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

[Goddlefrood]

> CJ:
> OK, I admit I haven't read the text of the actual legal 
> complaint (legal documents bore me to distraction). 

Goddlefrood:

I have read many of them, but in respect of your parenthtical 
observation I have to respond: "You too?"

> CJ:
> 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 a manuscript that a) is unpublished (and presumably 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.

Goddlefrood:

That's one part of it certainly and something that was 
expressly stated in the evidence. When JKR went on (and 
oh, did she go on), about the unpublished work, it was 
her contention that the proposed encyclopaedia and the 
lexicon would be of similar content. That she also 
contends that the lexicon breaches the already published 
works is also the case. In order to establish a breach, 
and damage as a consequence of that breach, she has to 
show that she would be affected. That's what the 
evidential hearing was about.

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 Further, what does WB have to do with Jo's unpublished 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

Goddlefrood:

Correct, and it seems they have resolved whatever issue 
they had regarding the trademarks. That they were an 
original plaintiff relative to their trademarks is 
clear from the complaint (which I'll grant you is 
inordinately dull)
 
> CJ:
> I hope the above isn't coming across as confrontational (I do 
> have that unfortunate tendency :-( ).

Goddlefrood:

It's the nature of the game, a confrontational system is what is 
in place in the USA's legal field and in my own jurisdiction, so 
a little healthy back and forth, which this is no more than, would 
seem as water off a duck's back.

> CJ:
> I'm thinking particularly of the Tolkien and Lewis estates. 
<Snip examples> 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.

Goddlefrood:

There may be a combination of the factors you suggest, coupled 
with publication taking place in non-Berne Convention signatory 
countries. That, I admit, is a grey area. There are around 50 
countries that have not adopted the Berne Convention and have 
little or no Copyright protection in place. Here in Fiji, for 
instance,the Copyright Act is a relative new comer, having only 
been enacted in 1999. Many countries have yet to enact any 
copyright legislation. The full text of the Berne Convention, 
which is available online, includes at the end a list of 
signatories. There are notable absences from that list.

The Berne Convention is the international copyright protection 
convention, in case anyone wondered.

Or, it may be that the various copyright proprietors haven't 
bothered because they have not been adversely affected by the 
works given as exemplars.

> CJ:
> I thought the "copyrighted work" referred to published works, 
> specifically the works for which a copyright violation claim 
> is being made. 

Goddlefrood:

Hey, I know you don't want to read the Copyright Act of 1976, 
but the relevant sections that I appended to my earlier post 
would disabuse you of this idea. The full text of the act is 
available on the net and the only relevant provisions, as per 
JKR's portion of the complaint, is the first tranche, consisting 
of a mere 20 or so sections, albeit many of them quite lengthy. 
Not reading for the faint hearted, and almost certainly not your 
bag.

> CJ:
> 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?

Goddlefrood:

In my experience many judges would prefer not to make a decision, 
and often encourage settlement. If this Judge does deliver a 
decision after no settlement is reached you can bet that one 
or the other parties would prevail. In that event my money 
would be on JKR.

> CJ:
> ... the more reading I've done, the less clear it is to me 
> how RDR/SVA are in violation of copyright. 

Goddlefrood:

Time to read the complaint (the amended one, not the original), 
the answer and the relevant legislation. Boring it might be, 
but the only way to see what's going on and what the allegations 
of both sides are is to dive on in. Altogether that's only around 
60 pages of A4 sized text, which will probably be less than the 
judgment, if or when that comes out.

Like I said earlier, each alleged infringing work would have to 
be taken on its own merits. There may be more suits to come I 
suspect.