SnitchSeeker.com - J.K.Rowling/Warner Bros. file latest response in Lexicon suit

J.K.Rowling and Warner Bros. have responded to RDR Books' latest response in the lawsuit concerning a print version of the Harry Potter Lexicon. Declarations included come from J.K.Rowling, Cheryl Klein, senior editor at Scholastic Books, Prof. Landes from the University of Chicago, Suzanne Murphy from Scholastic, Emily Blumsack and Jerri Johnson. This is the last filing before the hearing in New York on March 13th, when it will be determined if a preliminary injunction will be granted. A trial may still follow to determine if copyright infringement has taken place.

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It says the book is “nothing more than a recast of Ms. Rowling’s original text,” which differentiates it from the Ty Beanie Baby book cited by RDR because that book contained “critical and evaluative” elements.

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The main complaint says that RDR cannot prove that it is likely to succeed on a fair use charge because it does not create “new information, new aesthetics, new insights and understandings.” It also says that attempts to cast it as a “serious book” filled with “scholarly commentary and analysis is merely an attempt to excuse blatant infringement.” It says “alphabetizing” does not render a work transformative and that reorganizing work does not alone render a work in concert with fair use.

It says RDR’s expert also agrees, citing the filing that says that the book’s chief point is not literary analysis.

It is said that 2,034 of the 2,437 entries lift text directly from the Harry Potter books, with the rest having added adverbs for originality.

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On the charge that RDR made that JKR/WB have selectively chosen material to support their claims, this complaint cites a court decision which says “no plagiarist can excuse the wrong by showing how much of his work he did not pirate.” It also says that despite Steve Vander Ark claiming he used reference works, none are cited in the book or mentioned in the bibliography, and some appear to be taken from sources “such as Merriam-Webster’s Online Dictionary without attribution.” It also says entries on Harry and Voldemort basically tell the entire plot of the Harry Potter series.

In her declaration, Jo says she feels 'betrayed' by Steve Vander Ark, and expresses her concern for the precedent such a win could set, namely that authors would have to be more restrictive about what they allow online, to avoid copyright infringement.

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“...as I have excellent relations with many members of the fan community, I find it devastating to contemplate the possibility of such a severe alteration of author-fan relations. I continue to believe that the online fandom has been a wonderful experience for thousands of people, myself included; that it has become, not only an enormous global book club, but engendered an explosion of creativity and communication rooted in a world we would all like to inhabit.”

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"I fully intend to write this encyclopedia, however..I am not prepared to commit to another deadline [and] do not believe I should be forced to make such a commitment or run the risk of losing the right to create my own encyclopedia on an exclusive basis. I thought that this was part of what my rights were as an author and copyright holder. I also feel strongly that RDR is attempting to interfere with my creative process by repeatedly arguing that a timeline for publication of my Harry Potter encyclopedia is necessary in order to prove that I mean to publish one at all. I am not a person to make statements lightly, particularly when it comes to statements that ultimately will set expectations for my fans.”

She also objects to the statement that fans would buy both books, saying that not everyone would want two and neither could they afford to do so. She points to the Fan Site awards on her website, saying that she didn't intend them to be used as a tool to legitimise publications which infringe her copyrights.

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"I feel that I have a duty to these readers to ensure, as far as possible, that Harry Potter does not become associated with substandard versions, whether in the world of film or in any other medium. I believe that RDR’s book constitutes a Harry Potter ‘rip off’ of the type I have spent years trying to prevent and that both I, as the creator of this world, and fans of Harry Potter, would be exploited by its publication.”

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"The Harry Potter books are full of moral choices and ethical dilemmas, and, ironically, Mr. Vander Ark’s actions tend to demonstrate that he is woefully unfit to represent himself as either a ‘fan of’ or ‘expert on’ books whose spirits he seems entirely to have missed.”

Cheryl Klein’s declaration cites an occasion when Steve Vander Ark stated that the online Lexicon was in part there to 'dissuade people from publishing unofficial encyclopedias'.

Emily Blumsack’s declaration states that RDRs' claim that there are other books in existance similar to the Lexicon, is countered by their very own comments declaring that there is no competitor in print, and that those that were, are out of date.

Steve Vander Ark was advised not to update the online Lexicon with information from Deathly Hallows as Mugglenet was at the time planning their own encyclopaedia (for which they received a cease-and-desist) and that would result in them potentially co-opting the material. Since learning they aren't going ahead, he has updated the website.

Statements showing that Steve Vander Ark's actions contradict his previously declared intentions, have been included;

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“I won’t publish…in any form except online. [Ms. Rowling is] entitled to that market, not me and not [another author.]"

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40 percent of the material in the book was written by other members of the staff or guest contributors and volunteers, then quotes two LeakyLounge members (dresdenfiles.fan and cbm) who publicly stated that while they contributed to the Lexicon they had no knowledge that they were contributing to a for-profit book.

An occassion on which Steve Vander Ark set lawyers on an author intending to publish from the Accio Quote website, is cited, in which he said,

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“I’m sorry but that’s where I draw the line. I will not stand for someone stealing my material and using it to scam fans out of money…I don’t like doing things like this. But this leech is not a true fan.”