Harry Potter’s creator J. K. Rowling and her publisher Warner Brothers Entertainment sued RDR and Vander Ark last year to stop publication of the lexicon, claiming that it infringed copyrights in the overwhelmingly popular Harry Potter series of books. Warner Brothers Entertainment, Inc. and J.K. Rowling v. RDR Books et al, (USDC SDNY, Case No. 07-CV-9667). (A copy of the original complaint in the “Harry Potter Lexicon” case can be found here.) US District Court Judge Robert Patterson ruled earlier today that Rowling had proved her case: publication of the “Harry Potter Lexicon” would cause her irreparable harm as a writer.

A lexicon is a glossary or reference work organized like an encyclopedia or dictionary, usually in alphabetical order. In Vander Ark’s case, the “Harry Potter Lexicon” contained entries referencing and defining creatures, characters, place names and spells from the novels, and was a print-based version of his popular website HPL: The Harry Potter Lexicon.

Judge Patterson ruled that the “Harry Potter Lexicon” constituted copyright infringement of Rowling’s works. Even in cases of copyright infringement, a “fair use” defense frequently applies to allow portions of a copyrighted work to be used to facilitate specifically approved purposes — includes educational and teaching use, news reporting, formal literary criticism and inquiry, and parody. The Court found no “fair use” in this case. According to a Yahoo News article, Patterson’s ruled states:

because the Lexicon appropriates too much of Rowling’s creative work for its purposes as a reference guide, a permanent injunction must issue to prevent the possible proliferation of works that do the same and thus deplete the incentive for original authors to create new works.

Stingy minimum damages award speaks volumes
I’m completely underwhelmed by the damages awarded in the case. $750 for each of the seven novels about the boy wizard and $750 each of the two companion books for a total of $6,750. And for good reason: the 1976 Copyright Act now allows for damages of up to $100,000 for each act of infringement. Judge Patterson is certainly sending a message here about the spirit of the law, even if it contradicts his ruling on the letter of the law.

Fair-use reference, or derivative work?
Concordances and lexicons of authors’ works have traditionally been allowed under the fair-use defense to copyright infringement — with some exceptions. But copyright infringement is a highly facts-and-circumstances-dependent legal analysis: discussing copyrighted work and making a “transformative use” of the material is allowed, but cutting and pasting sections of a copyrighted work to assemble them into a reference work arguably could create a “derivative work” under section 101 of the Copyright Act, which is an exclusive right reserved to the copyright owner. Rowling’s lawyers argued against a finding of fair use, stating that the “Harry Potter Lexicon” adds no commentary or criticism, and makes no other transformative use of Rowling’s creation: it “takes too much and does too little.”

Judge Patterson touched upon the distinction between a reference and a derivative work in his ruling.

While the Lexicon, in its current state, is not a fair use of the Harry Potter works, reference works that share the Lexicon’s purpose of aiding readers of literature generally should be encouraged rather than stifled…. [The] Lexicon [however] appropriates too much of Rowling’s creative work for its purposes as a reference guide.

I’ll be analyzing the ruling in Warner Brothers Entertainment and J.K. Rowling v. RDR Books tonight to see what kind of precedent this decision contains about the boundary between reference and derivative work.

Warner Brothers Entertainment, Inc. and J.K. Rowling v. RDR Books et al, (USDC SDNY, Case No. 07-CV-9667).

See Ruling of September 8, 2008 – Warner Brothers Entertainment and J.K. Rowling v. RDR Books et al (the “Harry Potter Lexicon” case) for a copy of the decision in PDF.

Many thanks to Dineen Pashoukos Wasylik for pulling this down off PACER.

http://williampatry.blogspot.com/

Patry cites the “depressing state of copyright law” and the direction of recent copyright law developments as among his personal and professional reasons for not continuing the blog.

His contributions over the last several years to copyright scholarship from a private practice point of view have been valuable and unique and will be missed. Several of us are trying to persuade him to maintain his archive of over 800 thoughtful and incisive posts on key developments (which he has removed).

If anyone is inclined, he or she should add opinions to the comments section.

Does the monitoring of cross-border communications by the United States government under the Patriot Act and the Wiretapping Act and the lack of US constitutional protection in foreign countries violate an attorney’s duty to keep client matters confidential?

Does outsourcing act as a waiver of the attorney-client privilege or otherwise permanently affect a client’s legal rights?

One law firm is concerned that the answer is ‘yes’ — and has sued the Bush administration for declaratory judgment and asked the District of Columbia and Maryland bars for ethics opinions on the matter. According to Newman McIntosh & Hennessey, US government interception of attorney-client communications is highly probable because the National Security Agency (NSA) is free to spy on foreign companies. The Newman firm filed the complaint and ethics opinion requests seeking guidance on whether outsourcing of legal services compromises constitutional rights — and wants the court to order law firms to disclose their use of outsourcing and foreign legal support to clients, and to order the US government to establish protocols to shield attorney-client information from US government surveillance.

The complaint and legal inquiry arose out of a solicitation to the Newman firm by Acumen Legal Services (India) Pvt., Ltd./Acumen Solutions, LLC (TX) to provide the law firm with outsourced litigation support. Hennessey, a named partner for the firm, is concerned that information from his personal injury and medical malpractice practice could fall into the hands of competitors who employ outsourced services, through the electronic discovery process. According to Hennessey:

It’s not paranoia. It’s just fact . . . . [N]ow that we’re outsourcing services, we have given no consideration to the ongoing practice of the government harvesting information out there.

Hennessey openly wonders whether explicit client consent should be required before any data is sent abroad.

Legal outsourcing has grown dramatically in the last decade as bandwidth has improved to easily handle large amounts of imaged data, facilitating remote document scanning and low-cost document review, primarily in India.

Here’s why this is a particularly interesting story to watch: A. large law firms are now relying heavily on the practice of outsourcing their legal document imaging and legal document review work to maintain their profit margins. B. The regulation of attorneys is almost entirely a matter of state law. I’m not aware of any federal controls over the attorney-client relationship or attorney-client privilege (except with regard to the recent encroachment on attorney-client communications in the representation of enemy combatants in connection with Guantanamo and Bush administration military tribunals).

The case has been assigned to District Judge Colleen Kollar-Kotelly (chief judge of the Foreign Intelligence Surveillance Court – although this is apparently not a FISA issue).

Tip of the hat to the Blog of Legal Times for breaking this story.

Breathalyzer software source code: not ready for prime time
Courts in Minnesota, Florida, and now New Jersey have begun ordering manufacturers to turn over their source code for evaluation by experts under nondisclosure. Here are some of the excerpts from an expert witness analysis on the accuracy and reliability of the Alcotest breathalyzer source code, as reported in DUI Blog:

1. The Alcotest Software Would Not Pass US Industry Standards for Software Development and Testing: The program presented shows ample evidence of incomplete design, incomplete verification of design, and incomplete white box and black box testing . . . Several sections are marked as “temporary, for now” . . . It is clear that, as submitted, the Alcotest software would not pass development standards and testing for the US Government or Military. It would fail software standards for the Federal Aviation Administration (FAA) and Food and Drug Administration (FDA), as well as commercial standards used in devices for public safety . . . If the FAA imposed mandatory alcohol testing for all commercial pilots, the Alcotest would be rejected based upon the FAA safety and software standards . . .

4. Catastrophic Error Detection Is Disabled: An interrupt that detects that the microprocessor is trying to execute an illegal instruction is disabled, meaning that the Alcotest software could appear to run correctly while executing wild branches of invalid code for a period of time. Other interrupts ignored are the Computer Operating Property (a watchdog timer), and the Software Interrupt. [emphasis mine]

6. Diagnostics Adjust/Substitute Data Readings: The diagnostic routines for the Analog to Digital (A/D) Converters will substitute arbitrary, favorable readings for the measured device if the measurement is out of range, either too high or too low. The values will be forced to a high or low limit, respectively. This error condition is suppressed unless it occurs frequently enough . . . [emphasis mine]

7. Flow Measurements Adjusted/Substituted: The software takes an airflow measurement at power-up, and presumes this value is the “zero line” or baseline measurement for subsequent calculations. No quality check or reasonableness test is done on this measurement . . .

10. Error Detection Logic: The software design detects measurement errors, but ignores these errors unless they occur a consecutive total number of times. For example, in the airflow measuring logic, if a flow measurement is above the prescribed maximum value, it is called an error, but this error must occur 32 consecutive times for the error to be handled and displayed. This means that the error could occur 31 times, then appear within range once, then appear 31 times, etc., and never be reported.

Commented open source software expert Curtis Poe, on O’Reillynet.com: “No wonder this company didn’t want anyone to see their source code.”

Quis custodiet ipsos custodes
Let me repeat that — it’s fairly amazing: substituting “arbitrary favorable readings for the measured device.” In other words — this software is using made-up data instead of actual readings, to present a facade of reliability and cover up machine and/or code errors. The law is not looking kindly these days on ‘fudge factors’ and data fabrication: in several recent cases, scientists who randomly generated data in test results were prosecuted for fraud. This is commercial software, and it is a big market: breathalyzers are purchased by most of the estimated 10,000+ US municipal, state, and county-level law enforcement agencies. (As Boing-Boing wryly noted: “Who’s Blowing the Blowers?”)

Drunk driving is a serious criminal offense that deserves an aggressive — but accurate — law enforcement effort. I’m sure that one of the unarticulated rationales behind this trend in source code disclosure, is the increasingly high stakes of a drunk driving criminal conviction: loss of a license and possibly a job, the constitutional right to confront your accuser and have a fair trial, and a citizen’s permanent arrest record (and more and more frequently, his or her credit record) — which are subject to the internal workings of a breathalyzer machine.

Bad software has consequences.
Watch for this source code disclosure trend to expand quickly into civil law. I’m predicting that judges will finally start giving litigants the right to examine source code to determine — for example — whether contractual performance criteria are being met, or whether a software developer is in breach of contract or breach of warranty.

Will a good nondisclosure agreement keep your source code out of court?
Unfortunately for many software developers, the answer is “usually not.” The majority of professionally-drafted nondisclosure agreements contain a section (usually called “Disclaimers”) which limits the scope of the nondisclosure covenant and makes it clear that non-secret materials and materials already in the possession of the party making the covenant, can’t be restricted. It’s also a common feature of these agreements to allow for disclosure to be made in spite of the covenant not to disclose, when the disclosure is compelled by a court order, as it is in the breathalyzer cases. However — even where a nondisclosure agreement doesn’t have these exceptions, it’s possible that a court will hold that a contract provision which does not allow disclosure under court proceedings is “void against public policy” and therefore, legally unenforceable.

The trend: allowing complete source code to be turned over to parties in litigation, regardless of trade secret claims. The moral of the story: the software development industry is maturing and needs to practice risk management. While there’s no “computer malpractice” now, it’s coming. The recommendation: software architecture and coding need to be professionally risk-managed, with project management and implementation paying particular attention to the growing legal development that source code is no longer an untouchable ‘black box’ and that third parties in litigation — and contract partners — may be able to go to court and receive a copy.

This is increasingly referred to as the Wikipedia Problem. The gatekeepers of our received culture are struggling with the tension between the instant availability of such ‘knowledge’ and the proper way to filter and evaluate it. Nicholas Carr in Rough Type:

If you read anything about Web 2.0, you’ll inevitably find praise heaped upon Wikipedia as a glorious manifestation of “the age of participation.” Wikipedia is an open-source encyclopedia; anyone who wants to contribute can add an entry or edit an existing one….In theory, Wikipedia is a beautiful thing – it has to be a beautiful thing if the Web is leading us to a higher consciousness. In reality, though, Wikipedia isn’t very good at all. Certainly, it’s useful – I regularly consult it to get a quick gloss on a subject. But at a factual level it’s unreliable, and the writing is often appalling. I wouldn’t depend on it as a source, and I certainly wouldn’t recommend it to a student writing a research paper.

Courts implicitly recognize the value and convenience of having any authority over none, even if it is only Web 2.0-style open-source content — many of them happily cite Wikipedia (while others take pains to differentiate that plaintiffs may not rely on Wikipedia as an authoritative source to quote in establishing scientific or medical expertise, or precedent — do as I say, not as I do). Colleges and universities are polarizing around a much less generous standard: an outright ban on citing to the amateurs (which, I feel compelled to note, tends to reinforce the security and status of the ivory-towered).

The law — which is usually never out ahead of the game — actually has existing tools to help the information entrepreneur address this issue: branding and identity protection. Trademarks became increasingly used on patent medicines in the 19th century as a means to separate snake oil from real remedies, allowing producers to develop a level of consumer confidence in their companies as commercial sources. Today, branding strategies and trademark protection are quite effectively used in the content industries to establish and manage reputation and social capital.

In Omdahl v. West Iron County Board of Education, the plaintiff was an attorney suing under the Open Meetings Act, and he prevailed against the Board of Education. The Michigan Open Meetings Act (MCL 15.271(4)) provides for the winner to be able to charge its attorneys’ fees to the losing side. The court held that the fact that plaintiff was an attorney and had not paid attorneys’ fees was irrelevant — he was entitled to receive compensation at his regular billing rate.

Attorneys’ fees are not usually paid by the losing side in court cases. (This is known as the “English Rule“). Some statutes provide for them as a matter of public interest: copyright law, consumer protection laws, whistleblower laws.

Brooks’ strategy? “Keep it simple” for the jury and be enormously selective about which patent issues to take to trial.

Score one for the little guy with the “aw, shucks” Midwestern lawyah.