BBC4 Interviews Steve Vander Ark

You can hear the entire interview here.

Opening up the Floodgates

BB NOTE: Here's another editorial on the current litigation by Warner Brothers against the creator of the award-winning HP Lexicon.

We're reminded of another editorial by James E. Groves where he quotes a letter from George Grant Elmslie to Frank Lloyd Wright:

Why not, in the years of your great maturity, exhale a modicum of kindliness to others, endeavoring to do their bit? No one can afford it so well as yourself. But alas, you are not endowed with so human an element, only with a curious quality of vanity, and a rather vulgar and childish egotism. You seem to have it in your mind that you yourself do your work, whereas the impulses are much deeper and more universal than the mere ego which you adore.

Here is the editorial by Marina Hyde of The Guardian:

Quite unexpectedly, the true original in the JK Rowling copyright trial is turning out to be the judge. "It has been brought home to me in the last 20 years," mused Judge Robert Patterson this week, "that litigation is not always the best way to solve things." If this seems a faintly unusual utterance for a man in his line of work, it is all the more so for having been made in his courtroom in New York, a city not known for its aversion to dragging lawyers into every aspect of the human drama. It is a town in which people have sued themselves - usually successfully. A couple of weeks ago you could have read about a man suing a Manhattan strip club over claims that a lap dancer's shoe caught him in the eye.

Though they have been spared any collisions with perspex footwear, Ms Rowling and Warner Bros, who make the Harry Potter movies, are suing to block publication of the The Harry Potter Lexicon, an encyclopedia of her wizarding world based on a long-established fan website of the same name. Its creator, one Steve Vander Ark, wept in court after Rowling accused him of "constant pilfering" and "utter laziness". On the other hand, she did concede she had previously given an award to the site, and used it as a fact-checking resource. There were tears on her part too, and it all seemed completely unnecessary.

Of course, it wouldn't be the first time that Warner Bros has been involved in a pettily protectionist copyright case. Do let's recall that brilliant letter Groucho Marx penned to the studio - makers of Casablanca - after he received an "ominous legal document" warning the Marxes off calling their movie A Night in Casablanca. "I had no idea that the city of Casablanca belonged exclusively to Warner Brothers," he deadpanned. "I am sure that the average movie fan could learn in time to distinguish between Ingrid Bergman and Harpo ... What about Warner Brothers? Do you own that too? You probably have the right to use the name Warner, but what about the name Brothers? Professionally, we were brothers long before you ..."

The case was eventually dropped. And it came to pass that moviegoers were indeed perfectly able to distinguish between Ingrid and Harpo - just as one suspects Harry Potter fans will be able to distinguish between JK Rowling's work and that of Mr Vander Ark.

We could all use a guide as to how the digital revolution has changed the world, but one safe-ish bet is to trust that quality rises to the top, and no matter how many Harry Potter fan "tributes" are sloshing about, interest in them will be dwarfed by that in the genuine article. What on earth is the difference between this stuff being on the internet or available to purchase in a book? The author might aver that in the latter case, money is being made by someone other than her - but the website has long carried advertising, so that seems moot. Vander Ark's publisher wanted a print run of 10,000; were Rowling to publish a lexicon, the first print run has been estimated at 3m.

"I believe the floodgates will open," she said this week, as though this sort of fan fiction could possibly be a problem for anyone other than creators of vast global phenomena. "I see this as an incredibly important case."

Alas, the judge was less convinced. In fact, in the course of advising the parties to settle, he referenced Jarndyce and Jarndyce, the long-running case featured in Bleak House that has become a byword for pointless and interminable litigation. He appears to have done so without requesting official permission from the estate of Charles Dickens. Judge Patterson confessed that he had enountered so many neologisms when reading one Harry Potter volume that he found it "gibberish" - marking himself out as one of that rare breed of adults who do not read these children's books on public transport wearing a moony expression. They opt for the special adult covers, or what we might call "the enabler edition".

As for Ms Rowling's argument that her work is being "debased", that position may be very compromised by this time next year, because she has given her blessing to the construction of a Harry Potter theme park in bookish Orlando, Florida. Bertie Bott's Tenth Circle of Hell ... I'm so sorry, The Wizarding World of Harry Potter will open next year, and the trailer website promises the chance to visit "Hogsmeade TM" and Hogwarts TM Castle", among other zones "inspired by" the Harry Potter books.

This, says the official blurb, "will provide fans with another way to experience the world beyond the books and films". And so it will: as some injection-moulded theme park, punctuated by those endless Disney-esque stands selling supersized fast food, and attempts to chisel cash out of you - or "experiential shops", as they have it. So when JK Rowling takes her first spin on the Cruciatus-a-Coaster, or whatever the big thrill ride will be called, here's hoping she looks back on Mr Vander Ark, and realises his modest fan project was not quite as ghastly as she made out.

JK Rowling Appeals To Judge's Emotional Side, Rather Than A Real Legal Argument Over Potter Guidebook

From here.

From the apparently,-her-fiction-extends-to-the-courtroom dept

Earlier this year, we wrote about how J.K. Rowling's lawsuit against the publishers of a guidebook about Harry Potter's universe was extremely misguided. That lawsuit got a lot more attention Tuesday, as Rowling herself showed up in court to play an emotional, rather than legal, strategy. The NY Times even reports that she was "stoically holding back tears." Cry me a river. Rowling is basically trying to get copyright law to do a lot more than it is intended to do -- and all of her emotional bunk doesn't change that. Claiming that the "stress and heartache" of such a publication had hurt her creativity for the last month seems excessively questionable. Furthermore, it doesn't change the fact that a derivative work, such as this guidebook, doesn't violate copyright. There are lot of things that cause me stress and heartache and which might make me lose my concentration. It doesn't make them illegal.

It appears that the publisher's lawyer had some fun, pointing out that Rowling didn't seem to have that same sort of stress and heartache when she gave an award to the website that "The Harry Potter Lexicon" came from. And, when presented with evidence of how the book took Harry Potter details and did more with them (making them more useful), Rowling tossed out the following: "This is theft. Wholesale theft." Well, no, it's not. If it were anything, it would be infringement (not theft), but more importantly, it wasn't about republishing the content, but making it more useful. It's the same argument we discussed recently with people overestimating the value of the content, and underestimating the value of the service of making it useful. The most damning point might be that Rowling herself in the past admitted to using the lexicon to check up on facts she didn't remember.

However, the real key point that Rowling went back to again and again in her complaint is that she just didn't think the quality of the Lexicon was very good. That seems like a bizarre complaint, as copyright has nothing to do with quality. In fact, as the publisher's lawyer asked, "You feel it's your responsibility to prevent people from paying their hard-earned cash for things you don't like?" At which point, she switched arguments again, reverting to the claim that it was "theft." Of course, if she really thinks that the book is awful, there's a really easy solution: to come out with her own version of a guidebook. Surely, people would be a lot more interested in buying the "official" version, written with Rowling's approval, than some fan-created one. In fact, Rowling admits that she's been thinking of doing exactly that (and throws in the totally separate from the legal issues, but good for an emotional tug, claim that she would donate all proceeds to charity). Of course, there's nothing actually stopping her from competing, other than what appears to be her own unwillingness to actually have to compete for readers.

Read it all here - make sure to read the comments as well.

Wall Street Journal Blog: Potter Trial: On Last Day, Defense Outshines Rowling

From here.

Even by the judge’s own admission, the Potter case could go either way. But at the close of today’s session, which concluded a three-day trial, the defense appeared to score some serious points. Here’s what happened:

Is “Weak Waggishness” a Legal Conclusion? The plaintiffs (author J.K. Rowling and Warner Bros.) called their literature expert, Jeri Johnson, a “senior tutor” (that’s like an academic dean) from Oxford. Johnson, whose title was constantly confused by the lawyers — mis-addressing her alternatively as Don, Dean, and Doctor (she has no doctorate) — testified in broad generalities, concluding that entries in the Lexicon don’t add new “layers of meaning” to Rowling’s novels, and merely rearrange Rowling’s intellectual “furniture.”

Unimpressed, Judge Robert Patterson interrupted. “It’s not helpful testimony because it draws conclusions without specifics,” he said. “I can’t simply take the expert’s opinion as my own.”

Then, when David Hammer — lead attorney for defendant publisher RDR who handled every witness examination — crossed Johnson, her testimony simply unraveled.

Hammer pressed Johnson on her previous statements that the H.P. Lexicon is “weak waggishness,” that its jokes are “facetious,” “condescending in the extreme” and amount to “tedious jocularity.” 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.

Does the Lexicon Take the Best Crumbs of Rowling’s Cake? The problem of generalities continued to plague the plaintiffs when Rowling, the first witness in the case, took the stand in rebuttal as the trial’s final witness. Comparing her novels to a cake, Rowling claimed that the Lexicon takes all the best “crumbs,” repackages them and sells them for “entertainment value.”

Again, Judge Patterson interrupted, and addressed Rowling directly. “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.

Law students, refresh our memory, but don’t the profs caution against the slippery slope argument, on the theory that it’s the job of judges and lawmakers to draw lines?

Maybe I Need a Reference Guide for This Case: That was Judge Patterson’s commentary at the close of testimony. Again, he urged the parties to consider settlement, reminding them that fair use is a “murky area” of law. Hammer then requested the opportunity to make a closing statement, which was a good call because his co-counsel, Anthony Falzone, delivered a strong one.

Rowling’s lawyer, O’Melveny’s Dale Cendali, emphasized their main theme, that the Lexicon “takes too much and does too little” but offered little in the way of specifics.

The defense’s Anthony Falzone, a lecturer at Stanford law a who hadn’t spoken since his opening statement, invoked a professorial tone and led the judge through a thorough analysis of RDR’s case. Synthesis and distillation is what makes the Lexicon “tranformative,” he argued. “Quality shouldn’t matter,” he emphasized. If the Lexicon is lousy, Falzone concluded, the answer is not to suppress it, but for Rowling to write her own.

LB’ers: Therein lies the trial’s narrative arc, short of the judge’s decision. Which way should he rule?

Prince Caspian

New interview with Steve Vander Ark:

“Do you think that, if Lexicon wins the case, the Harry Potter fansites are going to be affected in any way(Lexicon Online included)?

A victory for RDR Books will protect the rights of fans to create based on someone else’s work. If RDR Books loses, copyright holders will be given broad new control over fan activity, control which will allow them to shut down sites, stop authors from writing about their works, etc. So a win for RDR Books is definitely in the best interest of fans who create websites, write fanfiction, make wands, compose wizard rock, and so on. I am surprised how many fans have missed this point. Their freedom to create is on the line here.

How many pages does the Lexicon book have?

The Lexicon book will have around 400 pages. It’s 160,000 words. The book has four authors. I am the main author, but three of my Lexicon editors worked on the book as well.

If the Lexicon is published, once the Scottish Book gets out, will you still update Lexicon Online and Book?

I’m as excited to buy Rowling’s Scottish book as anyone! It will be very different from the Lexicon book, with a lot of new and exciting information which only Rowling can provide. I will continue to update the Lexicon website. I love working on the Lexicon and will do so even if I have no staff and even when people don’t read Harry Potter much anymore. Beyond that, I have written another book, called In Search of Harry Potter, which will be published in July. I’m starting on another one as well. I intend this series of books to comprise a complete independent reference library to Harry Potter. The second and third books will not generate the kind of legal concern that the Lexicon book has, thankfully.

Do you consider that your fanatism or admiration to J.K. Rowling is less now after all that have happened?

My admiration for the Harry Potter books is as great as ever. I’m still a huge fan. I’m also still a fan of Rowling, although I think her current actions are unfortunate and badly advised. I still admire her as a writer and a person and I don’t expect that to change just because she and I have a disagreement over a legal issue. Friends can disagree and still be friends.”

Is J.K. Rowling serious? AP reports her threat to sue her own fans if her lawsuit is not successful

I kid you not. It's all here.

AP (which looks like it's just taken a press release from Warner Brothers and oddly reworked into an puff piece) is reporting that J.K. Rowling, whom we have had the greatest respect for (and we continue to try to keep that respect) has issued what can only be a rather threatening warning that if Steve Vander Ark's attempt to publish the HP Lexicon as an Encyclopedia, it will - to quote Rowling - "undoubtedly have a significant, negative impact on the freedoms enjoyed by genuine fans on the Internet. Authors everywhere will be forced to protect their creations much more rigorously, which could mean denying well-meaning fans permission to pursue legitimate creative activities."

Good heavens! Either she does not completely grasp what Warner Brothers is doing (and she's darn smart, so that just hard to believe) or she thinks we're stupid. We're supposed to cheer her on or she'll sue us?

The whole point of going after the HP Lexicon - which as we are reminded was praised by Rowling until Warner Brothers stepped in) - is that there is a fierce battle on over intellectual property now that the 20th century modes of communications are quickly becoming passé.

What Rowling is failing to mention here - with her sadly unfortunate and not-so-veiled threat is that it's the other way around. Encyclopedias have been published on literary works for years (as I have mentioned before, I have many many such works including a hefty 800 page Encyclopedia that was published by a fan). There is nothing new with that. What is different here is that Warner Brothers is trademarking the WORDs - the WORDs - and not just the images from the Harry Potter series.

If this lawsuit against Steve Vander Ark - perhaps once her most industrious and respected fan - is will set a precedent that the trademark owner can control the actual words. This is international law and it can then be applied to the internet.

So in fact, the reality is that it's the other way around.

What just floors me is that J.K. Rowling is threatening to sue her fans if her lawsuit is not successful. She's casting herself as the victim - which is just so incredibly laughable. She's one of the richest women in the world and she and Warner Brothers are throwing an enormous public relations campaign along with a cost litigation effort to shut down the fan she gave an award to for having the best Harry Potter fan site. It's absolutely bizarre.

She says that is she is not successful in her lawsuit, it will mean "denying well-meaning fans permission to pursue legitimate creative activities." Where does she get the authority to issue "permission?" Because she "owns" the trademarked words!

So let's say you want to write an essay on your blog or website on how governmental offices during heated campaigns appear as though they have been drinking polyjuice potion because they aren't acting like themselves but a pandering to constituencies. If you use the trademarked word "polyjuice" she is threatening to send you a cease & desist letter since you are using one of her words in an essay she neither controls or profits from.

If the lawsuit is successful, it won't matter because the precedent will be set that words used on the internet cannot be translated to traditional forms of publication. In other words, the intellectual property - i.e., the words themselves - will be controlled by a corporation who owns the trademarked words.

We won't be able to plead our first amendment rights because the first amendment is guarding our rights to free speech from the interference of the government, not a corporation.

Unless, of course, it is appealed to the Supreme Court on the argument that the courts do not have jurisdiction to restrict freedom of speech by upholding laws created to protect trademark images from unauthorized use.

Remember, Rowling keeps referring her published words as her "invention." They are not her creation - she doesn't use the word creation. She uses the word "invention." That is setting the groundwork for this litigation. She is the inventor, as much as someone who invented the pooper scooper gets to control how it is used. She's not an artist - she's an inventor.

Corporations are attempting to use this to protect their investments. J.K. Rowling has become the corporate spokesperson to restrict freedoms of speech and the press by the use of trademarking the language. And that can be applied globally to the new forms of communication now employed by millions around the word.

Also remember, there was no way that Warner Brothers could ever shut down the HP Lexicon right now. It would be a public relations disaster. But Steve offered them a handy dandy way to do it and leave Rowling's own image in tact. They'll just go after this little book instead (never mind that I have several HP encyclopedias on my shelf right now!). But now that the corporations finally woke up in the new century where they are still using last-century's communication methods and are now seeking control over "intellectual property" through international trademarking rather than copyright law (which is national and expires) it's time to shut this stuff down.

The question is - why put this press release now? It coincides with more filings by Warner Brothers this past week in the case. Does Warner Brothers think the fans are too young and too naive to question the media strategy at play here? Notice also how we keep hearing about her charity work (more press releases) so that her happy image of the caring author remains intact as she sues one of her biggest supporters over the years. Does Warner Brothers think, as they successfully convey in this so-called AP "article" that J.K. Rowling is an Untouchable?

Or has she just sold out? Cornelius Fudge™, call your office.