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

[Lee Kaiwen]

bboyminn:

> RATS! I had a nice long post written and was ready to [SEND]
> when suddenly my browser closed ....

I empathize. I was just finishing up a long reply to Carol a couple days 
ago when *&@(# Windows blue-screened. Shoulda been using Linux.

> As many who have been following the discussion know, I am
> somewhat sympathetic to SteveV, but at the same time I think
> he did screw up and I also think he realizes that.

I understand your points here, and assuming your portrayal is accurate, 
I agree that makes SVA a somewhat sympathetic figure, in particular as I 
could easily see myself making the same mistake. However, as you said, 
this is irrelevant to the legalities of the case

> It is only when he dates and quotes the full Sorting Hat 
 > songs that we have a problem. But in the context of a
 > reference and research guide, is it reasonable to quote
 > those songs?

I could easily be wrong on this, but I believe the point of contention 
is that the songs were quoted in their entirety; if he had quoted only a 
portion, he would have been OK. I also vaguely recall that songs and 
poetry, even when appearing inside another work, are treated separately 
for copyright purposes. Thus the lexicon has in effect, in the case of 
the Sorting Hat song, copied a protected work in its entirety, a big 
copyright boo-boo.

These are all vague memories from somewhere, and I am likely wrong in 
both major and minor points. Anyone out there who can correct me?

> But I suspect Carol is right, if it is re-written, 
 > JKR/WB would simply re-issue their challenge against
 > the new form.

Two questions (not counter-arguments):

First, if the judge specifically rules the lexicon infringing *because* 
it copies excessively, and a rewrite corrects that problem, it would 
take away the heart of JKR/WB's case, severaly lessening their chances 
of winning a second go-round. Of course, if their intent is to simply 
out-lawyer RDR/SVA, a second go-round would be just the thing.

Secondly, since WB is involved for the trademark issues, and those have 
all been resolved, could it even be involved in a subsequent case? I.e., 
WB would have to show legal cause why it had the right to bring any new 
suit against RDR/SVA, and if a new suit were reduced to copyright issues 
alone, it seems WB would have none.

 > Again confirming to me that SteveV is just
> being swept along in the tide.

Well, however sympathetic we may be to his plight, he did in fact jump 
into the ocean of his own volition.  I, for one, have tried to steer 
clear of the personalities and people involved and discuss only the 
legal issues.

> I personally STILL like the idea that JKR buys the 
 > Web Lexicon, and WB buys the printed book from the publisher
 > for expenses plus a small profit.

But what would WB do with a book? They're not a publishing house. And in 
any case, as I mentioned above, it seems all their legal issues are 
resolved, so they would get nothing out of the deal. Of course, 
"expenses plus a small profit" would probably be significantly less than 
WB loses to accounting round-offs in any given month, so it's not like 
they'd lose much sleep over the expense.

Alla:

 > And to me this e-mail is one of those things that shows
 > ( to me) that innocent he is not.

Simply restating Carol's point (which follows on what I've said 
previously): Steve's original opinion is just as wrong legally as the 
plaintiffs allege his current one is. Innocent? Maybe not. Clueless? 
Apparently.

Me:
 > 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.

Well, perhaps "outrageous" was injudicious, but that's certainly the 
word that leapt to mind in reading some of the statements in the 
plaintiffs' original complaint. (Of course, that's even leaving aside
the contempt with which it often treats English grammar and spelling. 
Was that really written by an educated person?)

"Warner Bros. asked for a copy of the 'print version' of the Lexicon 
Website.... RDR Books summarily dismissed Warner Bros. reasonable 
request, stating rudely: 'If you do not know how to print that material 
[from the Lexicon Website] please ask one of your people to show you 
how.' RDR Books' unreasonable refusal of this simple request heightened 
Plaintiffs' fears ...." [para. 33]

What the heck is a "'print version' of the Website"? Obviously, WB was 
using RDR's counter C&D to try to obtain a copy of the printed lexicon. 
But since RDR's C&D referred to the website, the print edition was 
irrelevant, it was WB's request that was unreasonable, and RDR was right 
to refuse it. Personally, RDR was probably more polite than I would have 
been. You want a print version of the website? Just hit the "Print" 
button in your browser.

Liberally styling its own actions with adjectives like "patiently", 
"reasonably" and "sympathetic" while slinging such muddy epithets as 
"duplicitous", "rude" and "surreptitious" at the defendants are 
precisely the sorts of "outrageous statements" I had in mind in my 
previous post. But, as far as I can tell, this is just normal lawyerly 
behavior. How fortunate that judges are immune to such things.

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.

Well, "a lot" is hardly legally actionable :-) "Legally permissible" is 
the issue.

As to the 91% figure, I highly doubt the plaintiffs low-balled their 
estimate. In all likelihood rather the opposite. And in any case, the 
number is meaningless. Since fair use law doesn't establish percentages 
-- since, in fact, the permissible threshhold is determined on a 
case-by-case basis -- the plaintiffs' chart and figures can only be 
staged for effect, not as any sort of legal argument. Hypothetically, it 
is perfectly possible for the judge to find 91% within the permissable 
threshhold, based on the particulars of the case.

Alla:

 > from the transcripts I really like the man

I agree. I do believe the judge will render as fair a verdict as he 
thinks he can.

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

Picking up on someone else's thought, there are undoubtedly entire law 
libraries full of arcane bits of legal precedent no one has ever heard 
of just waiting to jump out and bite amateur prognosticators such as 
myself in the a posteriori. I fully expect in a few weeks' time to 
discover I am utterly, stupendously full of horse dung. But I found the 
prognostication exercise an enjoyable passer of time nonetheless.

CJ