The Trial -- commentaries, news reports and blogs, oh my!

[Lee Kaiwen]

I've been doing some surfing on the trial, and ran across the following 
stuff (I hope *my* quotations below fall under "fair use" :-) ).

Here are some interesting quotes from a Wednesday Wall Street Journal 
Law Blog.

About the plaintiffs' (WB/JKR) closing argument, Patterson reportedly said:

Its not helpful testimony because it draws conclusions without 
specifics. I cant simply take the experts opinion as my own.

So it doesn't sound like that pie graph is going to have much influence 
on the judge's decision.

The blog went on to call the defense's closing argument "strong", and 
commented that the plaintiffs' "offered little in the way of specifics."
The article also claims the plaintiffs' expert witness' testimony 
"simply unraveled" during cross examination, and concludes with the 
following:

"The defenses Anthony Falzone ... invoked a professorial tone and led 
the judge through a thorough analysis of RDRs case. Synthesis and 
distillation is what makes the Lexicon 'tranformative,' he argued. 
'Quality shouldnt matter,' he emphasized. If the Lexicon is lousy, 
Falzone concluded, the answer is not to suppress it, but for Rowling to 
write her own."

Hmm, I think it's pretty obvious which side the WSJ blogger was more 
impressed with.

However, Patterson's comment that he thinks the case is too close to 
call -- that it touches on many grey areas of American law -- has been 
widely reported. Sounds like the judge's decision will be one that 
satisfies no one. I predict a decision that blocks the lexicon in its 
current form, but lays out a blueprint for a rewrite that could clear it 
for publication.

But then what do I know?

And a separate WSJ law blog, also from Wednesday, talks with IP lawyer 
Ethan Horwitz, who summarizes fair use and relevant case law:

"The fair-use test has four factors and each side can find precedent to 
support it. The case law is really all over the map....

"[U]nder the copyright law, 17 U.S.C. Sec. 107, the fair use test has 
four parts. Its a 'totality of the circumstances' test that a judge is 
supposed to apply, basically meaning that no one prong of the test is 
meant to carry the day. Anyway, one of the parts examines the nature of 
the copyrighted work. The more creative the copyrighted work is, the 
less likely a fair-use argument is going to apply. The less creative a 
work is  like if the work is a news article or something that relies on 
a lot of facts  the more likely a fair-use argument is supposed to apply."

He then cites contradictory case law, the Seinfeld trivia game (blocked) 
vs. a book about the Grateful Dead (permitted).

"Another part of the test examines how much of a work was actually used. 
In a famous case involving the memoirs of President Ford, the Supreme 
Court found that fair use did not apply when a magazine excerpted 300 of 
the memoirs some 200,000 words. But in the Sony/Betamax case, the Court 
held that copying 100% of a movie or TV show did fall under fair use. So 
its very confusing....

"Another part of the fair-use test involves the effect on the published 
works market, essentially just how clearly the copyright holder has 
shown that the work will have a damaging economic effect on her 
publications. Thats a tough argument for Rowling to make here because 
she, in the past, has been so encouraging of fan Web sites and lexicons 
and the like. This is where she has her major problem.

Vander Arks biggest issue, I think, is that his site looks so similar 
to the design of the Potter books. Technically speaking, its a 
trademark issue, but it is going to affect another factor, which is the 
extent and value of the taking from the original work."

But apparently that last bit has already been settled by RDR/Vander Ark 
agreeing to a redesign that looks less like the books.

Unfortunately, the blog doesn't say what the fourth part of the fair use 
test is. Anyone know?

And then there's the blog of RDR's lead attorney, where he talks about 
the trial:

http://cyberlaw.stanford.edu/blog/anthony-falzone

Some really interesting stuff there, too, with titles like "Rowling's 
Tight Grip Chokes Creativity", "Rowling Running Over Fair Use Like the 
Hogwarts' Express?" and "Tim Wu on Why Rowling is Wrong".

Some interesting quotations from that last one:

"Rowling ... has confused the adaptations of a work, which she does own, 
with discussion of her work, which she doesn't. Rowling owns both the 
original works themselves and any effort to adapt her book or characters 
to other mediafilms, computer games, and so on.... But she does not own 
discussion of her workbook reviews, literary criticism, or the fan 
guides that she's suing. The law has never allowed authors to exercise 
that much control over public discussion of their creations....

"Giving Rowling what she wants would be like giving Egypt the power to 
control guides to the pyramids."

Finally, anyone interested in reading the actual documents of the trial 
-- legal briefs, filings, dockets, a whole bunch of declarations, etc. 
-- and a summary chronology of the proceedings can find them at Justia.com:

http://news.justia.com/cases/featured/new-york/nysdce/1:2007cv09667/315790/

--CJ