The BBC

Melissa,

That’s relieving to hear. Therein lies the danger of relying on media accounts to find out what’s going on in a trial. :)

I’ve brought part of this argument over from the Day Two comments thread because if still applies to some of the points raised here:

RDR is arguing Fair Use as the basis for the case to publish precisely because they have already conceded they have infringed (i.e. in layman’s terms stolen) JKR’s copyright. This is not disputed by anyone and has been publicly admitted by RDR (see Justia.com) RDR’s lawyers, and I think may have been mentioned in Falzone’s concluding remarks.

WB lawyers and people on the TLC Forums have gone over the Lexicon book using Justia.com and have shown 91% or more of the text has been lifted directly from the HP books and another 3% or more has been lifted directly from other reference books sometimes without any citation by SVA (I think this was also mentioned in court). The rest, roughly 4-5%, is (mainly infantile) commentary by SVA. SVA stated under oath he never cut and pasted from the books but another Forum member has an email in which SVA baldly says he did.

One section/factor of Fair Use does consider that permission be given by the copyright owner if anything above 3-10% of their work is used in derivative works (i.e. “the amount and substantiality of the portion taken”). This permission was never asked for nor was it given. It also demands that the amount of infringed copyright be taken into account when deciding if it falls under Fair Use. i.e. the quantity infringed is important and relevant in law.

It is true that the judge has hinted that given that Fair Use cases are decided on a case-by-case basis that the nature of the Lexicon may make this copyright infringement rule a lesser consideration in his final judgement because, as he hinted, the book may be useful and, also, not impinge unfairly on JKR’s other projects, so he may be inclined to admit it under Fair Use despite its gross infringement. If he does so he will have set a precedent that can then (and certainly will) be challenged in a superior court.

Then we have the objections to the emotional element in this case. I think if someone had stolen something precious from you and then tried to profit from it, after promising publicly and in writing that they would NOT do so you might become emotional too. The fans are emotional because some basic MORAL issues have arisen that have not been satisfactorily addressed:

1. If SVA says he is a fan why did he not stop the book when asked to by the author he himself says he admires and he calls a “genius”?

2. Why did SVA say in writing that it was illegal (May 2005) to make an encyclopaedia/lexicon and then proceed to do just that?

3. Why did he blame RDR for the court case when he could have pulled the book at any time?

4. Why did he tell TLC that he would have no problem dumping RDR if it came to a copyright infringement case and then argue in an interview that Rowling was making a “power grab” and that she was threatening fansites, wizard rock, and fanfiction?

5. Why did he indemnify himself at all against copyright infringement?

6. Why did he not admit that he has possibly taken copyright off all the fans that had contributed to the Lexicon and whose work he now hoped to profit from?

7. Why were none of the other authors of the Lexicon mentioned in the book version? Why were they not included in the contract to be remunerated?

8. Why was no effort made to contact the fans who had contributed to the Lexicon and whose work was then used in the book in order to acknowledge or compensate them?

9. Why did he chase after people who had reprinted passages from the Lexicon website threatening legal action against them for copyright theft?

SVA has yet to answer any of these questions satisfactorily, and these are only the tip of the iceberg. Including the fact that he almost certainly has no legal ownership, or copyright, over the Lexicon website itself. He could be challenged by any of the volunteers who have worked on/contributed to the site over both ownership and copyright. Not only has he infringed JKR’s copyright he almost certainly has to some degree done the same in relation to every contributor to the free fan-based Lexicon site, which RDR stated publicly formed the basis for the book. And, irony of ironies, as a result, he is almost certainly in breach of his contract with RDR as well.

rotfanf07, you’ve pretty much summed up I and many others arguements from this whole week.

I think the most important aspect is that there needs to be a ruling. When the law is unclear then clarification is needed. If it winds up in high courts all the way up to Supreme Court then so be it. And if they don’t like the way the courts have decided then they can write new law to set the rules and the courts will decide it those new laws are clear enough.

One could look at all the Star Trek related material, both official and unofficial and see what was fair use or not… Paramount tends to have a tight leash on it.

If JKR wins then she’ll be able to write her book. I don’t see her having any problems with fan-fiction or websites as they have been.

rotfang07 thanks for that great summary! You’ve cleared up some doubts I was having because I wasn’t impressed with the court testimonies on either side. Can you tell me how SVA would be in breach of his contract with RDR (your last sentence) with regard to other contributors?

I think what SVA seems to have done with regard to other HPL contributors makes it especially bad (besides what he’s done with Jo’s work) and I hope if RDR wins the others club together to sue. I would be absolutely hopping mad if I contributed something good to a website to find it was to be published later on without my consent and unacknowledged!

I’m still having difficulty with the notion that potential usefulness of a book should be a factor in any case of such gross infringement. An infringement this bad is just not ‘Fair Use’ in my opinion because it just isn’t ‘fair’, and how popular a work of literature is is irrelevant imo.

anne,

The usefulness of the book would come into play under the first prong of the fair use test, the nature of the use of the copyrighted work. That prong exists so that the judge may consider what purpose a work using the copyright serves, and if that purpose is different than the purpose of the copyrighted work itself. If the borrowing work serves a legitimate purpose (say, a scholarly analysis of a book that quotes passages from the book in order to support various points), then the use is more likely to be considered fair use. If the borrowing work does not really serve a legitimate purpose (like if I took Deathly Hallows, changed a few things, and published it under my own name), then it would not be fair use.

One of the things the judge must consider, then, is whether the Lexicon serves a different and legitimate purpose that justifies using copyrighted material. A book review serves a different and legitimate purpose than the book itself, an analytical article serves a different and legitimate purpose than the book itself. A reference guide might very well serve such a purpose.

That’s not the only factor the judge can or should consider, but it is an important one. That’s why the judge is considering it. But in considering it, the judge will also evaluate other important factors, such as prong 3 of the fair use test (what proportion of the copyrighted work is taken). I think this is the point that works most in JKR’s favor, because it sounds like a significant portion of the Lexicon uses JKR’s language almost verbatim.

how popular a work of literature is is irrelevant imo

How popular a work is comes into play under prong 4 of the fair use analysis – whether the work using copyrighted material will have an impact on the market performance of the copyrighted work. The reason this is part of the Fair Use Doctrine is that it goes to the heart of the policy behind copyright law – protecting writers so that others don’t profit more from their work than the writers themselves do. The more likely a potential copyright infringement is to have a negative impact on the writer’s ability to profit from her creation, the more likely a court is to rule that it’s not fair use. Again, this is not the only factor that courts consider, but again, it’s a legitimate and important one.

Hey Kristin the WSJ.com has a new post up here’s the link http://blogs.wsj.com/law/2008/04/18/final-for-now-reflections-on-the-harry-potter-trial/?mod=WSJBlog

rotfang07,

Thanks for that wonderful summary. There’s just a tiny distinction I want to make (we lawyers are obsessed about that sort of thing!):

RDR is arguing Fair Use as the basis for the case to publish precisely because they have already conceded they have infringed (i.e. in layman’s terms stolen) JKR’s copyright. This is not disputed by anyone and has been publicly admitted by RDR (see Justia.com) RDR’s lawyers, and I think may have been mentioned in Falzone’s concluding remarks.

My understanding of the Fair Use Doctrine (correct me if I’m wrong, other lawyers out there!) is that it’s an affirmative defense: basically, RDR is saying that SVA used copyrighted material in his work, but his use was fair use. When RDR concedes that, they are not conceding an infringement, they are merely conceding use. If they were conceding infringement, which is contrary to the law, there would be no need for a trial; they would have admitted liability. Merely using copyrighted work is not an infringement if it’s fair use. In some copyright cases, the argument is whether a copyrighted work was used at all; in this case, no one’s denying that copyrighted material was used, but the defense is arguing that the use was fair and therefore not an infringement.

It’s basically a copyright equivalent of self-defense. If, as a murder defendant, you are asserting the affirmative defense of self-defense, you are acknowledging that you killed someone, but you are not acknowledging that you murdered someone. Again, if you were, there would be no need for a trial.

Minor point, but like I said, we lawyers thrive on that sort of thing. :)

anne,

I also meant to respond to your question about the possiblity of copyrighting ideas, and then I posted too soon. :) I’m not a practitioner or an expert in copyright law, so I don’t know all the details. My understanding is that there has to be a tangible work in order for it to be copyrighted.

So – to go with the idea of the fashion designer – let’s say I come up with an idea for a dress, and I draw up fashion plates of what I have in mind. My competitor steals the fashion plates and rushes to complete the dress before I can get done with mine. That, I believe, would be a copyright violation, because I already made the work tangible by drawing up the fashion plates.

But if I merely had a dress idea floating about in my head, and mentioned to a friend that I thought I’d design a blue sheath for my spring fashion show, and then my competitor produced a blue sheath, I couldn’t sue her for stealing my idea. Having an idea, even talking about the idea, isn’t enough to establish a copyright, because copyrights are intended to protect actual works, not mere ideas. There are numerous policy justifications behind that rule, but I’ll only go into one here. Ideas are too general. Let’s say I want to copyright the idea “brave hero rescues beautiful princess from evil villain.” That basic plot covers everything from numerous Greek myths to Disney’s Aladdin to the Legend of Zelda. Lots of people have the same or similar ideas; it’s the expression of the idea that makes a work original, not the idea itself.

Thanks Elizabeth.

But they’re not only saying they stole her idea though. Because that IS a bit difficult. She also talks about the ‘crumbs’ of her ‘cake’ that they took and repackaged it, without adding any of their own ingredients.

I just hope the verdict’ll come soon.

Melissa:

Like so many others, I admire and appreciate your comprehensive and objective summaries.

I know it’s asking a lot, but I’d love to see you include the lawsuit and trial in your book. As painful as that might be for you, your perspective would be unique and, I believe, extremely valuable to everyone who cares about Ms. Rowling and her books. We need someone who can put it all – both sides – into the context of the wider Potter phenomenon, and I can’t imagine anyone who could do it better.

But they’re not only saying they stole her idea though. Because that IS a bit difficult. She also talks about the ‘crumbs’ of her ‘cake’ that they took and repackaged it, without adding any of their own ingredients.

Understood, emmy. :) I believe anne’s question was more of a general question about copyrights and whether they ever protect ideas instead of tangible works. My understanding of copyright law is that the answer is generally no.

The issue came up because, based on some media coverage and law blog coverage of the trial, I was under the impression that one of JKR/WB’s major arguments was that the Lexicon would be an unfair competitor to the Scottish Book. This troubled me, as a lawyer, because the law does not protect works that are not yet in creation. Melissa cleared up my misconception by saying that the Scottish Book was mentioned in passing, but the focus of the case was very much on the existing books and what the Lexicon took from them.

Admittedly, now I’m a little confused about why people are acting like this is such a pioneering case. It will still be a difficult decision, because any case relying on a totality-of-the-circumstances test, where the case law is all over the map, requires the judge to do a difficult balancing test, and he almost assuredly will be appealed regardless of who wins. But while the case is difficult, I don’t really see how it’s pioneering anymore. Earlier those arguments made sense to me, because it sounded like one of JKR/WB’s main arguments was that this was not only an infringement of already-existing works, but an infringement of a future work that would use the same information as the Lexicon (in addition to information that JKR herself only knows). Basically, it sounded like JKR was arguing that she had a copyright not just on the actual works, but on information within the works that she planned to use in a future work. It was an interesting idea, because JKR does have a copyright on the characters, events, and much of the information in her books. It was also a troubling idea, because it did sound like she was trying to take out a copyright on something that’s planned but not yet in existence.

That would have been a pioneering case, and an extremely difficult one for the judge to decide, because I don’t think he would have much guidance in established precedent. But if that’s what the arguments are – if the arguments are solely that the Lexicon exists on the already existing books – then the analysis will be a straightforward application of the Fair Use Doctrine. Factually difficult because of the nuances of the case, but not legally difficult, because the Fair Use Doctrine is already well-established in American law. A higher court might rule that the judge misapplies the Fair Use Doctrine, but this isn’t going to be a case that will result in new law.

But perhaps there’s some additional nuance that I’m missing. I’d’ve liked to see the trial. :)

[This is my fourth comment. My third was posted on April 17th 11:51 p.m. The first two were posted April 17th 3:26 a.m. and 3:57 p.m. respectively to the following article: http://www.the-leaky-cauldron.org/2008/4/17/jkr-wb-vs-rdr-books-trial-day-three-a-partial-settlement-reached-wsj-law-blogger-dan-slater-speaks-to-ip-expert]

Re: Comment posted by rotfang07 on April 18th, 2008 @ 9:44 a.m.

@ rotfang07 –

I agree in spirit and principle with the things that you have written in your post.

It’s rather rational and logical indeed. Then, there are others that are presenting a crisp Legal clarification to these commentaries, which is pretty refreshing, as well. Their views may not be consistent with my own, but as long as the Legal sources they are quoting are accurate, I’m glad to read them. However, as to all things Law, sometimes there is no real “right” answer no matter how much Legal authority you’ve cited; both sides could be more or less “right” or “wrong,” then it nevertheless boils down to who is more eloquent with their argument.

As for me, I’m fighting for Harry Potter. It feels a bit like the scene in Lord of the Rings where one is required to “speak Friend and enter,” only to encounter goblins seeping out of all points of the woodwork. While everyone should feel welcome here, it is rather hard to understand that anyone would not support anything, at least in this forum, that is in the best interest of Harry Potter, which includes supporting J. K. Rowling the author. That contrary position, honestly, is rather offensive to the hours and hours of commentary and news spent by fans through the years, reading books, and being audience to the Harry Potter series, J. K. Rowling, and fan sites. If you have already turned your back now, where does your argument lie? It certainly doesn’t belong at Hogwarts, although maybe Slytherin; it belongs in the sterile fictionless realm of the Federal Court.

@ Neil. Thanks.

@anne I’m no lawyer (thank G-d) but my understanding of Fair Use (which in this form is unique to the USA), is that it is a legal device to allow copyright infringement, or in strictly layman’s terms: stealing copyright against the author’s wishes for the greater good, hence, no doubt, the term “Fair”. The author has to just like it or lump it.

Originally one of its purposes was as an educational tool; i.e. to allow poor students, for example, to study an author’s work from a copied page. But politics has recently intervened and RDR, who has links to liberal-left organisations and issues on his site, has linked up with associates from the Stanford Fair Use Project (I think) to attempt to expand Fair Use parameters.

The idea is that authors should not have ownership rights over their work but only minimal rights such as the right to sell individual copies of their work, anything else should be fair game. It is also a way of attacking corporations that the Fair Use groups have explicitly stated they are against on principle. The irony is that JKR is identified with the liberal-left in the UK (Amnesty International; Human Rights abuses and causes etc).

Rowling is a real target for them because of her association with WB. If they can defeat a corporation and a rich author they will have scored a double whammy for their cause.

SVA has just got caught up in it for his own reasons, which as he testified in court have more to do with “recognition” from his idol JKR. He got what he wanted: JKR told him as he stood at the back of the court she had no problem with his publishing his book but she pleaded with him (“please”) don’t use so much of my work to do it. In other words JKR wants him to work at creating an original book and not to just cut and paste so that 91% is taken directly from her 9 books.

The judge hinted, as I said, that he could make a case under Fair Use because it is such a grey area of law. He could argue that the 91% of essentially cut and pasting is necessary for the type of book SVA has made, but that this would be a unique case, and any decision he made may not apply to other books in future Fair Use cases. He was essentially telling the parties to settle, he wasn’t just exposing the weakness of JKR’s case. His mention of Bleak House was a direct reference to SVA’s position in my view, and his rebuke to the lawyers that they were not serving the best interests of their clients was a direct attack on the Stanford lawyers, as well as a strong hint to Celani to not be tempted by WB’s apparently bottomless coffers, and to settle.

As to SVA’s being in breach of his contract with RDR, a copy is apparently available in Justia.com, the contract explicitly states that he as the author of the book is liable if he knows he has infringed copyright. We know SVA has explicitly and in writing stated that he is well versed in copyright law and that he has given advice to others about it. Hence his May 2005 statement it was “illegal” to print a Lexicon in the format he had chosen i.e. essentially a cut and paste job.

But, Fair Use is now in play and it is such a grey area of law that the judge could decide anything he wanted as long as he made a good case for it based on legal technicalities that are gibberish to the layman but make perfect sense in Lega-Land. It is vital to grasp that the law is not set up for the layman to understand, nor is it concerned with justice or common sense. To put it crudely the law stands and falls on its own rules and merits. The fact that no one outside the law can understand it speaks volumes for the mess we as citizens have allowed ourselves to get into, never mind poor JKR and SVA.

In essence we (i.e. mainly in the West) have allowed lawyers to have a monopoly over the law. We cannot change it without the lawyers’ consent, and, to make matters worse, a huge disproportion of legislators are also lawyers. So justice for Jo is as likely as it is unlikely. It is in essence Russian roulette with a handful of lawyers dictating the outcome. What should be a system to serve the community is to the layman an incomprehensible maze that serves lawyers first and last. The first thing an honest lawyer tells you is never to go to law if you can avoid it, and, thank goodness, that is precisely what the judge is suggesting in this case: to settle. Better that than a crapshoot.