Advertisement

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 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.

Cocky fellas, these Methuens arent they? I think WB/JKR will appeal to end of time, if they lose. They’ll want to show others like Steve, to prepare for a long drawn out bloodied battle which effectively would put anyone off the thought of publishing a Lexicon type book even if it is legal.

For me, I dont really care for either Lexicon or (to some extent), the Scottish book. I love to have a Scottish book purely because it is JK’s work but I wont be upset if she doesnt do it. I am a deeply heartfelt Harry Potter book fan but I come to a realisation that I am also a JK Rowling fan. I want to read everything she writes. And listen to everything she says! So i rather she writes more fiction than do a Scottish book, if that was a choice given. I want to read her crime novel, her children’s political fairytale. If she writes a horror book, I want to read it. Why, because I love her language, her narrative and most of all her depth of moral teachings. I hope this case do not seriously harm her creative output.

I have a question. I know this case is going on in the US federal courts. Now say somehow RDR wins, could it be possible Jo and WB could sue a British publisher wanting to publish this? I know fair use is rather different here in the UK. Would a ruling in the States, pretty much make the Lexicon book legal in the other countries RDR has sold to?

The Only Thing I have to say is…the ONLY people who would have bought the Lexicon book would’ve been the fans of Harry Potter…and seeing as the majority of the HP fans are on JK’s side…expect sales to be very slow. ASSUMING RDR wins. I hope they lose money on this book.

dddddddddddddd…they won’t publish!

If it is published I’m not buying it.

Seems like either side has a good chance of winning, and of course, there will be a long appeal.

Deep down, I don’t think JKR would have sued had it not been for WB influence over her. As my mom commented, “the lawyers got to her.”

Regardless of what happens in this case, I am not likely to buy the lexicon book, and it’s not because I have anything particular against SVA or that I think he’s totally wrong in what he’s doing. It’s just because I’m not all that interested in an encyclopedia of things I more or less already know from reading the series. I’m honestly not all that curious about the latin derivation of every name or the folklore behind every spell. Jo’s encyclopedia is a totally different story because it will offer new information and backstory on the characters, so that I would be interested in purchasing. Intimating that SVA’s book will hurt sales of Jo’s eventual encyclopedia is almost laughable. That won’t happen, and I think everyone knows it.

I disagree, Jo has been very vocal on this. So to suggest that WB has forced her into lawsuit, is not accurate. She see’s it as the highest betrayal of a fan, and so she is fighting to protect her work.

Cripes! First, Ascatal, posts like your’s are part of the reason I hate reading comments to stories I am interested in. I get it, you disagree with McGonagall’s Cat and that’s fine. However, calling another person names is childish and does not help your argument at all. It saddens me that the anonymity of the internet allows people to forget manners and decency. So you don’t think I’m hiding behind the same veil of anonymity my website is thenalls.com if you send an email to admin at that address I’ll get it. Ginny, great post. I must admit that when i first started reading the comments I agreed more with McGonagall’s cat. However, after reading your post and doing some research I’ve discovered the assumptions I made were incorrect. I had heard of the case but had not researched it. If there is only 9% original content and citation has not been done properly then I think the book should be blocked from publication until the problems are fixed. Your post was insightful and persuasive. Thank you.

Neil, I was wondering the same thing. Methuen is a publisher, so how does the RDR decision relate to Methuen’s publishing date? Is it simply a case of Methuen not wanting to publish something that was barred in another country and will most likely drag Methuen into court too, or is there some kind of complication/ownership issue with RDR? Doesn’t the author usually own foreign rights, not the initial publisher?

Good grief – Jo’s critics might as well tell her to put her kids on the streetcorner because some pervert will probably take a liking to them. They don’t seem to feel that she has the right to protect anything else she labored to create.

BlackCat40, you can read the actual Lexicon book yourself if you wish. Go to justia.com and search for RDR Warner Brothers and when you get the list of all the documents, look at Steve Vander Ark’s first declaration. The attachments to it are the book. Just because someone stated in court that it is only 9% original content, you may want to read and decide for yourself because that figure is only one side’s opinion. The judge will be deciding for himself, hopefully, and not taking either side’s “declarations” as gospel.

I spent time reading it yesterday, and my reactions are completely the opposite of some other people who see it as “only 9% original content.” In my opinion, I thought the whole thing was original content, with the exception of a few direct quotes (which were so indicated) such as the Sorting Hat’s song, and the Potions riddle from the first book. It’s a reference book, not a novel. The Lexicon’s entries were about Harry Potter, true, (as are all the other books on the market about HP such as the Mugglenet one, etc.) and as such use words that are unique to the HP world because JKR made them up, such as “muggle” or “Quidditch” or whatever. There would be no way to write ANY book about the HP world without using those special words. But the entries were written in Steve’s words and style, not just “cut-and-paste” direct quotes from the novels or “regurgitation,” to use a phrase so many are fond of saying. And he DOES add commentary and etymology and Latin derivations (whether they’re correct or not is irrelevant; they seemed to be his best effort at research), so there IS “original” content (although one so-called expert seemed to try to say that was plagiarizing the dictionary, so apparently she feels the entire English language is copyrighted by Warner Brothers…).

Point being, there is a danger in just reading the reports of the case, or what other posters have stated that they’ve read somewhere, and assuming it’s fact. Fact and opinion are very different. Just because someone says “It’s plagiarism!” doesn’t mean that it is; or just because someone starts spouting percentages it doesn’t necessarily mean that those figures are accurate. If that were the case, these people wouldn’t be spending time in a courtroom. The judge will decide. And then, as has been said, probably there will be appeal after appeal after appeal and many, many judges will have a chance to decide. Nothing says one judge might reach one decision, while a different judge might’ve reached the exact opposite conclusion. So I agree that this British publishing company might have hold of the wrong end of the stick if they think they’re going to be able to publish anytime soon. This could turn into some sort of landmark Internet-regulation test case and appeals could go on for years.

Anyway, just a caution to read the case yourself before making these calls that are “absolute”...

I have decided that I am going to take matters into my own hands. I am writing letters to the corporate offices of Barnes and Noble, borders, amazon.com, and any other book store that I can think of a ask them to review the comments of harry potter fan sites before placing an order for SVA’s book and see that the majority of the fans do not want it. We may not be able to stop it from being published but maybe we can convince the bookstores not to sell it.

After reading the case documents yesterday, the Lexicon book seemed to me to be an organized indexing combined with research, NOT a re-telling or “regurgitation” of JKR’s work. I compared what I read with “Ultimate Unofficial Guide to Harry Potter” and the Mugglenet book (just because I happen to have those two on my shelf) and I saw no difference with respect to “re-telling.” Both those books re-tell JKR’s stories to a great extent. None of the books would stand alone, without JKR’s novels. They are supplements, all of them. Yet those first were OK, and the Lexicon is not? I personally can’t see it. All I can see is maybe that Steve did too good of a job of doing a book JKR hasn’t gotten around to writing yet, and that made her fearful that it might undermine her Scottish book somehow. (That concern was prominently listed in the documents as one of Warner’s objections.) But, as someone posted earlier, the idea that this Lexicon book could negatively affect her Scottish book, which will be years from now and with tons of new content only JKR could provide, is laughable to me. It’s like saying Mugglenet’s “What Will Happen in Book 7?” could’ve negatively impacted sales of “Deathly Hallows.”

Another impression I got after reading the documents is that in my opinion, the declarations of Jeri Johnson, the dean of English at Exeter College, felt extremely rude. She sounds like a horribly bitter and nasty woman; glad I never had her for a professor! I wouldn’t have thought a declaration from a professional should include scathing personal remarks on what she judges to be “self-indulgent weak waggishness” or “tedious jocularity” or whatever other negative remarks she had about Steve’s writing ability. It was as if she was channelling Snape, declaring witheringly from her position ‘On High’ that Steve’s commentary wasn’t amusing to her, therefore it was invalid as original content. Well, that’s her opinion. I thought it was kind of funny and entertaining, and certainly original to Steve. But that’s just my opinion. (And Warner accuses RDR of being “rude” to them in the initial stages of this situation? Guess they decided it was time for payback.) I was impressed that all of Steve’s declarations were polite and complimentary to JKR.

This is completely irrelevant to the case I suppose, but just an observation after reading the case documents… Anyone else see the irony that Warner Brothers is shocked… SHOCKED at the very idea of someone “making money off the back of the work of others” while at the same time their employees apparently thought nothing of printing out copies of pages from the online Lexicon (work off Steve’s back) and pasting them all over the walls of the filming studios and the writers’ offices so that they could refer to them constantly, thus making money for Warner Brothers? (yes, it would make money for Warner; if it saved them time or kept them from having to pay a salary of an employee to check the facts Steve had so conveniently done for them for free, then it made money for them. Time is money.) Steve testified that David Heyman told him that the movie staffers used the Lexicon on a daily basis, and maps and timelines and such from the online Lexicon were all over the studio. Yet how shocking, SHOCKING that Warner didn’t feel the least bit of obligation to compensate him in any way. You’d think they could’ve at least offered him a position on staff as “indexing consultant” or something, out of simple gratitude. Just me musing at the workings of the big corporate mentality…

And no, before you say it, I am not an employee of RDR or a member of Steve’s legal team… (I feel like that has to be a sworn statement in order to make any post that is not 100% pro-Warner/JKR…)

Madam P -

Completely agree with your assessment of the Lexicon book competing with the Scottish book. I never did feel that was a strong argument on WBs side.

I often ponder if the Lexicon ever gets published, just how well will it sell, anyway? It seems people will either boycott it or just not spend the money for something they can access for free via the internet (I am in the latter camp).

While no fan of RDR, I believe the judge will rule in their favor.

“In my opinion, I thought the whole thing was original content, with the exception of a few direct quotes (which were so indicated) such as the Sorting Hat’s song, and the Potions riddle from the first book.”

Posted by Madam P on April 25, 2008 @ 02:26 PM

Actually, WB’s line-by-line analysis of quotation from the HP books was unrebutted. The defense instead chose to argue that extensive quoting was desireable in a “reference book” although they could not produce one example of another book that took as much as or more copyrighted material. JKR herself identified quote after quote taken that consisted of maybe 4 or 5 words that were nevertheless her unique turn-of-phrase and could have been stated in any other way so as not to take. Again, unrebutted. And the fact that the books you identified take less of JKR’s copyrighted work was also unrebutted by the defense. So while you are entitled to your opinion, even the defense itself didn’t try to claim what you are claiming, instead admitting that the Lexicon copies freely and arguing that such was allowable, although unprecedented, by calling it a “reference book”. Their main argument is that the very nature of a reference book requires extensive copying, although they could not prove this point with any real-world examples, so their extensive copying is fair use (i.e., the “purpose” criteria of fair use law outweighs the criteria regarding “amount taken”).

“Another impression I got after reading the documents is that in my opinion, the declarations of Jeri Johnson, the dean of English at Exeter College, felt extremely rude.”

Posted by Madam P on April 25, 2008 @ 03:13 PM

Actually, I found Dean Johnson’s testimony to be among the most convincing in the case, as it is extremely relevant to pointing out that allowing the Lexicon to be published on the basis that it is a “reference book” would be dramatically changing the definition of the term in light of all that has gone before. The truth may hurt, and maybe that is why you found it to be rude. I find this to be a dramatically different example than when RDR completely ignored WB’s legitimate requests to view the Lexicon manuscript, which were eventually enforced in the Discovery process.

“Anyone else see the irony that Warner Brothers is shocked… SHOCKED at the very idea of someone “making money off the back of the work of others” while at the same time their employees apparently thought nothing of printing out copies of pages from the online Lexicon (work off Steve’s back) and pasting them all over the walls of the filming studios and the writers’ offices so that they could refer to them constantly, thus making money for Warner Brothers”

SVA’s claim to said “work” is what is at issue here. His right to copyright something consisting so wholly of another’s work is at issue. The reason the Lexicon is allowed is that is freely available on the internet. I think printing pages of a website derived from another’s original work where copyright is arguable (some would say laughable) and where the content is free of charge is dramatically different than wholesale copying and re-selling of work that is unquestionably original and copyrighted. There is no moral equivalence.

In fact, your argument is actually one of the things JKR/WB is worried about; if SVA is allowed to copyright the Lexicon, will he and RDR then be able to turn around and sue JKR when she publishes her encyclopedia consisting of her own material? SVA’s sense of entitlement regarding something that was able to exist because it was a hobby is disturbing.

I used to use the Lexicon website’s alphabetical listings and character pages for two things: A spell-checker, and to find the book/chapter for a reference. Then I would then use that information to go to the actual books and read directly from the source.

Because it was online and searchable, the Lexicon website did for me what I couldn’t do very quickly myself because e-books of the HP series are not legal. I realize the Lexicon book and the Lexicon website are two different things, but the website was used to create the book, and at least some of the website was created using e-books. This is very troubling to me. It makes sense to me now, because I was a bit surprised in my frequent trips to the Lexicon website over the last three years to see that the alphabetical listings on the Lexicon website seemed to be sentences from the books with just minor changes to them, they didn’t include many conclusions or commentary, and they sometimes overlooked information. The dry paraphrasing without personal commentary in fact meant that the information was sometimes missing crucial points, in my opinion.

[This is my sixth comment. My fifth comment was posted on April 20th 11:35 p.m. to the article: “JKR/WB vs. RDR Books Trial: The "Blurry Line" of Copyright Law.” 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: “JKR/WB vs RDR Books Trial: A partial settlement reached; WSJ summarizes day three of testimony.”]

Re: Comment posted by Ginny on April 25th, 2008 @ 1:10 a.m.

@ Ginny, indirectly @Elizabeth

This comment is meant to be neutral, not against the 1:10 a.m. posting, and hopefully an extension of anyone else’s for that matter. The 1:10 a.m. posting mentioned comments posted by “Elizabeth” who has presented some remarkable Legal commentary, no doubt. I wasn’t sure of which of “Elizabeth’s” postings were being referred to, but had thought of some comments of my own as I read what “Elizabeth” has had to say through many of these articles. By the way, one could get their own supplemental grasp of the relevant law that could be applied to this Harry Potter case, by finding some other authoritative sources of one’s choosing, or maybe reading what is written about the U. S. Code itself through something like Cornell Law School’s compilation of the U. S. Code materials, as well.

Regarding the “affirmative defense” of Fair Use, and about applying the “four elements” that are used to determine “copyright infringement,” or a prima facie case of copyright infringement, “Elizabeth” had posed a question about “affirmative defense” as it relates to Fair Use. In my own opinion, I didn’t think, at the time she posed the question, that Fair Use was an “absolute” “affirmative defense”, in that it could become fallible when riddled with holes by the opposing side. A few things that came to mind at the time were the doctrines of “unclean hands” and “bad faith” amongst other things. It was interesting to find that those were Legal terminologies that have been stated within the transcripts we’ve been provided. As far as applying the “four elements” and presenting an opinion that three-quarters (75%) (3 out of 4) of them are in favor of one side or the other, this assumes that the side attempting to rely on “whatever benefit” that that three-quarter reliance would create, actually has a “lawful” position in the case. So that, if there actually was an “unlawful” position, then, it seems that they couldn’t rely on “whatever benefit” that the “copyright law,” as it is written in Code, provides. The “copyright law” benefits more than just the author; in the example at hand, the defendant is proposed to be “benefiting by three-quarters.” I think there is a huge distinction between “lawful” and “unlawful” as to whether or not what is “lawful” or “unlawful” enjoys a “benefit” from the “copyright law.” And, as to one side quickly making a prima facie case through the four elements, or even the defendant quickly admitting to infringement, that is, if the defendants were to say, “on the face of it there may or may not be copyright infringement”, but “if there were, I am shifting my reliance over to the ‘Fair Use’ ‘affirmative defense;’ this shouldn’t automatically legitimize the notion that one’s “copyright infringement” was not actually a “lawful” one that would be protected by the U. S. Copyright Law in the first place. I don’t think that something like that would become legitimized underneath the watchful eye of the Court, but it might become muddied in commentary. The “affirmative defense,” as Elizabeth may have commented, doesn’t create (Does it extinguish what looked like?) an infringement once the “affirmative defense” is established. It is worth noting, in my opinion, that, by some definition would mean one won’t be able to legitimately rely on the “affirmative defense” nor the “four elements” themselves if there weren’t a legitimate “lawful” position through which to enjoy those “copyright laws.” So, in the end, I myself have no earthly idea about all of the things that might make the defendant’s position “unlawful” enough that the defendants couldn’t actually enjoy a three-quarters (75%) benefit from the “four elements.” In the end, this message of mine is meant to recognize the distinction between “lawful” and “unlawful”, and the idea that one might not be able to enjoy the “four elements,” and further, the “Fair Use” “affirmative defense,” if, let’s say, “unclean hands” or “bad faith”, or a handful of other things, actually weakened or made “unlawful” either side’s position.

“Anyone else see the irony that Warner Brothers is shocked… SHOCKED at the very idea of someone “making money off the back of the work of others” while at the same time their employees apparently thought nothing of printing out copies of pages from the online Lexicon (work off Steve’s back) and pasting them all over the walls of the filming studios and the writers’ offices so that they could refer to them constantly, thus making money for Warner Brothers?”

Posted by Madam P on April 25, 2008 @ 03:13 PM *

Even if it were true, I think *Monsieur T explained it very well in how SVA has no claim over the material anyway. I find his copyright notices on the website to be annoying and untrue (except for on essay pages).

Also, as to the amount that the MuggleNet book and the Unofficial Guide may quote or paraphrase from the books, I’m sure it doesn’t make up 91% of the book. I don’t have those particular companion books, but the ones that I do have add commentary and analysis into the mix, which makes them tranformative and fair use. The Lexibook does none of that.

Also, it’s been said tons of times before, but if the Lexibook really was a reference book, it would have less summation and more page numbers. Reference books are, afterall, meant to reference back to the original material. So, it fails at that as well. It’s not fair use. Period.

Copperhead

I read Elizabeth’s post too about the Lexicon probably having three out of the four fair use criteria on its side. Thanks for your additional info about “lawful” vs. “unlawful”.

One thing that gave me hope in this is when I read on Wikipedia about a case where a newspaper article printed only 300 words from Gerald Ford’s book, but it was ruled infringment because the words were ruled to be the “heart of the book”. What counts is the “amount and substantiality” taken.

So, RDR is arguing that the “purpose” criteria alone should outweigh the other three factors, while most sources argue that the courts consider all four fair use criteria to be complementary and generally a work that only fails one of the four criteria is considered to be non-infringing. However, this newspaper article example shows a work that actually DID have a transformative nature and probably only failed one of the four criteria, yet was still ruled to be infringing.

The only hangup is that RDR basically argued that their “purpose” was to copy, and the purpose should outweigh the amount taken. Ms. Cendali called it a “circular argument” in her closing statement.