But from the news today, it would seem they filed a Notice of Appeal last Thursday, and it took a few days for the paperwork to appear. So now this will go to Federal Appeals Court, also in New York. The only court higher is the Supreme Court.
I missed this first story last week - the Lexicon Website won a Library Award. Congratulations!
Muskegon Chronicle: Embattled Potter site wins library award
. . . the American Library Association named the Web site one of the nation's top 15 "Great Web Sites" for children last week. The Web site -- www.hp-lexicon.org -- earned a three-pencil rating as an "exceptional Web site" by The Association for Library Service to Children, a division of the American Library Association. The rating means the Web site is "appropriate" for elementary- and middle school-aged children, as well as parents, teachers and caregivers. The only group shut out from the rating was preschoolers.
Techdirt: Publisher Appeals Ruling Against Harry Potter Lexicon ~ from the good-for-RDR dept
Ars Technica: Accio Appeals Court ~ Harry Potter Lexicon Author Appeals Fair Use Loss (With Pie Chart of Doom Debate)
Slashdot: An Appeal in the Harry Potter Lexicon Case (w/Heated Debate in Comments)
Derek Bambauer in Info/Law: Like Voldemort Potter Lexicon Case Rises Again
Bambauer writes: "The Second Circuit should, hopefully, affirm, but with a clear opinion setting straight some of the issues related to derivative works and fair use. It’s great to have such capable counsel on both sides, improving our odds of a thoughtful decision."
Bambauer rants about the discussion on Slashdot (see above).
(Bambauer wrote) Rant: It’s a little frustrating to read the comments on the Slashdot post about the case. There’s just so much FUD out there about fair use. Even reading the relevant statute - 17 U.S.C. 107 - isn’t all that helpful, not just because its test is a non-exclusive four-factor totality of the circumstances test, but also because the 1976 Copyright Act was intended to codify, not supplant, the well-developed common law regarding fair use. When I teach Copyright, I tell the students that I think making predictions about what is or is not fair use (when you’re representing someone as counsel) is just about malpractice. It’s very hard for experienced attorneys to assess fair use (as the debate over the Lexicon case proves). For those in the Slashdot crowd who think it’s straightforward, or formulaic, I hope you don’t rely on those perceptions in making actual decisions about copyright. OK, Rant off.
Ray Beckerman: Harry Potter Lexicon Decision Appealed
*See Beckerman's earlier analysis: HERE (Thanks to Luna'sCeiling for that link).
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Comments
It ain't over till it's over. :)
--Annie
We'll know more about the appeal when the actual court brief is filed.
I'm looking forward to reading the actual legal filing explaining the grounds of appeal. It could be about the fact that the Judge seemed to aim the injunction just at the book manuscript (Document 22) that was put into evidence. And you are correct that the Judge's interpretation of Fair Use could certainly come into the Appeal.
I updated my post with some links to articles about the Appeal.
Also, Congratulations to the Lexicon Website for winning an award from the American Library Association last week!
http://www.mlive.com/chronicle/news/inde
David English wrote on Leaky that he was glad to see that someone aptly named "Sewer Urchin" has posted a picture of the "Pie Chart of Doom" in the comments on the Ars Technica Blog.
Of course the Pie Chart of Doom was never allowed in as evidence, so it is totally irrelevant and a moot point. It just doesn't matter, and it never really mattered except in the Fan Wars.
Someone else wrote an interesting comment explaining the Court's view of the Pie Chart:
Seriously, even if he did use the words that she created, that's no proof of anything. He could be making commentary on them.
And lol to "facetious remarks". I had forgotten about that.
Edited at 2008-11-13 04:39 am (UTC)
Yes, the Preschoolers aren't usually on the Internets searching for the Latin roots of spell names. *lol*
In an earlier post, Bambauer had written that the Judge should have found the Lexicon to be a derivative work. He wrote that he was hoping for an appeal so that could be clarified, and now he has his wish.
Edited at 2008-11-13 05:57 am (UTC)
I think some of Bambauer's earlier analysis was much more pro plaintiff that it appears to be now. I can see why you would say that you're not sure what side he is on sometimes but I think it may be because he is much more ambiguous now than in his previous posts. He always gave himself some wiggle room and some of his wiggle room came from finding the book derivative rather than transformative. Ultimately I think he would like to see Patterson's derivative reasoning affirmed, that's my guess anyway.
"Copyright does not include a right to profit. Imagine the absurd results that would occur if it did: A scathing review of the latest book or movie that caused it to be a big flop would constitute copyright infringement! Even if it didn't copy so much as a word. Likewise, a rival author who wrote a series of dreadful books about vampires which drew away the audience for Harry Potter could be accused of infringing on the basis that her (bad) original works were undercutting Rowling's profits, despite a total lack of copying anything."
I think the first sentence is pretty key. People seem to forget this.
Great points, as usual. :)
I have argued all along that "quality" in WB's opinion - or even the Judge's opinion - should have nothing to do with this. That is totally subjective, along with "scholarly."
And for one thing, there are plenty of bad Harry Potter books already written, and the Lexicon is high above them. The ones that JKR liked the most were not encyclopedias anyway, and they were not complete at all.
*crossing fingers and whispering* "Please be just a formality."
Well . . . I don't want to distress you further, but it's both a formality and a beginning of an Appeal.
First they post the Notice that they are going to do it, then they file the briefs explaining the case to the Appeals Court.
So probably things are going to happen, but we just don't know when. Sorry . . . *tiptoes away*
Yes, Stanford wants some case law to be made at the Appeals Court level, or even the Supreme Court. What they eventually want is some "bright line" rule for Fair Use beyond the fuzzy guidelines they have now. Whether this case can get them there is questionable.
Folks who are writing that this was Steve's decision, or that he is somehow in control of the litigation are just wrong, since he's not a defendent anyway.