Advertisement

I have to also say that, whatever the outcome, this is one riveting saga since it begun in October and thanks to Melissa’s and Kristin’s journalism, and Leaky readers opinions, I have learnt so much. But at the same, I share the pain of Jo’s distress in all this (and poor Melissa too who seems to be affected by all this due to being implicitly involved somehow), and you know what, I’m beginning to feel a little sympathy (just a little mind you) for SVA too, despite what I think of him. This is looking painful for everyone.

Yes, Gobblydeduke, but is it only about how much it sells? JK feels betrayed. And someone stealing your blood, sweat and tears…

Thanks for the links, p.f.!

Professor Potter, even though this is a bench trial, it has shades of an oral argument to it.

I realize I might be speaking legalese here, so I’ll try to explain. There are many different types of court proceedings; people are most familiar with jury trials, because that is their chief exposure to the legal system. If you watch TV shows or movies about the law, the stories generally revolve around a jury trial, and, of course, citizens of the United States have a legal obligation to serve as jurors.

In a jury trial, the jurors are the finders of fact – that is, they are there to determine what, factually, happened. The judge is the finder of law – that is, he’s the one who chooses what law is applicable in the case. In a jury trial, the judge’s role is fairly limited. He is there to make preside over the trial, make evidentiary rulings, and instruct the jury on the law.

JKR/WB v. RDR is not a jury trial, it is a bench trial or court trial, in which the judge is both the finder of law and the finder of fact. The judge, not a jury, is the one who determines what, factually, happened, if any facts are in issue. A judge’s role is much more active in a bench trial, and judges will question the lawyers, parties, and witnesses in ways that they wouldn’t in a jury trial, because the judge is the one who has to understand everything. Frequently, in cases where there isn’t much of a factual dispute, and the case turns more on a question of law, the parties will choose to have a bench trial, because bench trials are faster, more efficient, and less costly than jury trials.

Often, there will be a case where there is no factual dispute at all, or the facts in dispute are so minor that the case wouldn’t turn on them. In such a case, the parties can stipulate to the important facts and ask the judge for a judgment as a matter of law: basically, they’re asking the judge for a verdict without having to go through a trial. Instead, they’ll present legal argument to the judge, citing the relevant statutory and case law. They’ll do this through briefs and often through oral argument. In an oral argument, both parties will have a set time frame – often 30 minutes – in which to make their arguments to the judge. During the argument, the judge will often interrupt the lawyers and ask them questions about their case. Frequently the questions are probing the weaknesses in the case, because the judge wants to see how the parties respond to his concerns.

When a case is appealed, there is no new trial before the appellate court. Instead, the advocates on each side will write briefs, and the appellate judges will decide the case based on the briefs. If it’s a particularly important case – usually a high-profile case dealing with a murky, unsettled area of the law – the appellate court will also hold an oral argument. So if you take a case all the way to the U.S. Supreme Court and are allowed to do oral argument, you will have nine justices, not just one, pummeling you with questions while you’re attempting to present your arguments. For that reason, the art of oral advocacy is a lot more about the ability to respond quickly and persuasively on your feet and anticipate the questions in advance than it is being able to give a pretty speech.

JKR/WB v. RDR is, as I said, technically a bench trial. But judges often treat bench trials the way they treat oral arguments – that is, as an opportunity to ask questions probing the weaknesses in each side’s case. The reason why the judge’s questions might seem like cross-examination to you, Professor Potter, is because in a sense, they are. :) The judge has to decide this case – but he’s doing the parties a favor by asking these questions. He’s giving them the opportunity to respond to his doubts, to let them see where his problems are, and to give them the chance to respond to those before he has to make a decision. Likely he asked RDR’s witnesses similar questions as well, and those questions just didn’t make it into the news articles. But it’s not a sign of hostility, and it’s not indicative of which way the judge will rule. It’s indicative only of what he thinks the murkier areas of this case are, and he was giving the parties a chance to respond to his concerns.

Hope that makes sense. :)

Aw, thank you. :)

gobblydeduke. You certainly have a point regards to this case being a big exposure for the Lexicon and likely to result in bigger sales if RDR win. Remember the Da Vinci Code case. 2 authors of a non fictional book about the search for the truth in Jesus/Mary Magdalene history (sorry forgot the book was called) took Dan Browne to court for plagiarising or copyright infringement. It was a ridiculous case for them to sue Dan Brown, they had almost no solid evidence and their book was researching facts which cant be copyright in the first place. So the judge came to an easy conclusion, whereby Dan Browne was cleared. But guess what? even though they loss the case and looked like idiots, there was a massive surge in sales in their factual book, so the 2 authors were laughing all the way to the bank

So RDR/SVA could reap rewards in the same way except, if they lose, there is no book to make profit from plus they have to cough up court fees.

Thanks to Elizabeth for giving us an inside look of the law. You have done so without sounding patronising as others have been in other posts. Thanks ; )

Yes the will def give alot of publicity to the Lexicon book, if RDR wins and are allowed to publish. I’m sure it won’t be true fans like the rest of us who will buy it, but, other’s who have heard about through the media. I just hope Jo win’s, and I think she should win. This is nothing but a copyright violation.

I think that the judge is right about how murky of an area this part of the law is and how it could go either way, but many fans have decided for themselves that it shouldn’t be published. It’s seems simple to us because I myself can’t understand how someone who calls themselves a true fan would do something that the author specifically asked you not to do. Even tho this has drawn a lot of media attention, I have hope that it won’t lead to high sales of this “book”. If this “book” does end up getting published I will definitely not buy it and I will do anything within my power to organize a massive boycott so any true Potter fan does not buy it either.

Who is going to be “the winner” here? SVA has shown himself to be duplicitous , RDR have come across as utterly hopeless and Jo Rowling has been destroyed in comments in the mainstream press. I would imagine all the parties want ot bury themselves under their bedcovers and never appear again.

Most of the news articles are terribly incomplete or sensational. That stupid Telegraph headline! — the judge didn’t say the books were gibberish (which makes it sound like he was saying they’re rubbish), but that, to some readers certain words are gibberish. Or something.

Oh, Melissa — won’t you reconsider writing something up for us? Maybe you could set up a separate page with some sort of discaimer that it’s personal and not the view of Leaky Cauldron? I guess not really, huh?

This whole thing is just sad. My heart goes out to Jo. {{{hugs for Jo}}}}

Melissa, my heart goes out to you too. {{{hugs for Melissa}}} Treat yourself at a spa then try to relax at home with Moochka on your lap and a cup of hot tea. Purring cats are great way to relieve stress. :o) ^..

Melissa’s involvement consisted of her providing an email to JKR’s side in which SVA expressed regrets in taking the deal with RDR books. That’s it. My sources that were at the trial indicate that is all of her involvement, and that further the email was not admitted into evidence.

To be clear on what happened (and nothing else, because anonymouse was not there, by his/her admission, and the only parts of it I’m commenting on are addressed below):

The email was indeed not admitted into evidence in its entirety, but the conversation (which included reading of the relevant bit) remained. In other words: The part that mattered stayed and the rest stayed private, won’t become a public exhibit. And I am glad for that.

The e-mail was read directly after SVA said he had not felt RDR had lied or misled him; the e-mail, from January, said the direct opposite.

Thank you to all who have been so kind.

I find this very disgraceful. Rowling could of easily asked the publisher and SVA for 10% of the profits that is from the book. And did any of you notice that Scholastic and Bloomsbury aren’t in the fight? You would think that these two publishers of the books would be in this trial as well. Considering that their the ones that published the Potter series.

I think Rowling has honestly fell off the edge of sanity and having her feet on the ground. I have been a fan of her books since I was 14 and now 22. I do feel betrayed by her. I feel that this book was meant for the fans and written by the fans. It feels like she’s going against her fan base that got her where she is not. She should be delighted that someone is that devoted to her work, but Rowling ended up bringing them to court.

I read in my local paper that she is having second thoughts on encouraging websites (like the Leaky Cauldron) that are devoted to her books. My point is…you don’t just go out and sue your fans. And there are also other books similar to this one…..And yet I remember she didn’t sue them. Rowling also sued a small town in India because they had a model that was from her books. What? I for one will go out and buy this book just cause to make a point.

To be clear on what happened (and nothing else, because anonymouse was not there, by his/her admission, and the only parts of it I’m commenting on are addressed below):

Thank you to all who have been so kind. Posted by Melissa on April 17, 2008 @ 09:00 PM

Melissa, I understand and appreciate if you do not want to answer this, or can’t answer this, but did the email from SVA to you come up in discovery of papers or did you provide it to JKR/WB’s legal team of your own action?

I think what we are seeing here is a judge who is very interested in the specifics surrounding a world that for some who are not fans of fantasy is very hard to navigate. I think this bodes well for Jo and WB. I believe that in the end the intention of the scottish book will be the deciding factor. In the case there are a couple of truths that we as the public eye will never see. We will never see a contextual manuscript of the trial. We may get snippets here and there but we may never know exactly what is said, how it is said, and why it was said. If Jo loses this case it will be a tragedy, but in reality it will not be a loss to fans or to Jo. Jo has done very well with her career and will continue to. The Scottish Book will still be a best seller and will ultimately be purchased by fans of the series and new fans alike.

Believe in justice and in fairness. But to paraphrase a great author other than jo…over love, money, fame, power, and fairness, give me truth. And as Arthur said in the Order movie…”Truth will out”

Be courageous and passionate in your fandom, but also be intelligent. When the case plays out, if Jo loses then we can bash judges and speak opinions, but until then we don’t know what it will do.

It sounds like he is close to ruling in favor of SVA, but could change his mind. He recognizes that however he rules, it will be appealed and more than likely, given the complex nature of the case and conflicting case law, end up in the Supreme Court. In that case, both sides lose since the costs of litigation would far outstrip any procedes made by both JKR and SVA, even if SVA wins and JKR goes ahead with the Scottish Book.

After the trial, JKR offered an olive branch that if SVA improves the book, and adds some content, she would be willing to drop the suit. SVA and RDR would be idiots to pass this up (although that is a possibility). These cases end up looking like a duck swimming on a pond: Nothing happening on the surface, but furious work going on underneath just out of sight.

No matter who wins, it will be a very phyrric victory.

No Sam, not everybody is “dying” for the Scottish book. That is too extreme. I would buy it if I can afford it. I have a life outside the HP fandom and mouths to feed, my priorities.

I agree with basketcase. As I’ve said before, how much loyalty does the queen need her subjects to give her until she says “off with their heads” which is what queen JKR is doing now to one of her most loyal subjects. Where does loyalty end?

Let this book be publish and let the public/fans decide what to do with it – buy it, burn it, support it, ban it, boycott it. Respect the wisdom and intelligence of fans to know the difference and decide for themselves what to do with it. Let it see the light of day and give the public an option, a choice, to critique it, to express their own feelings about it. That’s called freedom. No to supression.

Just another thank you to Elizabeth. I’m constantly impressed by all the literate and knowledgable people on this website, and it has sure helped to have a lawyer/law student or two here, as well as Melissa with her journalist training.

Thanks, everyone . . .

And no, I dont think this is outright plagiarism, stealing, copyright infringement. Because if so, then there would be no case at all and RDR would go directly to jail. The reason why this is in the courts is because their is contention, there is reason to say that there has been no violation on copyright issues.

Tom; I’m willing to bet that ever since the judge urged them to settle Neil Blair (JKR’s [other] lawyer) and I’m assuming a WB lawyers and the RDR lawyers have been talking to see if some sort of settlement can be reached. Whether or not JKR and/or SVA and Rapoport agree to it is another story.

In the end, though, I think that the ruling could go either way – both sides have good points (impact on the market of the book likely minimal on JKR sales, it does expand on the books on one side, the amount of entries that are very similar if not exactly like JKR’s words in the lexicon on the other). As much as we, the fans, would like JKR’s emotional plea to play a factor (how the lawsuit is affecting her writing) I know I don’t like the idea of her not writing, or having difficulty writing, I don’t think it plays a part in whether or not the book infringes on her copyright. What is copied from her books in the Lexicon is.

Since I haven’t seen the lexicon book, I can’t comment on what is in it, but my first thought was how it would compare to Cliff Notes/ Coles Notes, which students have used for years, and are apparently legal, though after the suit, my guess would be that it doesn’t have the analysis that those aids do.

What I do find worrying is that JKR has been lenient about fan use of her work, which could work against her. If she and the WB are knowingly allowing the use of her characters in other publications and on the web, and I’m not sure if that sets a precedent, or not, or if it matters. Because if online encyclopedias won’t hurt sales, or already published ones won’t (which may not be complete but still are on the market), then I suppose a case could be made that, there are already all these online ones, and all these ones already in print, however they have not affected sales therefore this one won’t either. This is just speculation on my part though, since I don’t understand copyright law.

If this is not settled out of court, no matter which way the judge rules, there’s likely going to be an appeal, which will just drag this out.