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

[Lee Kaiwen]

Alla:

> The obvious being that Lexicon copied JKR's work in my opinion. This
> example I quoted in responce to Lee's argument that defense denied
> copying.

The exchange with nrenka (without digging through back messages) was 
roughly as follows:

nrenka: the defendants did not deny massively (her word) infringing.

Me: Of course they deny massively infringing. You probably meant 
"massively copying". But then of course they would deny "massively" 
copying as well.

My reply was in response mostly to the "massively" characterization. 
Certainly everyone all 'round understands that there is some amount of 
copying. I highly doubt, however, the defendants would accede to a 
loaded averb such as "massively".

Alla:

 > Well, try this case for example [citing the Snoop Doggie Dog
 > case]....

 > While I did not see the expression "fiction facts" used
 > verbatum in the decision, I would argue that determination
 > made partially based on this dicta language as well.

Me now:

Thanks, but again what I'm looking for is not another case with similar 
reasoning, or similar distinctions, but another court decision which 
specifically and explicitly cites the Castle Rock "fictional facts" as 
precedent.

My point being that I've seen many people (mostly amateurs like myself 
who really have no business offering legal opinions :-) ) *assume* that 
the "fictional facts" distinctive is a precedent, but I want to know if 
any court every actually *has* treated it as a precedent.

Alla:

 > And I did keysited Castle rock on Westlaw, found about 750 cases
 > where it was cited...

Me now:

Yes, Castle Rock *has* been cited extensively, but never, so far as I 
can tell, on its "fictional facts" distinction.

Now in the interests of fairness, I *have* seen one case (namely, the 
Beanie Baby decision) which specifically and explicitly NOTES the 
"fictional facts" distinction of Castle Rock, but declines to make use 
of it.

Alla:

 > This is "Beanie Baby" case ....  I am pretty sure court did
 > found fair use there.

Me now:

It did, based partially on the fact that Ty, the copyright holder of 
Beanie Babies, did not deny the collectors' guides were not derivative 
works.

Alla:

 > As long as case is not overturned, it is a good law and judge
 > has an absolute right and well, even duty to follow it

Hmm? Do you mean you're of the opinion that the "fictional facts" 
distinction is actually a BINDING precedent? I can't see where it's been 
used as precedent at all, let alone considered as binding.

Alla:

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

OK, I'm searching for language here to distinguish between copying that 
is permissible and copying that is not. Is it proper to refer to 
permissible copying as "infringement", or is "infringement" reserved 
specifically for impermissible copying? Perhaps, picking up on Carol, 
"infringement" vs. "actionable infringement"?

If "infringement" is properly applied to permissible copying, then I 
would agree with your above statement, since in that case, 
acknowledgement of infringement is not tantamount to acknowledge of 
guilt. But I'm assuming "infringement" specifically means "impermissible 
copying". In that case, I'd highly doubt to hear defendants agreeing to 
characterize their use as "infringing".

Sorry, gotta go.

CJ