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Mar. 11th, 2008 04:34 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
cleolindaSorry I dropped off the map there for a couple of days--we've had some updates in the Lexicon case, and I've been tied up with that. Today it looked like there would be a jury trial (!), until we realized that the court filing was actually saying that a request for a jury trial (as opposed to a judge-only bench trial) had to be submitted by March 14, not that a jury trial was already set. Unless that request is made, there's going to be a bench trial March 24-26, which was the announcement that spawned the initial update. We've also discovered what I consider to be some conflict-of-interest shenanigans involving RDR Books, the Stanford Fair Use Project, and something called "The Right to Write Project" at the Women's Center for... (wait for it) ...Ethics in Action. (Am I just crazy? Naive? Does there not seem to be something wrong about starting up a vaguely named "free speech" fund, of which Roger Rapoport--the "RDR" in RDR Books--is president, to make sure that FUP gets paid, rather than just saying, "Here, please contribute to a defense fund, since we're doing this pro bono"?)
Meanwhile, on a different subject, someone's spoken to Erin, and she hasn't had her surgery yet--she's in a holding pattern until the seizures are under control.
Meanwhile, on a different subject, someone's spoken to Erin, and she hasn't had her surgery yet--she's in a holding pattern until the seizures are under control.
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Date: 2008-03-11 10:38 pm (UTC)no subject
Date: 2008-03-11 11:07 pm (UTC)no subject
Date: 2008-03-11 11:20 pm (UTC)no subject
Date: 2008-03-11 11:01 pm (UTC)no subject
Date: 2008-03-11 11:40 pm (UTC)(Fans,
wethey are crazy.)no subject
Date: 2008-03-12 12:30 am (UTC)no subject
Date: 2008-03-12 12:34 am (UTC)no subject
Date: 2008-03-11 11:23 pm (UTC)Also I have a request for your next linkspam. http://projectfiver.com/ If you wouldn't mind posting this it would be greatly appreciated since I know you get a lot of traffic here and quite a few are Rings fans. Thanks.
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Date: 2008-03-12 01:11 pm (UTC)no subject
Date: 2008-03-16 06:36 pm (UTC)no subject
Date: 2008-03-12 02:08 am (UTC)And here's where I offer my unofficial, ever-so-humble services if you have any general lawyer-y questions like interpreting a doc like that messily scrawled "trial request due..." and "rule 26..." page. No guarantees I'll have all the answers, but feel free to use me as a resource (although I haven't had time to read all the docs of the case yet).
Why must they always be trying to make TP look bad in relation to Rowling? Grr. Hurrah for Diane Duane showing up in the comments to balance out the negativity.
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Date: 2008-03-12 02:13 am (UTC)no subject
Date: 2008-03-12 02:31 am (UTC)no subject
Date: 2008-03-12 10:59 pm (UTC)no subject
Date: 2008-03-13 12:30 am (UTC)no subject
Date: 2008-03-13 02:20 am (UTC)no subject
Date: 2008-03-13 02:38 am (UTC)In other knock-your-socks-off news, Terry Pratchett continues to be awesome and donates a million bucks to Alzheimer's research.
http://uk.reuters.com/article/domesticNews/idUKL1292770120080313
He. Rocks.
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Date: 2008-03-13 02:49 am (UTC)no subject
Date: 2008-03-13 02:57 am (UTC)no subject
Date: 2008-03-13 03:25 am (UTC)no subject
Date: 2008-03-13 05:06 am (UTC)Anyway, below are my comments. Don't know how helpful they are, but feel free to use part or all in the FW update if you want. I tried to just kind of pull out the non-routine, interesting things that jumped out at me. As cut and pasted from the word doc I was using to go through this:
---
OK, I finally sat down and read through the amended complaint and answer. First, I have to just note that I was ridiculously amused by the summary of the HP world in the complaint – trust lawyers to make it sound almost boring! (Amended Complaint para. 15-16.)
Also, paragraph 42 of the amended complaint! Hilarious! Anyway. By relevant paragraph, some comments:
(But first, DISCLAIMER because lawyers are full of disclaimers: the below commentary does not constitute legal advice to any parties or potential parties to any actions and should not be relied on in legal matters. And yes, it is a bit snarky. And no, this is not how I would write when doing Actual Legal Work. But it IS an accurate representation of my opinions on the amended complaint and the answer in this case after one read-through. Glad we've got that all settled.)
Paragraph:
1. Basically Defendant denies that the book or cover is infringing, which is the theme repeated throughout the Answer, of course – I like how they note that the "revised" cover won’t infringe – I wonder when they "revised" it...
2. I really enjoy how Defendant denies this paragraph categorically – they're saying they didn’t know she ever intended to publish an encyclopedia, and they didn't know about the charity books? When there's info from those books on the Lexicon site? Indeed.
3. Amazing how none of those cease and desist letters got through, according to Defendant's denial here...
5. It’s interesting how Defendants never denied that their book is going to be a "400 page dictionary taken from the world of Harry Potter." Certainly that allegation does not fall into the category of "over-heated legal argument" as they contend the rest of the paragraph that they didn't address does.
9. RDR Books denies its own website (http://www.rdrbooks.com/)? With a Lexicon case update on the front page?? Hee!
14. The selective denials here are interesting. Surely Defendant knew the story of JKR and her writing-while-poor! Everyone knows that story. Why deny it?
27-28. I love how, because it's RDR books and not SVA himself being sued, they can deny they know anything about him. I mean, yes, they should try to deny it for their own sake in this losing legal battle, but it's really funny, because you KNOW they know some of this stuff. Unless they're trying to pretend SVA never had any interactions whatsoever with anyone at RDR regarding the book that is linked on their website, which he worked on compiling.
29. I hope JKR's lawyers have a copy of the Publishing Marketplace ad noting where the Lexicon rights had been sold so they can go, "Hah! See? AUSTRALIA, bitches."
30. "P.S. And ENGLAND, bitches."
36. As noted in TLC’s summary, this is a more substantive point than most of the stuff going on here – Defendant is denying it sent a cease and desist letter to WB re: the HP timeline on the DVDs.
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Date: 2008-03-13 06:40 am (UTC)I can at least answer this. Kind of. Because I'm not going back through and searching all the Justia files at this time of night. But! At some point, in those files, RDR submitted a revised cover as part of their filings. So it was very much, you know, an "Only because you made us" kind of move. Mid-November, I want to say.
29. I hope JKR's lawyers have a copy of the Publishing Marketplace ad noting where the Lexicon rights had been sold so they can go, "Hah! See? AUSTRALIA, bitches."
If they don't, I do. (http://pics.livejournal.com/cleolinda/pic/0008gwt4/)
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Date: 2008-03-13 02:13 pm (UTC)no subject
Date: 2008-03-13 05:07 am (UTC)38. The Lexicon is an "original literary reference guide"? HEE.
40. This raises an interesting point. Technically, Defendant may be correct in stating that it did not create a "derivative work." IF, as they state, they are basically trying to provide a complete and detailed collection of all the facts, data, etc. in the HP world, and they are NOT including any of the fanfiction (which would be a whole legal morass in itself), original work, etc., then there is no original material in the book, which is part of the requirement for a derivative work. What they would actually be creating in that case would be a compilation. However, only the original parts of a compilation (e.g. editorial selection) are copyrightable. The fun point here is, if indeed RDR's book is supposed to be complete in every aspect of the HP world, as it was billed at one point, then it is merely an organization of all HP data, with no element of editorial selection, and it is most likely not, in itself, copyrightable. So, in other words, if that’s the character of the book, the minute it’s published we could all copy it for free and they wouldn’t have a claim. (Though most likely they’d try to make one...) If it actually does contain original information of any sort, making it a derivative work, only the original part of it would be copyrightable. This is assuming they are allowed to publish in the first place.
Helpful Links re: derivative works and collective works:
http://www.copyright.gov/circs/circ14.html
http://digital-law-online.info/lpdi1.0/treatise6.html
42. I hope like hell that someone has a screencap of that statement from the Lexicon site, because it is hilarious in the context of this case. At any rate, right now the site at least says, "NO PART OF THIS PAGE MAY BE REPRODUCED IN ANY MANNER WITHOUT PERMISSION" and that is just made of fail considering this lawsuit.
47. Ah, so now we discover when they changed the cover design – after the lawsuit. Shock!
66. Just for fun, here is the statute WB is citing in this allegation about infringing JKR’s right to privacy: http://www.supnik.com/ny51.htm
WB/Rowling would rely on this: "A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person...is guilty of a misdemeanor."
RDR would likely base its argument on this provision: "nothing contained in this article shall be so construed as to prevent any person, firm or corporation from using...the name, portrait or picture of any author, composer or artist in connection with his literary, musical or artistic productions which he has sold or disposed of with such name, portrait or picture used in connection therewith."
In the end, it depends on how they are using her name.
67-69...appear to be missing.
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Date: 2008-03-13 05:07 am (UTC)Affirmative defenses (burden of proof on the Defendant):
81. Some quick and dirty definitions:
Equity – legal principles of fairness – relief in equity is generally in the form of injunctions or decrees to act or cease an action (as opposed to civil remedies like money damages).
Laches – an equitable defense that is based on a delay in the other party asserting its rights. In time-sensitive matters, which could include book publication, the Defendant might argue that an injunction at this point could cause great harm that the Plaintiff could have avoided if asserting rights earlier.
Waiver – voluntary surrender of right or privilege. They can be express or implied. Defendant would argue an implied waiver based on facts alleged about JKR's commending the site, etc.
Estoppel – sometimes explained with the short statement of "reasonable reliance." If Defendant had an expectation based on Plaintiff's statements or actions, and reasonably relied on that expectation, and acted on that reliance, and would suffer a detriment if the expectation were false, Plaintiff could be estopped from enforcing legal rights. Here I assume RDR is referring to the things SVA said about how JKR endorsed his site, gave him an award, etc.
82. Doctrine of Unclean Hands – (I love the name of this one) – basically, that Plaintiff is acting unethically or in bad faith, and so should not be able to obtain an equitable remedy. Honestly, I think RDR has some nerve asserting this against JKR. Oh, irony.
84-85. Fair use/First amendment – I am sure this has already been discussed, and I am le tired, but I’d be glad to discuss it in future sometime (I already posted about it on SF once I think, but goodness knows where that post is now – somewhere pages and pages back in the thread).
86. Complete bull. Plaintiff didn’t give RDR permission to publish a book when she commended SVA on his free website. Whatever, RDR.
87. Copyright misuse – only found in case law, not in the Copyright Act. It’s related to the doctrine of unclean hands. It can occur when a party uses restrictive licensing practices, contrary to public policy.
8...OMG I’m too tired to do any more right now. Anyway, the rest is all legal arguments, not new facts or anything.
no subject
Date: 2008-03-13 07:05 am (UTC)... My head hurts.
42. I hope like hell that someone has a screencap of that statement from the Lexicon site, because it is hilarious in the context of this case. At any rate, right now the site at least says, "NO PART OF THIS PAGE MAY BE REPRODUCED IN ANY MANNER WITHOUT PERMISSION" and that is just made of fail considering this lawsuit.
It's here (http://www.hp-lexicon.org/help/hp-faq.html) (ctrl + F for "give permission." My Google-fu is mighty), but I have a cap if necessary.
82. Doctrine of Unclean Hands – (I love the name of this one) – basically, that Plaintiff is acting unethically or in bad faith, and so should not be able to obtain an equitable remedy. Honestly, I think RDR has some nerve asserting this against JKR. Oh, irony.
Yeah, auralan and I were discussing this on the FW entry--I don't know if this is just that WB are Big Meenies, or if they're referring to the timeline even after they withdrew that complaint, or... what.
8...OMG I’m too tired to do any more right now. Anyway, the rest is all legal arguments, not new facts or anything.
Dude, get some rest. I get tired just thinking about it.
(Question: Is it all right to link to this? Or would you rather I credit you but digest it elsewhere?)
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Date: 2008-03-13 02:37 pm (UTC)In another example, regarding collective works, let's say Persons A prints the phone book alphabetically. Person B comes along and takes all the information and prints it by region instead. Person B has done nothing more than reorganize data, and Person B's work does not contain new information. On the other hand, if Person B is a restaurant critic who goes through the phone book, picks out information on the best, in his opinion, restaurants listed in the book, and then publishes that information, he may have a copyrightable collective work - because he has made editorial choices as to what information to include, and has thus altered the content and nature of the work in an original way.
Regarding RDR/SVA, if they do not make editorial selections, but instead just pull every fact they can out of HP and reorganize it, they're not really creating anything new. At the same time, this is a bit more grey than what I've just outlined, merely because the format is so different (fictional work versus encyclopedia of "facts.") Still, even with a different format it wouldn't really contain that much originality.
...
I am glad that's still up on the Lexicon site. It amuses me mightily.
...
Re: the Doctrine of Unclean Hands, RDR may use a number of arguments to assert this - one possibility is that they'd argue that JKR misrepresented how she would feel about the Lexicon being published by commending the website. Another would be the argument that WB misrepresented what actions it was going to take re: the publication until right before the publication was going to happen, (i.e. the whole waiting-to-file-suit thing) and thus caused RDR to sustain harm. Another would be, as mentioned, that WB used part of something Lexicon created (if it did), and now it is suing because Lexicon is trying to use part of something WB created. The thing about this argument is that Defendants will have to prove it, because they have the burden of proof.
...
This whole discussion is rather messy - why don't I just cut and paste it into my LJ and then you can link that? It'd be easier for people to digest.
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Date: 2008-03-13 02:55 pm (UTC)no subject
Date: 2008-03-13 03:06 pm (UTC)no subject
Date: 2008-03-13 03:25 pm (UTC)no subject
Date: 2008-03-13 03:22 pm (UTC)http://foresthouse.livejournal.com/445551.html
Let me know if anything is confusing or got lost. :)
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Date: 2008-03-12 03:06 am (UTC)no subject
Date: 2008-03-12 03:00 pm (UTC)And aww, I hope the surgery happens soon! It's always nice when something good actually happens to a good person. Seems too rare nowadays, sadly.
*hugs* Hope all is well with you.
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Date: 2008-03-12 06:58 pm (UTC)And hey, in case you're ever feeling like you're not being productive, it could be worse (http://cjonline.com/stories/031208/bre_toilet.shtml). And by "worse" here I mean OMGWTF worse.
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Date: 2008-03-13 05:20 am (UTC)That is so very disturbing.
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Date: 2008-03-12 07:24 pm (UTC)