It looks like the court took a pass at establishing precedent through the lawsuit initiated by Warner Brothers (with Jo Rowling along for the ride) to force the print version of the HP Lexicon out of fans hands and back into Jo's head.
Now she's got to write it herself - hope that all wasn't just a publicity stunt and she's really working on it. The lack of any punitive damages also shows that the judge deemed it a bit over-kill (Warner Brothers does not get its precedent-setting ruling regarding trademarking the words) plus the fact that the book never got out of the printer's office. The judge ruled that Jo Rowling is still alive and able to produce an encyclopedia herself and had declared to the world that she's going to do it instead.
At first blush, it looks to be the best of all worlds. Jo gets to write her own book (which we will look forward to read - perhaps she can pop it out before the film next summer?), the Lexicon stays online, no punitive judgment is invoked, fan sites will not worry about threats made against them by WB if it went bad for them, and the ruling is so narrow it does not appear to set precedent.
If Steve Vander Ark were to write a commentary on the books - and I wish he would - that would be fair use. My favorite part of Pottercast (until it all got rather silly of late and insider-ish) was Canon Conundrums with Steve. He knew it all and he knew the mysteries and he knew how to take it to a deeper level, an adult level and out of the fan-squee. I for one would love to read his commentaries on the books. The judge encouraged that in his ruling. Frankly, I think it would be better book.
Next step: Reconciliation? If Draco and Harry can find a truce, well, perhaps the parties in this litigation can as well. In time.
The lack of punitive damages invoked by the judge shows that he seeks to aid in the restoration of relationships as well. And Warner Brothers is out a pretty penny in legal fees. Boo hoo hoo.
The suit, filed late last year against RDR Books, an independent publishing house in Michigan, alleged that plans by Michigan-based publisher RDR to publish a print edition of the Harry Potter Lexicon, a Web site that serves as a rather daunting compendium of all things Harry, violated Warner and Rowling’s copyright and takes away the future market for a similar compendium that Rowling plans to write.
Here’s the opinion.
Judge Patterson ruled in Rowling’s favor because the “Lexicon appropriates too much of Rowling’s creative work for its purposes as a reference guide.” He also wrote that, “While the Lexicon, in its current state, is not a fair use of the Harry Potter works, reference works that share the Lexicon’s purpose of aiding readers of literature generally should be encouraged rather than stifled.”
Ethan Horwitz, an IP lawyer at King & Spalding, told the Law Blog: “What Judge Patterson is saying is that when you look at fair use, one of the dominant issues is, are you providing commentary or taking the value of the work and selling it as your own? He decided that the value of the work was being taken, that [Rowling] had the ability to put out the kind of encyclopedia that [Vander Ark] was putting out, and that she’d indicated an intent to do so.”
O’Melveny’s Dale Cendali repped Rowling and Warner Bros.
David Hammer, a solo practitioner in Manhattan, took the lead for RDR. He got help from Stanford Law School’s Anthony Falzone — a former Bingham McCutcheon litigator and the heir apparent to Lawrence Lessig’s Fair Use Project and Lizbeth Hasse, of San Francisco’s Creative Industry Law Group.
There is still something very sad about all this. Good night, Severus.