Mimblewimble, I agree that fair use has to have limits. If someone were to try to sell a children’s book about a magical boy wizard named Perry Hotter who fought an evil Dark Wizard named Moldyvort, and in the process they copied entire passages verbatim from J.K. Rowling’s work, obviously they would be crossing the line and trying to make money that they didn’t deserve. I mean, technically such a book would be “transformative” in the loosest sense of the word, but obviously they’ve crossed a line, and I and everyone else in the “Fair Use” party would be calling for them to receive a punishment like likes of which Filch has never dreamed.

(And, of course, this actually has happened a time or two, in China a few years back and more recently in Russia with the ‘Tanya Grotter” books.)

That’s what copyright law is for. If everyone were avle to create books like “Perry Hotter,” they would—and those books could easily replace Rowling’s original. Rowling would get neither the credit, nor the compensation, that her work deserved.

But a book like the HP Lexicon is never, ever going to replace the Harry Potter books. Which is more exciting, reading a synopsis of Chapter 31 of DH, or reading the chapter itself? (It’s not even going to replace JKR’s OWN encyclopedia, which will have a lot of information no one’s seen before.)

In fact, you could probably argue that it makes no sense for someone to read the Lexicon WITHOUT having read the Potter books.

That’s the point of fair use. For a work to be transformative, there has to be very little chance of it’s replacing the original work in the marketplace. For the Lexicon, there is none, and there is a VERY good argument for its usefulness in the marketplace— even more so than for, say, the Mugglenet book, which is now obsolete. It does a job that the original books do not do, and IMO it does it well. And for such a reference to be both accurate and comprehensive, yes, it DOES have to do a lot of copying—but as long as there’s no chance if it’s replacing the original, more power to it.

Trosa, despite your arguments i still fail to see what i can learn from the Lexicon that i cant learn from the books, thus as i have said it really adds nothing to the universe.

in the end, this is truly a useless book. it’s senseless, unnecessary for anyone who’s read the books, and merely a ploy for SVA to pretend he’s important, or in some way involved in the creation/perpetuation of harry potter. it’s pathetic.

@ pjb: right on. you hit the nail on the head.

I find the lexicon as it is on the web very useful indeed when I want to get a clear overview of a specific character. I have used it alot. Not only does it put all information from all seven books about a specific character in one easy to find place, it also adds information from interviews with JK Rowling. I think it is excellent, but then again, I don’t know the books by heart. I have read each of them at least twice, though.

So, we can clearly dismiss the argument that a lexicon is useless. To some individuals it might be, but it really is useful to others.

This doesn’t mean I don’t think JK has the right to go to court if she wishes. But I would like Steve to win. Also, I would like to own a copy to have on my shelf. I like books. And Neil Gaiman. And JK Rowling, even though I don’t agree with her in this question (either! She is one of my favourite authors, but I don’t have to agree with everything she says or does. Really. )

Trosa:

OK. You’ve convinved me.

NAAAAHHH!

You argue that the fact that the Lexicon does not seek to replace the original novels in the marketplace bolsters its case for being transformative.

I would argue that the amount taken is far greater than needed for the purpose of the book, whatever its audience, and being essentially a re-statement of JKR’s plots (almost the entire books in the case of Quidditch and Fantastic Beasts), it does therefore indeed usurp part of the place of the original novels in the market.

The plaintiffs did a marvelous job of showing that the Lexicon takes far more than is necessary for the purpose of being a reference book, even a comprehensive one. They were able to give many many examples of reference books that took less (with more citations) than the Lexicon, and the defense was not able to produce a single example of any type of reference book that took as much as or more than the Lexicon.

So rather than defending the genre of “reference book,” the defense is actually attempting to re-define what the terms “reference book” and “transformative” mean to fit the Lexicon.

You argue that as long as there’s no chance of “replacing” the original, the more copying the better. I argue that the more copying you do, the less tranformative your work is and the more you DO replace and usurp the use of the original work, even if a different genre name is used.

Falzone argued in his closing arguments that the “transformative” prong of fair use law supercedes the “amount taken” prong. Well, the “amount taken” prong supercedes the “market effect” prong. So by the very definition of fair use law, your argument that more copying is ok as long as it doesn’t replace the original is not a sound legal one.

Mimblewimble:

“if the Lexicon is ruled to be sufficiently transformative, anyone will be able to copy any amount of text”

Not at all. There ARE legal limits to how much may be copied. But those limits differ depending on several factors, including the nature of the original work, the transformative status of the secondary work, and so forth. In the Seinfeld case, the court note that a fictional creation is entitled to greater protection than, say, a news report, and therefore the limits are lower. It then determined that the transformative nature of a secondary work could push those limits higher. But not to 100%.

That some copying has occurred is acknowledged by all sides. The difference between the two sides lies simply in whether the amount of copying exceeds the limits allowed by fair use. Obviously, plaintiffs argue the affirmative, while the defense says no due to the transformative nature of the lexicon.

Mimblewimble again:

“The plaintiffs did a marvelous job of showing that the Lexicon takes far more than is necessary for the purpose of being a reference book”

The plaintiffs make a good argument that the lexicon copies extensively. But it is up to the judge to determine whether that copying is a) infringing, and b) excessive. It is perfectly possible for the judge to rule that the lexicon could be published in principle (it being sufficiently transformative) but that in its current form it exceeds reasonable limits on copying. The answer then is simple: rewrite offending passages to reduce the amount of copying. In theory, then the lexicon could be cleared for publication.

Mimblewimble again:

“Falzone argued in his closing arguments that the ‘transformative’ prong of fair use law supercedes the ‘amount taken’ prong.”

I haven’t had time to read the transcripts. Did Falzone use the word “supercedes”? If so, precedent does not support him. Courts have traditionally held that the intent of the four tests is complementary. That is, the effect of the tests must be determined as a whole; no single test is determinative. If a secondary work fails a single test without running afoul of the other three, it is generally considered to be considered non-infringing.

Mimblewimble again:

“by the very definition of fair use law, your argument that more copying is ok as long as it doesn’t replace the original is not a sound legal one.”

Quite the contrary. Since the courts have already determined (see the Seinfeld case) that the transformative test can mitigate (not “supercede”) the nature test, it is quite reasonable to argue that the market test might do the same.

MattyJM:

“I suppose it’s up to the judge to decide what the purpose of the book is…. there is quite some difference between what it is meant to be and what it is…. it is takes far more of Ms Rowling’s material than is necessary….”

You’ve touched on two separate points. As I said above in reply to Mimblewimble, the judge needs to determine three things: first, whether the lexicon is transformative. Second, even if he finds favorably on the first point, whether the nature of the copying is infringing, and third, whether the amount of infringing copying is excessive. Whether it appears that way to you, me or Mimblewimble is irrelevant.

“What you have failed to grasp in that Ms. Rowling’s books have more use that just entertainment.”

But “use” and “purpose” are utterly different. I may use my car to run over the neighbor’s dog, but that says nothing about a car’s purpose. To say that the HP books can be read for information is far different from claiming their purpose is to pedagogical.

MattyJM again:

“It virtually copies and pastes that information into the book, most often verbatim or almost verbatim….

“I have no need to substantiate that claim, because I covered myself when I made that claim. I did say verbatim OR almost verbatim.”

My apologies. I was actually more concerned with the “most often” part. Can you substantiate your claim that MOST of the copying the lexicon does is (almost) verbatim? And forgive me, but I’m not of the opinion that hedging one’s bets with equivoques relieves one of the burden of substantiation.

NCJE Culver

NCJE Culver:

Following is the text in which Falzone argues that the first prong supersedes (my word) the others:

The interesting thing, your Honor, I noted when 21 Ms. Cendali got up to speak to you about the fair use factors, 22 is she switched them around. What do I mean by that. Well, 23 the statute puts them in a specific order. 24 The first one she talked about was the nature of the 25 copyrighted work, that’s the second one in the statute. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  681 84GVWAR6 Summation – Mr. Falzone 1 The second factor she talked about was the amount of 2 substantiality of the material used; that’s the third factor in 3 the statute. 4 The first factor is the purpose and the character of 5 the use. It’s not just first in the statute, it’s first in the 6 law. 7 The Supreme Court of the United States has told us 8 that, above all else, what matters in the fair use analysis is 9 whether the work in question has a transformative purpose. And 10 it has gone so far to say, and I’m referring to the Campbell v. 11 Acuff-Rose case that Ms. Cendali cited, the Supreme Court has 12 gone so far to say that the more transformative a work is, the 13 less the other factors matter. 14 So first and foremost, your Honor, we have to talk 15 about whether this work is transformative. And above all, when 16 fair use protects works with a transformative purpose, that 17 means works, the purpose of which is not to substitute for the 18 original copyrighted works, but to provide something useful and 19 valuable that wasn’t there before.

@Trosa

Trosa,

Oh, I see what you were saying. The bit about replacing the original books is actually part of the first prong, the “transformative prong” as I called it, actually it should be called the “purpose” prong, which asks whether a new work seeks to “supersede the original.” Well ok, forget about that bit about the market effect being superseded by the amount taken, then.

I see your points, I really do. I still would argue that the amount taken actually undermines any transformation the work has undergone. But while the Lexicon may be laughable as a reference book, the first prong merely asks what the purpose is, not whether the work succeeds in that purpose. The way the law is written, RDR seems to have a case (ok actually the way the interpretation of the law is written that I read on Wikipedia, who themselves probably favor fair use).

LOL. “My work is terrible and copies everything, but my purpose was to make a really good reference book.”

The other criterion here might be the “amount and substantiality” test. For example, a news article using only 300 words from Gerald Ford’s book was ruled infringing because the text used was ruled to be “the heart of the book”. The substance of what was taken was so great that even though the news article was certainly not seeking to replace the book, it was ruled infringement. I mean, this would be an example of something that was not seeking to replace the original and only took a small amount but was ruled infringing anyway. So I still can disagree with your argument that more copying is better as long as the work does not seek to replace the original, can’t I?

I don’t know. The judge will probably come up with some snippet of arcane language from another case and then base his whole decision on that for all we know.

Well, I’ve slogged my way through all three days of testimony. I was taken by the judges statements at the end of the first day about this appearing to be a lawyer driven case. It truly would be best for all if a settlement could be reached. I don’t expect it to happen though.

I waited faithfully to find John Noe’s “Troll in the dungeons!!” entrance and was disappointed not to see it.

It was interesting to see Mr. Rapoports evasions. A true Slytherin indeed. SVA seems to have been mesmerized by RDR and the promise of cash. Someone’s earlier post (sorry I can’t remember whose) observed that if SVA had taken the initiative to write an original work on HP/JKR, done the research, edited it properly, he would probably had a non-infringing, salable book. Perhaps he has not the talent to do it.

Thanks Melissa, John, Sue and everybody else at TLC for covering this so well.

OMT

Despite the seriousness of the subject one light note…this would make an intersting fan-list point:

You know you are a Harry Potter fan when you read 24hrs worth of JKR/WB vs. RDR-court-transcripts.

Yeah, you’re right, Lady McB!

Crazy, isn’t it?

Does anyone know when RDR made the manuscript available to Jo/WB? Only after it was submitted in evidence early February?

I can’t help wondering if the manuscript changed at all between what RDR received Sept 1st and what is in evidence?

I just finished reading the Jeri Johnson testimony. Woof! If SVA ever does publish this—he could find her remarks quite helpful for improvements.

I wonder if they’ll settle. And under what terms.

I’ve now got a crush on Judge Patterson, you know.

Mimblewimble wrote: “I don’t think anyone’s arguing that there aren’t sporadic bits of new material in the Lexicon”

I’m not going to argue that the majority of the material in the Dumbledore article is particularly new. But I WILL argue that it produces a clear, coherent picture of Dumbledore’s life that would take much, much longer to understand if you had only the use of the books.

PJB wrote (after mentioning two quotes that allowed him to deduce Dumbledore’s tenure): “These facts took me around 4 minutes to find.”

Yes, but that’s the thing. Seeing as you were able to find them so quickly, I’m guessing that you already knew those quotes existed. Our of the four THOUSAND-plus pages of Harry Potter’s American hardback editions, you found two quotes you remembered and cross-referenced them.

But I’m sure you’re aware that you – and a lot of other denizens of Leaky – are familiar with the books on a level that many, many people are not. Those people are the ones that will find such a Lexicon useful.

Posted by Trosa on April 24, 2008 @ 03:28 PM

Excuse me, you don´t have to remember the exact dates here to have a proper understanding of the general time actions took place. But where does the info come from that Harry first visited Hogwarts in 1991 or that he was born in 1980? To be honest I learned about james, snape´s and sirius´s age first on the lexicon-site.

“To be honest I learned about james, snape´s and sirius´s age first on the lexicon-site.”

And that’s fine. The Lexicon has it’s uses for things like that, I won’t argue. HOWEVER, they can do all of the useful stuff most people use them for WITHOUT taking so much of JKR’s original Prose and explaining the plots and things. You can have an entry on Snape and give a small blurb about him (“Severus Snape has been potions teacher at Hogwarts School for XX amount of years, until the year XX when he became the DADA teacher, the job which he had desired for years. The year XX He became headmaster for the school under the reign of Voldemort, until he abandoned his post shortly before his death…..) Or similar, and you can have things like funfacts (DOB-DOD) - That would be fine, I’m sure, and etymological information (even if some of it is wrong - as long as, in my opinion, it is clear that it is a suggested etymology—unless it comes from JKR’s mouth itself, in which case he could QUOTE it) and in my opinion that would probably not be a problem with JKR as far as legal issues are concerned. But I think the point is how much of JKR’s words/prose themselves he is taking, not to mention the fact not quoting. He may have been that sloppy in regards to credit on his website, but if you’re going to do a book, you need to clean up and do it properly, otherwise you can get into legal issues, obviously.

@ desertwind – “crush on Judge Patterson

I liked very much how he deflated ‘Dean’ Johnson. And just now I have looked around for an online edition of Bleak House. Well, there is. What do I read in the summary?

... bring her to the penniless and illiterate Jo …

Interesting that there is a character named ‘Jo’ in ‘Bleak House’ though Judge Patterson certainly was not aware of fans calling JK Rowling by that name.

Oh… the Jo in ‘Bleak House’ is male. Have to read all of it, I hope Jo Rowling has not got a problem with that :-)