That case and that book

[dumbledore11214]

Nora:
> They did not, in the trial, really challenge the accusation
> that they've massively infringed

Lee:
At this point I think we must be reading different trial transcripts.
First, of course, the defense certainly DOES deny infringing -- that's
what the whole case is about, after all. I suspect what you meant to 
say
was "massively copied".

Secondly, defense even denies "massively copying"; "paraphrase",
"summary", etc. But I don't see anywhere in the transcripts where they
acknowledge "massively copying" JKR's work.


Alla:

Well, as I mentioned in another post as I realised, no, even if the
lexicon found to be infringing, that only means that plaintiff made 
out
their prima facie case of infringement THEN defence has to prove the
fair use affirmative defense.

So, if they are absolutely confident that this is fair use, they do 
not
have to bother to deny infringement.

Now whether they do or not deny it, it is of course debatable and I
tend to agree with Nora based on testimony like this from first day of
trial for example:

http://www.the-leaky-cauldron.org/docs/jkrtrialday1.txt

THE COURT: The way you asked the question was whether
25 he copied her work and he answered no. And I asked
whether he

1 had copied from her work. He said he had given a general
2 answer.
3 THE WITNESS: To the broad question that you
asked.
4 BY MR. SHALLMAN:
5 Q. The distinction may be lost on me but Mr. Rapoport --
6 THE COURT: Well, that's why I thought I would
call it
7 to your attention.
8 MR. SHALLMAN: Thank you.
9 Q. You are aware that Mr. Vander Ark copied specific
language
10 from Ms. Rowling's work, aren't you?
11 A. Well, you are not -- you are not being specific about
what
12 you are asking about, though. You need to be more specific
13 about what it is you are talking about.
14 Q. I'm just asking you, the entire 400-plus page Lexicon,
is
15 there anything in there that is copied from Ms. Rowling?
16 A. The answer is that this book, the Harry Potter Lexicon
is
17 fair use.
18 Q. That is not what I asked you.
19 Of that entire 400-plus page book that is going
out
20 under RDR Books' name, is any of it copied from Ms.
Rowling?
21 A. There is material in the -- yes, there is material in
the
22 book that's based on -- absolutely, that's based on the
Harry
23 Potter Lexicon series, of course.
24 Q. And, sir, you admit that there is material in the
Lexicon
25 book that is based on the Harry Potter books that Ms.
Rowling


205
84E5WAR6
1 wrote?
2 A. Yes.



Alla:

But when I think that plaintiffs' claims of infringement went
unrebutted I am not even basing it on the admissions made by Rapaport,
which plaintiffs lawyers nicely force out of him on cross examination
IMO.

I am basing it on not seeing how the exhibits in evidence by 
plaintiffs
( yes comparison charts, etc) were rebutted by defense evidence.

So, yes I think that at least I can more or less confidently say that 
I
predict that prima facie case of infringement was made.

I can be wrong on this of course, but this is my prediction.

What judge will find on fair use I still have no clue whatsoever.