[HPFGU-OTChatter] Re: The Trial -- My Prediction: JKR wins/loses

[Lee Kaiwen]

Me:

> I haven't bothered with any detailed comparisons myself; 
 > I am simply assuming in that the entries cited are
 > representative of the lexicon....

Carol:
> I *have* bothered to compare them ... the Acromantula entry 
 > is perfectly legitimate

I don't have a copy of the FB available, so I'm unable to make a 
comparison on the Acromantula entry.

What I was doing was noting that the bulk of the plaintiffs' argument 
seems to be that a) the lexicon isn't sufficiently transformative; and 
b) it does way too much cutting-and-pasting of JKR's works. They didn't 
seem to be arguing that a lexicon is, in principle, infringing.

I am therefore basing my prediction on the *presumption* that the 
plaintiffs will prevail on the copying point. If they don't, I think 
they have very little case left.

 > ... and never picking up JKR's own words.

Again, I haven't been able to compare it myself. Much of the discussion 
I've read (most of it over at Leaky, where the participants are decidely 
biased) seemed to indicate it was copying verbatim. Again, I'm simply 
presuming that to be the case in fact. If, as you indicate, it *isn't* 
verbatim or nearly so, then the plaintiffs' case is weakened.

> 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.

I'd never heard of them, but I've had a similar impression based on my 
readings in the trial documents and transcripts. Nevertheless, the trial 
is about legalities, not reputability.

> So if your prediction that JKR will lose is based on your belief that
> the Sorting Hat article is typical

Not "belief", but presumption. I would assume the plaintiffs chose for 
their examples the most egregious entries, and that therefore other 
entries are at least less egregious, but I only own the HP series, not 
any of the companion works, so I'm simply allowing the plaintiffs the 
benefit of the doubt on this point.

In essence, it's my feeling that the copying issue is the strongest case 
the plaintiffs have; they either win the case here or they lose.

Me:

> 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?

I mean that, assuming the judge rules against RDR/SVA, he will do so on 
this point, without the need or bother of having to address the thornier 
issue of whether a lexicon is in principle infringing.

Me:

 > the easiest and quickest solution will be to simply rewrite
 > the offending entries and then publish.

Carol:
> And go through the whole ordeal again?

Given that the bulk of the plaintiffs' case seems to rest on the copying 
argument, if a rewrite addresses that issue, they would need a new 
argument. And since WB's trademark issues have already been settled, 
would they be involved in a new trial?

(Of course, I am asuuming the judge in this trial finds in favor of the 
defendants on the transformative issue.)

 > 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.

Hmm? If they rewrite the infringing passages, they take away the 
plaintiffs' case; why woud they lose a second time on that point?

Carol:

> Interesting idea, and certainly JKR won't appeal if her side 
 > wins. But I disagree that unauthorized lexicons/fan guides/
 > encyclopedia s, 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.

I understand what you're saying, however our presuppositions differ 
here. You're beginning with the presumption the lexicon doesn't copy 
excessively, and that any ruling otherwise will be in error, and 
therefore egregious. And thus other guides, which *also* don't copy 
excessively, will be impacted.

OTOH, my argument presumes that the lexicon *does* copy excessively. 
Therefore, there is no need for other guides' authors to worry, as long 
as they didn't copy excessively themselves.

Once again, I'm simply *assuming* (not arguing) that the plaintiffs are 
correct on this point, because I believe it's the strongest argument 
they have. If the judge doesn't agree with them here, he won't agree 
with them anywhere else, and JKR will lose.

Sorry, gotta run.

CJ