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[Silver Ink Pot]

My goodness - I fell asleep after supper and just woke up, and wow - how things can change in a few hours!

   I certainly think it's a good thing that the Judge wants them to settle, and no I don't believe the agreement will be for RDR and Steve to never publish, but to get the Lexicon out there and sell it.  I think the point is that this should have always been business and not personal (to quote the Godfather, lol - that line keeps going through my head).

Steve is obviously still a fan and not someone who is just parroting what his attorneys tell him to say.  JKR can say he isn't a fan, but he is.

I think it's obvious that Cendali did not have enough evidence to show that the Lexicon would do market harm to any of JKR's books, and it's silly to say that people will read the Lexicon instead of any book by the author.

I guess what the Judge meant about "lawyer-driven" is that Stanford might want this to go forward to a ruling to create precedent, so then it could go through the appeals process and maybe all the way to the Supreme Court.  But the Judge is wanting them to settle so the book can get published. 

That is my take on this - he is basically letting Steve win by saying they have to settle and allow the book if he edits it to their satisfaction.

Because we also have JKR saying that if she "loses" then she will clamp down on fandom and forbid even more things.  And her attorneys are driving this so WB will have more control in the future over other books, and the Judge thinks that shouldn't happen. 

This would never have been settled outside of court before, because I believe the only option RDR was given was "kill the book" or else we will sue you.  There was no negotiation, but now there can be. 

Amazing!    Even sloppy, alphabetical books deserve to be published. 

[Thinktank]

It seems to me there are two (or three) totally separate things issues here: the copyright issue, and JKR's (and possibly SVA's) emontions. The latter should be resolved somewhere else than in court.

I think it's entirely possible that JKR is very attached to her charatcers and genuinely upset. Whether this is justified or not is another question, and ultimately subjective, as it is about her personal feelings. But it also seems that SVA, had he known about JKR's feelings, would perhaps never have pursued with the printed book out of respect to her. In that sense, this gives more fuel for those who like to flame that corporations (in this case WB and RDR) are evol...

However, all this is irrelevant to the quetsion of copyright. It should be a question of fair use, not how parties' feelings are possibly hurt. There are many things that may uspset people, but as long as they aren't illegal, a court of justice is not the right place to deal with them. I'm afraid everyone is going to loose in this process (save, perhaps, RDR if they win and can make money with Steve's book).

I completely agree. All these mixed feelings are being put into this lawsuit when those feelings don't really belong in the courtroom at all. WB doesn't mind that of course, because as long as the author feels so protective of her characters, they'll keep suing anybody who gets in their way. The judge seems pretty sensible about this case though. Offering a settlement is definitely a better idea than taking this all the way to the bitter end where no-one, besides WB and RDR, really stands to win anything.

[Silver Ink Pot]

This way both sides can get back their dignity, and hopefully WB will think twice before they send Cendali to scream at a publisher on the phone again. 

[LunasCeiling]

You know there are a few who will never accept anything other than RDR was losing and settled to save themselves from the multi million dollar fine that the judge would have imposed.   

I hope an agreement can be reached.  I sincerely hope the parties can get their dignity back.  Most of all SIP, I hope Cendali is kept on a short leash from now on. I completely agree 

[Silver Ink Pot]

You know there are a few who will never accept anything other than RDR was losing and settled to save themselves from the multi million dollar fine that the judge would have imposed.   

   The Judge sure didn't mention any fines yesterday. 

I hope an agreement can be reached.  I sincerely hope the parties can get their dignity back.  Most of all SIP, I hope Cendali is kept on a short leash from now on. I completely agree 

I think WB should treat other writers and publishers with more respect.  Fans have rights, too, which has been my mantra through this whole process. 

I've been praying for a miracle - I just didn't think one would happen this fast!  Of course, it's not over yet, but it's closer to being over.

[Annie]

This Judge sounds very good in this particular instance!

On another note: Statement by a Spokesperson for J.K. Rowling and Warner Bros.

"A fan's affectionate enthusiasm should not obscure acts of plagiarism. The publishers knew what they were doing. The problem remains that the Lexicon takes an enormous amount of Ms. Rowling's work and adds virtually no original commentary of its own. As we've said in court, it takes too much and adds too little. Authors have a duty to prevent the exploitation of their works by people who contribute nothing original, creative or interpretive."

http://www.foxbusiness.com/article/statement-spokesperson-jk-rowling-warner-bros-entertainment-regarding-todays_563532_1.html

[Silver Ink Pot]

I saw that, Annie - but I wasn't sure just when that was released, either before or after the Judge told them to settle.  Some of these news articles are already obsolete because of what happened yesterday.

On another note, people were asking about what Fandom thinks of this case, and here's something I missed: a poster named PraetorianGuard on Livejournal waited literally till the eleventh hour to write about this, and started a mini-wank on her journal yesterday. 

http://praetorianguard.livejournal.com/279321.html?page=1#comments

What she didn't realize is that the Judge was about to throw something under the wheels of the runaway speculation train. 

Notice how everyone skitters away after the topic of settlement comes up.  Settling the case is uninteresting because no one is getting roasted alive in the media.  

[Annie]

I saw that, Annie - but I wasn't sure just when that was released, either before or after the Judge told them to settle.  Some of these news articles are already obsolete because of what happened yesterday.

Yeah, I know. It might be quite recent as Leaky have just put the statement in their news section. But anyway, I thought I'd link it over just incase someone hasn't read it yet. 

On another note, people were asking about what Fandom thinks of this case, and here's something I missed: a poster named PraetorianGuard on Livejournal waited literally till the eleventh hour to write about this, and started a mini-wank on her journal yesterday. 

http://praetorianguard.livejournal.com/279321.html?page=1#comments
 

The bit I found interesting was about :

Which means it’s absolutely possible, if JKR wins, for RDR to: (i) sue SVA for breaching the contract by infringing someone else’s work; and (ii) collect the costs and damages that RDR has to pay in defending this case. Will he collect? That’s a different case for a different day, but this contract does not prevent RDR from attempting to.

My mum mentioned about the possibility of the contract between SVA and RDR being declared nul and void yesterday. Considering SVA has kinda turned against RDR in court, I wonder if the publishers could take it into their heads to sue SVA for damages should they loose.

[Silver Ink Pot]

When I told my husband this news this morning, he said cynically that JKR would just pay them all to go away and drop the idea of the Lexicon book.  I'm just not sure if RDR/Steve will do that. 

In fact, I think they should stand their ground because they've got WB in the corner.  If WB won't negotiate now, the Judge will be angry.  If they go forward with the trial, WB may lose outright and have to appeal, which drags this into still another courtroom, and possibly to the Supreme Court.

There are quite a few scenarios.  They could offer to pay Steve for the Lexicon Timeline, if he will drop the book, for instance.

Maybe we'll get a little news around lunch time, I hope.

[Annie]

The Judge is certainly urging them to come to a settlement.

NEW YORK (AP) — J.K. Rowling and a publisher who wants to release an unauthorized lexicon to her Harry Potter novels should try to settle the copyright dispute out of court, a judge said Wednesday.

U.S. District Judge Robert Patterson Jr. said the copyright infringement case was a legal close call, involving unresolved areas of American law, and was almost certain to end in years of appeals.

"I think this case, with imagination, could be settled," Patterson said on the third day of the trial in Manhattan federal court.

The judge made a similar suggestion at the close of Tuesday's court session. The lawyers for both sides have settled some sections of the suit, but appear to be resolved to continue the litigation.

Lawyers for Rowling and Warner Bros., which holds intellectual property rights to the Potter books and films, rested their case Wednesday morning, saying they believed they had proven that "The Harry Potter Lexicon" took too much copyrighted material from Rowling's work.

The lead attorney for the plaintiffs, Dale Margaret Cendali, said she still planned to call Rowling to the stand for a second time later in the trial to rebut testimony offered by the defendant, RDR Books.

http://ap.google.com/article/ALeqM5hIGNIcztySvpGhm95iGPhNL7ov1AD9032GHG1

[LunasCeiling]

The judge made a similar suggestion at the close of Tuesday's court session. The lawyers for both sides have settled some sections of the suit, but appear to be resolved to continue the litigation.

I wonder what portions were settled.  The plaintiffs rested their case but are reserving the right to recall JKR in rebuttal to RDR.  Alright here is my Trelawney impression of today:  They agreed to let the book be published with changes made to parts too closely copied.  They can't agree on settlement terms.  They are holding out recalling JKR to the stand again as a bargaining chip because if she gets on the stand again she will damage the book just by the attention that will be paid to anything she says.  Now, where is that sherry bottle?

[Silver Ink Pot]

The judge made a similar suggestion at the close of Tuesday's court session. The lawyers for both sides have settled some sections of the suit, but appear to be resolved to continue the litigation.

I wonder what portions were settled.  The plaintiffs rested their case but are reserving the right to recall JKR in rebuttal to RDR.  Alright here is my Trelawney impression of today:  They agreed to let the book be published with changes made to parts too closely copied.  They can't agree on settlement terms.  They are holding out recalling JKR to the stand again as a bargaining chip because if she gets on the stand again she will damage the book just by the attention that will be paid to anything she says.  Now, where is that sherry bottle?

I'm glad you are here to prognosticate, because today I haven't a clue as to what will happen!  Yesterday was surprise enough for me! 

[Annie]

Someone from the Leaky Lounge forum found further information.

I wonder what portions were settled.  The plaintiffs rested their case but are reserving the right to recall JKR in rebuttal to RDR.  Alright here is my Trelawney impression of today:  They agreed to let the book be published with changes made to parts too closely copied.  They can't agree on settlement terms.  They are holding out recalling JKR to the stand again as a bargaining chip because if she gets on the stand again she will damage the book just by the attention that will be paid to anything she says. 

In answer to your question it appears the following was settled:

NEW YORK — In a sign that the parties in the J.K. Rowling and Warner Bros. v. RDR Books case are steeling themselves for the long haul, the lawyers informed the court this morning that, despite Judge Patterson’s urgings, they had reached a settlement only on the false advertising and deceptive trade practices claims. The settlement means only that neither J.K Rowling’s name nor her quote endorsing the online version of Steven Vander Ark’s H.P Lexicon will appear on the cover of the book version of the Lexicon.

Additionally, Stanford’s Anthony Falzone, who’s representing RDR in the case, told the court that the parties wish to “paper a settlement” on the trademark infringement and unfair competition claims.

Also testimony from  Janet Sorensen:

David Hammer, the lead attorney for RDR, seemed to be most interested in establishing the point that the more creative a work is — a “fantasy” being perhaps the most creative genre of the novel — the more there’s a need for a reference guide to illuminate, for the reader, the unique (and non-existent) world the author has created. Sorensen testified that, historically, lexicons and reference works similar to Vander Ark’s have been helpful for readers seeking to gain a better understanding of such works as J.R.R. Tolkien’s “The Lord of the Rings” and C.S. Lewis’s “The Chronicles of Narnia.” Lexicons like Vander Ark’s, testified Sorensen, can educate a reader on etymologies, mythical references, geography (real and imagined) and the vernacular and slang used by the author. She also said that reference guides written by the authors themselves aren’t necessarily the final word on their own texts, since authors can assume too much knowledge on the part of the reader.

In her cross, Cendali returned to the plaintiffs’ legal motif in the case: The H.P. Lexicon takes too much, and does too little. Cendali pressed Sorensen on the point that the Lexicon contains little interpretive analysis. Sorensen conceded as much, but said that analysis isn’t the only value a reference guide like Vander Ark’s can provide a reader.

http://blogs.wsj.com/law/2008/04/16/notes-from-the-potter-trial-after-a-partial-settlement-the-defense-digs-in/?mod=WSJBlog

[Silver Ink Pot]

Case Analysis:

http://blogs.wsj.com/law/

We checked in with an IP expert, Ethan Horwitz (pictured), an IP partner at King & Spalding here in New York, who’s been following the case closely. He agrees with Judge Robert Patterson’s take — this case is indeed a close one, on the

Thanks for taking the time, Ethan. So you think it’s running neck and neck between Warner Bros. and J.K. Rowling on the one side, and RDR Books on the other?

It’s really pretty remarkable, in my opinion. The fair-use test has four factors and each side can find precedent to support it. The case law is really all over the map. And on the facts, too, I think it’s a really close case. It really smacks down right in the middle.

Can you give us an example of how the law is muddied?

Sure. Well, under the copyright law, 17 U.S.C. Sec. 107, the fair use test has four parts. It’s a “totality of the circumstances” test that a judge is supposed to apply, basically meaning that no one prong of the test is meant to carry the day. Anyway, one of the parts examines the nature of the copyrighted work. The more creative the copyrighted work is, the less likely a fair-use argument is going to apply. The less creative a work is — like if the work is a news article or something that relies on a lot of facts — the more likely a fair-use argument is supposed to apply.

But the law is all over the map. For instance, there’s a case involving a trivia game based on the TV show “Seinfeld.” A judge shot down the fair-use argument that the game-makers were making. At the same time, a coffee-table book that used copyrighted pictures of the Grateful Dead was held to be permissible under fair use.

Here’s another example: Another part of the test examines how much of a work was actually used. In a famous case involving the memoirs of President Ford, the Supreme Court found that fair use did not apply when a magazine excerpted 300 of the memoir’s some 200,000 words. But in the Sony/Betamax case, the Court held that copying 100% of a movie or TV show did fall under fair use. So it’s very confusing.

And what about the facts here?

They’re also very split. Each side has some strengths and some weaknesses. Another part of the fair-use test involves the effect on the published work’s market, essentially just how clearly the copyright holder has shown that the work will have a damaging economic effect on her publications. That’s a tough argument for Rowling to make here because she, in the past, has been so encouraging of fan Web sites and lexicons and the like. This is where she has her major problem.

Vander Ark’s biggest issue, I think, is that his site looks so similar to the design of the Potter books. Technically speaking, it’s a trademark issue, but it is going to affect another factor, which is the extent and value of the taking from the original work.

So your prediction?

I wouldn’t make one in this case.


Posted on: April 16, 2008, 05:51:32 PM
Posted on: April 16, 2008, 05:54:33 PM

The Trial is Over:
USA Today

By David B. Caruso, Associated Press
NEW YORK — A three-day trial over an unauthorized Harry Potter encyclopedia ended Wednesday with a flash of anger from J.K. Rowling.
The best-selling British author returned to the witness stand and told a judge that if he allows the fan-written lexicon to be published, it will clear the way for countless rip-offs of her books, as well as the work of other popular authors.

"I believe the flood gates will open," Rowling said, her voice rising. "Are we the owners of our own work?"

Rowling was testifying for the second time in the trial, which began Monday at a federal court in Manhattan.
~~~~~~~~~~~~~~

Reuters

Two literary experts testified for each side on whether Vander Ark copied too much text, citing works on authors like C.S. Lewis and James Joyce.

In closing arguments, Dale Cendali, a lawyer for Rowling and Warner, said the lexicon reproduced "tremendous amounts of text" without attribution. "There has been no testimony that it would add anything new or original," she said. "The lexicon is filled with errors."

But Anthony Falzone, a lawyer for RDR, said Rowling could not suppress a book just because she thought it was no good. "Copyright law does not permit an author to suppress a book because she doesn't like it," he said.

U.S. District Judge Robert Patterson urged the sides to settle, saying the case reflected an emerging part of copyright law with no clear precedents. "I may need a reference guide to this case," he joked.

He is expected to take several weeks to reach a decision.

~~~~~~~~~~~~~~~~

[Sly_Lady]

Thanks for this latest case analysis, SIP. The whole thing makes my temples begin to throb, and I hope it gets resolved quickly, somehow. This blog makes it seem like it won't be a slam dunk for either side. And the drama goes on… sigh.