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District Judge Puts Halt to Lexicon

The lawsuit by J.K. Rowling and Warner Brothers was filed on October 31, 2007. Immediately thereafter, the district court judge entered an Order requiring the Lexicon publisher to show cause why an injunction shouldn’t be filed against it halting further production of the Lexicon book.

This is a case of David v. Goliath. Local counsel for RDR filed an informal memorandum with the court requesting a delay in the time of the briefing on the Preliminary Injunction due to RDR’s limited resources. It has no counsel on retainer and grosses less than $100,000.00 per year. The lawyer defending RDR, at this time, is a cousin of RDR’s owner who is not an Intellectual Property lawyer. The publisher agreed that it would halt all production until the case was decided and the court entered an order halting the Lexicon project.

I’m going to upload the trial court documents in a bit, but I wanted to let you know that Robin and I are going to engage in a mock debate on this issue. I’m going to argue the Rowling side of the case and Robin will argue the Lexicon side of the case. We’ll be posting this in a couple of weeks. I do know that a case like the Lexicon matter will eat up the $100,000 gross revenues in a matter of weeks.

Legal Documents:

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

9 Comments

  1. Caro Kinkead
    Nov 13, 2007 @ 11:57:49

    Just FYI, there is also some evidence that some of the fans who wrote material for the website have not been spoken with about having their work included in the book.

  2. SWing
    Nov 13, 2007 @ 20:18:15

    Chiming in on what Caro said, first RDR stated that the book was typecast directly from the site, then the authors of the various essays, and the compilers of the bio pages asked if their work was being included and were told by Steve no…RDR updated the FAO to say that the book wasn’t an exact copy of the site…thou the first part about it being from the site is still there…

    Check out this page… Interesting Reading
    http://rdrbooks.com/lexicon_info.html

  3. Jane
    Nov 13, 2007 @ 20:23:09

    Thanks for the linkage. I think it is interesting because I don’t see it as a waiver issue. I think to argue the waiver issue is quite dangerous because it contracts the copyright protection to dramatically. I think the better argument is one of fair use – that the Lexicon work is so transformative as to be a new creation even though it is based on Rowling’s original work.

    The idea of laches or collateral estoppel might be useful in arguing mitigation of damages but I think the waiver issue is one that a court might not be willing to go down just yet.

  4. SWing
    Nov 13, 2007 @ 20:42:40

    And it is a very dangerous path, the Lexicon, in its current web version, takes huge sections of JKR’s original works and reposts them word for on it’s pages. An interesting point is the book “Magical Beasts and Where to Find Them” which JKR wrote to benifit the Comic Relief Charity in the UK. This book is transcribed almost word for word into the Lexicon with little to no additional commentary, which I beleive goes far beyond the boundries of Fair Use.

    Added to that the continued refusal by RDR to hand over a copy of the book to JKR/WB for review makes things even more fishy.

    If for some reason RDR’s claims of either Fair Use or Abandonment are allowed to stand in court, the fan communities as we all know them online will pretty much cease to exist.

  5. Jane
    Nov 13, 2007 @ 20:57:50

    I guess I disagree SWing. The Fair Use provisions only help the online fan communities rather than hurt them. Broader fair use allows for more liberties taken by the fan community which the court may view as the greater public good.

    The copyright law was enacted, not for the protection of authors and musicians, but to promote progress of science and arts, for the furtherance of knowledge. Disney, through its part in the passage of the Copyright Term Extension Act (CTEA) of 1998, got the copyright extended beyond the original act and many legal scholars believe that this is hampering the distribution of knowledge. Works that were considered public domain in the past are now no longer public domain and there are many works that are abandoned that cannot be reproduced and the original copyright owners cannot be found nor can their heirs.

    The state of the current copyright system is broken and is far too expansive, in my opinion, to the point that it defeats the purpose which is to promote the dissemination of knowledge.

    There’s a very interesting article at . . . I can’t remember the place where it talks about the vitality of the Manga/Anime industry is built upon the shoulders of copyright infringement. It shows that narrow copyright enforcement can actually strengthen the original work rather than weaken it.

  6. Robin
    Nov 13, 2007 @ 23:15:18

    Here’s the manga article Jane referred to.

    My IP professor spoke extensively about the fact that current consensus is that IP laws are too broad and extensive to sustain creativity and healthy competition in the marketplace. I wonder if we’re going to see courts begin to swing the other way now.

  7. Random
    Nov 15, 2007 @ 00:45:23

    I think the better argument is one of fair use – that the Lexicon work is so transformative as to be a new creation even though it is based on Rowling's original work.

    Yeah, I’ll bite. So lists of quotes, descriptions of spells and characters, and a timeline or two is transforming . . . what? The order they’re listed in the books? This is disregarding the critical essays that the guy doesn’t have rights to, of course.

    RDR and SJA have provided nothing but flailing wankery in this. They won’t show the book, they won’t explain what the book is, they won’t tack “unofficial” onto the title, they won’t respond to justified queries–and then there’s that nasty bit where they keep making comparisons to police states and Hiroshima. After the first few pages at fandom_wank, I found myself wondering how they as an entity managed to nail both proverbial hands to the cross while simultaneously stuffing their feet into their mouth.

    Then there’s that problem SWing touched upon, about how if RDR/SVA wins–or even not–it’ll put all the rest of us fandom members even farther under the microscope. Should the authors of the works we squee over worry that we’ll do the same thing as this guy–turn around and try to sell stuff based on their work or set in their bookverses because we’re all butthurt from not being let in on the real encyclopedia? Or should they just C&D us the second we turn up with fansites, fanfics, or fanworks, to save their profits should we decide to turn a profit off of them?

    Sure, JKR has money, and this little book probably wouldn’t financially hurt her. I don’t have money. What if I have the same thing happen to me? I love fandom. I think it’s great and a wonderful place to cut your teeth on writing. I don’t want to have to worry about shutting down anything that springs up because some “fan” with an entitlement complex might decide that making a website makes him a partial owner of my work.

  8. Jane
    Nov 15, 2007 @ 10:25:05

    Random – I understand what you are saying and I don’t have time right now to respond to the degree your post deserves so give me a day or two. I want to get some case law together. I just didn’t want you to think that I was ignoring your comments.

  9. Random
    Nov 15, 2007 @ 21:30:33

    Thanks. And I should be nano-ing right now anyway, instead of watching this mess continue to boil over and worrying about its implications when I personally can’t do much to affect things but spread my grouchiness across the tubes of the internet.

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