The Trial -- My Prediction: JKR wins/loses

[Carol]

Lee Kaiwen wrote:
>
> So I've been doing some reading of the trial transcripts over at
Leaky, and court documents at Justia. And in the service of making a
complete and utter fool of myself in public, I'm going to toss out my
predictions:
> 
> 1. The judge will rule against RDR/SVA.
> 2. There will be no appeal.
> 3. The only party who will NOT be happy with the decision will be
JKR/WB.
> 
> If one thing is apparent from the transcripts and court documents,
it's that the plaintiffs have spent an inordinate amount of time
trying to prove that the lexicon is little more than a cut-n-paste
hack of JKR's works. As evidence they have offered example entries
such as the Sorting Hat and Acromantula. It would certainly appear, to
my eye, that the near-verbatim resemblance to JKR's writings for these
two entries would constitute plagiarism and, in all likelihood,
copyright infringement.
> 
> I haven't bothered with any detailed comparisons myself; I am simply
assuming in that the entries cited are representative of the lexicon
as or, at the least, there are a sufficient number of similar passages
as to constitute a significant problem for the defendants.

Carol responds:
I *have* bothered to compare them, and I agree that the Sorting Hat
entry would require permission because so much of it is comprised of
the Sorting Hat's own songs. But the Acromantula entry is perfectly
legitimate, taking information from several sections of FB, not just
the Acromantula entry, and never picking up JKR's own words. It is not
plagiarized nor does it violate copyright law. 

The Sorting Hat entry, which is not *plagiarized* because it quotes
accurately, presents the quoted material *as* quoted material, and
cites the source(s), nevertheless probably does exceed the amount of
allowable quoted material and RDR ought to have requested permission
to use it (or asked Steve to rewrite it). Most publishers would have
done so--at least the reputable scholarly publishers I've worked with
would have done so. I'm not at all sure that RDR is a reputable
publisher, and it's a shame that Steve V. ever got involved with them.
Certainly, he should have consulted a copyright lawyer and/or asked
permission from Scholastic (the edition he's citing) to use some of
the longer quotes. However, as I've said before, the Sorting Hat entry
is *not* typical of the Lexicon as a whole.

So if your prediction that JKR will lose is based on your belief that
the Sorting Hat article is typical (it isn't) and that JKR's lawyers'
claim that the book is a cut-and-paste pastiche of JKR's words (it's
no such thing), I think you might want to reconsider. (Or, at least,
you might want to compare the Acromantula entry with FB and the
Sorting Hat entry with other entries before accepting those
accusations as fact.)

Lee: 
> I predict the plaintiffs will be successful in their attempts to 
demonstrate copyright infringement based on this argument, thereby 
winning the battle and losing the war. In proving their case, they
will give the judge an out to rule against the defendants based on the
particulars of the case without having to touch on principles (such
as, are lexicons in general protected fair use?) or delve into grey
areas of copyright and fair use.

Carol responds:
That would be true if the Lexicon really did use JKR's words and claim
them as its own. Unfortunately for their side and your assumption,
though, the Lexicon sonsists mostly of (legitimate) paraphrase and
summary, with some quoted material and a small amount of
commentary--exactly the gray area that the judge was talking about.
And the question of Fair Use is absolutely central if they want to
prove that the Lexicon violates copyright law.

Lee: 
> Winners:
> 
> 1) RDR/SVA.
> 
> Even though they lose the case, they win. Since the judg won't rule
on whether, in principle, they can publish a lexicon, only that they can 

Carol:
You meant "can't," right?

Lee:
publish *this* lexicon in its current form, the easiest and quickest
solution will be to simply rewrite the offending entries and then 
publish. RDR/SVA will not appeal the decision.

Carol:
And go through the whole ordeal again? They won't get permission to
publish and they'll just have to go through whole process again--and
lose again, if your analysis is correct.

However, I think that most of the Lexicon falls within Fair Use
guidelines, as the judge will see if he actually compares the entries,
and that Steve V. should agree, out of court, to rewrite any offending
entries. (Just what's wrong with the Acromantula entry, I don't know.
It doesn't pick up JKR's wording or even follow the same sequence of
ideas as the FB entry. But, yes, the Sorting Hat entry needs to be
rewritten, and other entries, for example, those on characters,
contain large amounts of quoted material that can simply be cut. (And
if I were Steve, I wouldn't publish the Lexicon in its current form,
anyway, because some of the speculation is superseded by DH, and the
information from DH needs to be incorporated.

Lee: 
> 2) The judge.
> 
> As mentioned above, the judge will avoid having to swim around in
murky (and hence, controversial) Fair Use seas. This will give both
parties less opportunity to appeal, and hence more likely that the
decision will stand. I'm not a judge, nor do I know any, but, being
human beings, I suspect they hate to see their decisions overturned.

Carol:
The judge has indicated that he expects an appeal regardless of who
wins. But, money being a finite commodity for *most* people and even
for most corporations, I agree that RDR won't appeal if they lose.
JKR, though, will not take a defeat lying down. I really, really hope,
for Steve V.'s sake and for the sake of the Fair Use Doctrine, that
they settle out of court.

Lee: 
> Loser:
> 
> JKR/WB.
> 
> Even though the ruling goes in their favor, they don't get what they
really want, which is a ruling, on principle, that
lexicons/encyclopediae are infringing works. Hence, under this ruling,
the defendants, after rewriting their book, will be free to publish 
(barring a new lawsuit). In addition, as the putative winners in the 
case, it will be very difficult for the plaintiffs to appeal.

Carol:
Interesting idea, and certainly JKR won't appeal if her side wins. But
I disagree that unauthorized lexicons/fan guides/encyclopedias, or
rather their authors, will not be hurt if JKR wins, simply because a
fair and objective examination of the Lexicon will show that, whatever
its faults, it does not, with a few glaring exceptions like the
Sorting Hat entry, cut and paste JKR's words.

Lee:
> <snip> Feel free to throw this prediction back in my face when I
turn out to be utterly and abysmally wrong.

Carol:
Actually, I'd be perfectly happy if you were right. I just think that
you need to take a closer look at the Lexicon itself and compare it to
JKR's words before you make your predictions.

Carol, not predicting any outcome but hoping for an out-of-court
settlement for the sake of the Fair Use Doctrine