Posted in Legal

The Ten Commandments of Trying a Case According to Bluestocking

At last the trial betwixt WB/JKR v. RDR books comes to its conclusion. It’s been a rough three days. I won’t cause anyone a stroke by attempting to recap the whole week. Instead I’m going to have fun with this. Why? Because darn, plaintiffs made a whole slew of faux pas! In fact I think third year law students could have done a better job. So I’m going to comment on this travesty of a trial by outlining for you the 
Ten Commandments of Trying a Case as set forth by yours truly Bluestocking. 
(Hem hem. I am about to adopt a somewhat King James tone. You may wish to go to the next post if you can’t handle it. )

1. Thou shalt not bring causes of action based upon moral outrage

Many people don’t realize it but moral outrage isn’t always a legally cognizable right. A perfect example of this concept is the “duty to rescue.”  There is no general duty to rescue. Yes there are exceptions like parent/child relationships or police duty or if you had a hand in creating the danger I. E. You jokingly push a kid into the swimming pool not realizing he can’t swim. Other than that if someone accidentally catches themself on fire you can watch them burn to death. Morally and emotionally outrageous absolutely. Legally culpable- nope.

Pretty much all of WB/JKR’s case consisted of the author’s moral outrage. Yes, we understand that as an author you are naturally protective of what people do with your work. Hey, if they are creating continuations of your story to sell them- suit the snot out of them. But writing reference guides so children can easily understand and keep track of the enormous amount of information you choose to put in your book? You know every great author has reams of reference guides about their work. The man is turning you into a living legend and you sue him? Hmm. 

Anyway, day one of law school the professors hammer you over the head anytime you made an emotional argument. Because what’s feelings go to do with it? Nothing! Apparently Cendali missed that lesson at Harvard Law. 

2.  Thou shalt know thy facts and accept them as they are rather than the way thou wishes them to be.

When I was interviewing for a job, a certified trial attorney told me “cases are won on the facts. The attorney that knows the facts the best is usually the one that wins.” WB/JKR missed the forest for the trees. They narrowed the scope of Fair Use too much. You have to take the work as a whole. The Lexicon is written for children who are the target age of the books. Of course it is written simply. In addition SVA never claimed it was “scholarship” so why treat it that way. WB/JKR seemed determined to fit the Lexicon into a certain mold regardless of whether the book actually belonged in that mold. Also Cendali didn’t seem to have any clue as to what RDR’s witnesses were going to say. Don’t you think you should have checked to make sure Rappaport knew JK Rowling was going to publish an encyclopedia before you make the assumption that he was trying to compete with her? With a lot of the facts, it sounds as though somebody didn’t investigate properly. And for crying out loud you removed the citations and deleted portions of the Lexicon’s actual text to prove your point. Then on top of that you brought up examples of text that aren’t even in the Lexicon because they’ve been edited out. 

3.  Thou shalt properly advise thy client.

People hire attorneys because they don’t know the law. It is up to you as the attorney to correct advise them as to their options. Part of this process is telling your client- YOU DON’T HAVE A CASE or you need to be reasonable. Sometimes, you can to have a sit down chat and rake them across the coals for their stupidity. So be it! You must always be realistic. Clients have this annoying tendency to believe that as you are an attorney you can walk on water or leap tall buildings in a single bound. You really got to nip that one in the bud! 

4.  Thou shalt not send Cease and Desist letters if you cannot reasonably expect to win at trial.

I play fair as an attorney. In fact most of us do. However there are those few who don’t and give the rest of us a bad name. I don’t believe bullying is an appropriate way to settle disputes in favor of your client. Unfortunately WB/JKR have been misusing Cease and Desist letters. Yes, it is appropriate when people are selling your work. But bullying people into not publishing secondary material because you’re client who sells over 10 million copies in the first 24 hours is having either inferiority issues or is tripping on the “p” (tripping on the p is the Bluestocking Guide’s way of saying power trip). That’s wrong on so many levels. Hey I’ve sent out Demand letters before; but I also had an iron clad case. If you’re going to be all big and bad, you better Bring It to court. Cendali didn’t bring it! This whole situation with RDR reminded me of that instance in HP where Dumbledore was explaining to Harry that all tyrants like Voldemort fear that one amongst the masses will rise up and overthrow them. RDR was the one that rose up and decided to fight back. And darn it! They’ve put up a good fight and more than leveled the playing field. I hope WB/JKR decides to proceed with caution in the future. 

5.  Thou shalt not manufacture evidence.

Seriously, if you are going to show that somebody “actually copied” your work, you should actually show what they did. I mean if you have to change the supposed quotes in the books or remove all the citations to prove your point, you must have not had a case to begin with. Not to mention, what do you think the judge is thinking of you when you bring evidence that you’ve “created.” Damages your credibility alot. 

6.  Thou shalt win thy case on the merits rather than win thy case by unduly delaying trial.

This is another dirty trick. Like I’ve said before, unfortunately justice can be purchased. The larger your wallet, the more justice you can get for yourself. Come on, if you have a good case, then you have a good case and you’re ready to try it and get it over with. But making your opponent spin his wheels so he can’t afford to fight you. Isn’t that kicking someone while they’re down. Yeah, I don’t play that way.

7.  Thou shalt not allow thy client to make an ass of themself on the witness stand.

Yeah, when I go to court, I read my client the riot act on how to conduct themselves in court. In fact, I told my client off in the court one day, because he probably would have gotten arrest acting like a jerk! Ok so I have told my municipal clients that if they screw up I won’t be going to jail with them. I mean sometimes crying is appropriate, but acting like a lunic is something different. Having your client disrespect other people on the stand doesn’t get you brownie points with the judge. Allowing your client to have a rant shows an utter lack of respect for the court. Cendali didn’t have to allow JKR to testify as rebuttal. Your client has ultimate say on issues of settlement, but as an attorney, you have the final say as to how the case is tried. Don’t know what Cendali was thinking

8.  Thou shalt properly prepare thy expert witnesses beforehand.

Ok so having the judge say that he’s not adopting the expert’s testimony as his own because she isn’t giving specifics is not good for your case. Hiring an expert in the wrong field i.e. Jeri Johnson is not a child literature expert is a big mistake. This case really boiled down to the battle of the experts. And both WB/JKR’s experts got taken out. One by the judge; the other by David Hammer. You really have to pick your experts properly and given them all the facts. If the other sides can knock out the basis for their opinions, then the expert is worthless. 

9.  Thou shalt not try a case unless you actually know what the heck thou art doing.

Ok so Cendali has only won 3 cases. She probably hasn’t tried many more than that. Copyright law is more transactional than litigious. Mostly you send out a lot of Cease and Desist. She settles most things or gets it knocked out on Summary Judgement. This is a far cry from trying a case. And when your opposing counsel has 60 trials under his belt, you really should find a trial attorney in your firm to help you rather than attempting it yourself. Hammer railroaded Cendali all over the place and she couldn’t recover. You have to be experienced in trying a case and that comes with time and actually trying a lot of cases. 

10.  Thou shalt start praying when David S. Hammer, Esq comes to cross examine thy witness.

I don’t think this requires elucidation. 

Anyway, I hope you found that as entertaining to read as I found it to write. In conclusion, the trial from a strategy point of view was a fiasco for Cendali. In fact I don’t think there was a strategy. Surprisingly WB/JKR was outclasses by a trial lawyer whose forte is not copyright and some law professors. Maybe a change in counsel is warranted. 

Who will win? Well from all that I’ve read, the Judge wasn’t acting too kindly towards WB and threw out a lot of evidence plus expert testimony. Unless I missed something WB doesn’t have hardly anything for its case. They bore the burden of proof. Unless the Judge made jokes about the HP to throw everyone off, its sounds like he was leaning in favor of RDR books. 

Thus concludes my week in review. 

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. 
____________________________________________

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. 
___________________________________
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.