Well the hopes of a full settlement were apparently too much to ask for. Darn. The WSJ law blog tells us that when the courts reconvened today, the attorneys informed Judge Patterson that they had reached a settlement only on the false advertising and deceptive trade practices claims. This means only that neither J.K Rowling’s name nor her quote endorsing the online version of the Harry Potter Lexicon will appear on the cover of the book version of the Lexicon….if it is published. Also, Anthony Falzone, who’s representing RDR in the case, told the court that both parties hope to “paper a settlement” on the trademark infringement and unfair competition claims.

The crux of the courtcase; which is Copyright Infringement is still unfortunately on the table and has not been settled on.

So the case moved on…

David Hammer, the lead attorney for RDR, seemed to be most interested in establishing the point that the more creative a work is — a “fantasy” being perhaps the most creative genre of the novel — the more there’s a need for a reference guide to illuminate, for the reader, the unique (and non-existent) world the author has created. Sorensen testified that, historically, lexicons and reference works similar to Vander Ark’s have been helpful for readers seeking to gain a better understanding of such works as J.R.R. Tolkien’s “The Lord of the Rings” and C.S. Lewis’s “The Chronicles of Narnia.” Lexicons like Vander Ark’s, testified Sorensen, can educate a reader on etymologies, mythical references, geography (real and imagined) and the vernacular and slang used by the author. She also said that reference guides written by the authors themselves aren’t necessarily the final word on their own texts, since authors can assume too much knowledge on the part of the reader.

In her cross, Cendali returned to the plaintiffs’ legal motif in the case: The H.P. Lexicon takes too much, and does too little. Cendali pressed Sorensen on the point that the Lexicon contains little interpretive analysis. Sorensen conceded as much, but said that analysis isn’t the only value a reference guide like Vander Ark’s can provide a reader.

It should also be noted that JK Rowling and Warner Brothers Entertainment Inc. put out an official statement regarding the case:

“A fan’s affectionate enthusiasm should not obscure acts of plagiarism. The publishers knew what they were doing. The problem remains that the Lexicon takes an enormous amount of Ms. Rowling’s work and adds virtually no original commentary of its own. As we’ve said in court, it takes too much and adds too little. Authors have a duty to prevent the exploitation of their works by people who contribute nothing original, creative or interpretive.”

If you are starting to feel lost in all of this legal jargon and want the laymen’s/Harry Potter fan’s version of the events, feel free to listen to our latest podcast episode, “Harry Potter Goes to Court.” We discussed the case so far, as well as the impact that it has had on the Harry Potter Fandom.

Apparently, Judge Robert Patterson feels similarly to many Potter fans. Towards the end of today, he asked both parties involved if they could reach a settlement, stating that he feels that the case between JK Rowling and Steve Vander Ark/RDR Publishers has become more lawyer-driven than client-driven.

The Wall Street Journal Law Blog reports the events of today as follows:

Judge Patterson removed his glasses and addressed the court. “I’m concerned that this case is more lawyer-driven than it is client-driven,” he lamented. “The fair use people are on one side, and a large company is on the other side. . . . The parties ought to see if there’s not a way to work this out, because there are strong issues in this case and it could come out one way or the other. The fair use doctrine is not clear.”

“I’m bringing it up now so you can think about it before you get into the rest of the case,” Judge Patterson added. “Maybe it’s too late; maybe we’ve gone too far down the road. But a settlement is better than a lawsuit.”

The plea came as plaintiffs counsel Marvin Putnam of O’Melveny was cross examining a witness, an exchange that seemed to leave the lawyer frustrated and losing patience. The Judge broke in to point out that it was four o’clock, and asked Putnam how much longer he needed. Putnam apologized, and said he’d need quite a bit longer.

I don’t know about you but I am hoping that this will be as painless as possible and that the folks on both sides will strongly consider settling the case. From a purely selfish perspective, I hope that this can be resolved painlessly. I hate seeing what it is doing to the Potter author/fan/fandom relationship, which used to be looked at as a model to be emulated. Now it is starting to feel like a dysfunctional family.

The Wall Street Journal Law Blog has given a report on some of today’s court proceedings.

According to the Law Blog, the heart of this case is the  fair-use doctrine which according to the US Copyright Act is explained as follows:

One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. This right is subject to certain limitations found in sections 107 through 118 of the Copyright Act (title 17, U. S. Code). One of the more important limitations is the doctrine of “fair use.” Although fair use was not mentioned in the previous copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

the effect of the use upon the potential market for or value of the copyrighted work.

This was discussed in detail today by JKR’s attorney:

After going through the list of correspondence that Cendali argued showed bad faith copying on Vander Ark’s part, she painstakingly detailed the four factors of fair use — the nature of the copyrighted work, the amount of the work copied, the purpose and character of the use, and the effect on the market — arguing that they don’t apply to the Harry Potter Lexicon.

Mostly, Cendali focused on the third factor, belaboring the same phrase over and over again, arguing that the Lexicon “takes too much and does too little.” In other words, she argued, unlike other Harry Potter companion books, which add commentary, analysis and research to Rowling’s work, the Harry Potter Lexicon adds nothing new or original, but merely “rearranges the furniture of Rowling’s novels.” In characterizing the Lexicon as a “reference guide,” Cendali, in her own bit of literary pilferage, concluded that RDR is attempting “to make a silk purse from a sow’s ear.”

When Stanford University’s Anthony Falzone, the inheritor of professor Larry Lessig’s Fair Use Project, took the podium, he gave comparatively short remarks, saying simply that the public will lose out if publication of the Harry Potter Lexicon is enjoined, and arguing that the power Rowling asserts over her fictional world does not translate into power she can assert over companion guides wirtten by others. “Profit was nover the point,” concluded Falzone, Vander Ark wrote the Lexicon out of passion.

As we mentioned previously, Jo took the stand today and spoke quite emotionally and passionately about her feelings on this issue.   One interesting tidbit the Wall Stree Journal offered was the following:

“Should my fans be flooded with a surfeit of substandard books — so called lexicons — I’m not sure I’d have the will or heart to continue,” said Rowling, who went on to characterize the H.P. Lexicon as “sloppy,” “lazy,” and “incorrect.”

Personally I don’t know that I would classify the HPL as sloppy, lazy, or incorrect.  I think it is a very excellent compendium  of the Harry Potter world that I have taken advantage of (and according to many previous reports, so has JKR) quite often.  Once again, I don’t know the ins and outs of copyright law and I don’t know who is in the right OR wrong here but to see the badmouthing and deterioration of fan and author relations saddens me the most.