The biggest news items coming out of yesterday seems to be: (i) that SVA claimed that RDR talked him into publishing the Lexicon, over his hesitation due to legal issues; (ii) the number of books the defendant’s legal expert said would be published that would not cause a market impact is far, far less than the number of books the defendant intended to print; (iii) Melissa Anelli of TLC recused herself from reporting on the case once an e-mail sent to her (from SVA, talking about how he felt misled by RDR) entered evidence
So. While we wait for the latest news, some thoughts on yesterday’s circus.
Yeah, of course he told them to settle. (Here’s one of many links: http://news.yahoo.com/s/ap/20080416/ap_
I’m concerned that this case is more lawyer-driven than it is client-driven. 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.
Litigation isn’t in anyone’s best interest. Ever. In litigation, you’re not adding value to anything; you’re expending a lot of resources hacking up the value that’s already there. More often than not, it’s a lose-lose situation where the winner is just the party who lost less. To some extent, no matter how solid your case or how well-prepared you are, litigation is a gamble because neither party has total control over the verdict. I think that’s a risk that can be managed through preparation, but it’s not like a contract where you can negotiate what you want. It’s also not in the court’s best interest. The more cases that can settle, the more the court saves resources, not to mention that judges don’t like to have to decide things about other people’s lives, so they avoid doing it when possible.
I suspect this judge wants this case in particular to settle. It’s a very high-profile case with a lot of crying here and lying there and throwing other people (other people on your side!) under the bus. The outcome of this case, no matter what it is, is going to make a whole lot of people very unhappy. Add to that that this is very unclear area of law, and really, no way does he want to have to issue a verdict. He’d just rather all the crazy people settled and went home.
And this is a case that should settle. This case isn’t going to make good law, either way, it’s not going to clear up fair use, either way, and both parties have indicated that they’d be more than happy to appeal. For years. The plaintiffs, if you believe them, really only want RDR to knock it off with the book; they’re not really after monetary damages. We’re not talking two parties who are millions of dollars apart here; we’re talking one book and whatever it would have made in the marketplace. Since it’s not HP Year Eight, it’s just not that much money.
I think, though, that some of the judge’s statement is specifically needling the Stanford folks. They clearly have an agenda separate from this case, and that agenda isn’t always completely in synch with RDR’s best interests as a party. Add to that that it’s pretty clear that the plaintiffs are driving their case, rather than Cendali & Co., and it sounds like the judge is trying to make this less about the law and the appeals and the doctrine of fair use and more about the individual parties.
There’s been some speculation about whether or not the judge is trying to save RDR, especially after two disastrous days of testimony. Eh, I don’t know about that. Some cases with individuals as parties, sometimes the judge tries to get them to settle for their own good. I don’t know that that happens so much in business disputes, though. Perhaps, since RDR is a small business, but I think it’s more likely that the judge is concerned about a possible disconnect between RDR and the Stanford folks. That’s a big deal to the legal community, since lawyers are charged with representing their clients, not using their clients to change the law.
A side note, for those of you trying to read the verdict tea leaves in the judge’s statement: Give up. Judges are required to not only remain neutral, but to appear neutral, throughout the course of a trial. They aren’t allowed to even think about hinting one way or the other. That statement was assuredly carefully constructed to keep his thoughts on the merits of the case to himself.
Speaking of the defendant’s attorneys, OMG THEY ARE SO BAD. Day One: Hammer basically attacks JKR and then sends a thoroughly unprepared Rapoport to the witness stand to not remember anything. Day Two: SVA – and remember, he’s someone the defendant’s attorneys should have prepared – throws the defendant under the bus and says they talked him into publishing against his better judgment and then the defendant’s expert gives a completely different number of books printed than the publisher did.
God, Falzone, prepare your witnesses. Prepare your trial.
As far as I can tell from the reports coming out, this has been two devastating days of testimony for RDR. I don’t know how much it will affect the outcome (more in a second), but two days of your witnesses contradicting each other, blaming each other and being caught lying or “not remembering” on the stand IS NEVER GOOD. (Sort of like comparing someone suing you to Hiroshima is never good.) Preparing your witnesses so badly that the other side just eviscerates them on cross-examination with their own e-mails is just BAD.
I just don’t understand. Falzone has the resume to be a better attorney than this. WHAT ARE YOU DOING, FALZONE? Why are you letting your witnesses blame the defendant? Why are you letting your local counsel attack the plaintiff’s star witness? Why didn’t you make sure everyone was working with the same numbers? WHY?
*sigh* I’m just annoyed. I think RDR is making this immensely difficult for his lawyers, what with all the lying and other nonsense, but that’s not an excuse for poor quality work from someone who is more than credentialed to do awesome work. There are bad cases, there are bad clients and there are bad lawyers, and the bad client and the bad lawyers in this case may be making the case itself bad, regardless of the merits.
akemi42 has a great post about the relevance – or irrelevance – of the testimony so far to the actual legal issues, which she’s kindly posted over at fandom_lawyers where everyone can see it. (Link: http://community.livejournal.com/fandom
I completely agree with the list of items that have been presented into evidence so far that are relevant to fair use, as well as the list of items she’s pegged as irrelevant to fair use. A very large portion of the testimony so far – how JKR feels, her writer’s block, SVA’s tears, whether or not he’s part of the fandom, indeed, even whether he thought this was wrong or not – are completely irrelevant to fair use. It doesn’t matter a bit if SVA knew it was wrong, or if Rapoport knew it was wrong. It doesn’t matter if fandom never lets SVA back through the proverbial door or not. It doesn’t even really matter if the work is a piece of shit book of the worst sort of scholarly analysis or not. JKR’s attorneys are trying to make some sort of quality argument, but fair use doesn’t care about quality. It cares about theft.
The Pie Chart of FAIL, though? That’s totally relevant.
It’s interesting to me, first, that both sides are so clearly playing to the public. Judges don’t care if you cry on the stand; they’re trained out of that sort of thing. Juries care, but this is a bench trial, so there’s no jury. I suspect that Cendali’s being overly thorough and RDR’s kind of throwing things at the wall – perhaps unintentionally – to see what sticks. It’s just kind of a silly way to run a trial, and I’m surprised this much of it is getting into evidence.
Someone asked me yesterday with regard to the RDR/SVA publishing contract whether or not the “spirit” of the contract mattered.
Yeah, no, not a bit. In very rare circumstances, like fraudulent inducement (you lied to me to get me to sign your contract), a court will hear evidence about a contract in addition to reading the contract, but 99% of the time, the only thing that matters is what you put in the contract.
Intent doesn’t matter. Mistakes don’t matter. Spirit doesn’t matter. “I forgot” doesn’t matter. The parties could both get on the stand and testify that the contract isn’t what they meant, and it wouldn’t matter. Once you write your contract down and sign it, that’s it. When you get to court, that’s what you get, and all that you get, so you had better make sure it was right in the first place. There’s a multi-million dollar case in Canada right now that is going to be decided on a comma.
Courts are charged with giving meaning to every single word of every single provision in a contract. It doesn’t matter if two provisions seem to contradict, as the indemnification and representations section of the publishing contract do. What matters is if the two provisions actually contradict, and in the publishing contract, they don’t. You can absolutely read this contract as requiring RDR to indemnify SVA if he gets sued, but still being able to sue him if he breaches the contract. The purpose of the two provisions are entirely different: the indemnification provision is a risk management tool; the representations section is a promise made to induce RDR to make the contract in the first place. Two totally different mechanisms for two totally different purposes.
There’s a larger, practical question here as well about whether or not SVA is judgment proof. To lawyers, “judgment proof” basically means: too poor, do not bother suing. Is it worth it for RDR to sue him? You never know, I suppose, and in case anyone is wondering, I know nothing about either RDR’s or SVA’s finances. It might be worth it to RDR to sue and garnish SVA’s wages forever.
And since this is still floating around, let’s talk about what a potential verdict would mean for fandom.
As a trial note, keep in mind that the defendants only have to win on one theory: fair use or implied license. Both are valid reasons for RDR to publish the book, despite JKR’s copyrights. Which necessarily means that, if JKR wins, she’ll have to win on both issues. Which is why I’m breaking the defendant’s verdict into two here and not the plaintiff’s.
If JKR wins: I don’t think it’ll have much impact on fandom generally. It’ll be one more case that says that scholarly works qualify for fair use, but we already have those cases, so what’s another one? I honestly don’t think that whether or not an encyclopedia qualifies for fair use or not has a whole lot of bearing on whether or not fanfiction or fanart or vidding or fan films or wizard rock are transformative enough to qualify as fair use.
Also, in this specific instance, JKR and WB, if you believe them, have said that they don’t plan to go after fanfiction or anything else. So HP fandom, assuming you believe them (and I do, because they could have gone after fanfiction separate from this case years ago), probably won’t change much.
If RDR wins on fair use: Again, I don’t think there’s much of an impact on fandom generally. It probably means that this sort of reference work will be deemed scholarly, and it probably means that this work was distinguished from the Seinfeld Aptitude Test in Castle Rock because SVA’s encyclopedia is scholarly and the book in Castle Rock was entertainment. Copyright holders would still have the opportunity to take fanfiction and other transformative works to court based on the entertainment precedent in Castle Rock and a lot of other precedents that may or may not apply. Fair use is so unclear and the cases have been so fact-specific that I don’t think an RDR win on fair use helps fandom, but it certainly doesn’t hurt.
If RDR wins on implied license: This is the one that hurts fandom, though I think it’s quite unlikely that they’ll win on this point. RDR has claimed that, since JKR allowed SVA to publish the Lexicon online, she impliedly granted permission for SVA to publish the Lexicon in another format. This is a hard one for the defense to win on because there isn’t case law supporting this view, but there is a strong precedent saying that it’s difficult for copyright holders to abandon their rights. I think it logically follows that, if copyright holders can’t accidentally abandon their rights, they can’t accidentally grant licenses broader than what they specifically intended. I think arguing that her permission (such as it was) for a free-to-use, online resource also granted permission for a pay-to-use, for-profit print version is unsupported in the law – not to mention that it’d be crap law and crap policy.
Let’s say for a moment, though, that the defendant did win on the implied license argument. Because JKR gave SVA implied permission – by not cease and desisting him or giving him an award or whatever – to maintain the Lexicon online, and by doing that, she also unintentionally gave permission for him to turn that website into a for-profit, commercial, competing endeavor, you have an immensely bad precedent for both copyright holders and fans. Right now, copyright holders can pretty much pick and choose what they cease and desist. If fanfiction bugs them, but fanart doesn’t, they can cease and desist the fic, and leave the art alone. If non-commercial uses are okay with them, but commercial ones aren’t, they can cease and desist only the uses that are trying to make money and can leave the other ones alone until they start trying to make money. They can leave a use alone for years while it doesn’t conflict with what the copyright holder is working on, and cease and desist it only when it becomes a conflict.
If RDR wins on an implied license argument, that’s all going to change. Copyright holders will have to be much more vigorous about policing how people are using their work, so they can make sure that they haven’t given permission: (i) for that person to later change the use under the existing permission; or (ii) for other people to do the same thing. If permitting a non-commercial use means, by definition, permitting the same use even if it’s commercial (such as with the Lexicon, as the argument goes), all those copyright holders who don’t mind fanfic so long as it’s not making money will have to shut it down now so it doesn’t start making money later after the copyright holder’s already given permission that can’t be retracted.
I like the current state of the abandonment/license law. I like the flexibility it gives copyright holders. They only have to police that which bothers them when it bothers them. They don’t have to treat everyone the same. They don’t have to come down hard on everyone just in case someone, some day decides to make money on something. They don’t have to come down on one person because she’s theoretically using the copyrighted work in the same way as another person. And I think that any argument that would require copyright holders to take a lot of action now in case something happens later sucks.
Finally, someone asked me to post a bit about expert witnesses. Publisher’s Weekly (http://www.publishersweekly.com/articl
Next up: Copyright experts? More tears? Lord Voldemort? (I told someone yesterday that it would be awesome if we could use Lord Voldemort in the course of practicing law. Then maybe our clients would STFU when we told them to.)