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

[Lee Kaiwen]

CJ:
> 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 a) is unpublished (and presumably unavailable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.

> <snip> 

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

Goddlefrood:

 > the Copyright Act of 1976 ... would disabuse you of this
 > idea.

I knew I hadn't expressed myself clearly in my original point, but I 
didn't have time to clean it up.

Of course, I didn't mean to suggest that unpublished works aren't 
protected by copyright. I was really trying to make two separate points 
above. The bit before the snip was wondering how Steve could be guilty 
of copyright violation if he a) had never seen JKR's manuscript, and b) 
his text predates hers.

Now a) may well be confusing copyright with plagiarism. If my roomful of 
monkeys happens coincidentally to bang out a text identical (or nearly 
so) to yours without ever having seen yours, am I violating your 
copyright? Now suppose my monkeys bang out the text before you do? How 
could I possibly be accused of violating your copyright if my text 
existed first?

In the bit after the snip I was referring to the third test of the Fair 
Use clause, not to copyrighted texts in general. Specifically, it's my 
understanding that the test asks whether the violating text impacts the 
market for the existing works of which it is in violation, not for 
potential future works the author may or may not ever publish. I think 
that latter would be a very dangerous precedent to set.

> it was her contention that the proposed encyclopaedia and the
> lexicon would be of similar content. 

"Would be" because, of course, her encyclopedia is unfinished, let alone 
unpublished. I just don't see how an existing lexicon could be held in 
violation of the copyright of a text that doesn't even exist yet.

 > That she also contends that the lexicon breaches the
 > already published works is also the case.

That would be the more rational argument to make. But that gets us right 
back to what a breach of copyright means. Copyright protects expression, 
not ideas, so as long as Steve's lexicon simply restates the ideas in HP 
in his own words, he is not in violation. It's only when he begins 
quoting verbatim or near-verbatim from the HP canon he is in potential 
breach of copyright. But from what portions of the lexicon I've read, 
I've seen very little direct quotation of JKR's works (as I mentioned in 
a previous post, a total of no more than thirty words in the first ten 
pages of the document at Justia).

 > 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.

Again, my reading of the application of the Fair Use tests is that they 
are intended to be taken together; no one of the four tests is intended 
to stand in isolation. That is, there must be clear evidence of 
violation on multiple tests (just how many and how much, apparently, is 
what is left to be decided per case). If JKR/WB succeed in proving 
violation only on a single point, therefore, my understanding is that 
precedent would find in favor of RDR/SVA.

Goddlefrood:

 > If this Judge does deliver a decision ... one
> or the other parties would prevail.

You see no chance for a compromise ruling -- one that gives both sides 
something but not everything they wanted? Perhaps, say, a finding that 
the lexicon is in violation at certain points (say, the Sorting Hat 
entry), but that a reworking of those sections would free it for 
publication?

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.

OK, I'll try to find time to do so. But doing so will only tell me the 
respective sides' opinions of what the law says -- a bit like asking two 
schoolyard bullies who started the fight. Which means I expect to be 
enlightened only on what JKR/WB claim the law says.

But again, I'll try to read as much of it as I can.

CJ