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[LoveLupin]

Ditto, Sly.  Since the legal eagles seem to think the merits of the case are pretty equal for both sides, I foresee appeal upon appeal that could last our lifetimes.  It'll all come down to which side can most afford to keep the appeals dragging on endlessly, and since JK and WB can afford to spend more just on lunch money than Steve makes in a lifetime or RDR in years...  well, I can guess which side will wear the other side down!

[Silver Ink Pot]

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.

 

Sly: I feel your pain!    This Judge, bless him, is going to need the wisdom of Solomon to figure out a verdict.  He knows that anything he writes will be judged on Appeal and maybe quoted for years.  I can see why he wanted them to settle.

Wall Street Blog

Is “Weak Waggishness” a Legal Conclusion? The plaintiffs (author J.K. Rowling and Warner Bros.) called their literature expert, Jeri Johnson, a “senior tutor” (that’s like an academic dean) from Oxford. Johnson, whose title was constantly confused by the lawyers — mis-addressing her alternatively as Don, Dean, and Doctor (she has no doctorate) — testified in broad generalities, concluding that entries in the Lexicon don’t add new “layers of meaning” to Rowling’s novels, and merely rearrange Rowling’s intellectual “furniture.”

Unimpressed, Judge Robert Patterson interrupted. “It’s not helpful testimony because it draws conclusions without specifics,” he said. “I can’t simply take the expert’s opinion as my own.”

Then, when David Hammer — lead attorney for defendant publisher RDR who handled every witness examination — crossed Johnson, her testimony simply unraveled.

Hammer pressed Johnson on her previous statements that the H.P. Lexicon is “weak waggishness,” that its jokes are “facetious,” “condescending in the extreme” and amount to “tedious jocularity.” Hammer got Johnson to agree that what’s obvious or facile to an academic dean at Oxford might not be so to children — presumably the Lexicon’s main audience. He asked: Could a work be useful to a 10 year-old even if it’s not something she would classify as a work of academic scholarship? “Yes,” she said. “No more questions,” he said.

Does the Lexicon Take the Best Crumbs of Rowling’s Cake? The problem of generalities continued to plague the plaintiffs when Rowling, the first witness in the case, took the stand in rebuttal as the trial’s final witness. Comparing her novels to a cake, Rowling claimed that the Lexicon takes all the best “crumbs,” repackages them and sells them for “entertainment value.”

Again, Judge Patterson interrupted, and addressed Rowling directly. “Can you imagine anyone reading [the Lexicon] for entertainment value?” 

“No,” she replied. “But, without seeming arrogant or vain, there are entertaining things in it — and I wrote them.” Rowling went on to say that, just because she’s been successful, the law shouldn’t grant her less copyright protection. And, if the case is decided in RDR’s favor, she argued, borrowing law school cliches, that it will be a “slippery slope,” “floodgates will open,” “a precedent will be set,” and anyone will be able to “lift an author’s work” and present it as their own.

Law students, refresh our memory, but don’t the profs caution against the slippery slope argument, on the theory that it’s the job of judges and lawmakers to draw lines?

Maybe I Need a Reference Guide for This Case: That was Judge Patterson’s commentary at the close of testimony. Again, he urged the parties to consider settlement, reminding them that fair use is a “murky area” of law. Hammer then requested the opportunity to make a closing statement, which was a good call because his co-counsel, Anthony Falzone, delivered a strong one.

Rowling’s lawyer, O’Melveny’s Dale Cendali, emphasized their main theme, that the Lexicon “takes too much and does too little” but offered little in the way of specifics.

The defense’s Anthony Falzone, a lecturer at Stanford law a who hadn’t spoken since his opening statement, invoked a professorial tone and led the judge through a thorough analysis of RDR’s case. Synthesis and distillation is what makes the Lexicon “tranformative,” he argued.

“Quality shouldn’t matter,” he emphasized. If the Lexicon is lousy, Falzone concluded, the answer is not to suppress it, but for Rowling to write her own.

LB’ers: Therein lies the trial’s narrative arc, short of the judge’s decision. Which way should he rule?

[OddmentTweak]

 Which way should he rule?

    I certainly don't have the wisdom of Soloman!
It still puzzles me how JKR can complain that

anyone will be able to “lift an author’s work” and present it as their own

when clearly the Lexicon is presented as an encyclopedia of the world of Harry Potter.  And everybody knows who created Harry Potter.        

There are already so many published books dealing with and talking about her world and characters - why clomp down on this and not the others?   The only thing I can see is that she wants to sell her version of an encyclopedia.    And since she wants to take years, and add lots of backstory stuff that did not fit in to the books - she should be glad that this Lexicon is just "lifted from her books".

I just don't get it, and it makes me sad.

         This just does not sound like the same woman we admired so much a few years ago.   

[Bluestocking]

 hi everyone
this is phoenixesq. I forgot my password and triggered that thing where it won't let you try more than 3 times.  Anyway they STOL haven't reset my password.  I got tired of waiting. 

I'm surprised by the end of trial. I thought it would have lasted till the end of the week. Boy plaintiffs case seemed to fall apart at the end. This will be interesting. 

[Silver Ink Pot]

Phoenixesq/Bluestocking:   I'm so sorry about your password. We have that problem all the time, so just let me know if it happens again.  Our function for passwords doesn't work well, but Nicc can always reset your password to something simple so you can log in again.  Do you want me to ask him to do that for "Phoenixesq"?

That's actually my job as "Messenger to the HPN."  I have a winged hat and winged Nike shoes.

My husband just made a good point while we were talking about this case. 

How can JKR say the Lexicon "replaces" her books when no one would ever make a "film" of the Lexicon?

Obviously, there is no "narrative thread" in the Lexicon, but there is one in the books.  That is a simple test of the difference, beyond the fact that no one would read the Lexicon over and over again.  It is like having the books without the emotion, too.

What WB seems to be missing is that people aren't using the Lexicon to look up mythology or Latin phrases - any of us can do that online or in other books.  The important things are the chapter references, explanations of certain objects, and timelines for each book (months, dates, etc).  We are looking for connections between things in the books, and not connections to Oxford classics lessons.   

[LunasCeiling]

From USA Today

He likened the trial to the story Charles Dickens told in Bleak House, a novel about the pain caused by endlessly drawn-out suits in the 19th Century British judiciary system.

Patterson predicted a similar fate for the Lexicon case. He said it clearly involved unresolved areas of American law, and was almost certain to end in years of appeals and misery.

"I think this case, with imagination, could be settled," Patterson said

As the day wore on, however, he seemed fascinated by the subject material, interrupting the lawyers at one point to question the experts himself.

In an exchange with Johnson, Patterson explained that his firsthand experience with the Harry Potter novels was limited; During a visit by his grandchildren, he read them the first half of the first book in the series, Harry Potter and the Sorcerer's Stone.

But, even in that quick read, he said, he found Rowling's "magical world" hard to follow, filled with strange names and words that would be gibberish in any other context.

"I found it extremely complex," he said — even more so than the Dickens his own father read to him as a child. The judge suggested there is genuine worth in a book like Vander Ark's, even if does nothing more than index the somewhat ridiculous sounding names of Rowling's characters.

Johnson acknowledged that there might, indeed, be worth in such a reference guide — if done properly.

I think that most of the important questions of the trial came from the judge.  It certainly seems as though he had some opinion of the value of the book.  I don't know how much it means but if I were plaintiffs counsel I would be worried.

[Silver Ink Pot]

Thanks, LunasCeiling - I missed that quote earlier today - it's been a whirlwind of articles!

I just found another good quote in this lengthy article (worth reading):

Publishers Weekly

Rowling then took the stand for rebuttal and offered impassioned words in support of her rights, though the questions and answers were frequently objected to by the defense as not directly addressing earlier testimony. (At one point Cendali asked Hammer, “Are you trying to suppress Ms. Rowling?” to which he replied, “That seems to be impossible.”)

   That's really funny!

[zgirnius]

Obviously, there is no "narrative thread" in the Lexicon, but there is one in the books.  That is a simple test of the difference, beyond the fact that no one would read the Lexicon over and over again. 

Again? I would not read it once (cover to cover). It would be a fun to browse sort pof reading, and for looking up stuff. Sort of like the way I use encyclopdedias and dictioaries. (Yes, nerd alert, I like to browse through them on occasion to see what I find...)

[LunasCeiling]

Don't worry zgirniusI know you are not alone in browsing encyclopedias and dictionaries. 

SIP thanks for another good find.  I think the hammer nailed it again! (ahhh, sorry, his name is just too tempting)  It does seem most of the press is positive for the defense today.  I hope that spurs along negotiations for a settlement.  I don't believe it is likely to be in anyone's best interest to carry this on ad infinitum. 

[Silver Ink Pot]

Obviously, there is no "narrative thread" in the Lexicon, but there is one in the books.  That is a simple test of the difference, beyond the fact that no one would read the Lexicon over and over again. 

Again? I would not read it once (cover to cover). It would be a fun to browse sort pof reading, and for looking up stuff. Sort of like the way I use encyclopdedias and dictionaries. (Yes, nerd alert, I like to browse through them on occasion to see what I find...)

I admit, I used to read the World Book Encyclopedia sometimes in the summer when I was bored as a child.    And we had lots of encyclopedia-style books at home, such as bird and flower books, which I still love to read.

You know - Seed Catalogs are almost always alphabetized.  Wonder why? 

But I've never read more than a few entries at a time on the Lexicon, and that's why it's a "quick reference."

LunasCeiling: Yes, alot of good press today, and the Defense had some shining moments.   

[Mysto]

I think the thing is the Lexicon's book is an Encloypedia of the HP world...supposed to be like an official one. All the other books that are supposed to be similar aren't because those books were analizing JKR's work and helping people understand it. Steve is writing a book that is just going to list the facts. That's exactly what JKR is doing in the future. So those facts that Steve lists in the book even though he dug them up from her books and arranged them himself, is still from her. It's not his own opinions, comparisons and analizing of her books. Just the facts. That's stepping on toes without permission if the author is already going to write a book that have all her facts arranged in them, plus some added that weren't in the books. Why would we need the Lexicon's Encloypedia if JKR is going to write one herself? The only reason to really have it is to have something useful to look info up sooner since JKR isn't publishing hers until later. Now all that really does is rush JKR to finish her Encloypedia so her info doesn't clash with Lexicon's. What if Lexicon puts down facts that are wrong, and JKR comes out with her Encloypedia and changes it? I can see some of the younger readers getting confused about it. We don't need two Encloypedias. All the other books the authors have written is just opinions, guides, theories, and speculation. The quotes that are in those books have to be referred to as from JKR's work. While the Lexicon's Encloypedia is writing the facts down as their own work.

So that's my whole take on the case. The Lexicon's a useful tool, but we already have it online, we don't need it down in a book, despite arguements that it's easier to carry around than a laptop.

[Silver Ink Pot]

Mysto: I totally see your point, and I admit I don't check the Lexicon online as much as I once did, although sometimes I use it to check spellings of names, or to check if my memory of a scene is correct.

I just wonder why JKR would be so insecure about her fans, when we have always bought anything she has ever written?  And I still don't understand why she feels "rushed" into writing her own encyclopedia.  She should just write it whenever she wants. 

Also, I believe it's been said numerous times that the "facts" in the books are not covered by copyright.  It's the creative expression in the original books that is protected.

That's what JKR was upset about in court - she says the facts belong to her, and there is no creativity in the Lexicon book.  But there is another way to view that - the organization of the Lexicon book is part of the creative act, even if it seems boring to you or me, or "sloppy/lazy" to JKR.  And obviously there is other stuff in the Lexicon besides just the facts - JKR also objected to jokes about Hagrid and Steve's analysis of "Alohomora."  But that sort of writing is  permitted under Fair Use whether it agrees with the author's view or not. 

I would hate for JKR to go through all my own essays and point out things I've gotten wrong (and many of us have gotten lots of things wrong).  Of course, my own stuff is in essay form, and not lists of facts, but I'm still taking a fact from the books and expounding on it using my own creativity, and that's allowed under the law.


I found more bloggers speaking out:
~~~~~~~~~~~~~~~~~~~~~~~~~~~

Paperback Pusher: "J.K. Rowling Can Cry All She Wants But That Doesn’t Mean She Has A Case"

I can hear the fans crying what if she wants to write that book!  He has stolen her right to write the book!

Hogwash.  There is no copy write protection from a book that doesn’t exist yet.  And thank goodness: now Rowling claims she is so distressed that she fears will never be able to write it.  So she would have her book or no book, and possibly no book anyway.  What a perfect example of how fickle writers are.  It is a good thing the laws are set up as they are; this way maybe we will get something. And maybe we’ll get two books!  Or three!  And if Rowling can muscle up the strength to face the competition she will undoubtedly write it better and more critically.

Rowling’s lawyers have been getting more and more aggressive lately.  She has passed over many opportunities to sue and I believe this makes her feel like she can have her pick of the litter because she passed up all those other chances to litigate. Personally, I have always been a fan of Rowling (as a person, not just her books) but her claims that this case has forced her into some kind of dramatic writer’s block disgust me.  I suppose she’ll have to take to drugs like all the other great plagued writers out there.  Or maybe stop surrounding herself with lawyers and yes-men that coddle her.  If only writers could sue their way out of writer’s block we’d be swimming in literature!

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

Virtual Journal: A Potter Czar

What she is really trying to claim is a monopoly on the right to publish reference guides and other non-academic items related to her works of fiction for her own monetary gain. Which would put every other reference item at odds with standing legal precedents. Her lawyers knowing this, I can only assume that this lawsuit is is just an act of trying to bully Vander Ark into submission. All she is accomplishing to do is make herself look more sinister then Lord Voldemort.

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

JKR and the Lawsuit of Frivolity ~ Harry Potter Author Makes Fan Cry in Quest for Cash

In today’s New York Times, the easily-misspelled Anemona Hartocollis reports on Vander Ark’s testimony:

While Ms. Rowling argued on Monday that people who bought the “Harry Potter Lexicon” would have little incentive to buy her books, Mr. Vander Ark argued that, on the contrary, only people who read her books would be interested in his encyclopedia.

As for her contention that his book would unfairly compete with her own plans for an encyclopedia, Mr. Vander Ark said there were many things about her characters, back story and discarded plot points that only she could know.

He’s right. If a non-fan finds himself wanting to know more about Harry Potter, it’s very unlikely that he’ll pick up an encyclopedia on the subject. On the other hand, extreme Harry Potter fans - who have read the books, usually more than once - are so devoted to the series that they’ll pick up the Lexicon just to have it handy. The same people are almost certainly going to buy the next book J.K Rowling puts her name to, whatever it may be. They won’t mind having two books on the same subject – after all, they already have seven.

When it comes down to the pressing question of which Harry Potter encyclopedia one should buy, Rowling will come out the winner, no matter what. One hopes, however, that she doesn’t win the suit. [/i]  

[Mysto]

Also, I believe it's been said numerous times that the "facts" in the books are not covered by copyright.  It's the creative expression in the original books that is protected.

I don't quite understand this part, since JKR's books are all creative expression, the "facts" in them are really her creative expression, we call them facts because they're canon in her books. Really, we know there isn't a Hogwarts, spells that could turn you into animals or conjure things out of of wand. They're facts created in the books, but not facts in real life. So I have a hard time understanding how it could not be covered by copyright.

Most of this I'm trying to picture it like as if I was in her shoes. If I were to write a series based on fantasy, and I announced that I was writing an Encloypedia for that series and someone else does it before me I would have all kinds of mixed feelings like the person was trying to get some credit in it for themself, and if they were just a really big fan that's really nice but they basically did what I was going to do before me, but did it in their own way. What if there was things I wanted to add or change, or do completely different that I had to play around with, but I couldn't anymore because someone had already listed the supposed facts of my series.

I see your point about non fans not buying the book but true fans buying both. I'm trying to see it in the Lexicon's point of view, but I can't help to see it any different than him taking her creative facts and just rearranging them to make it easier to look up and understand. Either he's just a really huge fan and wanted to be a part of this, or he wants some credit for all the work he's done in arranging the facts. Though if his website has become useful enough to where the author uses it herself, than I think he should get some credit for it, but not take over a book she was going to write. I know a lot of people are going to disagree with that comment, but in a way, thats how it feels to me, like he is taking over the Encloypedia part. If she wanted to write it the same way he did and just add a few things she can't.

[LunasCeiling]

I found The Caffeinated Librarian
 to be a great read as well.  It is all good so I had a hard time picking a quote.  Here is one of my favorites though:

Don't you think that dickering over how much coverage death gets is splitting hairs here? But maybe the point was that the quality of the book was bad; but what does that have to do with you writing your own reference book? Go ahead and put your own book out there - chances are that if you're right and this other one isn't quality, everyone will buy yours instead. Actually, who are we kidding - the real superfans will buy both. Either way, you won't be hurting. And if you don't like the idea of anyone but you putting out a reference book based on your work, why not just say that?

[Silver Ink Pot]

That's a good one, LunasCeiling! 

The New York Times article for tomorrow's edition is out, and has this curious quote from JKR, just before the Judge started talking about Dickens:

Ms. Rowling told the judge in Federal District Court in Manhattan that she had been misunderstood. Mr. Vander Ark watched from the back of the room as the trial drew to a close.

“I never ever once wanted to stop Mr. Vander Ark from doing his own guide — never ever,” she said as she took the stand for the second time in the three-day trial, as the last rebuttal witness. “Do your book, but please, change it so it does not take as much of my work.”[/b]

  Say what?  No, she was not misunderstood!

More from NYT:
~~~~~~~~~~~~~
Judge Patterson said that he loved literature and that his father had been a fan of Shakespearean tragedy, but he reminded the parties that in “Bleak House,” the character Miss Flite faithfully attends every day of the trial and finally dies in her little attic.

“A very sad story,” Judge Patterson said. “Litigation isn’t always the best way to solve things.”

But if Judge Patterson thought he could wave a magic wand and cast a happy-ending spell on the proceedings, the lawyers seemed intent on proving him wrong.

Even after Ms. Rowling’s conciliatory words, the lawyers for both sides came on strong in their closing arguments.

Ms. Rowling’s lawyer, Dale M. Cendali, concentrated on marketing, saying the guide could hurt Ms. Rowling’s ability to sell books and Warner Brothers’ interest in marketing movies and merchandise related to Harry Potter.

If the guide were published, Ms. Cendali said, she envisioned readers saying: “‘You know what? I guess I don’t really need the rest of the Harry Potter books because I just read the big giveaways.”

Ms. Cendali joked that the harm could even fall upon lawyers. “Whether that means our bills will now be paid, I don’t know,” she added.

The guide, she contended, would be in direct competition with Ms. Rowling’s own books. “This is about people trying to sell this for $24.95 as the definitive Harry Potter encyclopedia, in bookstores right next to the Harry Potter books,” she said.

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

OK - I do know something about that last quote from Cendali.  When our book The Plot Thickens came out, Galadriel wrote a letter to all the writers explaining that she would have to pay a premium price to get our book stacked on the same table with the actual HP books at Barnes and Noble, and that would take away some of the small profit from the book. So our book was often not featured alongside the HP novels/calendars/bookmarks/poster books because Scholastic paid for that space on the "big display" and we couldn't afford that.

It seems clear that could be a point for settlement - just make Steve have a separate display in the Children's Department of the bookstore, or something.

~~~~~~~~~~~~
An expert witness for the plaintiffs, Jeri Johnson, an American expatriate who is a senior tutor at Oxford University, seemed to play the role of Dolores Umbridge, the Ministry of Magic’s apparatchik at Hogwarts, as she testified.

She dripped contempt as she referred to Mr. Vander Ark’s work as “the so-called lexicon.” She said she found Mr. Vander Ark’s commentary in the book to be “weak waggishness.”

On cross-examination, David Hammer, a lawyer for the publisher, pointed out that Ms. Rowling herself made vulgar jokes in her books about troll boogers and phlegm. He suggested that the problem might be that as an Oxford don, Ms. Johnson was too high-minded.

“You yourself would not make a joke about phlegm?” he asked the witness.

“Only with my 9-year-old,” Ms. Johnson replied.

In his closing arguments, Anthony Falzone, another lawyer for the publisher, said that under the law, what mattered was not the quality of the book but whether it transformed Ms. Rowling’s material in some way.

The guide, he said, “organizes, synthesizes and distills” thousands of pages and “somewhere near a million words.”

Mr. Falzone said that if spoiling plot points was a reason to suppress the book, as Ms. Cendali argued, then: “It’s spoiled all over the place. It’s everywhere. You’d have to suppress it all.”
 ~~~~~~~~~~~~~~~