Where's the Grey? (was: That case and that book)

[Goddlefrood]

> CJ:
> My questions are: how do you legally distinguish between Steve's 
> lexicon and the many other guides, encyclopedias and what-nots 
> out there (some of them HP-related). If Steve's work falls, 
> then does that mean every other unauthorized lexicon and 
> encyclopedia is also in violation of trademark?

Goddlefrood:

OK, apparently the trademark points have been resolved between 
the parties. A point I wasn't aware of, but now am.

Each alleged violation is taken on a case by case basis. It 
may be that JKR is concerned that the Lexicon is substantially 
similar to her proposed encyclopaedia, and that certainly 
appears to be the case from the evidence at the hearing. Any 
other unauthorised lexicon or encyclopaedia would have to be 
looked at individually, however in a nutshell it means they 
would most probably be doomed to lose any suit should the 
decision go against RDR and Lexicon Steve. Whether the copyright 
proprietors care to pursue all such matters would be something 
for them. This could, IOW, be the beginning of a campaign by 
JKR and Warners to protect their rights, which they have 
typically sought to enforce previously.

Some of the items in one of your previous post may not yet have 
come to the attention of the relevant people whose rights may be 
being breached by said items.

> CJ:
> And, Fair Use (which *is* what the whole case seems to be about) 
> is all about copyright, not trademark. Yet you assert otherwise.

Goddlefrood:

Fair use is what the Copyright aspect of the case is about. 
Reading of the initial complaint by the Plaintiffs suggested 
that the Trademark was as much of a concern, if not more so, 
than the Copyright violation.

Subsection 4 of section 107 of the Copyright Act is almost 
certainly the provision upon which the Plaintiffs are most 
heavily relying in terms of the Copyright. That, to me, is 
very clear and would exclude the Lexicon from being ruled 
as a fair use.

Other HP related material, such as critical analysis and 
reviews would not be affected by any ruling to be made. You 
will appreciate that I am only looking at this in terms of 
if there is to be a judgment. If a settlement is reached 
then these issues will be by the by.

Should the statutes be followed then I see no reason why 
the defence should succeed.

Incidentally, I am neither a trademark nor am I a copyright 
lawyer, having little call for it in a country that has 
approximately a 98% instance of pirating. What I set out 
is the relevant law as can be ascertained from the complaint 
and the answer. Were I to be especially interested, which I 
must admit I'm not, then no doubt I could find material to 
try to justify the publication of the Lexicon. It's not 
something that I would personally buy, nor will be the 
proposed Encyclopaedia.

I do, however, apprehend that the Plaintiffs will prevail 
in any decision that comes out in respect of the suit, and 
I express no personal preference one way or the other as to 
who I would *prefer* to win.