[HPFGU-OTChatter] Re: Where's the Grey? (was: That case and that book)

[Lee Kaiwen]

Goddlefrood:

> 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.

OK, I admit I haven't read the text of the actual legal complaint (legal 
documents bore me to distraction). But what you seem to be suggesting is 
the core of JKR/WB's complaint is that Steve's lexicon violates the 
copyright of a manuscript that a) is unpublished (and presumably 
unavailable to Steve); and b) is more recent than the website.

As the text of the lexicon is (apparently) substantially copied from the 
website, it predates JKR's encyclopedia (prossibly even any rough drafts 
she may have made). Arguing that a pre-existing text could violate the 
copyright of a text that didn't even exist at the time the lexicon was 
written seems strange indeed. Any coincidence, in that case, between the 
newer text (JKR's encyclopedia) and the older text (the lexicon) would 
strongly suggest it is JKR who is in violation of copyright, unless you 
believe in time machines.

But I thought (again, from what I've heard; not from reading the actual 
legal documents, which I will only do under mortal threat) that JKR was 
arguing the lexicon violated the copyright of the HP canon. But given 
that most of my knowledge comes from newspapers, chances are I'm wrong 
(again!).

Further, what does WB have to do with Jo's unpublished encyclopedia? WB 
owns movie rights and trademarks; they are not a book publisher.

I hope the above isn't coming across as confrontational (I do have that 
unfortunate tendency :-( ). I'm pretty sure I know less than you do 
about the whole thing. These are just questions that don't make sense to 
me, if I'm understanding your assertions correctly.

> Whether the copyright proprietors care to pursue all such matters 
 > [against other reference works] would be something for them.

Perhaps; however, some of the encyclopediae and references are of works 
that are known for aggressive protection of intellectual property. I'm 
thinking particularly of the Tolkien and Lewis estates. Numerous 
reference works have been available for both LotR and Narnia for years 
or decades. And the online Encyclopedia of Arda even sells an 
interactive DVD version of itself. Whether all those works have been 
authorized, or the respectives estates haven't been especially bothered 
by such things (which would be uncharacteristic of them), or they don't 
see a case to be made, I have no idea. It just seems to me -- for no 
good reason, probably -- the first and second prospects seem less likely 
than the third.

> 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.

On the assumption you're referring to this (dagnabit; now you've gone 
and made me read a real live legal document; yecchh!)

"(4) the effect of the use upon the potential market for or value of the 
copyrighted work."

I thought the "copyrighted work" referred to published works, 
specifically the works for which a copyright violation claim is being 
made. In this case, I thought JKR/WB were asserting copyright violation 
of the HP canon, not JKR's unfinished/unpublished encyclopedia.

If they are asserting the latter, I can only say WOW! If all an author 
has to do to assert copyright violation is say, "Hey -- *I* was going to 
write one of those!" I'd think we're in a mess o' trouble.

Further, other reading I've done suggests (rightly or not I have no 
idea), that no one prong of the fair use test is supposed to be allowed 
to prevail; rather they are to be taken all together in their totality. 
I.e., if none of the first three applies, the fourth cannot stand on its 
own.

> 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.

The judge is making noises as if there will be no clear winner in this. 
But that could be just for public consumption (or at least to turn up 
the pressure to settle). Who knows?

I also have no personal investment in either side in this case, 
specifically. However, the more reading I've done, the less clear it is 
to me how RDR/SVA are in violation of copyright. I just haven't been 
able to discern anything special about Steve's work to distinguish it 
from all the other lexicons, encyclopedias or reference works I've seen. 
Either they all stand or fall, but they do it together. And I think that 
would send major shockwaves through both the publishing and scholarly 
communities. Though I cheerfully admit my ignorance on legal issues, and 
will happily accept correction.

Carol:

 > I'm a bit confused by the word "substantiality,"
 > which is redundant if it merely refers to the amount
 > of quoted material.

CJ just speculating:

Perhaps it's intended more in its original etymological meaning as "of 
importance", rather than "of significant quantity". Passages of central 
importance would carry greater weight towards the third test than asides 
or insignificant minutiae. (I hope I'm wildly wrong about this; the much 
more distasteful alternative is that I'm actually starting to think like 
a lawyer).

nrenka:

 > You will note that a number of the Tolkien items listed, and some of
 > the Harry Potter ones, are no longer in print--that' s often because
 > they were found to be infringing, and letting them go out of print was
 > an agreed upon solution.

I speculated as much about at least one of the works I listed. You may 
indeed be correct. I'm just wondering, however, a) if we know that to be 
the case for certain for any of the out-of-print guides, and b) if it is 
indeed true for some why it isn't true for all.

--CJ