Hi everyone,

Since Part IV of this discussion has reached 50 pages we've closed it and opened this thread to continue the discussion. You can find Part I, Part II and Part III at the links just provided. You'll also find a thread titled "The Impact of this suit on Fandom" thread here.

We do ask that we all remember to remain calm, and fair in our discussion of this topic. We understand that this is a sensitive topic and just ask that before you post you look at your words with the eyes of an outsider.

Thanks everyone

This is a fairly long post, but I am trying to make some sense of the SVA/RDR vs. JKR/WB (Holy excessive acronyms, Batman!) case, as well as the many issues raised here in this thread.

Bottom line, there are two issues at stake here with the SVA/RDR case.

1) PROFIT: A website, like the Lexicon, does not cost a visitor/user anything. Even if there are ads everywhere, it's free to use. Whereas a published, printed book must be purchased. Maybe you can get one at a library, but it's unlikely to be so common as to find it in every local library, so you'd *have* to buy it in order to read it.

2) COPYRIGHT: Publishing the Lexicon book (which, despite conflicting accounts) is likely alphabetized encyclopedic information about the HP books. Which is, at its core, re-arranging content created and owned by JKR. (And while some may argue that publishing the Lexicon Book won't hurt a book published by JKR, given her worldwide success and popularity, one must take into consideration that allowing the Lexicon Book to be published may affect the rights of other less well-known authors and copyright holders who do not have JKR's success. Allowing the Lexicon to be published may set a standard for copyright infringement that could hurt others in future.)

(There's also the issue that the Lexicon book would be in competition with the official encyclopedia that JKR intends to create. Knowledgeable HP fans online may know about these nitty gritty details, but average people buying a gift for their child, grandchild, friend, co-worker, etc, won't necessarily know the difference. Buying the Lexicon Book would take away potential buyers of JKR's encyclopedia, the profits of which will go to charity.

On top of all that, the Lexicon (website and book) is bound to have inaccuracies in it, simply because Steve Vander Ark is *not* the authority on all things Harry Potter, JK Rowling is. I'm not sure whether or not that has any legal bearing in the matter, but it may not be that great for consumers who expect 100% correct information from an encyclopedia, and maybe JKR is entitled to protect consumers from that kind of misinformation and inaccuracy.)

It is clear, IMO, that Steve Vander Ark and RDR books are in the wrong by trying to publish such a book.

In the news post by Melissa, SVA's statement is quoted as saying the money made from Google Ads and Amazon links ($100-115/month) goes towards the costs of operating the website. In that same post, Melissa points out that the Lexicon is hosted for free by TLC.

As pointed out by Steve in his "What's New" update, helpfully quote in full by Melissa, website operating costs don't necessarily mean hosting costs. They can be things like software and books and other resources which may arguably be needed to maintain the site both in terms of technical needs and in terms of content and updating the site.

However, by including that note about TLC hosting the Lexicon, Steve interpreted that as Melissa indirectly insinuating that he was lying about where the money made from Google ads and Amazon links goes. I'd say that's an understandable interpretation, whatever Melissa's intentions were in restating that information at that point in the news post.

Melissa has made several long posts here explaining that she is bothered by the fact that Steve never asked if he could or should pay for hosting the Lexicon once he placed ads on the site. She finds this to be an act of disrespect.

Why? Because Leaky was doing them a favour by hosting the site for free. And in Melissa's view, once there was a change in circumstances (ie, ads on the Lexicon), SVA should have offered or asked if he should pay or contribute to the cost of hosting the Lexicon.

Melissa sees such an offer as an act of courtesy in an amicable working relationship. That, as she has pointed out, has little do with the legal issues at stake, but is important to her on a personal level. However, (n)etiquette in such matters isn't exactly universal: everyone knows CONSTANT CAPSLOCK is rude, but this is less common and more intricate. Steve may not have realized he was doing anything that Melissa would find hurtful or disrespectful, and there was nothing stopping Melissa/Leaky from discussing it with SVA, asking about the ads once she/they found out about them, and determining whether or not anything in their arrangement should change.

Since the issue of money (and what it is used for) was raised, SVA points out that compared to Emerson Spartz of MuggleNet (who allegedly makes a six-figure income off of all things MuggleNet), any revenue generated from advertisements on the Lexicon is fairly insignificant.

It appears as though SVA, in an attempt to defend himself, is convoluting the main issues at stake (Profiting off of the Lexicon Book and Copyright Infringement of JKR's work). Maybe he's trying to drag other websites that earn money (whether for profit or to "support the site") into the case, in order to better justify him making a profit off of his book.

I think that raises a very interesting point, which could have greater ramifications for fans and fandom at large. Websites like Leaky and MuggleNet have many ways of supporting their websites: through advertising on their sites and in their podcasts, selling t-shirts, merchandise, books, etc. Clearly, money gets produced by all of these things.

Emerson supposedly makes a substantial amount of money off of MN, and there's at least one article that reports Ben and Andrew as receiving a salary for their work at MN. Do salaries such as theirs count as profit, or supporting the site? It's hard to say. Paying staff to do the work that keeps things running could count as "supporting the site", but how does one draw the line between compensation and significant profit? Where and how does one decide who should be a paid staff member and an unpaid volunteer? That's a can of worms, I'm sure.

Does (or should) making money off of such a website count as copyright infringement? Both MN and TLC use images, videos, and information about HP on their websites. Both surely generate revenue from ads and selling merchandise. How much or how little of that revenue is needed to support the website's financial costs, and where does the leftover money (if there is any) go?

It could be argued that MN and TLC provide a news service and entertainment, and that they have every right to make a profit off of their websites. If so, they don't need to divulge any information about how much or how little profit they make and where or to whom that money goes. It's not our business, it's theirs. It may even be detrimental to such websites for financial information to be given to the public, especially if such a website draws popularity by presenting an image of being run by hardworking volunteers. (It may even be detrimental to the running of a site if there are a few paid employees and a large number of unpaid volunteers who are unaware that others working on the site are paid.)

So what does this all have to with our (former!) friend, Lexicon Steve? Is it arguable if that websites like MN and TLC can be legitimate profit-making businesses, maybe SVA/RDR has more of a case for profiting off of a book based on JKR's work? Again, I'm not sure. (I still think the point about a website being free to use, versus a book which one has to pay for, is very significant.)

A lot of fans put a lot of hard work and effort into various endeavours, and they do so without being paid. As a result, money is a very sensitive issue when it comes to fandom. A fan who makes money from their fandom work may be seen as breaking ranks and spoiling the fun (after all, if one person can make money off it it, why not you?). And as fans of something, concern for the rights of the creator's intellectual property arises as well.

However, if a fansite is not legitimate businesses, but instead a non-profit entity (which I believe The Leaky Cauldron claims to be?), don't they have a responsibility to be transparent about their finances? It is my understanding that a non-profit organization is meant to serve the public, so it may be in the public's interest to be assured that any profit made from such an organization is put to good and reasonable use.

In conclusion, the JKR/WB should win her case against SVA/RDR, and when it comes to fansites and money, it's very murky territory.

I'd like to add one more thing, if I may, after your excellent summary: Lexicon ownership.

QUOTE

I should point out that I understand that SVA and his many tireless associates put in enormous
amounts of work plain and simple on the Lexicon. The question is whether that work was original enough to
allow publication without permission.

That's not the first question I think of. The first question I think of is why Steve thinks that the work
of his many tireless associates is his to do with as he pleases, including publication. Not one word has
been said by him about compensatory agreements with these associates, because I suspect none exist. Also,
if he bases this supposedly assumed right to use the Lexicon material on his ownership of the site, again
in my mind I have to wonder if he does indeed own the site, or is he simply a webmaster and extremely
active volunteer who, much work as he did, has no actual rights of ownership over the content of the
site.

As far as I see, and have seen since the beginning, the only thing he has definite rights to
freely market is anything he wrote himself that is original- not quotation or paraphrasing of Jo's work
beyond a justifiable percentage, and not anything original to any of these tireless associates.

Maybe this is immaterial, however, it seems like a potential sticking point to me.

Also, isn't the issue of trademarks involved as well?

ETA:

QUOTE(magicpants)

Does (or should) making money off of such a website count as copyright infringement?

I don't see why it should, in my opinion. Monies generated from, say, banner ads or click-through sales is money made by the site owner from their allowing use of their property- space on their domain and use of bandwidth they pay for- for a third party to advertise. The content of the website may be a reason for people to come to the site, which will then afford them use of these links and views of these ads, but that content is not what is being sold or what monies are gotten in exchange for. It's the privilege of being on the same page as this content for viewing. In RDR's case, however, the site content IS what is being exchanged for monies.

This post has been edited by Hinoema: Feb 14 2008, 03:10 AM

QUOTE(Hinoema @ Feb 14 2008, 08:56 AM)

As far as I see, and have seen since the beginning, the only thing he has definite rights to
freely market is anything he wrote himself that is original- not quotation or paraphrasing of Jo's work
beyond a justifiable percentage, and not anything original to any of these tireless associates.

Maybe this is immaterial, however, it seems like a potential sticking point to me.

That is a very good point, indeed. If he wanted to publish a non-infringing book, a book of the Lexicon essays would be a great idea. (But in that case, many writers would be owed royalties, and not just SVA.) The encyclopedic work comes too close to regurgitation, rather than analysis.

QUOTE(magicpants @ Feb 14 2008, 02:19 AM)

QUOTE(Hinoema @ Feb 14 2008, 08:56 AM)

As far as I see, and have seen since the beginning, the only thing he has definite rights to
freely market is anything he wrote himself that is original- not quotation or paraphrasing of Jo's work
beyond a justifiable percentage, and not anything original to any of these tireless associates.

Maybe this is immaterial, however, it seems like a potential sticking point to me.

That is a very good point, indeed. If he wanted to publish a non-infringing book, a book of the Lexicon essays would be a great idea. (But in that case, many writers would be owed royalties, and not just SVA.) The encyclopedic work comes too close to regurgitation, rather than analysis.

Honestly, the best thing that Steve could have done when approached by RDR would have been to pitch his Harry Potter travel guide. At least the travel guide would have offered something unique. Showcasing the real locations where the books take place would have been interesting. Heck, he might have even been able to theorize about why a specific area was chosen by Jo for particular characters or places.

A book like that would have been transformative, since it would show the parallels between the real world and the HP one. And it would be something new, since as far as I'm aware, there aren't any books like it on the market. A repackaged, condensed version of the Lexicon site? Not so much. And when compared to the much more definitive encyclopedia that Jo could write, it's woefully incomplete.

It's a shame that SVA chose to try and publish the Lexicon site instead of something more original. If he'd gone with the travel guide, there might not be a lawsuit right now.

Hinoema - you write: "The first question I think of is why Steve thinks that the work
of his many tireless associates is his to do with as he pleases, including publication. Not one word has
been said by him about compensatory agreements with these associates, because I suspect none exist."
I wonder how that can be true, since apparently at least some of his associates are still helping him to run/update the HPL site? Also, I haven't heard anything about Steve's associates complaining about him or his treatment about them. Undoubtedly, however, there are things I don't know about the situation. Although SVA does not look very impressive to me at this point, it is nevertheless a measure of a person's character as to how his colleagues/"employees" (although I assume they're volunteers) treat him.

I know this is off-topic so please excuse me everyone ... I totally second the idea that SVA might write a travel guide to the HP world. It's a niche that is so far unfilled, as far as I know. If you are reading this, Steve, and if you can bear to do so when all this is resolved (in whichever way it happens), please consider the idea. I think you'd do a fascinating job and I for one would be glad to read it.

QUOTE(linden swallow @ Feb 14 2008, 11:41 AM)

Hinoema - you write: "The first question I think of is why Steve thinks that the work
of his many tireless associates is his to do with as he pleases, including publication. Not one word has
been said by him about compensatory agreements with these associates, because I suspect none exist."

I wonder how that can be true, since apparently at least some of his associates are still helping him to run/update the HPL site? Also, I haven't heard anything about Steve's associates complaining about him or his treatment about them. Undoubtedly, however, there are things I don't know about the situation. Although SVA does not look very impressive to me at this point, it is nevertheless a measure of a person's character as to how his colleagues/"employees" (although I assume they're volunteers) treat him.

Right- that was definitely a 'to the best of my knowledge, from what's he's said publicly' sort of thing.

I just think it's odd that he seems to claim blanket ownership of the Lexicon site in it's entirety, considering, well, everything I do know and have seen. It's puzzling. It may be relevant to the case, as well, if it's brought up.

QUOTE(davidenglish @ Feb 14 2008, 12:58 AM)

I don't see that Melissa opened any doors to discuss things not pertaining to this lawsuit. [...] I don't see why Melissa should remain publicly silent about things that affect her and only comment in private while SVA can say whatever he pleases, whereever he pleases.

At the risk of sounding repeative and also in response to gypsyweasley's post with similar points, of course Melissa has the right to editorialize all she wants but as soon as she starts doing that, the claims of "neutral" and "unbiased" are no longer valid.

QUOTE(davidenglish @ Feb 14 2008, 12:58 AM)

I've bolded your comments about me above. I have been critiquing the manuscript of the 'lexicon' book. [...]
I take offense, however, at your claim that I have attacked the Lexicon staff. I defy you to show where I have done that.

I have seen posts in which you say that these are errors that occur on the website as well. I'm sorry that I don't have time to read through your many posts again. If I am remembering incorrectly, I sincerely apologize. If things are just copied and pasted from the website (of which I wouldn't be surprised), then I would guess that some of those things were prepared by Lexicon staff as well as SVA. And especially when you are talking about the website, I would think it would be considered a team effort and pointing out SVA's mistakes would also be pointing out staff mistakes. My main point is that you don't have to directly meantion "Lexicon staff" in a post in order for it to still be a slight to the Lexicon staff. I will also say again that it doesn't have to be said at Leaky in order for SVA's claim of insults to his staff to be true.

QUOTE(gypsyweasley @ Feb 14 2008, 01:15 AM)

Actually, there was a post shortly before Melissa's that copied Steve's blog exactly and put it on here. It's been frequently done before with Steve's comments on the blog from now and months earlier. So, personally, I think that it would have been discussed thoroughly as everything else seems to be done here. We respond to Melissa's post because it's Melissa. But we would have thought and discussed and posted about Steve's latest comments regardless. [...] Not saying who is wrong or right here, but I wish all there was to discuss was the case itself because that's what is truly important here.

I do agree that people would have talked about this no matter what but I believe Melissa's post is what changed the tone in how the update is discussed. SVA made a posts about a docement submitted to court. In my opinion, Melissa is the one that made it personal. I don't see anything wrong with responding to Melissa, as evidenced by the fact that I also have responded to Melissa. I do think that your comment that people respond to Melissa because it is Melissa highlights my earlier point that Melissa has a great reputation in the fandom and that people will immediately believe her accusations without evidence while SVA's earlier accusations about his staff being attacked are deemed unreliable.

Having no knowledge of the way the system works in the US appart from whats been said in this thread I have what may be a daft question. If it is I apologise. I am also trying to keep "personality" out of this as I do not want my question to be interpreted as getting at anyone, it is simply a request for information.

It is puzzling me but if in a case such as this one or more parties on on side of a case make public statements giving thier opinion on subjects germaine to the dispute could that action reach a point where a court would not accept them as a witness as thier evidence could be tainted by any response to the public statements?

my apologies if that is not clear I hope it is though.

QUOTE(Moriah @ Feb 14 2008, 12:11 PM)

I have seen posts in which you say that these are errors that occur on the website as well. I'm sorry that I don't have time to read through your many posts again. If I am remembering incorrectly, I sincerely apologize. If things are just copied and pasted from the website (of which I wouldn't be surprised), then I would guess that some of those things were prepared by Lexicon staff as well as SVA. And especially when you are talking about the website, I would think it would be considered a team effort and pointing out SVA's mistakes would also be pointing out staff mistakes. My main point is that you don't have to directly meantion "Lexicon staff" in a post in order for it to still be a slight to the Lexicon staff. I will also say again that it doesn't have to be said at Leaky in order for SVA's claim of insults to his staff to be true.

I'm not sure how pointing out textual problems in the infringing book or even the on the website can be taken as a personal attack. I've read many of the update posts by the Lexicon staff and I think they're made of sterner stuff than that. And I certainly don't add slights to my critiques to make them personal.

Besides, this is not what SVA was talking about. He said "What has been the hardest are the personal attacks, blatant disinformation, and rushing to judgement that have been hurled our way." SVA said his staff had been "traumatized and disheartened". This refers, I'm guessing, to attacks about the infringing book. But, although one could certainly find attacks on SVA about his decision to go against Jo's wishes, one would be hard pressed to find a single slur against his staff.

Indeed, at the time this was posted, I asked if his staff had been consulted. What did they know and when did they know it? Did they approve? Did they sign releases? Did SVA indemnify them? Were they offered a share in the profits? Or, perhaps, were they as caught off guard as the staff at TLC?

I did not get an answer to any of those questions. And SVA did not provide any. Not on his What's New and not in any of the court submission. He implied that his staff wrote large parts of the infringing book. But, whereas WB/JKR's submissions contain a statement from Jo herself and from her editors, RDR Books offered no statement from the Lexicon staff, that elite team of librarians and scholars.

In theory, if SVA has no written waivers of copyright from his staff, they each might send RDR Books a Cease & Desist letter. Who knows? They may have done so. C&D letters aren't public documents. And, in the contract, RDR was indemnified by SVA against such claims made by people other than WB/JKR. What a mess!

I'd like to point out that SVA made the first claim about his finances in his court submission and on his What's New. For some unknown reason he's trying to claim that the Lexicon is a commercial venture. He's not very convincing. In one breath he says it's a commercial venture and then says he doesn't keep track of expenses and has never claimed it on his tax return. A very odd way to run a business!

If SVA wants to make a six-figure salary, I'm okay with that. But he can't do it by paraphrasing JK Rowling and saying it's his own creative work. He is writing a travel guide to HP places. I'm okay with that. He charges to lecture. I'm okay with that. If he wants to set up a website that has tons of ads, I'm okay with that. But he has to be upfront with what he's doing and why. And I expect him to be upfront with his staff and the fans about his desire to make a living off the creative work of others, not just in secret with some penniless publisher in Muskegon, Michigan.