So there has been a protective order filed. When you go to trial you’ll submit documents you plan to use as exhibits. Now everything submitted to the court is a matter of public record. what this means is that you could go to the District Court in New York and pull this file and copy it.
In the main this is good. However this is a problem in cases where the documents submitted have commercial value. For example, if a corporation is brought up on financial violations they would have to submit a lot of documents which would reveal their business and or marketing strategy. Obviously if this sort of information was in a competitors hands…. Well there went that business. So a protective order designates such information as confidential, and only the parties and the court can access it. Another instance in which protective orders are used are rape cases. Every state has law prohibiting the release of the victim’s names. Of course any instances regarding children prohibit the child’s name from being released.
So why would a protective order be in this case. Well, for one thing the Lexicon book has not been released on the market yet. I’m sure more sections than what was filed online by WB/JKR will be brought into court. I’m thinking that the portions of the Lexicon not previous revealed may in fact reveal that the book is conclusively Fair Use of the material.
Then there is WB/JKR’s encyclopedia. She hasn’t been required to release any notes of her book. But a rough draft demonstrating the similarity of the books, hence consumer confusion, would go a long way towards supporting her economic argument that there will be loss of profits.
What this means for the decision is that any in depth descriptions of the material deemed confidential will be redacted (blacked out) in the judge’s opinion. It will make for interesting reading. Of course the parties will have the un-redacted opinions. They will need it when they appeal. Notice I said when not if!