The Wall Street Journal is continuing their coverage of the J.K. Rowling/Warner Brothers vs RDR Books, and has posted two new articles concerning the today's proceedings.
The first article reports the two parties have "reached a settlement only on the false advertising and deceptive trade practices claims. The settlement means only that neither J.K Rowling’s name nor her quote endorsing the online version of Steven Vander Ark’s H.P Lexicon will appear on the cover of the book version of the Lexicon." However, there is still the copyright infringement, the core of the case.
Judge Patterson was quoted saying: “I don’t want to be influenced by either party’s attitude toward settlement.” and “I think this case, with imagination, could be settled . . . . But don’t throw anything out because of my desire to move ahead”. Patterson also remarked that he suspects the case will be appealed, and that it could go all the way to the Supreme Court, potentially taking years to resolve.
This morning, the lead lawyer for Jo, told the judge that yesterday’s testimony concluded their affirmative case of copyright infringement. "That leaves it to the defense [RDR Books] to establish fair use, which began with this morning’s testimony."
In the second article, IP (Intellectual Property) expert Ethan Horwitz is asked for his take on the case.
Thanks for taking the time, Ethan. So you think it’s running neck and neck between Warner Bros. and J.K. Rowling on the one side, and RDR Books on the other?
It’s really pretty remarkable, in my opinion. The fair-use test has four factors and each side can find precedent to support it. The case law is really all over the map. And on the facts, too, I think it’s a really close case. It really smacks down right in the middle.
...
And what about the facts here?
They’re also very split. Each side has some strengths and some weaknesses. Another part of the fair-use test involves the effect on the published work’s market, essentially just how clearly the copyright holder has shown that the work will have a damaging economic effect on her publications. That’s a tough argument for Rowling to make here because she, in the past, has been so encouraging of fan Web sites and lexicons and the like. This is where she has her major problem.
Vander Ark’s biggest issue, I think, is that his site looks so similar to the design of the Potter books. Technically speaking, it’s a trademark issue, but it is going to affect another factor, which is the extent and value of the taking from the original work.
So your prediction?
I wouldn’t make one in this case.
UPDATE: The WSJ has posted a third entry, concluding today's proceedings, in which Slater (the article's author) says the defense "score[d] some serious points."
The plaintiff's expert witness Jeri Johnson failed to add significant evidence, causing udge Robert Patterson to interrupt, ““It’s not helpful testimony because it draws conclusions without specifics. I can’t simply take the expert’s opinion as my own”.
When the witness was cross examined by RDR's lawyers, Johnson's "testimony simply unraveled":
Hammer got Johnson to agree that what’s obvious or facile to an academic dean at Oxford might not be so to children — presumably the Lexicon’s main audience. He asked: Could a work be useful to a 10 year-old even if it’s not something she would classify as a work of academic scholarship? “Yes,” she said. “No more questions,” he said.
Next, J.K. Rowling took the stand, as the trial's final witness, where she compared the Potter books to cake saying that the Lexicon takes all the best “crumbs,” repackages them and sells them for “entertainment value.”
Judge Patterson then asked Rowling, “Can you imagine anyone reading [the Lexicon] for entertainment value?”
“No,” she replied. “But, without seeming arrogant or vain, there are entertaining things in it — and I wrote them.”
Rowling went on to say that, just because she’s been successful, the law shouldn’t grant her less copyright protection. And, if the case is decided in RDR’s favor, she argued, borrowing law school cliches, that it will be a “slippery slope,” “floodgates will open,” “a precedent will be set,” and anyone will be able to “lift an author’s work” and present it as their own.
In the closing statements, Rowling’s lawyer, O’Melveny’s Dale Cendali, emphasized that the Lexicon “takes too much and does too little.” The defense’s Anthony Falzone, argued that “Quality shouldn’t matter.”
UPDATE #2 Yahoo! News via Reuters has some more information concerning of Day 3 of the trial.
"This case is about an author's right to protect their creation," Rowling, told the court. "If this book is allowed to be published the floodgates will open."
"Are we, or are we not, the owners of our own work? It's not just my work that is endangered."
More concerning the closing statements: Dale Cendali, a lawyer for Rowling and Warner, said the lexicon reproduced "tremendous amounts of text" without attribution. "There has been no testimony that it would add anything new or original," she said. "The lexicon is filled with errors."
But Anthony Falzone, a lawyer for RDR, said Rowling could not suppress a book just because she thought it was no good. "Copyright law does not permit an author to suppress a book because she doesn't like it."
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