Thoughts from a different perspective

[dumbledore11214]

--- In HPFGU-OTChatter at yahoogroups.com, Lee Kaiwen <leekaiwen at ...> 
wrote:
>
> Alla:
> 
> > "Just two years before this case was filed, Mr. Vander
> > Ark ... [wrote] it is illegal to sell a book like
>  > that. Jo has reserved all publishing rights to
>  > her intellectual property.
> 
> The plaintiffs have succeeded wonderfully in proving that SVA 
changed 
> his mind about the infringing nature of his work. And their point 
is?
> 
> Neither SVA's opinion then nor now carries any legal weight, nor is 
it 
> legally binding. Just because he used to think it would be 
infringing 
> does not obligate him in any way to continue to believe that or to 
> behave as if he did.
> 
> And things like this:
> 
>  > "Which means she is the only one who may publish any
>  > book that is a guide or encyclopedia to her world."
> 
> are objectively either true or not, regardless either of SVA's 
opinions 
> or of any "reserving to herself" JKR attempts. JKR's publishing 
rights 
> are what they are under the law, she can't create right she didn't 
> already have simply by "reserving" them. The lexicon is either 
legal, or 
> it isn't. But that's for the law, not JKR, to determine.
> 
>  > ... boy it speaks volumes to me as to whether Steve knew
>  > what he was doing.
> 
> SVA's motivations are simply irrelevant. Again, either the lexicon 
is 
> legal or it isn't, regardless of whether Steve was a complete 
scoundrel 
> going in, or a saint who sincerely changed his mind.


Alla:

Eh, yes of course his motivations ARE irrelevant for deciding whether 
Lexicon is legal or not. I was responding to discussing hypothetical 
speculative scenario of  innocent Steve trapped by bad RDR. And to me 
this e-mail is one of those things that shows ( to me) that  innocent 
he is not.


Lee:
> I found some of the plaintiffs' statements in their opening 
complaint 
> equally hilarious. But then that's the job of a lawyer, isn't it? 
To 
> make as many outrageous statements as possible in his client's 
favor, 
> hoping something will stick.

Alla:

Um, no.

Lee:
>It's all about striking a pose, as Madonna 
> used to sing. And judges are well-trained to see through postering.

Alla:

You mean judges are well trained to see through crap? Sure they often 
are, but if you mean that judges are trained to completely ignore the 
emotional side of the case, then I would say... they sort of not 
always do. Let me try to explain. Without any doubt judges are 
supposed to consider law and law only and if there is a clear and 
unequivocal precedent, they will follow it or will risk of being 
overturned by higher court. But here is the thing if the case is grey 
and unclear and it can go either way, well in my limited experience 
of area of law ( no-fault insurance) yeah, sometimes sympathetic 
witness can help.

For example, imagine witness coming to arbitration hearing after 
multiple surgeries on the face after automobile accident. Never mind 
that insurance company never received the bills, never mind that 
insurance company was only responsible for secondary coverage, after 
main one was exhausted and it was not. Would you like to venture a 
guess which way arbitrator ruled?

What I am trying to say that sometimes showing the opposing party as, 
well dishonest, helps. Sometimes showing your client sufferings, 
well, helps - if it is true of course. THAT is why I was happy with 
this e-mail in evidence, not because it will bear any legal 
relevance, but because hopefully it MAY ( of course I cannot read 
judge's mind) cast doubts upon credibility of person who wrote it.



Lee: 
> Personally, I think this is where the plaintiffs' case will stand 
or 
> fall. I agree that the passages the plaintiffs entered into 
evidence 
> bear all the earmarks of both plagiarism and infringement. That 
doesn't 
> mean I simply believe their claim of "91%", however. On the 
presumption 
> that the JKR/WB lawyers presented the most egregious examples they 
could 
> find, I suppose other entries were likely less infringing.

Alla:

I have absolutely no clue if 91% number is correct. It could be less, 
it could be more, but I do believe that it was a lot.

 
> But either way, my guess is if the lexicon is found to be 
infringing, it 
> will be on this point; not on general principle, or because JKR has 
> "reserved" anything to herself, but because it willfully copied 
JKR's 
> work verbatim. (Whether it did so with or without citation is a 
matter 
> of plagiarism, not copyright, and is also thus irrelevant.)
> 
> But that's easy. RDR/SVA need merely rewrite the offending passages 
in 
> different words and they're free to publish.


Alla:

If you are correct, absolutely, it is an easy solution for RDR. I 
hope for win of plaintiffs on the general principle, but again I 
refuse to predict anything. I happen to believe that win for the 
plaintiffs will be fair and just, but recently I had seen a case in 
the unrelated area of law (family law) that I was not involved 
myself, but friend was involved as a party, which in my opinion went 
again every possible notion of fairness, justice and screwed innocent 
child in the process. So trust me, as a lawyer, I do not believe that 
fairness equals legal necessarily.

So even though I believe that, it does not mean I believe that judge 
will rule that way. Again, from the transcripts I really like the 
man, so if he rules against plaintiffs, I am sure he will do so 
because he will believe that it is legal and fair and just, me - I 
think it will be a mistake on his behalf

So there could be multitude of factors which judge take into 
consideration.
 
>Lee:

 So is JKR saying that if SVA's lexicon did less verbatim copying, 
she 
> wouldn't have a problem with it? <SNIP>


Alla:

My impression she would want less verbatum copying and more analysis 
as they demonstrated for other books on their sides. IMO