The BBC

I’m reading this and seeing a lot of comments in the vein of “SVA is evil” and “Poor JKR”. That and “SVA wants to make a profit, how horrible.”

I’m having a hard time with a lot of these comments, because they make this a black and white situation, which it is not.

First: I found it interesting that SVA had to be approached by RDR to publish his work, and that SVA first made sure they would protect him against copyright infringement. That says to me that he was pretty certain he really shouldn’t be publishing at all, but RDR insisted otherwise.

Because it’s so very easy to dismiss the concept of making a profit when the possibility isn’t there for yourself. The fact remains that SVA put in – on an unpaid basis over many years – a resource that was good enough for JKR herself to praise and admit she used herself.

While I’m really not 100% sure where I come down on this (if SVA is actually quoting huge swaths of book in his published version, that is pushing Fair Use quit a bit – I’m friends with too many intellectual property lawyers to let that slide), this is hypocritical of JKR. Especially if SVA’s claim of WB using his timeline verbatim on the DVD’s without his permission is true. His unique assembly of data from JKR’s books – something she does not provide herself – is actually his intellectual property. He took the time to create a guide to the world she created – that took time and energy on his part. If used on the DVD’s – of which I’m sure she sees some of the profits – well, she and WB are profiting the tiniest bit off of his work.

The temptation to recoup some money for his efforts is/was probably large, and SVA is only human. If a publisher convinced him he wasn’t violating copyright law, and he’s had the implicit support of JKR over the years…well, to put it bluntly, talk is cheap. Declaring you her favorite Harry Potter site of the Month on her site is nice, but I’m guessing that fact doesn’t pay the hosting bill. And when you reach 50 (as some of you have pointed out), labor of love vs. paying the bills is a question that becomes a bit more important.

Also, I’m curious – Melissa – you are writing a book about your experiences within the fandom of Harry Potter, yes? So in a sense, aren’t you also profiting off of JKR’s words, albeit indirectly?

Let me make this perfectly clear: I’m not trying to be mean or dismissive of your writing talents, as I understand you are a freelance writer, and probably more qualified in general than SVA to write a book. Indeed, over the years, the high quality of the posts on this site have shown you are an excellent writer. And I really like seeing excellent writers get book contracts – there’s so much horribly written garbage out there right now.

But did you write a book and shop it around? Or did Simon and Schuster approach you and ask you to write the book? If it was the latter, your situation is not too far removed from SVA’s. A publisher asked you write about your knowledge of the Harry Potter universe, based on your stewardship of a well-known Harry Potter fan site. This site differs in that you do a lot of event reporting, true, but there’s a lot of your personal experience in here as well…which I’m guessing makes it into the book. Even though you wrote it for TLC originally.

I’m guessing what I’m trying to say here is that perhaps the fandom should cut SVA a little bit of slack, and stop thinking JKR is completely in the right. We’re all human and all fallible.

JKR has her own admitted admiration for SVA’s work on record. To turn around and actively damage one of the people who probably helped increase her popularity through his efforts and fandom? I’m sorry – I don’t find that admirable. Much like I don’t find her continuing lawsuit against the paparazzi admirable either (I realize the fame she didn’t seek must be trying to her and I think paparazzi are scum, but Edinburgh is not her private, walled city, and this is how modern celebrity works in an open society, regrettably). No matter your achievements, wealth, power or relative goodness, you cannot create a world of your own making – you must share it with the others around you as best you can.

Because let’s face it – as others have noted, if the HPL is published in book form, is that going to stop you from buying her “Scottish Book” down the road? Most likely not.

If anything, this trial has meant that people who may never have heard of the book may now buy it. So even if hard-core JKR supporters don’t buy it, that may not hurt its sales significantly (something I’m willing to wager RDR knows). By giving this book more attention than any press campaign by RDR would have brought to it, she is giving it a ton of free, GLOBAL publicity. If she loses and the book does sell well, WB and JKR really only have themselves to blame.

Had she and WB simply ignored the book, how many sales would it probably have accrued? I think the highest Amazon sales rank any Harry Potter companion book remotely similar to this is something like 29,000 – most are in the 100,00++ category. These are hardly a books jumping off the shelves.

That RDR appeared to not play by the rules shows a lapse in judge of character for SVA – he could have not followed their direction and decided not to publish, but the inertia of the project may have clouded his judgement. And I think many of us have made mistakes we’d absolutely, positively adore to take back. We just didn’t have to have them displayed and reported on and commented on by half the globe.

Personally, I would say RDR is the bad guy here. And the only “winners” are the lawyers.

It should not be relevant if the judge approves of the Harry Potter books or if he finds Jos books are overly successful or whatever he thinks of her writing as this trial is about violation against copyright law or not. As a writer I can only hope that Jo wins this case because if she doesn’t everyone can steal everybody else’s intellectual property for personal gain without being punished.

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.

Copperhead, the dean of my law school liked to say that the most difficult cases aren’t matters between right and wrong, they’re matters between right and right. Most people can see the difference between obvious right and obvious wrong and act accordingly. It becomes more difficult when two things that are right come into conflict. Essentially, right vs. right is a lot more difficult than right vs. wrong.

The Fair Use Doctrine may appear to belong to copyright law, but its very heart and spirit lies in the First Amendment guarantee of the right to free speech. You have a right to write and publish a book, and you, as a creator, have the right to profit from your creation. But I, as a citizen, have a right to speak without government interference or reprisal – and that includes the right to speak about your book. Or to write about it. To say it’s sublime, or to say it’s utter trash not worthy of the public. I have the right to study it, evaluate it, examine it – and share my findings with the public. The Fair Use Doctrine is meant to protect such legitimate speech and activities, and the reason the law is vague and murky is because Congress can’t possibly anticipate every case that copyright vs. free speech will come into conflict. So Congress has given judges guidelines of what factors they should consider, and then left it to the judges to do what it is they’re supposed to do – judge.

People are cynical about the legal system, and I don’t blame them; it has deep flaws, and the media love to talk about them. Nevertheless, I have never met a judge who bases his decision on which party is more eloquent. Such a person would not be qualified to be a judge. Judges can take numerous things into account when making a decision, including:

1) What the statute says; 2) What any controlling case law (that is, case law dealing directly with the point at issue) says; 3) What related case law (not directly on point, but analagous in some way) says; 4) What Congress intended by adopting the statute (this means going back through congressional records to attempt to glean the intent of Congress); 5) What the consequences of the judge’s ruling would be – for the parties, for future litigants, and for society; 6) Academic opinion of the law, if the law is, as in this case, murky and unsettled; 7) What the judge himself thinks is right.

Eloquence in lawyers comes in handy, no doubt about it – but only in the sense that eloquent lawyers clearly convey compelling arguments to the judge. No judge worthy of the title would ever base his opinion on the fact that one party has a better lawyer than the other. It’s very common for very good lawyers to lose to lesser lawyers. Judges are a lot less susceptible to eloquent lawyers than jurors are, because judges see eloquent lawyers everyday. You might say that judges are immune to them. :)

In close cases, what it more often than not boils down to is 1) what the judge thinks is most fair under the circumstances, and 2) what the judge thinks would be the fairest rule for society. The latter is always an issue, because the United States is a common law system, and courts are bound to follow established precedent.

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.

rotfang07, this isn’t entirely fair. Every profession has its shibboleths. We have to communicate ideas in shorthand because it would take too long to describe things in layman’s terms every time I’m in court just so people who happen to be there for the day may or may not understand. If I say “OR” or “res ipsa” to a judge, he’s going to understand exactly what I mean, and it saves us a lot of time. There are days when I have a hundred hearings. Those days are pretty typical. It makes no more sense for the judge and me to talk to each other in layman’s terms, which would take far longer, than it would make for doctors performing surgery to talk to each other in layman’s terms when barking out their medicalese to each other achieves the same purpose more quickly and efficiently.

Now, when professionals start talking to laymen and dropping in their terms of art, either expecting the laymen to understand or trying to show off, that’s boorish, rude, and condescending. But on motion day, when I have 20 criminals in custody on bond reduction motions and sixty more defendants in the gallery waiting to be sentenced, there’s absolutely no need to say, “I object to releasing the defendant on his own recognizance” for all 20 when saying, “No OR” will not only get my point across but save everyone time.

And while our legal system has its faults, it’s not because the law is not concerned with justice or common sense. It’s not because judges and legislators are not concerend with justice or common sense. It’s because judges and legislators have to take far, far more things into account than whether J.K. Rowling is a nice lady. Judges and legislators have to try to draft and interpret general laws to deal with numerous specific situations, many involving circumstances unforeseen at the time the law is adopted. Even the laws that can seem extremely absurd or just nitpicky were at least adopted with good intentions in mind, and usually are a lot more important than they appear to the public. If you get a ticket for driving without insurance, you might think that’s stupid and nitpicky and wrong. I doubt you would feel that way if you, while walking on the street, were plowed into by an uninsured driver and paralyzed for life.

@ Chasmosaur I think you’ve accidentally hit the nail on the head as to what makes SVA’s position untenable and Melissa’s position replete with integrity.

Everything SVA has done has been wholly based on rearranging Jo Rowling’s fictional furniture (to paraphrase Scott Fitzgerald). The whole argument has been about SVA metaphorically cutting and pasting his book from JKR’s fictional world.

All everyone is asking is that SVA write an original book. He COULD have done so but CHOSE not to. We have all been asking: Why? You conveniently forget that the Lexicon IS NOT SVA’s. IT WAS WRITTEN, ORGANISED, DESIGNED, AND CORRECTED BY HUNDREDS OF FANS AS A FREE-USE SITE FOR FANS TO HAVE FUN ON AND TO EXPRESS THEMSELVES IN ORIGINAL WORKS SUCH AS FAN ART, ESSAYS, AND FOR QUICK REFERENCE.

SVA does not own the copyright to any of the hundreds if not thousands of corrections and amendments that make up the A-Z section of the Lexicon that SVA turned into a book for profit. It is not SVA’s work on 2 levels: 1. it is all JKR’s work. 2. it is the fan’s and volunteers work, as well as Steve’s.

Melissa has written a book that is 100% her own work. There is no plagiarism or copyright infringement because there was never any need, it is based on old-fashioned journalism: research, note taking, interviews, and hanging out with the fandom, as well as a hell of a lot of travelling. Don’t worry, I am not making a case for Melissa Martyrdom or Sainthood, I know perfectly well the lady concerned is more than capable of partying during the arduous process that is the making of Harry a History.

JKR was explicit she felt she had to fight this case on principle because the book is dross and grossly infringing as it stands at the moment. But she said in court she is happy to accept any book published by SVA as long as he made the effort to write an original work and did not essentially cut and paste 91% of her 9 books. She attempted to negotiate but RDR and SVA blocked all advances unless WB were prepared to cough up more money than JKR received for her first 3 books for his precious copyright infringing Timeline posted on the copyright infringing Lexicon free use fan site which SVA does not own or have copyrights over and from which he has stolen the free fan contributions to line his own pocket !!!!

RDR we know has his own political and financial agenda. SVA has his own personal recognition and financial agenda. I think its evens in the amorality stakes (see my 09.44AM post for details of SVA’s tenuous position).

As for Melissa her book is about the fans, for the fans, out of love for the fandom, and, tellingly, that love and enthusiasm is reciprocated.

Rotfang -

Sorry – I hope I didn’t mean to say that Melissa’s situation is untenable. I believe quite the opposite. I was just pondering that if she was approached by a publisher to write a book based on her experience with the web site – as opposed to writing one and getting it published under her own efforts (I honestly have no idea which one it is) – then the situations have the same broad base – someone with a vested interest in profiting off of their Harry Potter experience asked them to create a publishable work that the HP fan-base would mostly likely purchase. The details are obviously quite different.

As for the HPL – I was not under the impression that it was purely written by SVA, much as this site is not wholly written by Melissa. There are contributors to both sites. However, as I understand it, he did create it, still does much of the writing, and is still the steward. Is that not correct? Also, he obviously cannot cram all of the HPL in one volume – at a full sale price of $24.95, I’m thinking he’s going to do some very heavy editing and take selections. (There is a cost ratio between publication and point of sale price tag.)

Is the actual manuscript content known to anyone outside of RDR and WB? Or is everyone just assuming the worst? (These are honest questions, not snarky ones…)

sigh so tired, forgive me. I’ve been sick with a norovirus this week.

I meant to say in the first sentence that I hope that it didn’t come across that I thought Melissa’s situation was untenable. Typos, typos, typos.

Rotfang, from what I’ve gathered, RDR’s publishing list (mostly his own work) is not centered on a political ideology (travel books, etc).

RDR just happened to read a profile about SVA and the Lexicon website that his local newspaper printed during the weeks building up to release of DH and thought: Hot damn. A Lexicon out for Christmas will be a goldmine! Must contact this chap.

Although he (and SVA) addressed fair use in SVA’s contract, RDR didn’t bother getting a lawyer (besides Cousin Vinnie) until after the suit was filed against him. Only then did he contact Stanford Fair Use (or did Stanford contact him?) and start his “Rights for Writers” (or whatever he calls it and feature Fair Use Manifestos on his home-page.

IMO there’s a reason why the guy doesn’t get much good press, even in articles that favor his case. He’s a sleazeball whose original scheme didn’t work out, but he’s going to hang on for the ride.

IMHO.

@Elizabeth Sorry Elizabeth, we see the world through our own experiences. I’m in my 6th decade on the planet, have worked in roughly 20 professions in 3 countries and speak 3 languages. In none of those professions, in none of those countries using any of those languages did I ever meet a single individual who had anything nice to say about the law or the legal profession.

The examples you mention are not what I was addressing. The opacity of the law, and the monopoly/closed shop of the legal fraternity, were the main issues I was concerned with as they applied to Fair Use and its incomprehensibility in common sense or layman’s understanding.

I repeat, it’s a crapshoot, which is why all honest lawyers’ first words to a client are: try anything and everything else before you get involved with the legal system. That is why I could tell that the judge in this case is honest. He repeatedly advised: settle. The law is a “Bleak House”.

The only other profession I have experienced that advises its participants to avoid it at all costs is soldiering. And, even then, there is always the adrenalin rush before you ascend to meet your Maker or get wheeled into the operating room to say au revoir to familiar parts of one’s all too precious anatomy. Actually that’s not a bad metaphor for the law: Death and Injury At Your Service (a tad harsh you might imagine unless you have been the victim of the legal system of course, in which case it is no where near harsh enough).

@Chasmosaur Yes we have all been reading the Lexicon book via Justia.com and there are dozens of posts citing examples in the Forum on the case. That is how everyone knows the figure of 91% essential cut and pasting is correct. It mind numbingly parrots the books and offers no insights, analysis, or commentary of any kind, unless you think the occasional childish aside passes muster of course. That is not to say it cannot be defined as useful in some way; I have no doubt it is. That is the basis in fact for the judge saying there might be a Fair Use case here.

Again, the point about Melissa is misplaced. Melissa, in order to do what SVA has done, would have to copy and paste chunks of the TLC site that referred to and solely quoted JKR’s 9 books to have produced an equivalent book.

And, Melissa would have to have avoided mentioning any of the contributors to TLC, take their contributions without permission, remuneration, or acknowledgement, and do it for profit. Instead, Melissa left the confines of TLC, went out into the REAL world, and did the spadework necessary to write an original work in HER OWN WORDS. No cut and pastes, no stealing, no dissembling, no hypocrisy, no plagiarism. One will hear only Melissa’s twitterings in between those of the fans in her book; thank goodness, as Melissa’s twitterings are worth listening to.

PS @ desertwind davidenglish on the Forum covering the case posted a kind of chart linking RDR to various liberal left publications and organisations from when he worked as a jouno back in the 70s and 80s I think, maybe later. That’s how he knew all the Stanford crowd from when he lived and worked in California. He also wrote a not very flattering book on Michael Moore just out. I agree he appears to have a finely honed political and opportunistic streak. I’ll try and dig the link out.

@ desertwind (@Chasmosaur below)

This is the link to the rundown on RDR’s friends Part VIII Page 47 scroll to Post 469:

http://www.leakylounge.com/WB-JKR-vs-RDR-SVA-Part-V-t60496.html&st=460

The relevant bit is this:

Alas, I see this as all about politics. That’s why Stanford is involved: they have a political agenda. And all of Roger Rapoport’s supporting friends have roots in the Old Left or what may be called Progressive Liberalism. On the Right to Write board we find Arend Lubbers and Dan Royer of GVSU, the former who helped establish The Spirit of Solidarity monument to the Great Furniture Strike of 1911 and the latter, who combines his creative writing courses with Alfred Whitehead’s New Liberalism and Black Liberation. We find Mother Jones board members Meredith Spear and Adam Hochschild. And then there’s Ann Zill of the Center of Ethics in Action and Lizbeth Hasse with her concerns for constitutional liberties in emerging democracies. I think this group has become convinced that this can be turned into a cause for expanded liberty and free expression; they share an antipathy toward Big Business and the Rich. And, of course, I think they are wholly misguided and are attacking a friend.

@ Chasmosaur

The link to the Lexicon book in Justia.com is below Attachment 2 onwards:

http://docs.justia.com/cases/federal/district-courts/new-york/nysdce/1:2007cv09667/315790/52/2.html

Rotfan07 —- you’re a peach!

In regards to Chasmosaur’s post above, I believe SVA’s hosting was to be paid for by TLC up until the end of the trial. http://www.the-leaky-cauldron.org/2008/3/24-trial-updates-and-important-announcement-about-floo-network Also, JKR’s paparazzi fight has to do with her son, David. http://uk.reuters.com/article/domesticNews/idUKL1043120020080310

Thanks for posting the links to the Articles.

I am concerned that the Judge is biased in opinion, and therefore is slanting the Harry Potter Books as “not readable without a guide”. I do not think SVA provides an adequate guide for readers without the work being seen as a rip-off of written material protected under Creative Rights of the Author.

J.k.Rowlings would provide the best resource material guide, adding information, humor, and character to it to make an enjoyable read.

J.K.Rowlings does not have a problem with papers written about Harry Potter, or works that add insight or perspectives.

SVA’s work is a cut/paste of the best bits of Harry Potter, which I feel robs the readers of the joy of reading the Harry Potter Books on their own.

J.K.Rowlings Scottish Book would be a wonderful, friendly, helpful guide to understanding more in-depth the characters and plot line of her 7 Book Harry Potter Series.

The Sales of SVA’s book would hurt sales of J.K.Rowlings Scottish Book, which is to be set up to help charities.

This court case is an attempt to punish a successful Female Writer, and rob her of her rights over her creation. I do not think even a settlement would ever end the hassles. This is why this case needs to be fought. I don’t like seeing funds to pay for Court Costs that would be better spent in charities.

I am displeased how this is affecting J.K.Rowlings with her new writing, with her own personal life. She put in all these years of work to have her hard earned rest period ruined by an obsessive fan. This is hindering progress on the Scottish Book, as well as new work by J.K.Rowlings, also affecting her private and personal life with her family.

I would see if another Judge could be appointed to the case, due to his biased comments.

@ rotfang07: “they have a political agenda”. wb, being a media concern, wanting to enforce intellectual property rights, haven’t?