Continue the discussion about Lexicon Steve and the pending lawsuit vs. JK Rowling and Warner Brothers here. Part II of this discussion can be found here.

Modly reminder: Observe the LeakyLounge rules and be nice. Nothing less will be tolerated. Thank you so much! Happy posting!

futureweasley
Leaky Moderator

Well, I'll start off the new thread by thanking Alraune for remembering a snippet of conversation between John Noe and Steve Vander Ark that happened in PotterCast #61 way back on October 29, 2006. Yes, that would be a full year before the lawsuit was filed. Here it is:
Now, for a recap of what we hope to be discussing this month. If I recall correctly, WB/JKR must hand RDR Books on Monday, January 7th, their formal complaint, that is, a list of all the infringing material in the proposed book. Remember: WB/JKR were not given a copy of the manuscript until a week after they filed the lawsuit. Indeed, they had to sue to be shown it. I suspect this will take the form of a heavily annotated manuscript of the proposed book outlining what WB/JKR consider infringes copyright or violates trademark.

RDR Books will have two weeks to answer this complaint point by point. They could offer to negotiate by changing the text of the proposed book. Or their Stanford law professors might work up a Fair Use case as an answer. Whatever they do, this is where the courtcase will be outlined and the tough decisions of how to proceed get made.

If there is no movement to resolve the dispute, the two opposing teams of lawyers will fiind themselves before a judge on February 6th. And then it will be up to the best legal argument whether we see a book or not. Well, not really. Whoever loses has the option to appeal. But the first victor generally has the high ground and, unless there are serious errors in the judge's reasoning, it is usually a portent of things to come.

I am so disappointed that Fandom w--- missed SVA's update. I am trying to avoid much of the discussion until after the next legal round. I think SVA gets slimier every time I read him. I can't buy into his "I'm so noble and naive" act. I'm not calling the man a liar just disingenuous. I've read criticism phrased at the Lexicon when it's really directed at SVA. I think some people are uncomfortable directing negative comments at an individual - it's seen as cruel. By substituting the Lexicon for SVA, they more freely (and creatively) express their thoughts. I've seen nothing unkind directed at the staffers.

Does anyone else find SVA's speaking for JKR disturbing? It's almost as if he sees her as an intimate friend. There's an element of association/imagination run amok that (to quote a teenager) creeps me out. In this, SVA reminds me of some friends I have who are avid roleplayers. Role-playing in real-life, not just on-line. At times, they seem befuddled as to where their game persona ends and their real-life begins. It's rather pathetic to see - I mean that in the compassionate and contemptuous sense.

Alraune: Great catch on the last post. You have an impressive memory!

Thank you davidenglish for the recap, I'd forgotten about the Jan 7th date. Will the Jan 7th formal complaint be a public document that we will be able to view? I would think yes, but I've learned in law nothing is certain or simple. Thank you so much for explaining the legal issues in words I can understand
Vicky

An interesting question, but it seems unlikely that an annotated copy of the text would appear since that would be equivalent to publishing it, and I am not convinced either side would want that. We might get a summary though, which would still be interesting to read.

I second that! It is hard for me to follow all that specific lawyer lingo, but, at the same time, I am really interested in this. I really appreciated that recap davidenglish!

I know this has little to do with the law suit per se, but wondering made me think about something I found funny, even more than SVA speaking for JKR (something I had no idea of, to be honest). He sometimes speaks for us, fans, like in that video from last year conventions. I am aware that many "fandom celebrities" speak for us, but they do it with respect or at least with the humility that one would hope a good journalist/fan/critic has. Anyways, what I am trying to say is that I don't buy his "sandbox" argument and he shouldn't try to shove it up our throats like a preacher or something of the sort.

Well, my impression is that all the to-ing and fro-ing this month will be private or, as lawyers like to say, in camera. Which is just fancy Latin talk for "behind closed doors". This is what, I think, is called "discovery" in criminal cases. This is a civil case and so we're only likely to hear what RDR or WB/JKR are going to tell us.

I'm rather hoping to hear RDR thump his chest and declare that WB/JKR's charges are outrageous and groundless and that he's "not yet begun to fight". Certainly by late January we'll know if it really is going to end up before a judge. And then it is likely to be just the various arguments of infringement that we're going to see posted publicly.

Of course, it's a big question is it really does infringe. After all, we do know that it's only about a third of the online HPLexicon. We also know that it is devoid or artwork, essays and long quotes of verse. So, what's in it? I'd bet that what WB/JKR focus on is the title and the conflating of the book with the website. RDR has so relentlessly linked the website with the book that it's tantamount to suggesting that JKR has given the book an award and an endorsement.

However, if the book is but an abridgement of the website, it can't be considered the same thing. So, I expect to see a great deal of focus on the Title and very specific complaints about the percentage of quotation. This will work against RDR as all this free publicity will only highlight how limited this book version of the free website is. And if it's just a dictionary of people, places and magic in the Potterverse, well, there are already several competing books out there.

Ok I was just on RDR's website to see if they had updated anything and I found this bit in the Q&A portion of their website interesting.



It still boggles my mind that they keep associate this with a the books of criticism and analysis that are out there when we have it straight from the horses mouth, so to speak, that the book form of the Lexicon is cutting all that out. I don't see RDR willing to make the changes that would make the book legal. Call me a tad skeptical, but they seemed bound and determined to drag this whole thing in front of a judge. At least that was my impression at the forum.

Who is RDR? And why would a single person be stupid enough to take on JK Rowling and Warner Brothers?

RDR Books, which I presume is named after owner Roger Rapoport, is the publisher who wants to print the book version of the HP Lexicon. RDR Books is a tiny publishing house from Muskegon, MI, a stone's throw from where Steve Vander Ark was living. RDR apparently grossed about $100K last year, which would make it a very small press indeed.

Although it seems Rapoport read a story about the Lexicon in August and approached SVA about a book, Steve has said recently that he had been trying to discuss a book version of the HPL with WB/JKR as early as the spring of this year. Why he would sign with a tiny press that couldn't even afford to pay him an advance on royalties is a mystery.

The American doctrine of Fair Use (and the Commonwealth concept of Fair Dealing to a lesser extent) does allow books of academic criticism and scholarly review. The website contains far too much directly quoted and paraphrased material, as well as trademarked images, to pass a test of Fair Use. However, the proposed book is not the website "verbatim" as RDR initially claimed, but only about a third of the website's material.

So, the big question we're waiting to see resolved is whether the abridged and expurgated manuscript that RDR handed over to WB/JKR manages to meet the definition of Fair Use. Will WB/JKR object to it entirely? Will they merely object to parts of it and suggest changes? It'll all be clearer in five weeks time.

Of course, Roger Rapoport might be crazy like a fox. The lawsuit certainly garnered more publicity than he could ever have hoped to generate by normal PR. The downside is that he has to succeed or he faces financial ruin. WB/JKR have said they aren't interested in a monetary award, but RDR has sold foreign rights to Britain, Canada, France and Australia. And those publishers aren't likely to be so generous to Mr Rapoport for getting them into this fix.

And, sadly, each player in this tragicomedy has their own vested interest. Rapoport's is different from SVA's, JKR's from WB's, and Stanford's FUP's interest is different from RDR's. And, of course, Fandom has divided on the issue and is worried about the future of fansites. It's a terrible mess and one wishes SVA had talked more openly about it to his friends and colleagues in Fandom before he signed a contract. This business just gives the impression of SVA as being something of a loner and outside of the mainstream fandom, which comes as a surprise to many.

Nice summary, davidenglish. You're right that RDR may be banking on the court case acting as free publicity, but as you mentioned earlier, if they manage to prove that the book does not infringe copyright, they'll probably also be proving that the $25 book is not quite as useful a tool as the free website, which may decrease their customer base. It's a double edged sword Rapoport is playing with, and I hope he knows how to use it more skillfully than we suspect, or he and all his employees may be facing some serious financial consequences.

I just found something that might be of some interest here, as long as we're discussing copyright issues.

Members of the American Library Association get regular emails with links to news stories, blogs, and research studies that affect the library field. In today's email there was a link to a blogger called 'Brary Web Diva, who posted the results of her survey on library worker knowledge of copyright. It's pretty interesting, and it reminded me of some of the things we've been discussing here.

Here's the link

Thanks, DaisyRenee. And thanks as well to Roonwit, Vicky and fer_keeper. You are all too kind.

I admit to being perplexed by RDR's behaviour. SVA said in his most recent comment on this case that he hadn't been paid an advance and didn't think he'd make that much money off of the book sales. So, what then would be a cost/benefit analysis of this book?

RDR said, and I found it odd, that they had planned to do only an initial 5000 copy printrun of the book. Well, that's improbable. I'd have guessed between 50,000 and 100,000 copies. That assumes healthy sales to public and school libraries and sales to the hardcore fanbase. And then there's SVA's lecture circuit which should generate sales as well.

Consider 5000 copies @ $25 less 40% wholesale discount = gross income of $75,000. The printing cost is likely to eat up a third of that and the author's royalties would range from $7,500 to $12,500. multiply by ten to get the figures for sales of 50,000 copies and by twenty to get the figures for 100,000 copies. And I'm afraid I don't know how foreign rights work, but there's added revenue there.

The interesting thing here is that even the modest sale of 5000 copies would almost equal the purported annual gross for RDR Books last year. One can understand why Rapoport is willing to risk a courtcase over this. This will undoubtedly be the biggest selling book his company has ever printed.

Now, what about a cost/benefit analysis? Well, if the book is stopped cold by the court, it'll mean financial ruin for RDR. However, if there is some hope of getting a version out under the Fair Use doctrine, RDR can probably afford $15-25,000 in legal fees. (Providing he can put off payment until the book is published.)

Of course, the selling point is the title of the book. I don't think SVA's name is enough to sell something. If the title is objected to for not being clear enough that it isn't an officially approved book and that it's not the most complete (or compleat) and amazing reference to the wonderful world of Harry Potter, then I think RDR has no choice but to face the judge. The text can be adjusted to meet any objections from WB/JKR, but a change of title would sink the book.

WB/JKR can probably only demand that the words "unofficial" or "unauthorized" be added to the titled. However, if the book really doesn't look anything like the website in content, then WB/JKR can probably insist that no mention can be made of JKR's Fansite Award or her comments about the website being her "natural home" as this would be a misrepresentation of Jo's endorsement.

Yes, DaisyRenee, you're right about Rapoport wielding a double-edged sword. He needs to negotiate some kind of positive settlement before it ends up in court. Daily court costs can be enormous. And I can only see him fighting a courtbattle over the title or if WB/JKR object to the book entirely. Otherwise he'll start to sound like the Black Knight in Monty Python & the Holy Grail. ("It's only a flesh wound.")

This is where you have been & are so helpful in explaining "Lawyerese", in camera. sounds to me like it would be out in public as in front of a camera

'Ear, 'Ear. Excellent description of what RDR has mainly done - an image of an Orangutan thumping it's chest came to my mind reading your post. I am finding it harder & harder to see RDR as a serious entity. Thank you and all the others keeping me up to date with this issue. I find it interesting from a viewpoint of learning about copywrite & infringement and as comedic relief while I await The Scottish Book (and hopefully another book series from JKR about her wizarding world).


You know, before this mess came out, I think SVA's name would have brought in more revenue than it will now. I know I would have considered buying it as SVA seemed a sensable person before this book thing came out. Now I would not buy the book for any reason.

(edited as we were both posting at the same time & I wanted to add my 2 cents worth)

If it was an initial 5000 copy print run, I'd guess the purpose was to gauge sales and finance a larger print run. RDR keeps claiming to have limited resources. Perhaps they planned for initial sales revenue to fund the follow-up printing costs.

Until the publicity of this lawsuit, SVA's name was not as well known as The Lexicon itself. He has certainly reaped the benefits of free publicity here. This does make him a little more marketable for later books (SVA and the Chamber of Legalities?). I'm waiting to see who bears the financial burden if RDR loses. RDR or SVA? From SVA's postings, I'm betting it's RDR.

Well, I'm sure that RDR didn't have enough capital for a bigger printrun than 5000. But I'm sure he'd have been able to order more copies as sales began to grow. 5000 is a respectable printrun. But, when you consider that DH sold nearly 7 million copies in the first 24hrs, RDR would know there was potential to sell to at least 1% of that number.

SVA has already stated that he was writing another book. A travel guide to Harry Potter-ish places in Britain. (If I may brag, I predicted this very subject in the first thread. RDR already has a travel guide to Agatha Christie-ish places in Britain, which made me think of it.) And this summer SVA is giving a guided tour to such places in Britain. It would be interesting if Rapoport made this a two book deal.

DaisyRenee, I rather enjoyed reading that survey of librarians on copyright. Of course, RDR's Stanford lawyers are behind Creative Commons, so I was interested to see them mentioned. I've said earlier that I don't get why they're not of Jo's side. Her attitude toward the internet has been very progressive.

Oh, and that Fair Use Checklist was great. I can't see how all these librarians involved with the HP Lexicon wouldn't have nixed a Fair Use defense after reading that checklist. And Lisa, who also runs Accio Quote, has begun pulling articles and transcripts where copyright permission is in doubt.

There's this funny attitude that online communities are somehow above the law. Well, the little fansites may fly under the radar and be considered of no interest to the big "bad" corporations, but, when a website brags of 25 million hits in a year, they really can't excuse themselves from following the law to the letter by saying it's only a hobby.

We know MuggleNet and TLC had consultations with WB/JKR about their proposals. So I find SVA's excuse that nobody would talk to him rather odd. And even stranger that he wouldn't have had an "escape" clause written into this contract requiring RDR to get permission from WB/JKR.

I never posted much in the Snape's Loyalty threads, but I find SVA's Loyalty rather fascinating. (I just hope SVA doesn't become the subject of Slash Fic the way Severus did. )

For those interested Melissa has published an update on Leaky, the most immediate change being that 7th January is now 15th January (I am guessing there have been more court documents filed and Melissa has seen or heard about them before they have appeared online).

Well, I guessing that they want to be very careful about how they phrase things with Stanford involved. Falzone and Lessig are not above using a little sophistry to make their case. Fortunately, most judges haven't bought their "free-for-all" culture argument. (Try to imagine a world where there's no fiction, only fan fiction.)

Larry Lessig of Stanford and Creative Commons gave a pyro-technical "mash-up" powerpoint presentation entitled How creativity is being strangled by the Law. It's a great show. And who doesn't love a singing Jesus belting out "I will survive"? But the thing that kept popping into my mind was Leni Reifenstahl's Triumph of the Will. Is powerpoint really about the triumph of image over reason?

Reading through the comments to Lessig's tour de farce, I was struck by the attitude that artists and musicians don't do it for the money, they do it for the "art". LOL. In other words, a bunch of tenured pedants with secure incomes who force students to pay huge tuitions to sit through boring lectures in order to get a piece of paper they can flog on the job market think creative individuals should beg for their supper while the pedants comment on the quality of their begging.

Now, how would Lessig and others feel if their lectures were bootlegged and I could log on to the University of Havana and watch YouTube lectures of all the greatest profs in the world and get a degree using my credit card? Who needs living profs when dead ones can lecture on and on? (And, frankly, aren't a lot of profs like Prof Binns anyway?) Good heavens! Imagine a university with no staff but the techies running the computers. Free Culture! Free tuition! Free education!

Of course, actors are already alarmed by the lastest in motion-capture CGI. Beowulf was the movie of the future. And, if you're not into comic book gore, it was a pretty odd movie. Modern directors have often dreamed of turning actors into marionettes whose strings they can pull; now they can do it through computers. There's already been talk of a sequel to Casablanca starring the dead Bogart & Bergman.

Phew! I've wandered off topic. But my point --and I do have one-- is that Fair Use cannot be used as an excuse to beggar the artist. Jo may be rich, but she's an exception. Most artists are not rich. And if the doctrine of Fair Use becomes so broad that no artist has any hope of writing sequels or licensing derivative works, culture will be as free as a bunch of crabs in a bucket.

Well, the fact of the matter is that fair use is fair use, regardless of whether the original content owner (or the copier, for that matter) is rich or poor. It's copyright infringement if I try to publish a rip-off of Star Wars, and it's copyright infringement if Universal gets a copy of that short story I wrote in middle school and makes a movie out of it without my permission (though I doubt they'd want to ). It doesn't matter who has the money. It matters whether you've used enough of the original material in a commercial enough way to warrent the label "copyright infringement." And while I'm all for open access and making information more widely available to the public (and not just academics who are affiliated with a university), I don't like the idea of the sort of information communism that Falzone and Lessig tend to promote. We've seen that economic communism doesn't work, and I don't see why information communism should be any better.

Would it be better for the artistic world if copyrights were shorter? Maybe, but maybe not. davidenglish mentioned fanfic earlier, and it's easy to see how the love of established characters may lead the way to a writer getting stuck in someone else's world rather than finding his or her own voice. Then you get the deluge of bad sequels and remakes we've been getting lately in the film world, which makes me wish someone would have an original thought already.

I said that so I could say this next part. The person who established the story and the world really is the person who should see it through. Scarlett, the sequel to Gone With the Wind, was written by a different author. I don't know how to describe it other than by saying it just didn't feel right. It didn't feel like the real Scarlett O'Hara, and that kept me from becoming emotionally involved with the story. And I think most of us can say the same for some of the HP guides that are already on the market. They were a convenient way to keep our attention during the years when we were pining for Jo to hurry up and finish that next book, but they really were no substitute for the real thing. I've said dozens of times that I love the Lexicon. I do. I think it's a wonderfully put together resource. But it's not the real thing. Jo wants to finish this up herself, and since she started it all, she should be the one to see it through.

I officially love you now.



And as creator, the one who has all rights to do so. No amount of voluntary fannish hobbyism should ever equal a right in regards to something created by another.

davidenglish as usual you have so eloquently & accurately described most tenured creatures I encountered. Bravo Why don't they lecture for free & beg for their supper? They would starve!

I too love the Lexicon as an on-line resource to JO's world. It is up to Jo to do what she wants to do with her world, as it should be with any creative person.

Thanks for the update link, roonwit. I understand the bit about the Stanford lawyers needing to file documents for permission to join. I am confused about the discovery bit. Could you lay it on us again, Mr. Davidenglish man? (When I mangle an out of context quote, it stays mangled!)

Are the parties required to participate in discovery? (I thought they were.) From reading the update, I'm not sure whether it means they couldn't even agree to a meeting date or they couldn't agree to what constitutes discoverable material, i.e. who should offer up what. It would seem to follow that if you can't meet, you can't negotiate any preliminary agreements.

Someone may already have posted this: Do you think SVA will attend these hearings hoping that JKR will attend and they can get together and solve this nasty business between themselves?

I second the thanks to roonwit and the request for an understandable at my level as to what has happened & what will/may/hope to happen from Davidenglish. I would also like any & all thoughts on the Stanford lawyers doing this for the publicity sake? IMO the Ivory Tower world would look favorably on the Stanford lawyers taking on the Goliath of WB. The Ivory Tower world may look down on Jo since she made money, even though as a teacher they should support her. I don't refer to Jo as a former teacher because I've never studied anything as hard as the world & litature Jo has written.
Thanks again roonwit & Davidenglish
Vicky

This is guesswork on my part, but I presume that the discovery conference that didn't happen was supposed to reach some sort of agreement out of court as to how the book could be adjusted so that both sides were happy with it, but it sounds like they couldn't agree a date, or enough ground rules for it to be worth holding. It might alternatively be some sort of attempt to agree the legal issues involved. (Note that the first order by the judge in the case talks about "limited expedited discovery" in relation to RDR handing over documents (including the book text) early on in the case).
I doubt Jo will be at any hearings or meetings with the other side, because it is mostly happening on the wrong side of the Atlantic for her, I very much doubt she would consider attending such meetings as fun, and it doesn't really need her input anyway because her side of the argument is clear and can be argued by the lawyers (maybe she might be needed to approve a compromise should one be agreed, but that could be done by phone, fax or email).

The story about the discovery sessions that failed to materialize comes from this part of Melissa's story:I'm not sure of the source of this, but I presume it came from WB/JKR's side or court documents not yet posted online.

A "discovery conference" would simply be a meeting where WB/JKR would offer up in a casual forum the specifics of it's case and, as RDR had concerns about the HP Timeline, it would be an opportunity for them to discuss that as well. I'm assuming it would be an informal meeting, but I'm not a lawyer.

The memorandum and supporting papers that were to have been dropped on RDR today and will now arrive next Tuesday, would outline, in a more formal way, what WB/JKR intend to argue before the judge. Then RDR answers this with its opposition and supporting papers. Then WB/JKR replies to that before it ends up in a hearing before a judge.

I'd guess that a "discovery conference" would be like plea bargaining. And I think the date of the letters (November 28th) is significant. A week later RDR announced that Stanford had come on board. And RDR sounded ready to take this thing all the way to the Supreme Court.

Recall that WB/JKR had to file their lawsuit just to get a look at the manuscript. They were finally given a copy by RDR on or about November 8th. So most of what was in the lawsuit was based on a worst case scenario as imagined by WB/JKR. A "discovery conference" may have been an opportunity to work out the minor concerns and perhaps strike a deal on the major ones.

To be honest, judges want to see these things settled out of court or at least hear that an attempt was made to do so. Perhaps this exchange of letters was the two going through the motions of trying to resolve it. They need not have been serious. But I assume, since WB/JKR had not seen the manuscript, that they'd have to show that, having seen the document, they would try to discuss things informally before going to all the trouble of filing the principal memorandum and supporting papers.

I suspect the late addition of Stanford accounts for the new time schedule.

There are updates at http://news.justia.com/cases/featured/new-...cv09667/315790/ though they seem to be telling the same story as Melissa's latest report.

Thanks, roonwit. You're really on top of things. I visited that only an hour ago and it didn't have anything past November 14.

I can't find reference to the summaries of the letters of November 28th, the two from Cendali and the one from Hammer. But perhaps they'll be popping up shortly as well.

Meanwhile, back at the ranch, I see RDR Books has updated its website. It's moved the Lexicon & lawyer stuff off its homepage and onto the Lexicon Lawsuit page. And, unless my eyes deceive me, they seem to have tidied up and revised some of the FAQ about the case. They've revised the hearing date to February 28th, but they don't seem to have revised the dates of when WB/JKR is to deliver its principal memorandum or RDR to offer its opposition reply. However, I think I noticed some editing and revising throughout, although somewhat randomly. Again, I may be imagining it, but they've revised this page again and again, so I am probably detecting some slight change.

I presume the letters are 13, 14 and 15 which aren't there, but Melissa did say that only a summary was public, so maybe the summary is still to appear.

Well, roonwit, you really are on top of things. I overlooked the missing numbers completely. I probably need to eat dinner.

I watched that lecture and it was rather enlightening. I studied communication issues when I was in school and I think I know where this person is coming from. There is a communication theorist known as Marshall McLuhan and his ideas were years ahead of their time. I've briefly studied him and here are a few things I highlighted from my text book.
"McLuhan was unique in claiming that channels of communication are the primary cause of cultural change," (Griffin, 315). Back in the 1960's this was revolutionary thought. Most theorist steered away from the impact of the growing changes in Media, but rather to the relationships between people.
"Media not only extend our reach and increase our efficiency, they also act as a filter to organize and interpret our social existence," (Griffin 315). Media, to McLuhan, was an extension of the human senses.

The reason I typed all this out was because it sounded to me like as though Lessig was more like a communication theorist than a lawyer. What I heard was a misapplication of McLuhan's ideas. What I also heard from that was rather frightening. Rather than use the government to get the law changed, he seems to be wanting to change through the courts. Which is really dangerous. When looking at what they stand for we have speculated to why they are siding with RDR on this because it almost seems like they would support Rowling on this issue. They are in this case to get the law changed through court president.

Hope this sheds some light on the subject for people.

Colonel Hogan! Yaay!

*ahem*

But which law, and to what effect? I wonder...

Vicky-the-house-elf: I don't think Stanford is coming in for the publicity. Their mission statement: " The Stanford Center for Internet and Society's "Fair Use Project" ("the FUP") was founded in 2006 to provide legal support to a range of projects designed to clarify, and extend, the boundaries of "fair use" in order to enhance creative freedom." The bold is mine.
Although most lawyers predict JKR/WB winning easily, other have posted valid reasoning as to why this lawsuit will be won by RDR/SVA. One issue is that JKR permitted the internet version of the Lexicon which is the same as permitting the Lexicon in all forms. I know nothing about copyright law but I do know that there is a legal phrase called "past practices". Basically, it means that if you allow some behavior, action, etc for a long period of time, you can't suddenly change your mind and sue over it. Even contracts can be unintentionally amended under this. The other claim is that reference indexes are legal and the Lexicon is basically a reference index. Of course, most lawyers agree that if WB/JKR loses the effects could be far reaching for the fan sites. That would also generate a lot of legal business (not to be cynical).

I think it's important to point out that most of the lawyers arguing that RDR will win the case are not specialists in Intellectual Property law. Things that are true in other areas of the law are not necessarily true for copyright infringement cases.

I'm not a lawyer either, but I had to learn a thing or two about copyright law in my education as a librarian, so I'm going to look at some of the claims that non-IP lawyers are making about the Lexicon book.

1. By allowing the Lexicon to exist as a website, Jo and WB have given it permission to exist in any and every possible form. They have given up their rights to prosecution.
False. Steve and RDR have said publically that the book will contain different information from the website. This makes it a different entity. So basically we have two documents-the website and the book. Both are subject to an independent fair use analysis. Take a look at this copyright checklist. I'm not a judge, but my analysis puts the website in fair use territory (if only just) and the book over the line into what's not acceptable.

Furthermore, under United States copyright law, it's extremely difficult to prove copyright abandonment. Jo would have had to publically state that she gave up the particular rights Steve and RDR are trying to use in publishing their book, and she hasn't done that. Therefore, every right that she has not sold to WB is still firmly in her possession. Every right that she did sell to WB is owned by them. That's why they're in this case together. They're joint copyright holders in Harry Potter, along with Bloomsbury and Scholastic, and no one else has any rights to the series at all. Not even the most enthusiastic of fans.

2. The Lexicon is a valuable reference book. Such books are legal, and so this book must be legal.
This is a misuse of the transitive property. For those of you who haven't taken a math or statistics course in a while, let me refresh your memory. The transitive property states that if A is equal to B, and B is equal to C, then A must be equal to C. Put it in everyday terms. Mumble is a penguin (A=B). Penguins are birds (B=C). Therefore, Mumble is a bird (A=C). Easy, right?

But it only works if everything being stated is the truth.

The Lexicon is a reference book. That may be true. I don't know yet though, because I know nothing about the book or it's contents. But we'll let that stand for now.

Reference books are legal. Not always. There is no caveat in copyright law that says reference books are always legal. Copyright infringement is determined on a case by case basis with no exemption for any one type of work. Parodies are usually given a less strict treatment, but not all parodies are permitted. Some have been ruled as infringing copyright, just like other kinds of works. The Lexicon would certainly not be the first reference book to be given such a ruling, and probably not the last, either.

So what does that do for our bit of transitive property logic? The Lexicon might be a reference book (A might be equal to B). Some reference books are legal (B sometimes equals C). Our connections here are getting pretty shaky, and it would be extremely difficult for me to go ahead and say A=C here. I don't think a judge, who is infinitely more educated in these matters than I, would make that ruling based on those facts.

Well, even if RDR really was printing the HP Lexicon verbatim, that wouldn't necessarily make it legal. Copyright law has long distinguished between hardcover, paperback, audio, film, stage, radio, periodical and electronic or online rights. Each is treated separately. So saying that the website has been okayed doesn't make a book okay.

And is the website okay? Although it has been given a "coveted" fansite award (RDR called it "coveted") and has had a blurb from JKR, it has been left up because it was a fansite, free and not-for-profit. And it was expected to remain that way. Now, if WB/JKR wins this case, they may want to enquire if the website really is not-for-profit and ask to see HPL's Profit & Loss statements.

RDR, BTW, filed a C&D letter to WB about the Lexicon's timeline and Warner's possible infringement of SVA's timeline without making it clear that the timeline would be part of the book. This matter is not proved, but it does make me wonder if SVA was behind that act. And RDR sent its C&D before answering any of WB/JKR's and before WB/JKR have filed its lawsuit.

And one thing that undermines RDR's case is that, after going on and on about how great the HP Lexicon website it is and how much JKR loves it and approves of it, RDR then says that the book is clearly not official or endorsed by JKR and isn't the same as the website. Say what? This is what I really can't stand about RDR's position: They want to eat their cake and have it too.

There's an interesting distinction here between charging for a book (which it seems clear in the lawsuit that Rowling objects to) versus using ad revenue to make enough to pay for hosting while still leaving the website free for all visitors. If a website becomes overtly commercial in nature, which the Lexicon website doesn't appear to be, it becomes a more obvious target for shutdown than one that remains discrete about ads or donations (or doesn't have any at all). Making money isn't a copyright criterion, but it does seem to carry a lot of weight when it comes to choosing to tolerate questionable material or not.



One thing I don't understand is if Steve was concerned about WB's alleged plagiarizing of his timeline, why did he appear on the OOTP DVD's extras segment? Maybe it just seemed like a great opportunity, so he overlooked the problem with the timelines. But still, I would think that being approached to do an interview for a HP DVD feature would give one the opportunity to say "I have this issue, who can I discuss it with?"

Well, RDR claims on its website that WB/JKR's lawsuit was, in part, a response to his C&D letter. This was before it fully came to light that he had been ignoring C&D letters from WB/JKR.

Of course, the Lexicon's is not the only HP timeline. And, as both are based on the same source material, it's inevitable that they would be similar. If all SVA can point to is one typo, I'm not sure how strong a case he has. Of course, if they did use his timeline, he may be due a small royalty and credit. But, again, I'm not sure how RDR had the right to issue a C&D without SVA's consent. Is the timeline part of the book or not?

This set of conflicting claims from RDR is also the thing that infuriates me! I get the impression that the company wants to liken the book to the Lexicon site (to the point of identifying one with the other) when it contributes to publicity, but to separate them when the likeness is inconvenient (for example, when that identification seems too risky legally or financially), and blame other, hostile people for the confusion.

One would think that a C&D letter could only pretain to the website, as that would have had to be where WB got the timeline from, if they had plagiarized it. Even if the timeline had been slated to appear in the book, the book wasn't published yet, so the only source was the website. I had forgotten about the timing of the timeline C&D letter and RDR's role...it makes it sound more like a diversionary tactic than anything else. From the online analysis (I forget the website), it seems plausible that it was plagiarized, but that still isn't a matter for RDR. Bringing the timeline into it was just weird.



The comforting thing about the disingenuous and intentionally misleading statements on their website is that despite their being very annoying, they are the kind of thing that I would hope any serious judge looking at with anything but distain and irritation.

Here is what I find interesting. While the copyright issue is certainly at the forefront of this case, RDR has not responded to the accusations of Trademark infringement unless they are ignorant enough (and I know I'm being generous) to think that they are one in the same.

Well, the trademark things were added by WB/JKR because RDR kept boasting that it was the website in book form and Warner Bros sure knew the website contained photos and images that SVA definitely didn't have permission for. (I believe I read some comment by SVA from over four years ago discussing how he overcame his dispute with WB when WB was being nasty to fansites just before the opening of the first movie. I believe the "non-commerical" use was a factor in persuading them that it was a good thing.)

Of course, we have been told that more than half of the website has been left out of the proposed book. There's no artwork, photos, essays or long quotations. Supposedly. And that might mean RDR isn't worried about the trademark issue. Of course, the mockup of a cover on RDR's website does not contain the words "unofficial" or "unauthorised", so that's still a concern for WB who will consider the lack of such a prominent disclaimer as an attempt to confuse.

I still find it odd that with a looming publication date (and we must remember that the UK pub date was even earlier, November 5th), RDR was still typesetting the manuscript and unwilling to hand over a copy of the manuscript. It makes me wonder if they really weren't sure what was or was not to be in the book. At the GVSU meeting in December, SVA said it would only contain the "lexicon" stuff. And that made me wonder if that included the Timeline and the chapter synopses.

Curious, eh? I can't wait to hear more next Tuesday.

I also cannot wait until next week!. DaisyRenee: I'm sure you've seen the many reference books that are a large index. I wonder if this is ultimately what RDR will try to publish. I don't know whether these indicis must get approval from original copyright owners. I have read several copyright lawyers who are hoping that this case will extend the fair use definition. They want to embrace a much broader interpretation. Their reasoning is tied to internet usage but I'm far too legally illiterate to grasp the concept. For me a book is a book and the internet is not a book.

I don't know how much the concept of "past practices" plays into copyright law. However, this seems to be the crux of the argument. JKR allowed the Lexicon internet site for years. This would establish a past practice. The published version is the same as the internet site. Therefore, JKR can't object to the book. I've read that copyright is hard to overturn. However, as I said, I know that past practices can actually amend a written contract. I'm hopeful that JKR and WB will prevail. It will be interesting!

One problem with "past practices" that was discussed back in Take I of this thread was the problem of logic: If Rowling and/or WB tolerating the online Lexicon (not to mention countless other fan sites) using their copyrighted material means that they have tacitly surrendered their rights to the material, then the implications are sweeping. It would set a precedent that no author (or artist or musician or etc.) could safely allow any fan sites, fan art, fan fiction, fan anything without abandoning copyright. No corporate entity owning any creative property and no artist/author/etc., would be safe to allow unauthorized use of their material for fear of similarly losing their rights. It would then be in their interests to shut down all such sites in the interest of protecting their copyright.

However, as DaisyRenee says, according to legal websites, the standard to abandon copyright is high. Merely not defending it in all instances (every freewebs fan site, every fanficiton.net story) isn't enough. You have to practically say in writing that you give it up. The standard, however, for trademarks is different, and not defending those can lead to the loss of the trademark.

This again brings us back to the Fair Use Doctrine:



JKR may have allowed the lexicon because for the most part it was a hobby. Yeah it has ads, but for the most part it is just a hobby that has become popular. Now that SVA is wanting to make a profit off of it, and seemingly anything that would have made it legal is out. It will be hard to throw the past practices argument out there as a legitimate argument because they are two different forms of media. Lets say the lexicon book was ok in content...the fact that he didn't get the permission of JKR would work against him. You can't argue around that point.

Well, I wonder why SVA and RDR didn't seek permission. SVA gives the rather lame excuse that he tried to talk to WB/JKR, but no one would listen. (That he seems to have tried to arrange a meeting without revealing what it was all about during the frantic lead up to the launch of the movie OotP and the final book seems to have made this brush off inevitable. And I'd like to know if he or RDR tried to contact anyone in August. (Certainly it's obvious they didn't want to talk to anyone in September.)

What, of course, caused panic in the WB/JKR camp was that RDR kept saying it was a book version of the website and would apparently include Jo's blurb and fansite award. The website contains too much material to meet the Fair Use test, both copyrighted and trademarked material. So they wanted to see the book first, hence the C&D letters. But RDR didn't want to show them anything. And, oddly, neither RDR or SVA would even tell them what was in the book. Indeed, they insulted WB/JKR by saying "just go to the website and hit print." Was this a lie or the truth?

WB/JKR know enough about Fair Use that they'd know what they could fight and what they couldn't. Certainly there is plenty of content from the website that could be published without permission. But there's plenty that can't. And this is what makes me question the integrity of SVA. Everyone who has heard him talk says he's funny and dynamic. But there seems to be an element of the fake Moody about him --a hidden story that makes it difficult to know where his loyalties lie. And it doesn't help that his three posts meant to explain this situation were ambiguous and unhelpful.

I suppose I'm interested in this story because it's so like a Harry Potter plot twist. There are two sides; a debate as to who's right; a question of loyalty; ambiguous motives; mysterious behind the scenes stuff; and a high stakes outcome. Lots to talk about.

Well, I wonder why SVA and RDR didn't seek permission. SVA gives the rather lame excuse that he tried to talk to WB/JKR, but no one would listen.

I too wonder about that. I would think that seeking permission to publish should involve more than a phone call saying "Can I speak to Jo?" or a note reading "Jo: Have great idea. Call me. SVA". I'd expect a letter that laid out his exact plans for the book and requested permission or acknowledgement.

It is interesting how this case has grown well beyond the JKR/WB vs RDR issue. I wonder if the Stanford group would have gotten involved if the plaintiffs were not so high-profile. The fame of JKR and WB certainly guarantees a lot of attention. I suspect there will be appeals regardless of the initial outcome.

I've only watched a few youtube casts of SVA and he seemed like a teacher who can keep his students engaged. I found him self-aggrandizing which put me off. He spoke too much about himself, too little about the topic. He seems to envision himself as the new leader of HPdom, taking up where JKR left off...perhaps one of those entitlement fans that seem to get criticized on these forums?

Well, he does seem to have aligned himself with some of the shippers whose ships sank. It doesn't help one's judgement if the people you talk to daily feel it should have been H/Hr and that Snape was short-changed in the final book. (SVA sounded annoyed on PotterCast that Harry didn't unite the three hallows and use them to defeat the Death Eaters.)

And what is perplexing is to see Lisa of the HPL valiantly going on with updating the various character pages so that they're DH-compliant and wondering how on earth a book version could be printed from the website when the website is still being updated. I mean, SVA has always boasted about the quality of the Lexicon, so how could he have expected to publish a book by the end November 2007 when the HPL staff isn't likely to have the DH updates completed until spring 2008?

To davidenglish and daisyrenee,

I've lurked on this thead to this point. I wanted to thank you for the research and the insights you've given on copyright law, legal process, and the fair use doctrine.

I took a fair bit of administrative and labor law as part of my public management grad degree program, but what is going on in this case is far, far beyond my level of skill. The two of you in particular have summarized the issues in a way that I could wrap my head around them.

I've no idea how this will play through the system. With JKR being a billionairess in her own right, the risk is not from the facts and the law, but rather from emotion. Having sat a jury or two, that may well be a risk.

As far as I'm aware, the concept of past practices doesn't play into copyright law at all. Now if Expie or any of our other lawyers is around I'd be glad to hear a real live legal opinion on that.

It's been my impresion that under the U.S. copyright statute, once you own a copyright, it's yours until you sell it (or until you die, in which case it belongs to your descendants for the next 70 years until it expires). I'm not overly familiar with the idea of past practices, my understanding is that it does come into play in things like land contracts, and that by allowing a use of your land that wasn't previously spelled out in the contract for an extended period of time you can unintentionally allow that contract to be altered. The difference here is that there has been no contract. Steve and the Lexicon have been using Jo's intellectual property for years, but she has never said "Steve Vander Ark owns rights to this material and can use it in any way he wishes." She only ever said that the Lexicon was a good resource and that it was fun for her. That doesn't translate to Jo granting Steve the right to publish the Lexicon in any medium of his choice.

As for other reference index/guide books, I know of several that have recieved permission from copyright owners. But in most cases, a large index that would be kept in the reference section of a library is composed of factual information, so there aren't any permissions to ask for. Things like telephone numbers, addresses, and legal statutes are all in the public domain. You can't copyright a fact.

Actually, I might even go so far as to say that based on what I know of the Lexicon book, it's more in the league of a Spark Notes volume than a reference index. And Spark Notes do ask for permission from the copyright holders before they publish summaries in their guides.


Well, hey, Librarians know everything, and we live to serve!

Frankly, I'm hoping that if this case goes forward, it can do so without a jury. I'm not sure what the rules are, but copyright is civil rather than criminal, and I don't think juries are always required in civil cases. I say that because if there's anything I've learned from this case it's that the majority of the public has no idea how copyright law works. I'd prefer if a case that's got as high a profile as this, and as much potential to affect a myriad of future cases, were handled by a judge who is used to working copyright cases. I think that's part of the reason WB's legal team filed the lawsuit in New York, rather than L.A., London, or Michigan. Judges in New York have seen more copyright infringement cases, so they're more likely to be familiar with the fine points of the law. It makes the decision more solid.

And yes, I'm sure there will be an appeal, no matter which side wins this case. I just wish it could have all been settled before this all became so public.

Document 21 is on the justia.com site about scheduling a discovery conference (presumably the one that according to Melissa didn't happen).

Dear me! Mr Hammer comes across as a real whiner. And the perfect lawyer to represent RDR. ("I have no nefarious motive"?)

What is most surprising is that RDR was trying to undo the damage by claiming they were going to change the cover of the book with a new title, The Unauthorized Harry Potter Lexicon.

I don't quite understand what this "limited discovery" business. It seems to me that they're trying to have the meeting with WB/JKR that they rejected four times before the lawsuit.