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Some thoughts on the Lexicon Trial

First off, not trying to start wank. Since my journal is flocked, I thought I would post a summary of what I have been posting regarding this case over the last few days. Hopefully it will inspire some thoughtful discussion...

I have given in and read the reports on the Lexicon suit from law.com, TLC, and a few other sources. There is a lot of repeated information, and I know I wasn't there, but I think I can safely conclude that only a very small percentage of the information reported on is relevant to the defense. I say defense because we all know there is a valid copyright claim here. The Lexicon is clearly an unauthorized derivative work, but is it fair use or was it otherwise authorized?

Irrelevant information includes...
a. the circumstances which led to JKR writing the HP series, her rags to riches story, etc.
b. how lazy, sloppy, or inaccurate JKR perceives the Lexicon to be (I love that the true reason for Harry's survival was discussed in a court room)
c. SVA's emotional reaction or any "choking up" that may have occurred during his testimony
d. how much money SVA has made thus far from the Lexicon (although $6500 is pretty low compared to what I speculate Melissa and Emerson make)
e. the effect of the lawsuit on JKR's ability to continue writing the Scottish book
f. who talked who into publishing the Lexicon in book form
g. SVA's alleged desire to be compensated for the timeline he created
h. missed opportunities to add commentary (I suppose this is somewhat relevant, but seriously what HP resource is MORE comprehansive than the Lexicon?)
i. whether or not British people have a problem with crying on the witness stand

Let's review the standard for fair use again. The four factors are...

1. the purpose and character of the use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion taken
4. the effect of the use upon the potential market

Note: There is also this implied license argument in the background which is there, but not strong in my opinion because there is little case law on which to base it.

I. The relevant information for fair use is...
a. these pie charts which claim anywhere between 84-91% of the information is directly lifted from the books
b. the transformative value of organizing the material in the HP books
c. the argument that people will or will not buy the Lexicon book instead of the Scottish book
d. the amount of commentary, added material, etc. in the Lexicon compared with other companion books (JKR recognizing the site with an award and using it is relevant for this)

II. The relevant information for the implied license argument is...
a. whether JKR approved of the Lexicon in web form
b. JKR's relationship with other fan sites and companion books

From the reports, I have seen very little relevant information has been discussed. There is a lot of emotional energy, but not very much of it is relevant. I still think this case is a toss up. It could go either way. One thing I do NOT agree with is this statement reported by TLC to have been made by JKR...

“Perhaps naively, I was very keen to maintain an almost hands—off [relationship] to online fandom. I simply let it happen. I saw massive positivity in it…I have never read online fanfiction, it is uncomfortable to see your work recreated that way, but I never censored it or wanted to censor it. [Should RDR books win], other authors will look sideways and say I needed to exercise control. ‘She was an idiot. She let it all go.’"

As I stated before, this is only true if RDR wins on an implied license argument. If RDR wins, it will mostly likely be because the court determines the Lexicon is fair use, and in that case JKR's relationship with fan sites is irrelevant. Although the implied license argument is lingering in the background, fair use seems to be the main defense. RDR's rep even stated this directly whilst testifying.

I suppose the above statement from JKR is semi-accurate in light of I(d) above, but how is giving a site an award a "hands off approach?" I won't even mention the other things JKR has done tp interact with fandom which I would not consider to be "hands off." Rings anyone?

Bottom line: even though this is a bench trial and there is no jury, there is clearly a lot of emotion in the court room. The result depends on the judge's reading of previous cases (Castle Rock and the Beanie Babies case being two important ones) and ability to weed out the important facts from the irrelevant ones.

We shouldn't be hiding behind legalese to judge SVA or JKR. Let's face it...if I spent years in poverty (well, European poverty), wrote a series of books which became wildly successful, and then realized I might never achieve that again, I would be a bitter emotional wreck. If I were a devoted fan who spent years chronicling the the work of an author I respected and then got caught up in a legal fight with the person who put magic in my life, I would fucking cry too. These are simplifications of the situation I know, but I am trying to go back to basics. We're all human here.

I think the most recent development in the Lexicon case proves what I have been saying all along. From the WSJ blog...

Judge Patterson removed his glasses and addressed the court. “I’m concerned that this case is more lawyer-driven than it is client-driven,” he lamented. “The fair use people are on one side, and a large company is on the other side. . . . The parties ought to see if there’s not a way to work this out, because there are strong issues in this case and it could come out one way or the other. The fair use doctrine is not clear.

See, it is not a clear case! The answer is not "SVA copied 84% so JKR wins." I just hope they can reach a settlement, but with how emotionally charged this has become that might be doubtful.


( 18 comments — Leave a comment )
Apr. 16th, 2008 05:27 pm (UTC)
Could you possibly put it behind a cut, please.
Apr. 16th, 2008 05:31 pm (UTC)
Sure, sorry about that. I didn't realize how lengthy it got.
Apr. 16th, 2008 05:38 pm (UTC)
A couple of other points that may be important after this particular case come up here.
Apr. 16th, 2008 05:38 pm (UTC)
I'm curious to see side-by-side comparisons of passages of text from the Lexicon and the books (a la all other recent plagiarism-related kerfluffles), but the news sources I've seen have not provided thus far. Am I Doing It Wrong?
Apr. 16th, 2008 05:43 pm (UTC)
Not that a side-by-side comparison couldn't be useful for other reasons, but, I don't think JKR is alleging plagiarism.
Apr. 16th, 2008 11:03 pm (UTC)
That would go some way to explain it. It seems like half of fandom is; that's what I get for relying on secondary sources. :)
Apr. 16th, 2008 09:34 pm (UTC)
There were some side-by-side comparisons a while ago; when I get home, I'll see if I can dig them up. (Or maybe someone else will have rediscovered them by then.)

Basically, the Lexicon is prone to very slight rephrasings of JKR's material, but since they never claimed "we wrote this, not JKR," there's no plagiarism involved.
Apr. 20th, 2008 07:35 pm (UTC)
Someone form court {I think} had to compare the Lexicon to the HP books and justia has published the results. 91 % of the Lexicon were stolen word for word from either HP 1-7, teh Quiddich comic relief book, Fantastic Beasts comic relief book or the Wizard Cards that JK published. Oh, or her site.

I've uploaded the .pdf file here. Scroll down to the last two pages. There are graphics there that really make it easy, even for us fans who probably didn't really understand the lawyer-talk on the previous pages, hehe.

Edited at 2008-04-20 07:41 pm (UTC)
Apr. 20th, 2008 08:05 pm (UTC)
I am really confused now! People have said the pie chart says it's JKR's words, but it doesn't say that at all! It said "material" - could that mean it paraphrases, like Steve said in court? Then he wouldn't be lying that he paraphrased what she said, but it wouldn't be her copyright since you can only copyright words in a set order. When you paraphrase, you aren't copying someone's words, you're rewriting.

And I know that was created by the JKR team because she said so in the trial.
Apr. 21st, 2008 05:37 am (UTC)
I doubt that, because if it weren't her words complete with sentences and in the exact same order, anyone could sue anyone. And I choose to believe that with all the lying on SVA and RDR's side, it's more likely he was lying again this time.
Apr. 16th, 2008 07:55 pm (UTC)
The Wall Street Journal has a great pair of pieces today - one is an interview with a very well-respected IP attorney (http://blogs.wsj.com/law/2008/04/16/potter-case-ip-lawyer-calls-it-a-toss-up/?mod=WSJBlog#comment-187192). He says

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.

The other article is here. (http://blogs.wsj.com/law/2008/04/16/notes-from-the-potter-trial-after-a-partial-settlement-the-defense-digs-in/?mod=WSJBlog)
Apr. 16th, 2008 09:25 pm (UTC)
I suspect showing a market impact will be a big part of the prosecution's claim that it's not fair use.

Allowing a website with reference material didn't notably impact their sales. (Or certainly not negatively.) But allowing a *book*... well, JKR had no intention of putting together a website with all that info. But "Official Guide To/Encyclopedia Of [Book]World" is a common and popular publication in many venues; in order to claim this publication wouldn't affect those sales, I suspect it'd need some proof that JKR had no intention of ever putting together a printed encyclopedia.

(Which she possibly could've pulled straight from the website, if the precedent set in Anderson v Stallone holds. Grr.)

IANAL. This is just my random-layman's opinions.
Apr. 16th, 2008 11:55 pm (UTC)
IAAL, and I agree with you. ;) I think that there's a huge difference between an online reference source, no matter how widely used or respected, and a published encyclopedia. It's been no secret that JKR planned to publish her own encyclopedia, and it's hardly a stretch to think that a previously published encyclopedia of the world would cut into her sales and risk a lot of confusion among the more casual fans of which is the REAL JKR book.

Frankly, I'm disappointed that it ever had to come to this, because JKR has been great to the online community and this is jeopardizing all of that. Not just for HP, but for every other author in the future who'll have this to look at, whether it's the official basis for the decision or not.
Apr. 17th, 2008 07:09 pm (UTC)
But confusion is a trademark issue, not a copyright one. If that's the real problem, then all of this is irrelevant, and the judgement should be that the Lexicon needs to stick a big fat UNOFFICIAL on the front cover.
Apr. 17th, 2008 07:12 pm (UTC)
The Wall Street Journal said they settled on all the trademark claims earlier this week, so while it may have been an issue when the complaint was filed, it isn't going to be up for a ruling by the judge. Does anyone know yet what the settlement on tradmearks and unfair competition includes?
Apr. 17th, 2008 08:34 pm (UTC)
But one of the considerations is the effect of the use upon the potential market. So the fact that this could impact sales of JKR's own encyclopedia -- whether due to confusion or simply someone choosing to buy the Lexicon version over hers -- is absolutely relevant.
Apr. 19th, 2008 06:35 pm (UTC)
It's only relevant if people choose the Lexicon's version over hers knowing that's it's unofficial, and not due to confusion. They'd have to choose it as a substitute, not mistakenly thinking they were buying her book. And that seems like a pretty lame argument if RDR is only printing 6500 copies.
Apr. 16th, 2008 11:49 pm (UTC)
Thanks for posting - I think I agree with all of your assessments.

This case certainly has fandom all excited. Heh.
( 18 comments — Leave a comment )
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