Anthony Falzone's blog

Avada Kedavra -- The Harry Potter Lexicon Disappears

Reference guides and companion books about literary works have been a critically important part of literature since its inception, and the right to publish them stood largely unchallenged. We agreed to help defend the Harry Potter Lexicon because J.K. Rowling's claims threatened that right, and because we believe the fair use doctrine protects the Lexicon, and other publications like it. We tried the case in April in a Manhattan Court and waited through the summer for a decision.

Today we found out we lost. In a thoughtful and meticulous decision spanning 68 pages, the Court recognized that as a general matter authors do not have the right to stop publication of reference guides and companion books about literary works, and issued an important explanation of why reference guides are not derivative works. Needless to say, we're very happy the Court vindicated these important principles.

But the Lexicon did not fare so well. The Court held the Lexicon infringed Ms. Rowling's copyright, was not protected by fair use, and permanently enjoined the publication of it. (Read the full decision here.)

Needless to say we're disappointed, as is our client, RDR Books. Careful and thoughtful as the decision is, we think it's wrong. So stay tuned to see where we go from here. In the meantime, thank Roger Rapoport, the Publisher of RDR Books for having the courage to stand up for free speech and fair use. He fought a fight that not many would have the stomach to fight, and we are proud to fight with him.

While you're at it, thank Steve Vander Ark. It's not easy to stand up to your hero, or bear the unjustified scorn of your fellow fans.

Finally, remember that avada kedavra -- the killing curse -- is not always fatal. One wizard survived it. Three times. And it was he who cast the spell (and won't be named here) that ultimately suffered for it. Maybe someday the Lexicon will be known as The Book That Lived.

YouTube Shows Us How To Be A Good Intermediary

Many have worried about the role of intermediaries who provide platforms for sharing information and expression on the internet, and their sometimes profound power to make content disappear. But here is an example of one intermediary -- a big and very important one -- that did the right thing.

Federal Circuit Issues Important Decision Regarding Enforceability of Free Licenses; CIS Represents Creative Commons As Amicus

Free licenses play a vitally important role in fostering creative and collaborative use of copyrighted material. Creative Commons is perhaps the best example, with a around 130 million works under CC licenses, which tell you in advance what you can and cannot do with a work.

Some have wondered how effectively you can enforce a free license if somebody violates the terms of it. Today the U.S. Court of Appeals for the Federal Circuit -- one of the most influential in the country -- answered that question forcefully by affirming the enforceability of free licenses through infringement claims. (We represented Creative Commons and several other organizations that support free and open source licensing as amicus parties in this case.)

This is a tremendously important victory for free licensing in a tremendously influential court. Read the full opinion here.

New York Supreme Court Rejects EMI's Bid to Enjoin Expelled

Two months ago, a Manhattan federal court rejected Yoko Ono Lennon's attempt to enjoin the further showing and distribution of Expelled: No Intelligence allowed on the ground that film used fifteen seconds of the John Lennon song Imagine.

EMI Records filed a nearly identical claim in state court based on the film's use of the sound recording, and demanded a nearly identical injunction. We're happy to report the state court has now denied EMI's request for an injunction.

The state court's order is particularly important because it establishes that fair use applies to the use of sound recordings under common law copyright, and rejects the insane conclusion of the Sixth Circuit in Bridgeport Music v. Dimension Films that there is no such thing as de minimis use when it comes to sound recordings.

Read the full order here.

Center for Social Media Releases Code of Best Practices in Fair Use for Online Video

Building on the tremendous success they have achieved with the Documentary Filmmakers' Statement of Best Practices in Fair Use, the Center for Social Media today released another valuable tool for content creators -- the Code of Best Practices in Fair Use for Online Video

The ability to easily create and share online video presents unprecedented opportunities for self-expression, but has at the same time generated significant confusion about what is permissible versus impermissible copying. As part of the panel that helped shape this Code of Best Practices, I hope it creates a growing consensus about how to balance the rights of copyright holders and the rights of those who would use content for new, valuable, and expressive purposes.

Court Holds Producers Of Expelled Are Likely To Prevail On Fair Use Defense; Rejects Yoko Ono Lennon's Injunction Request

We're happy to report that the Court rejected Yoko Ono Lennon's request to enjoin the further showing and distribution of Expelled. In a twenty-three page memorandum opinion and order issued today, the Court held that the producers and distributors of Expelled are likely to prevail on their fair use defense and denied Plaintiffs' motion for a preliminary injunction in its entirety. Read the full opinion here.

Premise Media Files Oppositions to Preliminary Injunction Motions

Today we filed our oppositions to the preliminary injunction motions filed by Yoko Ono Lennon (federal case) and EMI Records (state case). They are attached below.

In each action, the plaintiffs ask the court to issue an injunction that would pull Expelled out of theaters nationwide by requiring the filmmakers recut the film and delete the fifteen second clip of "Imagine." The motions will be heard on Monday May 19 and Tuesday May 20, respectively, in Manhattan. A decision on them is expected soon afterward.

Fair Use Project to Represent Premise Media Against Yoko Ono Lennon and EMI Records

Expelled: No Intelligence Allowed is a controversial film about a contentious issue: whether proponents of intelligent design are being unfairly silenced in academia and beyond. It has been shown on more than 1000 theater screens nationwide, and its producers have drawn praise from some circles and scorching criticism from others. Right or wrong, good or bad, it's a film that explores important issues of free speech, faith and science.

Yoko Ono Lennon has sued the film's producers in federal court because the film uses a fifteen second clip of the John Lennon song "Imagine." EMI, the record label that asserts ownership in the recording of song, has also sued the producers in state court. Both seek an immediate injunction forcing the removal of "Imagine" from the film.

Rowling v. RDR Books Trial Concludes Under Media Spotlight

The trial of J.K. Rowling's copyright claims against RDR Books concluded last Wednesday after three days of testimony. Full transcripts of each day's proceedings are attached below. The Hon. Robert P. Patterson will decide the case following post-trial submissions from the parties.

The trial generated a flurry of interest from press and public alike, and was covered extensively by the New York Times as well as the Wall Street Journal and other major news outlets. Here are links to some of the coverage by these, and other, publications:

Ask Not Premiering at San Francisco International Film Festival

Johnny Symon's compelling critique of the military's "Don't Ask Don't Tell" policy, Ask Not, is premiering at the San Francisco International Film Festival. It provides a thoughtful and poignant look at both the origins and consequences of this policy that institutionalizes discrimination against the very people who fight so bravely to defend our freedom and the rights of others. See below for showtimes.

Rowling v. RDR Books Trial Set For April 14

The Court has put this case on the proverbial fast track by combining the hearing on the preliminary injunction motion filed by Ms. Rowling and Warner Brothers with the trial on the merits. The trial is scheduled to begin on April 14 at 9:30 am.

The trial will be open to the public, and will be conducted before the Honorable Robert P. Patterson in courtroom 24 of the Daniel Patrick Moynihan United States Courthouse, 500 Pearl St., New York, NY 10007.

New York Times Explains How Rowling's Tight Grip Chokes Creativity

We agreed to help represent RDR Books in its litigation against J.K. Rowling because she asserts rights that go far beyond those the Copyright Act gives her, and in doing so threatens to stifle the long-established rights of others to discuss her work, or that of other authors.

In Saturday's New York Times, business columnist Joe Nocera shines a light on exactly this point. In doing so, he provides a fantastic explanation of how important this case is, and why it's part of a larger, and very important, conflict.

Read the article here.

RDR Files Opposition To Rowling's Preliminary Injunction Motion

On Friday, we filed our opposition to J.K. Rowling's motion to enjoin publication of the Lexicon. In our brief, we explain both why the Lexicon is the sort of important and transformative work that fair use has long protected, and why Ms. Rowling is not entitled to the injunction she seeks.

Read our full brief here.

Tim Wu On Why Rowling Is Wrong

Today on Slate, Columbia Law Professor Tim Wu lays out an excellent explanation of why RDR Books has the right to publish the Harry Potter Lexicon, and why J.K. Rowling's copyright claims to the contrary are misplaced. Read the article here.


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