Tuesday, September 09, 2008

Top 8 Things To Know About the Lexicon Ruling

Top 8 Things to Know About the Lexicon Ruling

I've had the chance to read all 60something pages of the Ruling, twice. What I have not done is compare the ruling to the Proposed Findings of Fact of both parties, or to any of the other court documents, or the transcripts. As always, I remain Team Rowling; and think the ruling makes common sense. You can compare my thoughts from March to the actual ruling. All quotes below are from the ruling, linked to above. For those fascinated with copyright and fair use, Carlie has a great interview with a lawyer over at Librarilly Blonde. (Technically, yeah, I have the JD, passed the bar in 2 states, but am officially retired.)

So, with no further ado, the top 8 things you need to know. In no particular order.

1. JK Rowling Won.

No, really. Ignore the amount of the damages, and let me ask you this.

Can you go down to your local bookstore and buy a print version of the Lexicon?

Borrow a copy from your local library?

Order a copy from Powell's?

No.

Why not?

Because JKR won.

2. Steve Vander Ark's "vigorous" protection of his own copyright in the Lexicon worked against him.

"Additionally, because the Lexicon engages in considerable verbatim copying of the Harry Potter works, publication of the Lexicon would diminish Rowling’s copyright in her own language. Based on evidence of Vander Ark’s vigorous claim to his rights in the Lexicon website (Tr. (Rowling) at 100:18-101:7; id. (Vander Ark) at 312:6-313:13), publication of the Lexicon may result in conflicting assertions of copyright over the same material by Rowling on one hand and Vander Ark or RDR Books on the other." Common sense; do we really want to see lawsuits where the author of an unofficial guide to a body of work is suing the author of the body of work for copyright infringement?

3. This only affects JKR, WB, and RDR.

It was a lawsuit between those parties, so it only applies to those parties. I'm sure that people will use this ruling to apply to other areas. As such, the ruling may be persuasive or compelling; or, it may be ignored; but it cannot be used as an absolute. It is not controlling. Human nature is such that we want to have guidelines, to be able to predict things. So, people will end up looking at this ruling as unofficial guidance.

4. Fan Websites Like the Lexicon are Safe.

The Judge discussed the Lexicon website, but only as it applied to the Lexicon book. One, people using the website established there was a commercial market fir this type of reference guide. Two, the proposed book originally used a quote on its jacket by JRK about the website that misled over a third of the people who saw it into thinking JKR was talking about the Lexicon book.

As I said above, this ruling affects only the parties. But, we can use it for some type of guidance, to predict what may happen in other areas. The existence of a website being turned into a book didn't seem to matter at all. Nowhere does the ruling say that the website lessened JKR's ability to fight the publication of Lexicon book, or strengthened RDR's case. The total silence on the legality of fan websites is a great thing for fandom; a publisher or author will read this ruling and say, OK, I don't have to ask for fansites to be taken down.

5. The Low Damages Does Not Lessen JKR's Win.

The important thing was preventing publication of the book. This happened. JKR/WB also sought damages: "In addition to injunctive relief, Plaintiffs seek statutory damages in this case. Under the Copyright Act, a plaintiff may elect to recover an award of statutory damages for each infringed work "in a sum of not less than $750 or more than $30,000 as the court considers just."" (I saw a blog use a $100,000 figure, but I'll go with the figures stated in the Judge's ruling.) The reason for the low amount? "The Lexicon has not been published and thus Plaintiffs have suffered no harm beyond the fact of infringement."

While some are saying that this means JKR's win was not a win, what it shows is why sometimes there is relief that orders people to do or not do something (such as publishing a book), and sometimes there is relief measured in money. JKR/WB suffered no damages measurable in money; so she was awarded the minimum damages. I'll leave it to someone else to crawl through all the court documents and transcripts to discover whether JKR/WB argued for a higher monetary figure. And remember...you're not buying the Lexicon anytime soon. So who won again?

6. Those companion books mattered.

I was a bit surprised to see how the Judge looked at the HP books and the companion books in two different ways. HP1-7 are stories; while the companion books are official guides. "Unless [readers] sought to enjoy the companion books for their entertainment value alone, consumers who purchased the Lexicon would have scant incentive to purchase either of Rowling’s companion books, as the information contained in these short works has been incorporated into the Lexicon almost wholesale." In other words, people who read the Lexicon will still read HP1-7 for the story; but if they have the Lexicon, they wouldn't read the companion books.

Once you think about it, it makes total sense. You're using the entries in a guide book, almost word for word, to write another guide book. The hell?

Does that mean that no guide/ lexicon is ever possible? The next line states, "because the Lexicon’s use of the companion books is only marginally transformative, the Lexicon is likely to supplant the market for the companion books." So, in other words, SVA took too much of JKR's words and added little of his own. The Judge repeats this later on: "Publication of the Lexicon would cause irreparable harm to the sales of Rowling’s companion books, all the elements of which are replicated in the Lexicon for a similar purpose. Readers would have no reason to purchase the companion books since the Lexicon supersedes their value." While arguably one could say the companion books mean no lexicon/unofficial guide, ever, the Judge's statement about reference works (below) leads me to think that that a lexicon can exist, either quoting the companion books less, or not quoting them at all.

7. An Unofficial Guide is Still Possible.

As has been quoted elsewhere, "Issuing an injunction in this case both benefits and harms the public interest. While the Lexicon, in its current state, is not a fair use of the Harry Potter works, reference works that share the Lexicon’s purpose of aiding readers of literature generally should be encouraged rather than stifled." The problem isn't what SVA/RDR wanted to do; it is what they ended up doing.

The judge wasn't pleased with the volume of cut and paste done; and further didn't buy the argument that it was more than cut and paste. "Many portions of the Lexicon take more of the copyrighted works than is reasonably necessary in relation to the Lexicon’s purpose." Bottom line: for all of you who argued that an unofficial guide is permitted, you were right. But this guide is not permitted, because of the amount of cut and paste.

Theoretically, the Lexicon could be rewritten, using the ruling as a guide.

Will it be?

Personally speaking, I think not. The attraction for those involved was to quickly get something into print. The level of rewrites (including tracking down page numbers and clearly marking quotes) is something that will take time. Is it time that SVA and RDR are willing to invest?

8. RDR Did Not Give JKR a Chance to Work This Out Before Litigation.

Some have said that JKR should have worked this out with SVA. Really? Read the findings of fact. JKR wasn't the one ignoring lawyers letters and dragging feet. It was RDR. It was up to them to provide the copy to JKR. JKR's belief, based on the website, that it was too much cut and paste has proven correct. As a matter of fact, while JKR pushed to obtain a copy to see if it was infringing or not -- something she never recieved until after the lawsuit was filed -- RDR played hardball by sending WB a cease and desist letter over the Timeline. While the Judge says the actions never rose to the level of "bad faith," he means bad faith in a legal sense, which has a higher standard than how you and I would use the phrase.

Edited to add: a great review of the ruling, point by point, translating legalese into fantalk. Thanks, Negotiation Barbie!

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