{ thinking out loud about the things i care about }

Yet Another Update on the Lexicon Lawsuit

RDR and Steve have filed their response to the injunction filed by Warner Brothers and JKR.  As with all legal arguments, the brief is quite long, but it’s been very nicely summarized in point form by the ever patient Melissa Anelli of The Leaky Cauldron. 

For those who beg off reading with the tl;dr excuse (or perhaps because you really just don’t give a damn), RDR books has offered some swing-and-miss arguments (at least, that’s what they appear to be to this completely unqualified un-legal inexpert) and a few fair points, including a copy of a thank-you letter from Cheryl Klein (the Harry Potter books editor from Scholastic) indicating that the editors have, in fact, consulted the online Lexicon during the editing of the books.  Steve also declares that Electronic Arts Studio (the video game manufacturers) have printouts of the Lexicon “on their walls”, and that David Heyman (the producer of the Harry Potter films) has said the filmmakers use the Lexicon website “almost every day”.

Whether or not any of that has any bearing on this particular case is questionable (again, not a legal expert in any way) but it might serve to bolster Steve’s case that the filmmakers copied the Lexicon timeline verbatim to the DVDs (which WB has argued it did not do, but to this inexpert’s eyes it looks very much like that’s exactly what they did, which they probably should not have done).

It looks as though the cover of the print Lexicon has been redesigned in an attempt to clarify it’s “unofficial” and “unapproved” status, and the oft used quote from JKR about how the Lexicon is “her natural home” has been removed from the book so as not to give the appearance that she supports it. 

RDR also cites other scholarly books on the subject of Harry Potter that have not been the subject of litigation but that “include A to Z listings”.

“RDR provides six of these books as evidence:
a. The Unofficial Harry Potter Encyclopedia: Harry Potter A-Z, by Kristina Benson
b. Field Guide to Harry Potter, by Colin Duriez
c. The J.K. Rowling Encyclopedia, by Connie Ann Kirk
d. A Muggle’s Guide to Exploring the Wizarding World by Fiona Boyle
e. Fact, Fiction and Folklore in Harry Potter’s World, by George Beahm
f. The End of Harry Potter? by David Langford

The documents do not list the 200 companion books. but count these six as the ones that had “especially striking similarities to the Lexicon in both format and content: At first flush, (a) appears to be out of print or unavailable on Amazon, (b) is about 2/3rds non-encyclopedic work, (c) seems to not be listed on Amazon, (d)’s title is actually “An Unofficial…” etc. and (f) is a predictions book.”

On February 27, JKR and WB have the opportunity to file a rebuttal, and on March 13 a hearing is scheduled.

For those of you who like wading through legal documentation, the entire content of the filing can be read at Justia.com

Other minds are starting to weigh in publicly now, including Joe Nocera from the New York Times  who is strongly in favour of RDR Books, citing Larry Lessig’s work on Fair Use (which, by the way, I strongly support, as I wrote in this post in November). 

Steve Vander Ark has also spoken out, writing to Ansible (a British Fanzine) in support of RDR (and indeed himself), and had this to say:

“While I was working on the Lexicon book, I received assurances from several copyright and intellectual property experts that the book we were creating was legal. Part of the problem all along has been the automatic assumption on the part of many that Rowling has the right to completely control anything written about the Harry Potter world. That’s quite a huge power grab on her part and from everything I can tell, not legal. You and I are part of a subculture that lives off the creative work of others. We always try to do that in a legal and respectful way. However, if Rowling manages to extend her reach that far into our subculture, she will choke us off very quickly. And if she doesn’t, what’s to stop the next person from taking this legal precedent to even more dangerous places?”

Certainly an interesting remark — one might even venture to say quite a harsh one — from someone who has claimed to be a long-time fan.

It appears to me at this point that the real battle here is whether or not the print version — and indeed, even the online version — of the Lexicon is protected under “Fair Use”, and even to a certain extent what “Fair Use” includes when it comes down to companion books or user-generated web content.  It looks like this is going to be a long fight for both sides, and while a win for RDR has ramifications for the fandom, I’m not sure they’re completely in the wrong, either (though I do strongly feel that both RDR and Steve have gone out of their way to pick a fight and incite some mud-slinging, something that certainly does not encourage sympathy).

I’m not sure any of you on my flist are as interested in this as I am, but I’ll probably continue to periodically update on this matter, if only because it allows me the chance to wrap my own head around it.
Edited to Add: I was surfing around and found an old article in the Citizen Media Law Project Blog that indicates Stanford’s Fair Use Project, its executive director Anthony Falzone, and Larry Lessig have joined as co-council on the case on the side of RDR Books.  Through the main page summarizing this lawsuit here (at which can also be found links to many of the relevant documents), I have bounced around the internet reading articles about this, including here at ARS Technica, an article on Slate.com here, and William Patry’s opinion here.

On the very astute advice of melusinahp, I think I might sit down this weekend and go through the actual documentation myself.  I’m interested enough in the case that it’s probably worth my time to formulate opinions based on the source material rather than second-hand accounts of it, and while I’m no lawyer, I think I’m probably smart enough to understand the basics of the arguments, and I might even do a little deep-diving into Fair Use as well.  I’m certainly interested enough in the larger ramifications of it, both on the fandom and on Free Use and Creative Commons. 

Edited Again To Add: Here’s a very interesting paper written by Rachael Stiegel of Snapecast, who at the time of writing this was a registered patent agent (and still might be for all I know).  She draws some very interesting parallels between patent law and copyright law, and her expertise in patent law combined with her status as a long-time fan and fan-work creator makes this paper a worthwhile read.

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