That case and that book

[nrenka]

--- In HPFGU-OTChatter at yahoogroups.com, Lee Kaiwen <leekaiwen at ...> wrote:

> (First, a note. I don't find the words "details of a piece of 
> fictional expression" in the text of the decision.

I'm allowed to paraphrase, nu? :)

In the text of the decision you get the citation of Feist (the
telephone book case), and the distinction:

'See Feist, 499 U.S. at 347 (discussing distinction between discovered
facts, which do not "owe their origin to an act of authorship" and
therefore are not protected by copyright, and created facts, which
constitute original, protected expression).'

"Created facts" are the things which, here, the Seinfeld writers invented.

> Beyond the qualitative analysis, however, the fictional facts 
> determination does not appear to have played much of a role in the 
> court's reasoning. In my reading it seems so very clear that it was 
> the transformative issue which played the major role.

The major role, yes.  But only after the qualitative analysis has been
used to note that the material IS infringing.  Note that this is what
Carol and I have been arguing about--whether the paraphrase and
reorganization of JKR's ideas by the Lexicon renders them not in
violation of not.  I'm arguing that given the Castle Rock precedent,
JKR's claim that much of the Lexicon is infringing material is
supported.  This argument is the foundation for the rest of the
argument (over transformation vs. derivation), which actually makes it
even more important, I think.

So once we use this to note how much of the Lexicon *is* infringing
material, we can finally play the major game--which is indeed whether
it's derivative or transformational.  In many ways, that's a more
complex question, and that's where the defense is trying to make their
case.  They did not, in the trial, really challenge the accusation
that they've massively infringed--they're defending based on the
purpose of the infringement.

I think it's a weak case for a number of reasons, but we'll see.

> Finally, a question: I would be very curious to know whether the 
> "fictional facts" determination has been specifically cited as 
> precedent in any other court decisions. My own feeling (though 
> IANAL, so what do I know) is that its peripheral role in the court's 
> reasoning makes it a poor candidate for a precedent. If it *has* 
> been cited elsewhere, that'd be very interesting.

This is real easy to do in a casual way (for those of us who don't
have easy access to Westlaw or Lexis-Nexis--I'm not going over to the
library to plunk it in): put '150 F.3d 132' into Google and see what
you get.  This case has been cited repeatedly as precedent.