The Associated Press has a brief history of the trial, as well as the challenges of deciding when the claim of fair use has gone to far:
“Lawrence Pulgram, an intellectual property lawyer who represented Napster in a copyright fight with the rock band Metallica, said deciding where to draw the line is rarely easy.
“Fair use is the most erratically applied doctrine in copyright.”
The article notes that A-to-Z reader guides, such as a lexicon, may be allowed under law, but that J.K. Rowling and WB charge that Steve Vander Ark went too far with the Lexicon.
“Rowling said during her testimony that Vander Ark could still do his book, as long as he changed it to take less of her material.
“I never ever once wanted to stop Mr. Vander Ark from doing his own guide. Never ever,” she said, before asking the judge again to block it in its current form.”
RDR Books Publisher Roger Rapoport says he’s willing to consider a revision, but that neither J.K. Rowling or Warner Brothers have expressed a willingness to compromise. He was asked whether there is a “danger” in granting authors too much control in “books about them”. Said Rapoport:
“We would have to get approval before we could write or publish on people’s work. They would control critical commentary on their work, at any time, whether it is our kind of book or an Associated Press article. It would create total chaos in the area of critical commentary. Frankly, I don’t think that would be good for anyone, even the authors themselves.”
The article notes that Judge Patterson is not expected to make a ruling for another month.
Who knows exactly what is in the Lexiconbook ? Is there anyone who had a preview at it? Maybe someone at the Leaky? Some people say it is only cut and paste, how do they know? I like the HPworld Rowling created, it was great fun to read the books, but I also like the Lexicon A to Z index, which came in very usefull, if I wanted to look up something. If anybody is going to loose, it will be the HPfan.
@ElizabethJ
The reason the Leaky website was not taken down by JKR was stated in my original post: it was a free-for-use non-profit fan site that JKRowling allowed to infringe for precisely those free-at-source free-to-use reasons, because it was for the fans by the fans. JKR could never anticipate that the manager and self-professed “fan”of the site would steal the fans’ contributions to the site to use for a profit making venture involving 91% copyright infringement through an essentially cut and paste technique.
The case is ENTIRELY a “copyright/plagiarism issue.” The basis for your comments is without foundation precisely because the site is not like the book. The other oft repeated myth is that JKR used the Lexicon to write her book(s). JKR stated on oath in court during the trial the ONLY reason she posted the remark about looking at the Lexicon site was so that she could give it an award to encourage the sites’ non-profit making, free-to-use, fan-based nature. The site includes fan essays, amendments, corrections, contributions, NONE of which have been recognised or remunerated by SVA or RDR. They have trampled all over the fans’ copyrights and goodwill in order to make a fast buck.
Your suspicion that this is a money issue for WB/JKR can only be sustained if we believe that JKR lied on oath about it NOT being about the money. Now, here is the interesting bit: SVA and RDR were caught again and again dissembling, evading, and distorting the facts in this case before and during their testimony, JKR was repeatedly challenged and made the defense look ridiculous because she stuck to the facts and told the truth (hence Wu’s description of her as a “star witness”). You have to believe RDR and SVA and disbelieve JKR in order to sustain your position. Well, it’s a free country, but as RDR is a proven and congenital dissembler, and as SVA was caught essentially and repeatedly contradicting himself on oath, I would think twice.
First off, this case is not plagiarism; it is about copyright and those are are two very different things.
@ Antonija:
Copyright law is designed to protect expressions fixed in a tangible medium so saying that the series is hers is just wrong. On top of that there is an entire statutory provision (17 USC 1107) designed to permit certain uses of the protected expression fixed in a tangible medium. THAT is what this case is about.
@ Elizabeth J:
I couldn’t agree with you more about the point you brought up regarding the web version of The Lexicon. If it was such blatant copying why did Jo not take it down then? In addition why are the fans who used to praise the accuracy of The Lexicon now vilifying Steve? If it was such clear and blatant copyright infringement wouldn’t there have been a problem years ago?
I think we both agree this is not a clear cut case. Just because the web version of The Lexicon is OK does not mean a book version is OK. However one has to wonder about the difference between a book Lexicon which generates profits from sales and a web Lexicon with ads and other things that generate income. As long as either is not cutting into the potential market of the copyright holder I don’t see much.
@ Kezzbaear:
You say that being a good reference guide does not mean it has to be copied, but personally that is what I liked about the Lexicon. I would not find it as useful if it just paraphrased Rowling’s words and that is why I think there is some value in organizing this material. That should and will be considered in teh fair use analysis.
Different ideas express themselves in different and unique ways .
Allowing protection for the expression of ideas should not prevent the free flow of ideas..
Since the expression of an idea stems from the thought behind the idea, when the thought behind the idea differs so does the expression. The idea behind a novel is a novel. The idea behind lexicon is not the same thing. .
In the USA Copyright reconciles itself with the 1st amendment. by saying copying just for the sake of copying is a valueless contribution to society.
Fair Use Factors
1. Purpose
2. Nature
3 Amount Used
What is needed to achieve a specific purpose determines the amount used.
What needs to be weighed here is the societal benefit that it affords versus how
Much is used.
4 . Market harm
Lexicon does not adversely affect the marketplace for the original series of books
uh ...
“I never ever once wanted to stop Mr. Vander Ark from doing his own guide. Never ever,” she said, before asking the judge again to block it in its current form.”
where did that come from?
forgive me if i’m wrong but they were blocking this book and shut down mugglenets before ever having any idea what was in it. JKR doesn’t want an encyclopedia, the fact that apparently this one used way too much direct quotes and was poorly put together seems to have given her case merit but i have to wonder where we would be had there been more paraphrasing and creative disicriptions. Jo still didn’t want an encyclopidia, period.
is this her trying to show a way to a possible settlement?
A free beer for the fans is not the same as an expensive bourbon paid for by the fans to SVA. That difference is why JKR didn’t go after the site.
Copyright is not restricted to any one medium “tangible” or otherwise. You cite no law to back up your claim, there is no such law.
91% cut and paste is lazy and copyright infringing and the book is dross even RDR’s lawyers said so in court. Their only legal point is that if you stretch Fair Use into realms it has never gone before RDR and SVA’s theft of JKR’s work would be legal. You can look the book up for free at:
@siyrean
I could be worng about this, but I think Jo simply asked Mugglenet not to publish a lexicon, because she wants to do it herself with the profits to go to charity. They pulled back because they respect Jo’s wishes. I guess if they had gone on with it and done it properly (not just copy-paste) plus added enough commentary, neither WB nor Jo would have sued them. Just because she doesnt fancy people writing a book she would like to write herself about her series doesnt mean she necassarily goes ahead and sues them…if they are as clever as RDR/Steve and infringe her copyright though and are so unwilling to compromise, I dont see why she shouldnt. And I guess with a lexicon on something like HP it is difficult not to infringe copyright.
“Copyright law is designed to protect expressions fixed in a tangible medium so saying that the series is hers is just wrong. On top of that there is an entire statutory provision (17 USC 1107) designed to permit certain uses of the protected expression fixed in a tangible medium. THAT is what this case is about.”
Posted by akemi42 on April 20, 2008 @ 03:34 PM
How is that wrong? It’s true. She created the world and the characters. She got it copyrighted. She wrote the books. How is it not hers?
We are free to write transformative works on the series.
We are NOT free to simply restate what’s in the books, alphabetize it, ask for $25 a book for it, evade the copyright and trademark holders when they ask to see the manuscript, when they ask us to cease and desist publication not once but FOUR times, while at the same time sending out the manuscript to publishers around the world.
I’m sorry, but WB and JKR gave RDR and SVA every possible opportunity to come to a decision about this outside of the courtroom. It’s their own fault they’re in this mess and no one else’s. Jo and WB are just protecting what is rightfully theirs. Jo created it and WB paid for the rights (and agreed to certain stipulations of hers) in order to make the films.
Jo has allowed countless HP books to be published. Why? Because they fall under fair use. She couldn’t prevent them if she wanted to. Some that didn’t fall under fair use were published, but once discovered were told to cease publishing.
To say that the series is not hers is ludicrous. If it wasn’t for her, there would be no Harry Potter.
SVA is not writing a critical commentary of Jo and her work. He is copying her work into another format so that he can sell it for his own gain. If the law suit was about controlling critical commentary, then Jo would sue the New York Times. they criticize her often enough.
[This is my fifth comment. My fourth and third comments were on April 18th 2:21 p.m and April 17th 11:51 p.m. respectively to the article “JKR/WB vs RDR Books Trial: Summary Reports.” My first two were posted pm 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: Comments posted by Rotfang07 on April 20, 2008 @ 2:22 p.m. and 7:08 p.m.
@ Rotfang07
Although your position doesn’t require endorsement, if I could once again, agree with it in-part, or for the most part, in spirit and principle. It has developed along a very rational, and logical, line of thinking, which I’m sure you taken some time of your own to think about.
As to the “copyright/plagiarism issue” which you touched upon in the 2:22 p.m. posting. In my opinion, it would be nice for both sides of the issue to make sure that this “copyright/plagiarism issue” is hashed out. Because, “Fair Use” is, as it has been mentioned before, and as to how it seems to be written in Code, an “affirmative defense.” It seems to have an essence of “timeliness” embedded into it; that is, someone creates a prima facie case of copyright infringement, or the like, and the affirmative defense can quickly “shift” to “Fair Use.” It would be nice if the “copyright/plagiarism issue” were considered thoroughly, before focusing more attention on “Fair Use.” In the end, it would benefit the defendants, if there really wasn’t a “copyright/plagiarism issue”, and they are redeemed. And, it would benefit the plaintiffs to know for certain the “copyright/plagiarism issue.”
As to the “beer/bourbon” analogy which you touched upon in the 7:08 p.m. posting. Although, I can [only] relate to enjoying the smell of bourbon, and detesting the smell of beer, because the smell is as far as my imagination will take me, I think that the bourbon part of the analogy is a very creative and illustrative concept of yours that is worth repeating. It should be repeated often. As I’ve mentioned before, critical analyses, commentary, fans and fan sites have added an enormous amount of value to the Harry Potter world, in my opinion. It has benefited J. K. Rowling, no doubt. But, it has been a source of “something that no-one can put a finger on” kind of value to the Harry Potter audience. There are essays, thoughts, and a bit of cleverness, to many of the fans contributions. That is something that isn’t developed through a process “like that of beer”, but rather, it is created “like vintage bourbon,” with care and time in a barrel of some underground Italian palace, if that is how something important like that is made.
@ rotfang07 : I took the time to read the document mentioned in the first line of the 02:22 PM post and the 14 attachements to the document.
The document itself contains the declaration of Mr Vander Ark, in which he says the layout of the Lexicon book would be in the Format of an A to Z index. He also gives some entry examples
Attachement 1 contains a letter .
In Attachement 2 it is said : ” Abbrevations used in the book : All information used ….. comes from J.K.Rowling, either in the novelles, “the schoolbooks”, from her interviews or from material she developed or wrote herself” and it contains a list of abbreviations used.
Attachement 3 to 7 contain a preview of the entries in the book.
Attachement 8 to 13 contain an errata list.
Attachement 14 contains an example of printed pages of the book. for the letters A to D
In the Lexicon Website there are indeed a lot of “cut and paste” lines used, but I did not see such lines used in the preview of the book (attachements 3 to 7). I also did not see any pictures or photo’s from the different films.
Now I know more or less in which way the book will be structured and what the contents is going to be. I noticed that most of the entries in the book are based on names used in the Harry Potter novels, just trying to explain them.
I do not know the copyrightlaws , but why are they supposed to be violated? I did not notice anywhere that Mr Vander Ark is saying he is the owner of the HP world, instead I noticed that it states that the original sources for this books are Rowling’s.
It is my belief, that even if this Lexibook would be publicized, there still will be a need for Rowlings companion book, as this book would contain a lot of new and very interesting material.
He raised the cup to his lips and then, just as suddenly, lowered it. One of the horrible painted kittens behind Umbridge had great round blue eyes just like Mad-Eye Moody's magical one, and it had just occurred to Harry what Mad-Eye would say if he ever
a Month oi long time to wait. and SVA wanted fast money so he just copied his website rather than do much real work