Posted in Legal

WB/JKR v RDR Books: Pre-Trial Shennanigans

As we approach the eve of trial, the information is coming fast and furious. So typically before trial both sides must submit witness lists and preliminary statements. 

The preliminary statement is basically an overview of the plaintiff and defendant’s theory of the case before the court. Usually it’s not overly long unless it’s like a class action suit. (Anything italicized and in brown is my legal commentary)

RDR’s Pretrial memorandum
The Defendants start their statement with the causes of action being presented, the elements of each cause of action, and why the claim has or hasn’t been met.
Copyright Infringement
Prima facie case
ownership of valid copyright
defendant’s infringement by unauthorized copying. Unauthorized copying is shown by 
Actual copying
Improper or unlawful appropriating by showing substantial similarity of the individual element but also the work a a whole. 
Now as I have mentioned, these are ELEMENTS which means that you must show all to make a prima facie case. Defense argues that Plaintiffs have not made a prima facie case because the second element is not met. Namely there isn’t substantial similarity. Significant factual information is not enough. Remember copyright only protects “expression of ideas” not the ideas themselves. Defendant only copies minimal amounts of “expression.”

Affirmative Defenses (argument in the alternative)

Fair Use-
Factors
Purpose and Character of the Use
organizational value- reference volume
original commentary and analysis- decodes meaning of geographical and historical references, folklore, and literary allusions.
additional research and new information- Rowling’s interviews, newsletetrs, webcasts, etc.
Nature of the copyrighted work
amount and substantiality of the portion used
market effect

As I said in a comment earlier on, transformative does not mean it has to be like Moses receiving the Ten Commandments on Mt. Sinai type revelation. Also remember FACTORS are a balancing of the interests. So even if you don’t have one, the others can outweigh it. 

Copyright misuse

Plaintiff has attempted to extend copyright protection beyond the proper scope whether in the plaintiff’s dealings with the defendant or any other persons. Anti-trust violation does not need to be proved to prevail. Any violative of the public policy behind copyright will suffice. They will show that plaintiffs have a habit of alleging copyright infringement against anyone who writes a companion book to the series. Then they cite examples of Connie Ann Kirk, Emerson Spartz, Fionna Boyle, and Elizabeth Shafer. 

Whew that was concise yet powerful! That is excellent legal writing CRAC! Hammer states the elements plus exceptions for everything. 
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Plaintiff’s Pretrial memorandum
In the main, the statement, regurgitates their previously filed motion here. If that is not the doc, go to the main blog page, in the legal opinion section it lists all my discourses on the topic. 

Copyright Infringement
Ownership of Valid Copyright- it is not disputed that JKR has valid copyright of the HP Series. 
Defendant’s book is based on the series and substantially similar. This is a gross misstatement of law. I checked the case law for copyright infringement “based on a work” isn’t good enough. You have to show “copying of the work.” Ok Plaintiffs are off to a rough start. Cendali is damaging her credibility as counsel with this one. Judges don’t like it when attorneys misstate the law. 

There are no Affirmative Defenses
Defendants Use isn’t Fair Use
Factors
Purpose and Character of the Use- it’s commercial. They fail to distinguish how this case is different from cases where it was held that commercial value doesn’t eliminate Fair Use. 
Nature of the copyrighted work- the underlying work is fictional and the Lexicon is minimally transformative. 
amount and substantiality of the portion used- the facts are taken and organized without commentary or analysis. Fails to take into consideration that Copyright only protects the expression of the ideas not the ideas themselves. See Harper & Row v. Nation Enterprises, 471 U.S. 539, 556 (1985) (holding that copyrights’ idea/expressiong dichotomy strikes a definitional balance between 1st Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression); see also Mazer v. Stein, 347 U.S. 201,217 (1954) (stating, unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea- not the idea itself)
market effect- Ms. Rowling intends to fill the niche for an encyclopedia. Fails to take into consideration that the First Amendment is interested in the “Market place of Ideas” which is not served in only one person JK Rowling is allowed to interpret Harry Potter. 
Bad faith- SVA tried to publish this book clandestinely. Fails to consider that the original copyright holder does not control the creation of secondary works which the Lexicon probably falls under. 

Copyright misuse
Plaintiff has not improperly tried to extend the scope of their copyright. 
Noerr-Pennington- they cannot be held liable for prosecuting this case or sending cease and desist letters in the past. 
Even if no Noerr-Pennington this defense still fails because they were guarding their copyright claims.

UNCLEAN HANDS
Plaintiff has not done anything unconscionable in their dealings. In fact Plaintiffs have used their work to benefit charity. They ignore the fact that there is a plethora of case law showing that unconscionability can be found where one side has significantly more bargaining power than the other side and they obtain a result that benefits them signifcantly. Hey let’s face it if the fully weight of WB came down on you, you’d probably bow rather than face a law suit. WB/JKR have bullied people into believing that they need her consent to write any book related to HP. Not so my dear! 
PLAINTIFFS ARE ENTITLED TO A PERMANENT INJUNCTION
Plaintiff will suffer irreperable harm because someone will think Rowling infringed from the Lexicon. Balderdash! Seriously, she stated that her book would be different from any fan based work. Her book will be a continuation of the story. She must think we are stupid! Like the consumer really wouldn’t know the difference.
Monetary damages are inadequate to compensate. She loses control over derivative works and will suffer injury to the quality of her work. The US code defines a “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. The work is not being recasted or adapted. Nor is there editorial revisions. This books does not retell the Harry Potter story. 
The only thing the Defendant loses is lost sales because he hasn’t finished the book. Uhm I believe SVA stated he was working on a reference series and this is book 1. Seriously how hard is it to print off these copies. We don’t live in the days of the Guttenberg Press for crying out loud. Of course the Defendant loses out, SVA has spent years of his life working on this and he won’t be able to collect. That’s a pretty big loss. 

SERVES THE PUBLIC INTEREST
Because if we allow this to happen to Rowling it hurts all other authors. The public must protected from those who would infringe.

All right! This is an awful legal argument. Why? Because there is no legal support; all there is an emotional argument. When the law isn’t interested in emotion. Justice is carried out without passion or prejudice. I’m really disappointed in the low quality of this legal argument. 
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In preparation for trial you must also submit exhibit lists. Well as you can see from the filing, WB/JKR submitted everything and the kitchen sink! A good portion of these documents may not be relevant. Why submit them? Because Defense needs to go through everything and this could delay the trial, which is probably what Plaintiffs want. Delaying trial means that RDR has more legal expenses.

What’s the problem. This is a Federal Rules of Civil Procedure 11 violation which states in relevant part:

Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions
(a) Signature.
Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name — or by a party personally if the party is unrepresented. The paper must state the signer’s address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention.
(b) Representations to the Court.
By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
(c) Sanctions.
(1) In General.
If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.
(2) Motion for Sanctions.
A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion.
(3) On the Court’s Initiative.
On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).
(4) Nature of a Sanction.
A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.
(5) Limitations on Monetary Sanctions.
The court must not impose a monetary sanction:
(A) against a represented party for violating Rule 11(b)(2); or
(B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.
You cannot wait till the last minute to bury your opposition in paperwork. That’s needless delay. You already know which documents you will need so you must submit them to the other side. This is a sanctionable offense, meaning WB/JKR would be responsible for paying RDR’s attorney’s fees and other expenses if the court so chooses. If you notice, Hammer submitted a motion in limine regarding theses exhibits. A motion in limine limits evidence that be presented in court during trial for some reason on which the attorney must elaborate. I believe Hammer will argue that this documents are irrelevant or that there isn’t sufficient time to review the documents therefore these documents should be excluded. If the motion is granted, WB/JKR would be barred from not only admitting these documents but also having anyone testify as to the contents of these documents. I think the documents may have been submitted in support of Plaintiffs Noerr-Pennington claims. If these documents are kicked out, it makes it pretty darned impossible to make this claim. Not a smart move on WB/JKR’s part. Judges do not like attorneys who play games like this. Hmmm, I’m suspecting that this is why the judge decided not to delay trial like Cendali wanted; he probably knew she was trying to make the other side cave by sending their legal fees through the roof. NOTE: As an attorney, you never want to get a bad reputation with the court for these sort of antics. Because at some point in time during your career, you are going to need the court to give you extra time. If you piss off the judge, they’ll never give you slack. Also the legal community is small, so whatever happens in Judge Patterson’s court doesn’t stay there; word gets spread to the rest of the judges. Anyway, if you have questions, please post. That way quick an dirty and I know I probably didn’t address everything.

Posted in Legal

The “Hammer” Strikes Back: I hope Cendali is Ready

Yes it’s a clever variation on the title of the Fifth Star Wars movie. This poor man. I know he’s literally working around the clock to be cranking out these kind of well-written briefs. The brief is pretty self-explanatory in fact, I pretty much hit the hammer on the head with my last post. I just wanted to give you a little background on David S. Hammer, Esq. He is a trial attorney. Check out his resume:

2008
Law Practice of David S. Hammer, New York City 
My practice encompasses both civil and criminal litigation. Presently, I am serving as trial counsel in a copyright case, a murder case, and several state court damage actions.
 
2003 to 2008
Partner, Mysliwiec & Hammer, L.L.P., New York, N.Y. 
At Mysliwiec & Hammer, I tried a number of civil and criminal cases. My civil practice chiefly involved contract law, but also focused on accounting issues, as well as director liability under recently promulgated federal litigation. I conducted several arbitrations under the federal securities laws, and also became involved in partnership, copyright, antitrust and bankruptcy law. My criminal practice included the representation of witnesses in federal grand jury investigations, including antitrust investigations, and the representation of defendants in state and federal prosecutions and appeals. I also represented professionals in disciplinary proceedings.
 
1994 to 2003
Law Practice of David S. Hammer, New York City.
My criminal practice included the representation of defendants charged with every conceivable type of crime, from murder for hire to securities fraud to drug conspiracy to antitrust violations. In additional to trying criminal cases, I have represented witnesses in both state and federal grand jury investigations, and defendants in both state and federal appeals. My civil cases spanned a cross-section of commercial disputes, involving contract law, securities, partnership, intellectual property, antitrust, real property, bankruptcy law and matrimonial law. 
 
1992 to 1994
Senior Litigator, Mayer Brown & Platt, New York City
My case load included construction,white collar crime, products liability, real property and personal injury matters, as well as miscellaneous projects such as a litigation review of a merger target. While at Mayer, Brown I worked on several jury trials, a criminal forfeiture proceeding and argued appeals to the New York State Appellate Division and the Second Circuit.
 
1987 to 1992
Law Practice of David S. Hammer, New York City
My practice involved bankruptcy, securities, white-collar crime and antitrust cases, as well as general commercial litigation. 
 
1982 to 1986
Assistant United States Attorney, Southern District of New York
While an AUSA in the Southern District, I tried fourteen felony cases, several trials lasting more than a month, briefed and argued numerous motions to district courts, as well as ten appeals to the Second Circuit, directed lengthy and complex grand jury investigations, and supervised several new Assistants during their early trials. I served in General Crimes, Narcotics and Securities Frauds Units.
 
1980 to 1982
Special Assistant United States Attorney, Southern District of Florida (Miami)
During my two years as a Special Assistant, I tried fourteen felony cases, briefed and argued motions and appeals, supervised all prosecutions arising out of the 1980 Cuban “boat lift”, in the process overseeing several attorneys and a task force of agents. For this work, received the Justice Department’s Special Achievement Award. 
 
1979 to 1980
Attorney-Advisor, Policy Planning, Antitrust Division, Justice Dept., Washington, D.C.
At Policy Planning, I worked on anti-merger enforcement policy and legislation, helping to draft a statutory “pro-competition” defense to proposed conglomerate merger legislation. 
 
1975 to 1979
Litigation Associate, Davis Polk & Wardwell, New York City
While at Davis Polk, I was chiefly involved in antitrust and securities suits, including five contested tender offers.
Now check out the some of the cases he’s won on:
Trials & Appeals
Selected Trials
(Civil)
Warner Bros. Entertainment Inc and J.K.Rowling v. RDR Books, Federal Court in Manhattan
I presently am trial counsel for RDR Books, in an action by Warner Bros. and Ms. Rowling in the United States District Court for the Southern District of New York.
    
(Civil)
Callahan v. Emeritus Capital Parnters, LLC, AAA Arbitration 
Represented Respondents in Securities Fraud Arbitration. Defense completely successful: all claims were dismissed. 
 
(Criminal)
People v. Israel, New York State Supreme Court 
Defense counsel in murder case pending in Manhattan Supreme Court. 
 
(Criminal)
People v. Mayer, New York State Supreme Court 
Successful Defense of client accused of armed robbery.
 
(Civil)
Ehrlich v. UBS PaineWebber, Inc., NASD Dispute Resolution 
Pending arbitration brought by investor against brokerage firm for losses arising. 
 
(Criminal)
People v. Melvin Grant, New York State Supreme Court
Defense counsel in murder for hire case. Obtained an acquittal in spite of three alleged eye-witnesses, and an alleged confession.
 
(Civil)
Keystone Corporation v. AMNEX, Inc., American Arbitration Association
Defense counsel to telecommunications company in arbitration involving accounting issues, merger law and billing methods for long-distance telephone calls
 
(Criminal)
People v. Allen Wiggins, New York State Supreme Court
Defense counsel for accused in murder for hire case.
 
(Civil)
The SoftAd Group, Inc. v Lintas, Inc. , New York State Supreme Court
Plaintiff’s counsel in breach of contract action by software designer against major advertising agency. Verdict for plaintiff, jury granting more damages than requested.
 
(Criminal)
People v. Jun Hua Yang, New York State Supreme Court
Defense counsel for accused Asian gang-member. Even though defendant absconded in mid-trial, jury acquitted him of major charges.
 
(Criminal)
United States v. Dr. Irving Greenfarb, U.S. District Court, S.D.N.Y.
Prosecuted and convicted four doctors for distributing Quaaludes through “sleep clinics”.
 
(Criminal)
United States v. Leopold Frade, U.S. District Court S.D. Fla.
Prosecuted and convicted three of four defendants for Trading With The Enemy.
 
Selected Appeals
Rotterdam Ventures, Inc. v. Ernst & Young, LLP, New York State Supreme Court, Appellate Division, 3rd Department) (reported at 752 N.Y.S.2d 746). 
(Civil) Appeal for plaintiffs in accounting malpractice case, involving issues in the law of negligence and fraud.
 
Merzon v. Lefkowitz, (pending in the New York State Appellate Division, 1st Department)
Appeal for Plaintiffs in a real estate transaction, involving issues of breach of contract, fraud in the inducement and breach of fiduciary duty.
 
People v. Juan Garcia (pending in the United States Court of Appeals for the 2nd Circuit)
Defendant’s appeal from a conviction for illegal reentry to the United States following commission of an aggravated felony. Addresses the meaning of “aggravated felony” under the deportation laws.
 
People v. Rosario (pending in the New York State Appellate Division, 1st Department)
Appeal from two convictions for murder, the first involving issues of self-defense, the second, issues involving the government’s “Brady” obligations.
 
People v. Evans, New York State Supreme Court, Appellate Division, 1st Department (reported at 693 N.Y.S.2d 593).
Appeal from a conviction for drug dealing, involving issues of inconsistent verdicts, the meaning of probable cause.
 
United States v. Ventura, United States Court of Appeals for the Second Circuit (reported at 146 F.3d 91).
Appeal from a conviction for drug dealing, involving questions of a sentencing court’s discretion to depart from the United States Sentencing Guidelines.
 
United States v. Morelli, United States Court of Appeals for the Third Circuit (reported at 54 F.3d 770).
Appeal from a civil forfeiture order, involving questions including the right to a hearing before such an order is issued.
 
WOW!! This man knows how to try a case. According to his attorney profile he has tried over 60 cases. That’s phenomenal. What most people don’t realize is that 90% of cases settle. Depending upon the area of law, some attorneys rarely try cases. Mr. Hammer was a federal prosecutor. When I was in law school, my criminal law teacher was a federal prosecutor. All I can say is I’m glad I wasn’t the defendant she was prosecuting! Given his extensive background, I wouldn’t want to have to be cross examined by him. Former prosecutors don’t play around when it comes to trying cases! I didn’t realize RDR has such a heavy hitter on board! 
___________________________________________________

Ok to be fair here is the run down on Dale Cendali:
Dale’s practice focuses on copyright, trademark, patent, and trade secrets law, as well as defamation, the right of publicity, false advertising, privacy, and similar areas. From cases involving cutting-edge issues of new technology, to entertainment, to core branding and merchandising disputes, Dale has successfully represented domestic and foreign companies in litigation involving a wide range of intellectual property assets, products and services. Dale also counsels clients regarding the acquisition and retention of intellectual property rights (including Internet issues) and litigates disputes concerning such rights. 

Dale chairs and has chaired numerous bar committees and lectures and writes prolifically on intellectual property, media, and litigation topics. 
Illustrative Professional Experience
• Arguing before the U.S. Supreme Court on behalf of Twentieth Century Fox in Dastar v. Fox, a copyright and Lanham Act case involving General Dwight D. Eisenhower’s acclaimed memoirs, having won trials below on liability and damages
• Representing Victoria’s Secret in the U.S. Supreme Court with partner Walter Dellinger in a case of first impression interpreting the federal dilution statute, and leading to Dale’s appointment on the International Trademark Association Presidential Select Committee that helped rewrite the federal dilution statute and her key role in preparing for the Congressional hearings regarding the bill
• Winning summary judgment in a high-profile copyright and trademark action that accused J.K. Rowling, the author of the Harry Potter books, of plagiarism, as well as $50,000 in sanctions, and an award of attorneys’ fees because of claimants’ fabricated evidence
• Winning a landmark trial on behalf of the Martha Graham Dance Center, in a case that preserved Martha Graham’s dance legacy in a bitterly contested intellectual property battle against the heir to Martha Graham’s estate
• Representing MySpace.com in a high-profile copyright action involving the allegedly improper use of music on the widely popular MySpace social networking site, brought by the largest music company in the world, Universal Music Group Recording , Inc. (UMG)
• Representing Nuance Communications, a leading provider of speech and imaging solutions for businesses and consumers around the world, in several patent infringement, copyright, trademark, contract and trade secret misappropriation actions involving speech recognition and related technology, including cases in the Eastern District of Texas and in private arbitration
• Securing a favorable settlement for License Management Co. during the second week of an expected two and a half week bench trial in the District of Connecticut in a case involving breach of fiduciary duty and corporate opportunity claims, and license rights to the world-famous “Swiss Army” branded products and trademarks
• Leading an O’Melveny team in obtaining a unanimous federal jury verdict in favor of the American National Theatre, a nonprofit theatre organization in New York, in a trademark infringement case brought by ANTA, another nonprofit theater organization, over the right to the American National Theatre mark
• Successfully representing J.K. Rowling in numerous intellectual property disputes nationwide, including a recently filed lawsuit against RDR Publishing concerning the proposed publication of an unauthorized Harry Potter “lexicon” and a highly publicized copyright infringement action brought against the New York Daily News involving the premature release of excerpts of the fifth Harry Potter book
• Representing Honeywell in class actions premised on fraud on the trademark office involving the famous Honeywell Round trademark for thermostats
• Representing and advising Lionel LLC in all of its intellectual property litigation, and in developing, protecting and enforcing its intellectual property rights, including assisting to secure the reversal of a $40 million adverse judgment on trade secret claims that threatened the company with bankruptcy, and successfully resolving a high- profile trademark dispute against Union Pacific train line
• Successfully representing Twentieth Century Fox in a high-profile copyright, false advertising, and breach of contract lawsuit against Marvel Comics, Tribune, and Fireworks concerning the movie X-Men and television show Mutant X
• Winning summary judgment for Twentieth Century Fox in a copyright infringement matter brought by the purported owner of the photograph allegedly used to create the “I WANT TO BELIEVE” poster in Fox Mulder’s office on The X-Files
• Successfully representing Time Warner Entertainment and related companies, such as Time, Inc. and Home Box Office, in a variety of matter including a major fraud in the inducement case and the successful defeat of a preliminary injunction involving Time’s expansion of its “Real Simple” line of products
• Successfully defending the Gallo Winery from false advertising charges brought by Heublein in a case that involved the extensive use of survey experts
• Successfully representing various major companies in arbitrations involving numerous contractual issues involving hundreds of millions of dollars
• Obtaining transfers of domain names for numerous companies pursuant to both the ICANN dispute resolution procedures and the Anticybersquatting Consumer Protection Act and counseling on Internet issues in general
Defeating as a prior restraint O.J. Simpson’s attempt to enjoin broadcast of the Simpson/Brown wedding video and later obtaining a demurrer as failing to state a claim under privacy and unfair competition law.

Both attorneys are experienced. However when it comes to actual trial experience, Hammer has a lot more. Why is this important? Trying a case and representing a client are two separate things. I’ve represent over 50 clients in the last year. None of the matters has gone to trial. Some time being a good lawyer means merely negotiating a good outcome. Like I said most things settle before going to trial. Now from what I actually counted, Ms. Cendali has actually only won 3 cases. Please check my math. Look for works like verdict, won trial, acquittal, conviction (these indicate trial occurred and concluded) not summary judgement or settlement. FYI the terms “successfully representing or defending” doesn’t mean a trial actually occurred. For instance, the Rowling suit against Stouffer was dismissed prior to trial; but that is considered successful defense. Anyway, this will be very interesting. I’m sure nothing Cendali tries to pull at trial will phase Hammer. No doubt he’s seen it so many times it’s boring.