting. I have a legal background as well, though neither experience with US-law nor copyright law. Across the differences in legal culture I hear a dire warning in Judge Patterson’s words to both sides (judges around the world seem to act in a similar way when trying to propose settlements). The remark about advocates seems to be adressed more to the plaintiff’s side, the remark about the uncertainities of fair-use-case law might be adressed to both sides who are likely to appeal. Maybe, later on, he will express himself more clearly about the legal arguments in camera.

Quite unbelievable – witnesses in tears! What does the judge think about it? Courtroom histrionics? Over-emotionality? Pathetic? Authentic emotions?

Part-time, I am in the legal trade, part-time I am writer. The writer in me does not understand why JKR does not accept that you cannot control how other people read or comment your texts, and why she cannot let go of Harry. 17 years, ok, ok, but maybe there are less obsessive ways of dealing with one’s creations. Neither do I understand how she can claim that the documentation of unpublished material would be an encyclopedia. Let the seven books stand as they are, don’t rewrite them. Scholars of course would be keen on the unpublished things…

Medea,

The only real significance of putting a settlement on the record is that it’s easier for one party to take recourse if the other party violates the agreement. The record is basically proof of the terms of the agreement and the fact that the parties agreed to them.

sorry for my english, it should read ‘uncertainties’.