Fair Use Doctrine: Second Category

Andrew: Point number two of the Fair Use Doctrine: "The nature..." - and again, this is quoting MTV - "The nature of of the copyrighted work. Is it fiction or non-fiction? Published or unpublished? This guideline isn't particularly applicable in this case as nobody argues, for instance, that Dumbledore or Harry Potter are in any sense real." So I guess they just skipped that one. I mean...

Eric: Well, there is a little thing... [laughs] ...that MTV - it's a good quote for J.K.R., it really it is, and I think it supports her opinion.

Andrew: But I guess this is an important point because, according to Copyright.gov, it just states "The nature..." - number two is "The nature of the copyrighted work." So - I - is it a copyright issue? I guess maybe not. Actually no, no, 'cause that's point number three.

Eric: I think with two, it has something to do also in this case with maybe canon. You know, because, like J.K.R. is the only one currently who holds rights to canon. Think - you know, series like Star Wars have, you know, fans writing books that can or cannot be considered canon. For instance, one of them killed off Chewbacca, and they had to ask George Lucas to do it, but I think in this case - and there's a little quote by Rowling; it says - on this MTV article, which you have to link to because it's beautiful and we're using it a lot - and we don't want to get sued - Rowling says - Rowling was comparing a description she wrote of a Chinese Fireball with one from the Lexicon, stating that it wasn't as if they were both describing giraffes. Her quote is, "It's not as if we're describing something that exists outside my imagination." And do you guys want to talk about that quote, for instance, because I like this point that J.K.R. makes, but I'm wondering if the Chinese Fireball at this point - the Chinese Fireball doesn't actually exist outside of her imagination - I think it might, because she's put it in books that have circulated so far around the world. So is it...

Laura: Yeah, but I think...

Andrew: You're saying it exists because of how popular Harry Potter books are?

Eric: Interesting. I'm saying that J.K.R. will and has and will always control the canon of a Chinese Fireball. If she wanted to addendum, to add on to her details of the Chinese Fireball, only she could do that. Steve could - Steve could not say anything about the Chinese Fireball that Jo Rowling hasn't said, is what I'm saying, unless he...

Micah: But then that goes back to the idea of not having any original content.

Eric: Well, if he were to say, then, that he thinks Chinese Fireballs sound pretty, that actually is something that he could say that J.K.R. didn't say.

Micah: Yeah, but then is that of any value to the culture?

Eric: It is commentary.

Andrew: Well, it is commentary...

Micah: Yeah, but it's [word bleeped out].

[Everyone laughs]

Laura: It's not really extensive commentary.

Eric: Think domestically.

Andrew: A couple of the theories...

Micah: Yeah, but are they copying other people's work?

Laura: Ouch.

Andrew: Dobby had a hundred percent chance of living.

[Andrew and Laura laugh]

Andrew: No way is he going to touch him.

[Laura laughs]

Micah: There's a difference between being wrong and being complete bullshit.

[Andrew and Laura laugh]

Micah: Saying the Chinese Fireball is pretty is not analysis, I'm sorry.

Eric: It's not analysis, but if we can agree with him, if he can prove conclusively, that, based on J.K.R.'s [unintelligible].

Micah: He can't because he's never seen one.

Eric: If he can, then maybe by that use people who read this book can agree with him and start having, like, Chinese Fireball Appreciation Societies, Facebook groups, things like that. All because of his little one-word statement that Chinese Fireballs are pretty. I'm just trying to say, is there anything in this number 2 clause that we can use, because MTV has said that basically we can't.

Andrew: No, I don't think so.

Eric: So...

Fair Use Doctrine: Third Category

Andrew: Let's move on to point three, which is the amount of the portion used in relation to the copyrighted work as a whole. How much of the whole text appears in the work? Generally speaking, the less you use the more likely that it's Fair Use, but of course there are instances - instances in which you can quote the entirety of something and get away with it. So this is probably one of the bigger ones in the Lexicon case, because Warner Brothers showed on multiple occasions throughout the trial that Steve basically took what was in the book and simply reworded it.

Eric: Rearranged it. Rearranged the - what - furniture? Andre: Rearranged the furniture, they kept saying. But in these cases, more literally, they just - they move the words around. And I'll try to look it up - an example while we're talking, because I know there is one floating around out there. But what do you guys think about this one? I mean this definitely goes in favor of WB and J.K.R., right? Because it is just - it's just...

Eric: I would say very similarly.

Andrew: It's just information that's in the books.

Micah: It's the lack of commentary factor again playing in here.

Eric: Lack of commentary, yeah.

Micah: And again, no original thought. That's the problem with this particular thing, and, yeah, I think this one probably does go more in the favor of J.K.R. and Warner Brothers because, look, if you're taking a spell, for example, from the book, and you're putting it into this Harry Potter Lexicon, where's the original thought behind it? You know, you're not creating anything of your own and applying it to that. So there's really no instance where, you know, your own, you know, thought is appearing in the book.

Eric: I would agree. I would agree that this is certainly a point, as Micah and Andrew have both said, that definitely would go most in favor of Warner Brothers and J.K. Rowling. It was brought to my attention earlier today, though, there are certain things, based on this article, where it says that there are instances in which you can quote the entirety of something and get away with it. I've - someone made a point, someone very close to me made a point that if this book is copyright infringing, then so are Cliff Notes, which want to take - by the way, Cliff Notes exist for almost every major work you can find. All Shakespeare, all of these different authors, all Dickens, everything. Cliff Notes. And how exactly would you then go about - I mean to be honest I think that comparison kind of stunned me because, although Steve isn't Cliff Note-ing - I mean thank God - I think Cliff Note-ing in this case would be a lot more of a copyright infringement. If he were to take actual words and sentences as opposed to doing lists of characters. I think that would be even more, you know...

Micah: I think the difference, though, with that is that whoever is writing the Cliff Notes is doing their own interpretation of what things mean.

Andrew: And not only that, but the...

Micah: So...

Laura: Yeah.

Andrew: ...they’re – sorry to cut you off – but there are analyses in these. And you can go online and look at free versions of these Cliff Notes books that are printed in Borders and Barnes and Noble and I’m looking right here for Adventures of Huckleberry Finn. There’s a little area called Character Analysis for Huckleberry, Jim, and Tom Sawyer.

Eric: Those things got me through high school.

Andrew: And those are literary classics!

Eric: Ain't gonna lie.

Andrew: What?

Eric: Those things got me through high school. Ain’t gonna lie.

Andrew: Yeah, me too.

Eric: Actually, I did lie.

Micah: Yeah, so there’s the difference though.

Laura: Me too. [laughs]

Micah: They provide analysis, whereas this book does not. [laughs]

Eric: All the same though, if this is a more easy reference than the whole seven Harry Potter books, is it bad? Is it - yeah...

Andrew: I don’t know if I see Cliff Notes as reference material, because it’s not indexed. I mean, it’s indexed by chapter, but you still have to go searching for what you want.

Eric: Hmm.

Laura: Yeah, and I mean as somebody – I mean, we all just admitted to using Cliff Notes all through high school, and there are many instances where, if I was reading a book and I didn’t feel like reading the whole thing and I turned to the Cliff Notes, I would still have to turn to the original source material...

Andrew: That’s very true.

Laura: ...to understand certain things. So...

Eric: I guess I get that, but, then again, this isn’t really taking away the fun. Which is kind of how it goes with number four, but just stepping on the toes of number four here, I think that the difference is that - I mean, this book isn’t exactly going to take away - this is with number one too - it isn’t going to take away anything, really. I mean lists and things aren’t going to prevent people from reading the Harry Potter books, which are canon. Society knows the difference between what is canon and what is, sort of, a reworking of canon. The whole real thing is, is this illegal to do this? It really, you know...

Micah: What I was going to say to that is - and J.K. Rowling actually said this when she was testifying - just because she’s been so successful doesn’t diminish the fact that he would, in some way, be taking away from the series as a whole. Whether that is through the books themselves or from the financial standpoint. Just because she's been able to do the things she’s done and be a successful person does not mean that she is any less affected by this book being published. And I think looking at, you know, the financial side of it, she’s probably not - she probably doesn’t care about that as much. What she cares about is not the market value. What she cares about is the, sort of, the internal value of how this is affecting her and the fact that she’s put in so much time and effort to this over the past seventeen years or twenty years of her life, and now she has to turn around and defend that fact against somebody who's out there just to make a quick buck.

Andrew: Well said.

Eric: In an opinion. That was well said.

Laura: Yeah.

Eric: And I think too, if J.K.R. is to say – which she has said in this trial, hinted at, at least – is that, you know, this book being published will severely scar her, like – something like that – and will, you know, delay the encyclopedia she was going to write and somehow affect the quality, I, as a Harry Potter fan, have to say that this book should not be published because I want everything I can get from the original author. You know? I mean, I have to say then that if this is – if that’s what J.K.R. feels, that she won’t be interested in – that it’ll just be such a, you know, horrible thing to come back for I have to support her. I have to support J.K.R.

Andrew: But my other thing is that I feel like she will do this because she wants to support charity. If she doesn’t do it then she’s – I mean, sorry, but she’s screwing a charity.

[Eric laughs]

Andrew: Because she already said she’s going to do this, and then if she turns around and doesn’t – well, how would whatever charity feel?

Eric: I think they’d understand.

Andrew: I mean I guess it might be a little bit of being greedy for the charity, but I think it would look bad if Jo turned around, especially since she’s already said she would do this. Which, okay, if you say you were going to do it and then this trial made you not do it, fine. But if you’d do it and then - and you’re going to do it for charity, and then you say no, I’m not going to do it, so the charity or whoever I choose is not going to benefit, that looks kind of bad, don’t you guys think?

Laura: Well, she hadn’t exactly put a timeline on how quickly...

Andrew: Right, but she said it would.

Laura: ...it was going to be finished and published. I mean we didn’t... Someone: I wasn’t expecting it for years.

Laura: Yeah, and did she actually point out a specific charity that she was hoping to donate to?

Andrew: But I still think it would look bad for Jo...

Laura: Yeah. Andrew ...if she all of a sudden, "Oh, forget it. I’m not doing this." Then all this tabloids are going to be like, "Jo decided not to support charity."

Laura: No, I think you bring up a valid point and, honestly, I mean obviously not one wants to speak for her, but I could see her doing one regardless, but...

Andrew: I could too.

Laura: ...I - but honestly I completely see where she’s coming from at this point. Having her world be put up and just having her authority as the author questioned? I just - I can understand her being emotional and upset about that. I would be.

Fair Use Doctrine: Final Category

Andrew: For the final point: What is the effect of the use on potential market value? Will the publication of the Harry Potter Lexicon take away from the sales of Harry Potter or stop anyone from seeing the movie, buying toys, or going to the soon to be opened theme park? Almost certainly not, of course, but it’s an avenue Rowling’s lawyers are exploring in earnest. Yeah, that’s a point - an important one for lawyers - Rowling’s lawyers to defend, because I feel like they could come up with a convincing case for affecting market value. However, I cannot believe that purchasing Steve’s Lexicon would prevent people from buying the J.K. Rowling one. Unless the way I can always see this situation with the books and the films, is that if you’re a mother and your 10 year old son says, "Mommy, can I have this encyclopedia?" She’s like, "Sure, son, you want to read." And then you get it and then, say, 6 months later - although it probably would be a bigger difference.

Micah: Well, chances are he’s already probably read the books if he’s asking for the encyclopedia.

Andrew: Yeah. No, but I’m saying If he wants one encyclopedia then he gets it and he asks his parents, "can I have this encyclopedia?" then they’ll say, "no, you already have one."

Eric: I never ever ever ever ever supported the term "encyclopedia" for J.K.R.'s book. I’m sorry, I have to say I never ever did, because it’s not going to be...

Andrew: Well, you’re right.

Eric: At least from everything I heard, it’s not going to be a companion to all the things she’s already written. It’s going to be behind the scenes, it’s going to be character development, it’s going to be - she said there was a very large sub-plot, I think it was about Seamus Finnegan that never got into the series because the books had to move a certain way and that’s the kind of stuff that’s going to be in this book. I just don’t - I hate, hate the term "encyclopedia" as it refers to Jo’s unwritten future work. Because I never ever thought that's what it was going to be. So it’s interesting now that Steve should come and do this encyclopedia.

Laura: Well, but, technically - I mean not to get too technical here, but the definition of an encyclopedia is a book or a set of books that give information on a subject or an aspect of a subject.

Eric: Yeah, you’re right.

Laura: So, technically, I don’t think it’s a bad term.

Andrew: And you know what? Jo can’t change the name now because calling it an encyclopedia is what is making a big difference in this case, because they keep saying "oh, it’s going to compete with Jo’s encyclopedia." So if Jo calls it the Harry Potter Bonus Info Book they're going to be like, "Oh, well, Steve’s Lexicon is..

Micah: Or The Scottish Book.

Andrew: ...No bonus info, so..."

Eric: If they just change the cover and say this adds no new content, this is about the first 7 books, you know - Jo has so much more to offer is what I’m saying. Jo has so much more to offer that it’s almost like if she didn’t have to spend all her time doing what Steve has done and compend all the spells and everything, she could actually be giving valuable insight to the characters and things. I just think the books would be two different things. I really do. And experts - going with number four here - experts are saying in this court trial that there is no way whatsoever that this book is going to affect anything J.K.R. does. The experts at Oxford have said that in this case.

Micah: Well, yes. But my point - going back to what I said before - is that J.K.R. has explicitly stated that...

Eric: Right.

Micah: ...it's not about the money. I don't think anybody thinks that his book is going to affect the Harry Potter series as a whole.

Eric: But...

Micah: It's...

Eric: ...that automatically kind of gives him one out of four of a win here as far as the Fair Use Doctrine goes.

Micah: However, it depends how you decide to look at this. Because from a financial standpoint, in the grand scheme of things, there is no way that his book is going touch the Harry Potter series. However, just because J.K Rowling - and I said this before - is so successful does not mean that that precludes her from being affected even if it's a small financial sum. You know, you can't say just because she is worth this amount of money and has made this amount of money off the series, then that automatically awards this category to Steve Vander Ark, because you know that that amount of money that he makes off of it is not going to have a huge impact. It's just not being fair on her side of it. Do you know what I'm saying? I don't think...

Eric: Um...

Micah: Because...

Eric: Wait, could you repeat? Okay.

Micah: I'm saying - okay. J.K. Rowling has made this large sum of money clearly off the Harry Potter series and - from the movies and everything else that's gone along with it. And we're in agreement that Steve's book in the grand scheme of things is not going to take away that much money or be a competitor to this stuff. However, you can't say that because - just because - the reason why we're saying this is because the series, this franchise, has made so much money. If it hadn't, if she was a smaller time author, this would be a bigger issue because the encyclopedia maybe would have the chance to, you know, overtake it or hurt her financially. It just seems to me that it's unfair to say because she makes x amount of money...

Eric: Yeah, yeah. Then anybody can do anything with her work...

Micah: Exactly, yeah.

A Conclusion of Sorts

Eric: Yeah. Yeah, I totally see that. And I mean I just want to say to the listeners here who are out there listening to this go back and forth, and people are probably really pissed off at me, really angry with me, I just want to say that I really, you know, I wanted to - I just wanted to present the facts, because there are the people who are on both sides, who aren't really informed. And I think that it's important to go through these four different things and really draw conclusions out of it, because that's what we should do. It's who and what MuggleCast is, you know? And I really do think that what we're doing is justified. Maybe I'm just saving myself for some really mad e-mails but...

Andrew: J.K. Rowling even issued a statement saying - I guess - is this what you were referring to, Micah? She said, "Do I have fewer rights because many people read my books?"

Micah: Exactly.

Eric: Yeah. And does she? I don't - I don't really...

Micah: That's exactly the quote that I was referring to.

Eric: ...think so necessarily.

Micah: And she is right though. I mean, if you think about it - No, I didn't say it but that's the one - I was actually looking for it. So I'm glad you found it. But, yeah, how can you disagree with that? I know, but there's like forty posts about the trial...

Andrew: I felt all important because J.K. Rowling's lawyers e-mailed that to me. I was like, "Ahhh! Cool!" So I posted it.

Eric: J.K. Rowling's lawyers e-mailed that to you?

Andrew: Yeah. I was like, "Hey, what's your name?"

[Everyone laughs]

Laura: ASL.

Andrew: ASL. LOL.

Micah: The future Mrs. Sims: Dale Sindale.

[Andrew and Laura laugh]

Andrew: What? You took that too far.

Micah: Yeah, I'm joking.

Andrew: In like - well, hold on - so where do we stand on this? If we were Judge Patterson...

Micah: We're just as confused as he is.

Andrew: Well, basically. Okay, so - move on.

Micah: No, no...

Laura: Yeah, I mean...

Micah: People can say what they think. Yeah, go ahead...

Laura: The law is extremely vague, and they have - you know, it's split up into four parts, but so much of the wording just - it takes from each other, you know what I'm saying? Like - we were talking about how there was stuff from the second one, "The Nature of the Copyrighted Work," that applied to the first one, and so you're just looking at this jumble of a law, and it's really really hard to decide, but, honestly, taking what we have and looking at it from a principle point of view, I think that Jo and Warner Brothers should win. Absolutely, and I know that's biased, but I just can't see how it could go any other way, or how anyone could rule it any other way, because it's simply not Steve Vander Ark's work. It's hers.

Micah: Yeah. I agree with that. And I think, you know, you spend so much of your life working on something like this and, you know, to have somebody that you put a great deal of trust in and have conversed with and, you know, certainly have supported in their fan site, to have them turn around and to take it to this extreme, to make you get up out of, you know, your home and fly, you know, across the Atlantic Ocean to spend a week in New York City debating this - and clearly the effect has gone far beyond this. I mean it's really impacted the way - her life and the work that she's been trying to do on the encyclopedia over the last couple of months. She stated that in the trial, and it's affecting her will to want to continue on should R.D.R. and Steve win this case. So, I mean I really think that somebody who you thought was so devoted to you, to turn around and to put you through this is, you know, is a little bit ridiculous. I mean that's more of a personal standpoint than a legal standpoint, but I think even the law here tends to side with Jo.

Elysa: I think so too, and not just because of this particular clause, and I'm really upset that I can't find it now. I had it written down, but - I'll post it to the forums perhaps later - but I found a court case that was really similar in nature to this that did take place in New York state, and of course - I mean, just - if anyone didn't know, the whole premise of Common Law is based off of setting precedence, so judges will take precedence set by other court cases, and they are legally bound to base their judgement off of that. So it's not even just this clause that we've been discussing. It's other cases in the past that are going to have a huge affect on this, and the case that I've found - and I'm definitely going to have to post this - but the case that I've found favored the author, and it took place in New York state, so you can't even make the - you know - the whole - you can't even make the whole "Federalism" argument. That whole, "it happened in different states, there's different laws," no. This was in New York, so I think that his - Patterson's going to have to really pay attention to that, and I think between the two - that plus the fact that there's the whole issue of preponderance. Preponderance is basically just the sort of the quality over the quantity, so I think that even if it doesn't meet all four of these exact issues - even if it only just meets one - but it sides with J.K. Rowling to a greater extent, that that's going to take precedence, so I think - I don't really see, honestly, any legal way that this could work out for R.D.R. or Steve Vander Ark, and if it does I'd be really surprised.

Eric: I think the - my opinion on this is that I think the - regarding the Fair Use law being so vague, I really like the idea - I mean it was only - it's only been a law for about 30 years, and I think it was initially - I mean it seems - the way it's so dependent on itself and has the four clauses that somewhat overlap, it's supposed to be in favor of - I think the law itself is supposed to be in favor of the little guy. As opposed to the bigger corporation. I mean a lot of American laws kind of do that, but they leave an ambiguity obviously, and I think that in this case, you know, because of how much it's affecting J.K.R. and that sort of thing, that it's really the right thing. But I think initially it's trying to protect the little guy from the big, mean, scary, bully corporate people, but in this case, again, I'll say this, I think, you know, J.K.R. is very emotionally impacted by this. I think that - I mean I - as I said, as a Harry Potter fan, who can not seriously - I mean who can not understand exactly how Jo feels and be worried that if Steve wins that it will cause such issue.

Micah: Yeah, you open the floodgates. That's - I mean - I guess we could talk about...

Andrew: That was said too.

Micah: ...you know, what kind of impact it'll have, you know, at the end of this but I just wanted to mention this comment that the judge made because it goes to what you were saying, Eric. Kind of, you know, the little guy on one side and the large company on the other. But his point was - and his exact quote that he made was, "I'm concerned that this case is more lawyer driver than it is client driven. The Fair Use people 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."

Andrew: Yeah.

Settlement

Eric: I think after discussing this - yeah, I think after discussing this, we see there's really - as far as Fair Use goes it's vague, and it's really - like the judge said, I think we see a little bit more now why it's such a kind of up in the air thing, 'cause, you know, he doesn't want to hurt anyone’s feelings. If they can settle, you know, it's really not up to the judge. I mean he's under a lot of pressure, and I don't think he's folding under pressure, but I think a settlement would be best for everyone. I think there needs to be - like, I mean - what I ask, why don't - why doesn't Steve cut the book? Trim it. Do something that's legal. Or why hasn't there been any kind of discussion back and forth on what Steve can do, that sort of thing. I mean I think it's largely because of R.D.R. and their - I don't want to say - R.D.R.'s courage...[laughs]...or R.D.R.'s, sorry, stubbornness in the issue I think, propelled a lot of this, as we talked about before, but the whole question is then sort of just what we were talking about as for as, you know, settling is the best kind of thing.

Micah: Well, let's also remember that part of it was settled.

Andrew: The day after the judge called for some sort of settlement, lawyers for J.K. Rowling, WB, and R.D.R. told the judge, the following morning, that they reached a settlement on the false advertising and deceptive trade practices, and then they were hoping to settle on the trademark infringement and unfair competition claims.

Micah: Right, and the first one means that neither J.K. Rowling's name nor her quote endorsing the online version of Steve Vander Ark's Lexicon would appear on the cover of the book.

Andrew: Which I think - and now I'm thinking, if they settled on that, isn't WB basically saying go for it? You just can't publish the - or is it if the judge - it must be if the judge...

Micah: No. It - the thing that's still such an issue is the copyright infringement. That - which is what, you know, was part of that whole thing.

Andrew: That's the big point that still has to be solved.

Micah: Yeah.

Andrew: Yeah.

Micah: They settled on like the smallest thing possible. So basically, Jo's name cannot be the Lexicon book.

Andrew: Which would hurt sales, I'd think.

Micah: Right.

Andrew: That would be a big selling point for me.

Eric: I noticed that too. I was looking at the - I was looking at the book cover, and does it say anywhere that, you know, "This is not endorsed by J.K. Rowling"? I mean, I think - it was - it would only be clear - you know, I mean, if you're not even going to have that on the cover, of course you're out to get - you know that goes with the "purpose" thing. If the book didn't even have a "Not endorsed by J.K. Rowling" thing on it, then of course it seems that they were out to get, you know, a quick buck. I think it would - That's the thing with R.D.R., they don't seem to be ever willing to cooperate at all. They were just really bold and, "Urgh", and I think that's going to count against them, and especially Steve. I think Steve - if he looses this case, I'm going to blame it largely on the R.D.R. Books and not even on his what could be considered malicious intent. I think R.D.R. has gotten him into a lot of trouble with this...

Micah: Right.

Eric: ...and I think he's going to have to suffer for that. I feel bad for the guy. And I...

Micah: And I'm looking...I'm looking on the site to see where there's the quote, and I guess it's under the fan site award that they have. So I guess that quote was going to be published on the book.

Andrew: Yeah, I mean - well the quote - I remember it. It talks about The Harry Potter Lexicon being her natural home and she's used it a couple of times when she's in a cafe because it's handy. We've used it! I mean - I mean, I'm not saying this is our reason for...[laughs]...the trial to go any way, but we've used it you know, when - when I'm looking forward to next week to see what we're going to talk about in Chapter-By-Chapter, I go on the Lexicon to get the little summary. I'll be like, "Oh, okay it's..." Now, granted, I could just be going on the MuggleNet encyclopedia, which is the most legal Harry Potter encyclopedia online right now, but...

[Laura laughs]

Andrew: ...it's all good.

A Similar Case from the Past

Elysa: Okay, I think I found this - well, I found a case that was referring to. It's Harper and Roe Publishers, Inc., vs. Nation Enterprises, and - well, basically, so it was really, really similar to what's happening here. Harper and Roe Publishers, Inc. had sued Nation Enterprises for writing an article actually that was going to appear in Time Magazine, but Time Magazine opted not to print it once they discovered that this suit was being taken against Nation Enterprises, and essentially the District Court ruled in favor of Harper and Roe Publishers, saying that it was not a Fair Use, that they had used too much material without seeking the publisher's direct permission. But then, interestingly enough, the Court of Appeals reversed the decision, saying that because Nation Enterprises was only using excerpts of the publishing company's work, that they - it was a Fair Use and therefore that they could publish it. But I'm reading one of the concurring opinions here, and it specifically says if they had used more than just excerpts, then it would have definitely been a violation of Fair Use. And this was ultimately taken to Federal Courts, but it began in New York State, so I think cases such as that are going to have a pretty major effect.

Andrew: Yeah, I was just going to say, I hope Judge Robertson's been looking at this.

Micah: Patterson.

Andrew: Yeah, sorry, Patterson.

Elysa: Yeah, yeah. I'm sure he has. I mean - and I think just proves that a lot of it is going to have to do with just how much that they use, and just the quantity of it, probably.

Eric: Yeah, and if it can be considered for scholarly review, or if it's sloppy and lazy.

Elysa: Right. No, that too. Yeah, yeah.

Andrew: Let's wrap it up for now.

Micah: I was just going to add that this could probably go through a serious round of appeals and eventually end up at the Supreme Court.

Andrew: Oh, yeah.

The Fandom After the Trial

Micah: I know, Andrew, you mentioned that before, so, you know, as Elysa said, with that other case she was talking about, clearly, you know, if R.D.R. were to lose this case I'm sure they would take it to the next level and, you know - I'm just - kind of, I guess, a good note to end on would be, what do you guys think the impact is going to be regardless of the outcome sort of moving forward within the fandom?

Andrew: I think people will want to move on, like I do right now with this discussion.

[Everyone laughs]

Andrew: I just feel like - I just feel like people are going to be so done with this.

Eric: Well, it’s a - well, maybe, but we hadn’t - but we haven’t covered it before this, so if we’re going to...

Andrew: Right, right. No, this has been a very good discussion, don’t get me wrong.

Micah: Well, it’s a very important question, though. Especially when you look at the potential to create that slippery slope, or you look at the sort of floodgates that can open.

Andrew: Yeah. Well let’s go around real quick. Let’s start with Laura.

Laura: Oh goodness. I think we kind of outlined some of the possible outcomes towards the beginning of the episode, but I think - and this is something that kind of saddens me. I feel like regardless of the outcome, we’re looking at the possibility of Jo maybe being more cautious with the way she approaches fansites. And I think that’s a really very sad reality. I don’t want her to have to feel like she can’t grant some site a fan award, because then that might give, you know, the creator the initiative to go out and do something like this. However I’m hopeful, I’m optimistic that if this trial is completed successfully on Jo’s part that it won’t really matter because then this sort of thing really couldn’t happen again. Because I just feel like if someone tried to pull something like this after what all’s happened with Steve Vander Ark it just would fall apart. It wouldn’t go to trial, you know what I’m saying? So I don’t know. I’m hoping, like Andrew said, that we kind of all move on from it, but I think that there will be some hesitance in the future.

Andrew: Elysa?

Elysa: It’s total ESP, Laura. You just stole the words right from my mouth.

[Laura laughs]

Elysa: That’s it, I agree! Amen. That’s it.

[Eric and Micah laugh]

Andrew: That’s an easy way to get out of it.

Eric: I'm going to say a similar - I remember - yeah, really - I remember - well, there’s a show now called Lewis Black’s Root of All Evil. Do you guys watch that show?

Andrew: Terrible show. But go ahead.

Eric: Well it’s a - it is...[laughs]...but they do a thing when the [unintelligible] of evil, what happens if everything goes, you know, unchecked and everything, and I think Laura and Elysa are, you know, correct. I'm worried that no matter what J.K.R. is going to be cautious and Warner Brothers is going to be really tense. And the freedom - I mean I’m not saying it's a reason not to have done this case, ‘cause I think it had to have happened sooner of later, I really do, considering all the years of writing Harry Potter are behind us and all the years of speculating and reading Harry Potter are about five hundred years are ahead of us. You know, I mean I always thought it would happen and it had to have happened, but I’m worried. I’m just worried, too, is how I feel. I think it was something that had to happen and we’ll see how Jo handles it. I think how Jo handles the future, regardless of the outcome, is going to be something that a lot of people will look up to her for and continuously sort of, you know, talk about her regarding and other positive or negative ways.

Andrew: Micah Tan?

Micah: I agree with the points that have been made by Laura and Eric since Elysa just differed to Laura, but...

Laura: Oh no... [Eric laughs]

Laura: ...seriously, do it. Because Elysa and I have an interchangeable brain thing going on here...

Micah: That - That’d be the...

Laura: We’re the same person.

Elysa: True that.

Micah: Wow.

Andrew: That’s hot.

[Everyone laughs]

Eric: You know what, that should be the title...

Micah: It’s hot.

Eric: ...Mugglecast 142: That's Hot.

Andrew: Interchangeable brains: That’s hot.

Micah: No, we’ve said it. You opened the floodgates, essentially. If R.D.R. wins and, you know, anything can then be taken, you know - Jo is looking at it from the standpoint of her work can be extremely compromised if something like this gets published. And then, you know, I think that, you know, it should be in favor of Jo. I think that’s been pretty clear throughout the course of this whole show.

Andrew: All right, well, I think that does conclude our discussion this week for the court thing, whatever the hell we’ve been talking about. So we’ll move on to Chapter-by-Chapter.

Laura: I was about to go, "No! Not Chapter-by-Chapter!"

Andrew: [laughs] All right, we’re going to have a fun segment before we get out of here for today.

Make the Music Connection

[Make The Music Connection sound clip plays]

Andrew: Laura, you ready for your first one?

Laura: I was born ready.

Andrew: Okay, let’s go.

["Gypsies, Tramps and Thieves" by Cher begins playing]

Andrew: "Gypsies, Tramps and Thieves" by Cher. These are Eric’s choices this week, by the way. This is not in my personal library collection.

Laura: [laughs] Yeah, did you just get that IM I sent you, I take it?

Andrew: Yes, I did.

[Laura laughs]

Eric: Why? What did it say?

Laura: Oh, you know, it’s a pretty popular acronym on the Internet.

Andrew: WTF.

[Everyone laughs]

Laura: What’s it called again?

Andrew: "Gypsies, Tramps and Thieves."

Laura: Well, I think you’ve got a lot of those kinds of people that we see in the Harry Potter books. I mean, we’ve got - I don’t know about gypsies so much, but I mean there are certainly a couple or characters in the books whose...

Eric: Where would you find them?

Laura: What do you mean where would I find them?

Eric: Like, an example of the location. I see what you’re saying, I agree with you.

Laura: No, no, what I mean is that there are certainly thieves, I mean look at Mundungus Fletcher, who is clearly a thief. As for tramps, I mean there’s Pansy Parkinson...

[Everyone laughs]

Eric: Not that kind of tramp! Not that kind of tramp, Laura! They’re talking about women in rags, the kind you’d find in Knockturn Alley.

Laura: Okay, well, thank you, Eric.

Elysa: Again, Pansy Parkinson.

[Everyone laughs]

Micah: Didn’t Voldemort use a tramp for one of his Horcruxes?

Laura: Yes, he did.

[Eric laughs]

Andrew: Ow. All right, Elysa, your turn?

Elysa: All right, let’s go for it.

["Witchcraft" by Frank Sinatra begins playing]

Andrew: Please tell me this is Frank Sinatra.

Eric: Of course, Andrew, of course. [laughs]

Andrew: Awesome. Frank Sinatra, "Witchcraft." Make the connection, Elysa.

Elysa: Oh god, I don’t know where to begin on that.

Eric: Was it too difficult? Should I give you "Pretty Fly For A White Guy," by Offspring? That’s my backup.

Elysa: Oh, please don’t. Let’s not molest, you know - let's not molest my ear drums today with that nonsense.

[Everyone laughs]

Elysa: Frank Sinatra. God, I don’t know! I don’t know, I’m trying to connect it to the court case. [laughs]

Eric: "Those fingers in my hair."

Elysa: See, I don't really particularly...

Micah: It doesn’t have to be about the court case.

Elysa: I know, but that’s the first thing I thought of, honestly, because I don’t particularly care for, you know, Frank Sinatra. I know that may be a tragedy, but I don’t really care for him, so I’m going to go with the sound of Steve Vander Ark’s tears. When he looses the court case.

[Everyone laughs]

Eric: Strangely, I like that.

Elysa: That will be the theme music to him walking out.

Eric: [sings] It’s witchcraft! [speaks] I must say, I like the comparison. Kind of.

[Elysa laughs]

Andrew: Poor Steve. He's never coming on this show.

Elysa: All right, all right. R.D.R.'s tears. Okay.

Andrew: No! No. That's fine. That’s fine. All right, Eric. Here’s your connection.

["Waiting on the World to Change" by John Mayer begins to play]

Andrew: [sings] "Waiting."

[song continues to play]

Andrew: Okay Eric. John Mayer. I don't know the name of the song.

Eric: It's "Waiting on the World to Change." It came from my iTunes so I should know, but...[laughs]...I would set this around the time of Book 5. There are certain members - I'm going to say the unsung sort of school members who weren't directly involved with Harry but who knew that there was some kind of shady stuff going on with the government, you know, people who suspected it. Like Neville's gran. You know, she was never involved, but she was waiting on the world to change, but I'm going to take it down to the adolescents, you know, 'cause one of the lyrics is, "Me and all my friends. They say we stand for nothing," that sort of thing. So I'm going to say the unsung heroes of Dumbledore's Army, for instance. Let's just do that.

Andrew: Good choice. Micah.

Eric: You're going to like this one.

["Wild Side" by Lou Reed begins playing]

Andrew: Laura, did I hear you in the chorus there?

Laura: No.

Andrew: "Wild Side," Micah. It's a bad joke I guess.

Micah: Yeah. I would say maybe Aberforth talking to his goat.

Andrew: God!

[Everyone laughs]

Andrew: Every episode you have to have a reference with the goat.

Micah: It had to be here, dude! We couldn't talk about it during the trial.

[Elysa and Laura laugh]

Andrew: What if we didn't do Make The Music Connection? During the sign off would you be like, "I like goats, Micah Tannenbaum."

[Elysa laughs]

Laura: Andrew he has to do it...

Micah: No, I don't like goats! Aberforth likes goats.

Laura: ...now, there are people on the fan forums writing Micah/goat fan fiction, so I mean...

Micah: [laughs] Are there really?

Laura: Yes! [laughs]

Micah: Wow. People need...Yo, guys, go see a movie or something. Please!

[Andrew and Elysa laugh]

Eric: Micah speaks out to the fanfic shippers.

Andrew: All right. Good. My turn.

["Cheers" theme song begins playing]

Andrew: What the hell is this?

[Eric laughs]

Micah: It's the "Cheers" theme song!

[Andrew and Eric laugh]

Andrew: I love just picturing these songs in the movies. So it's the "Cheers" theme song.

Eric: Yeah.

Micah: It is, yeah.

Andrew: All right, well, how about this? The Leaky Cauldron. The trio's walking in and then just all of a sudden you just hear this bit right here.

["Cheers" theme song chorus plays]

Andrew: And you see them all waving to everyone. "Hey! How you all doing?"

Eric: No, that's good, dude. Tom the bartender seems to know everyone’s name.

Announcement: Number One on Podcast Alley

Andrew: All right. Well, we skipped announcements in the beginning of the show, but just two announcements we wanted to make this week. First of all, thank you to everyone who has been voting for us on Podcast Alley. We've been doing great. I think we're still number one. Right? So thank you to everyone who’s been voting for us. Are we number one? I'm loading it real quick. Yeah, we're number one. Awesome. Thanks, guys. Thanks to everyone who's been voting. Don't forget, I mean, just because it's MuggleCast Mapril doesn't mean you don't have to vote in MuggleCast May, so...

[Eric laughs]

Andrew: ...see you there. Also, it's somebody's birthday this week!

It's Eric's Birthday!

[Happy Birthday song plays]

Andrew: Eric's birthday! April 23.

Eric: Oh.

Andrew: Happy birthday, Eric.

Eric: God. Thank you, guys, so much. I'm leaving my teens behind. I couldn't think of a better way to do it than with that song. Who did that, Andrew? That's...

Andrew: Oh, that's my voice. I'm singing.

Eric: Oh! Thank you so much. That's - seriously.

Andrew: You're welcome.

Micah: It sounds more like Ryan Sims.

Andrew: See, isn't that nice?

Micah: Instead of Andrew Sims.

Andrew: Wasn't that cute?

Eric: Well, remember, Ryan... [laughs]

Andrew: That was just for you, Eric. I composed it all.

Eric: Thank you. Thank you so much.

Contact Information

[Show music begins playing]

Andrew: Ah. Okay, well. This has been a very filled show, a very good show. But I think it's time to wrap up the show. Laura, if people want to contact us via the P.O. Box, how do they do that?

Laura: Send stuff - not pickles - to:

P.O. Box 3151
Cumming Georgia
30028

Andrew: You could also call the MuggleCast hotline to leave your voicemail, questions, comments or concerns. If you're in the United States, you can dial 1-218-20-MAGIC. If you're in the United Kingdom, you can dial 020-8144-0677. And if you're in Australia - let me try that again. And if you're in Australia, you can dial 02-8003-5668. You can also Skype the username MuggleCast. No matter how you call us, just remember to keep your message under sixty seconds, eliminate as much background noise as possible, please.

We also have a handy feedback form on MuggleCast.com to contact any one of us, or you can just use our first name at staff dot mugglenet dot com. Don't forget to visit MuggleCast.com for a variety of contact links including community outlets: MySpace, Facebook, YouTube, Frappr, Last.FM, the fanlistings and forums. Digg the show at Digg.com, and as we said, vote for us once a month at Podcast Alley.

Show Close

Andrew: It's been a great show, guys. Elysa, thanks for coming back on the show. I forgot to say that.

Elysa: No problem. Thanks for having me.

Andrew: No problem.

Micah: Great insight. Seriously.

Elysa: Aw. Thank you, guys. Thanks for having me again.

Andrew: But, I have to admit, I think your Make the Music Connection was the best with everything.

[Elysa and Laura laugh]

Micah: You don't like my goat?

Andrew: Oh, the sound of the tears.

[Everyone laughs]

Eric: But that was after she said she spent thirty seconds saying she didn't know or like Frank Sinatra.

Micah: Oh.

Andrew: Well, apologies to J.K. Rowling, but we are out of time this week. I'm Andrew Sims.

Eric: [laughs] I'm Eric Scull.

Laura: I'm Laura Thompson.

Micah: I'm Micah Tannenbaum.

Elysa: And I'm Elysa Montfort.

Micah: Be civilized in your responses that you send in. Please.

Andrew: We'll see everyone next week for Episode 143. Buh-bye!

Laura: Bye!

Micah: Court is adjourned.


-----------------------
Written by: The Transcribers