[HPFGU-OTChatter] Re: That case and that book

[Lee Kaiwen]

Me:

> on quantitative grounds. In short, the distinction does not appear
> to have been critical even within Castle Rock.

nrenka:

> Actually, I think it is. You can't establish a quantitative analysis
> without first deciding what constitutes the infringement

Hmm ... I think we'll have to agree to disagree on this one. As I said, 
what I see is that the "fictional facts" distinction informed one part 
of the court's determination of infringement. I do not see it underlying 
the major portion of the court's analysis.

Me:

> Even absent any scholarly analysis or commentary, *is* a 
 > value. A consulter of the lexicon would be spared the hours
 > or days of work ....

> However, remember that 'sweat of the brow'/work amount does 
 > not, per Feist, make something transformative.

But that's a different argument. I'm not talking about how much work the 
creator of the secondary work has done; I'm talking about whether the 
work he has done adds value. The fact alone that the lexicon collates 
disparate passages into a coherent whole *is* a value, in the same way 
that I consult an encylopedia. As an example, I offer the Wikipedia 
article on "Spoo" from the Babylon 5 sci-fi series:

"Spoo is a fictional food product that served as a running joke within 
the Babylon 5 science fiction television series. In the series' 
fictional universe, spoo is made from alien worm-like creatures of the 
same name, and is considered to be the most delicious food in the 
galaxy, regardless of which species is asked. Although it is a 
universally loved foodstuff and an actively traded commodity, the 
creature itself is regarded with contempt by the races that consume it.

"Spoo became part of the series' extended mythology, and was embraced by 
fans of the series... Spoo appeared in the first episode of the science 
fiction television series Babylon 5....

"The Babylon 5 episodes in which spoo appears or is mentioned are 
"Midnight on the Firing Line," [etc.]"

There is nothing original in the spoo article; every fact -- both real 
world and fictional -- could be obtained elsewhere, if I were willing to 
do all the research. I *could* sit down and wade through the entire 
series for all references to spoo, or I could simply consult the spoo 
article's list of spoo-referencing episodes. I could then hit google to 
try to find the etymology of "spoo" or, again, simply consult the 
article. I could go search all the B5-related Internet message boards 
for spoo-related messages by J. Michael Straczynski, the show's creator, 
to determine for myself the origins of spoo, or -- again -- simply 
consult the article.

One need only check the footnotes of the spoo article to see how many 
disparate sources the article's compiler pulled together in writing the 
article. The mere fact that *I* don't have to consult all those sources 
individually simply to get an overview of spoo *is* a genuine value to me.

And this also raises a question of infringement at Wikipedia. If the 
"facts" cited in SVA's lexicon are (per Castle Rock) legally protected 
and by that fact infringed, what about the spoo article? Are not the 
spoo "facts" the property of the series' creator? Is Wikipedia not 
infringing his copyright merely by retelling them?

How do you legally distinguish between Wikipedia's discussion of 
copyrighted spoo "facts", the HP Lexicon's re-presentation of, say, the 
"facts" of Dumbledore's life? How is one permissably infringing if the 
other is not?

> As for purpose, I read FB for entertainment, but part of that
> 'entertainment' value is that I learn some details of JKR's world

Again, there is a necessary distinction to be made between the use to 
which *you* put the Lexicon and the *purpose* of the Lexicon; that is to 
say, *your* purpose need not be the same as the Lexicon's purpose.

As an example, I use a baseball bat to silence my neigbor's barking dog. 
While *my* purpose for the baseball bat was dog-icide, that hardly means 
the purpose *of* a baseball bat is canine slaying.

Or, just because you read Wikipedia for entertainment doesn't mean the 
purpose *of* Wikipedia is to entertain. No matter how much fun it may be 
to read, the purpose of an encyclopedia remains informational.

CJ