Entry tags:

entitlement, fandom: harry potter, internet lawyers, this is the wank that never ends

"We differ so greatly as to be polar opposites"
The Leaky Cauldron publicly separates from the Lexicon.

[W]e do not think a win for J.K. Rowling means tighter controls on fan creativity at all, and are concerned for the opposite, as well as the attempt to misportray the issues of the case as stated in sworn affadavits. So, after a few days of careful and many-sided discussion, we, as a full staff, decided that people who have such a fundamental disconnect in beliefs cannot and should not be partners in name or spirit, and two days ago informed the Lexicon that we are severing our association....

And while Leaky has always owned the hp-lexicon.org domain and paid for the site’s hosting, we’ve promised to transfer the domain to Steve as soon as litigation is complete (a stipulation that would not have been made had ownership not been mentioned in court documents). We will continue to pay for hosting and provide free support until that day.

Note: Compare this statement to the hosting discussion back in December. There's a pretty big discrepancy there, is all I'm saying.

ETA:

lidane brings us a small sampling of comment wank. Also, did you know that this is a Fifth Amendment issue?

ETA 2, via

cbm and

insanitys_place: The defense has requested JKR as a witness.

ETA 3: SVA leaves a comment at the Lexicon site; the Times Online (UK) weighs in with "J. K. Rowling determined to block RDR Books' Harry Potter 'rip-off' "; a discussion of UK law from another site that has admitted to not reading the manuscript; someone is "baffled at how people are so willing to accept the notion that authors own the ideas they publish"; and I really don't even know what's going on here.

ETA 4: More from SVA in a Lexicon thread.

(Something that might be helpful: get ETAs emailed to you from Watch That Page. It's how I keep track of things elsewhere.)

(Read comments) - (Post a new comment)

	vzg 2008-03-25 11:56 am UTC (link)
	Dunno if this has been mentioned before, but apparently in the UK everythign SVA is doing is legal? I, uh, kind of thought copyright law was more... uniform than that. Also, I now fear the UK, if this is true. :/ (Reply to this)(Thread)

	(Anonymous) 2008-03-25 12:09 pm UTC (link)
	If it is true, does it become a void issue if the trial is heald in the US? (Reply to this)(Parent)(Thread)

	vzg 2008-03-25 12:33 pm UTC (link)
	They seem to imply that, at least. Their lawyer says "If it were in the UK..." (Reply to this)(Parent)

(Anonymous)
2008-03-25 12:25 pm UTC (link)

Nah, read that article carefully. It's another one of those where lawyers talk without seeing that particular manuscript and rely on SVA and RDR's description of the book. See the qualifiers of the law expert in question - "if the text/book quotes" are that "then that may apply". They are talking about a hipothetical case and the only information they have about the book is what SVA and RDR provided (I don't think it's a big speculation to assume bias on their part).

'Building on individual aspects of original' or whatever they called it would of course be allowed (as it is under the USA 'fair use') - except we've seen there's precious little of the building part in the book. It comes down to % Steve versus % Jo again). So, again another case of an article giving opinions without having seen the book.

From what I've heard from others familiar with UK law and the manuscript, the UK (and most European ones) are stricter and protect the original author more.

(Reply to this)(Parent)(Thread)

vzg
2008-03-25 12:32 pm UTC (link)

But they claim that if she approved it as a website, regardless of content, it would automatically be giving up her rights to prevent its publication on the basis of copyright — or is my brain addled from all these crazy SVA supporters?

Mackenzie said that if the case were heard in the UK it could turn on the issue of the apparent approval of the various copyright owners in the Lexicon up until now.

"There is a very interesting question of waiver or acquiescence," he said. "If he manages to prove that Rowling has known of this work, has used it, that it has been used on the film set and that everybody has known of it, the right to sue may be lost."

The lawsuit claims that the very fact of taking material from a website platform to a written one changes the nature of any infringement. "There is a big difference between the innumerable Harry Potter fan sites' latitude to discuss the Harry Potter works in the context of free, ephemeral websites and unilaterally repackaging those sites for sale in order to cash in monetarily on Ms Rowling's creative works in contravention of her wishes and rights," said the suit.

Mackenzie said that under UK law the copyright status of the work would not be affected either by the Lexicon's move from the web to print or from free to paid-for.</i>

That's the bit that stood out to me.

Of course, based on the fact that they had to add in the "We didn't read it! Sorry!" disclaimer and that they're going completely blind, or so it seems, I kind of doubt his knowledge, but...

(Reply to this)(Parent)(Thread)

	vzg 2008-03-25 12:32 pm UTC (link)
	Borked my HTML. Again. (Reply to this)(Parent)

(Anonymous)
2008-03-25 01:31 pm UTC (link)

Well, even if everything you wrote here is true (I don't have detailed knowledge of UK law) and they use this defense in an UK court, they still can't go on with the book as it is, since they didn't get any permission, implied or explicit, for at least the material from the last (HP 7) book. (Most? Well at least part of) That went on the site after the C&D letters and lawsuit, so they can't say JKR or WB approved it. They only objected to the book version, but by logic if website=book (regarding permission) then it must be book=website (regarding C&D). And they complied to C&D to certain parts of the website before, so they can't claim that the website has 'carte blanche' to all of the HP content.

Even if JKR not objecting gave them rights to all of the material on the website before she issued the first C&D (and so objected), it only gave them rights to that material specifically and we know the contents of the website and the book are not the same. So, I don't think it can work this way, but I'm curious how it would play out.

(Reply to this)(Parent)

caffeine_fairy
2008-03-25 03:01 pm UTC (link)

Nope, it's pretty much the same over here as it is in the US - the vital issue is whether you profit. You can waive your right to prevent someone from profiting from your work but you do it without prejudice (ie, just because I said you can doesn't mean your best mate can too).

(I'm not a lawyer but I did take legal advice when someone published in a book a comment I'd made on a blog without my permission - it was a closed site and theoretically confidential).

My guess would be the writer is mixing up copyright with trademark. If you don't defend a trademark you can lose it, and it doesn't matter if you've allowed it to be used free or for profit, once it goes into common parlance you've lost it.

(Reply to this)(Parent)(Thread)

(Anonymous)
2008-03-25 04:13 pm UTC (link)

Oh, yes, if it's a trademark question than they could have lost it. I don't think they did so little that RDR/SVA could prove abandonment, but that's just my opinion and it could be argued. That's much easier to lose than copyright.*

*Not a lawyer here and I'm not in publishing but in industry, however, I deal with patents/trademarks a lot (as in 'write and have to understand contracts').

(Reply to this)(Parent)

auralan
2008-03-25 05:51 pm UTC (link)

They're directly equating the web site with the book again. The book is significantly different in content. They didn't just some specific entries from the web site and typeset; the book entries were edited significantly.

Also, the web site contains quite a bit of material that could be considered transformative and/or fair use (art, essays, commentary, useful cross-linking structure). That's a solid reason to not object to the web site, but to object to a book culled from the more questionable/infringing portions of the site.

It's like comparing a couple hundred page doctoral thesis on a copyrighted work of literature to a ten page study guide that just lists of all the quotes used in the thesis. The thesis qualifies as fair use. The study guide does not. Same material, but totally different contexts and reliance on the copyrighted work.

That's also not to say that a study guide can't be fair use. Look at any Cliffs Notes. They have some key quotes and plot summaries, but they also add lots of discussion of themes, historical context, comparisons with other works, and so forth. It's sort of sad SVA couldn't rise to the level of Cliffs Notes.

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	(Anonymous) 2008-03-25 08:15 pm UTC (link)
	Cliff Notes ask author's permission (if the works aren't in public domain). (Reply to this)(Parent)

ms_katonic
2008-03-25 04:22 pm UTC (link)

Looking at this bit, particularly the part I've bolded for you:

"If what this book is doing is identifying individual aspects of a particular thing such as characters, referring to those individual parts is probably not copyright infringement," said Mackenzie.

"Vander Ark says he is not copying the books, that he is making general reference to the original work. If that is so, as he builds it up his reference work becomes a creation in its own right, not a copy," said Mackenzie. "It is then a derivative work, which is quite distinct from the original, and a derivative work is allowed. Of course, if all he has done is copy chunks of the Harry Potter books and put them into a different order, that would be different. The court could ask 'Is he taking advantage of the skill, time and effort that JK Rowling put into writing the books?'"

And the comment on the bottom making clear that they've not seen the actual manuscript but are merely relying on SVA's testimony (see where I've underlined it?), I'd say it's far from that clear-cut. I don't think it'd go down that differently in a UK court.

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	rowanberries 2008-03-25 08:12 pm UTC (link)
	Let's bloody well hope not. Still, if this was the impression RDR/SVA were under, makes his wish to move to England even more interesting. Facepalm (Reply to this)(Parent)(Thread)

	tofuknight 2008-03-27 12:15 am UTC (link)
	Especially if by interesting you mean SLIMY SLIMY BOG SLIME (Reply to this)(Parent)

	(Anonymous) 2008-03-25 11:31 pm UTC (link)
	Whether that's the way it in England or not (and I don't think it is; I think they're a little confused as to what's actually going on) I would pay to see them try to use that as a defense. I mean, just to hear the judge say "Well, we're not in York, are we? We're in NEW York and we'll just use the laws here if you don't fucking well mind." Ratpuppet (Reply to this)(Parent)

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