245 84F5WAR1 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 WARNER BROS. ENTERTAINMENT, 3 INC. and J.K. ROWLING, 4 4 Plaintiffs, 5 5 v. 07 CV 9667 (RPP) 6 6 RDR BOOKS, 7 7 Defendant. 8 8 ------------------------------x 9 New York, N.Y. 9 April 15, 2008 10 9:30 a.m. 10 11 Before: 11 12 HON. ROBERT P. PATTERSON, JR., 12 13 District Judge 13 14 APPEARANCES 14 15 O'MELVENY & MYERS 15 Attorneys for Plaintiffs 16 BY: DALE M. CENDALI 16 DANIEL N. SHALLMAN 17 CLAUDIA E. RAY 17 MARVIN PUTNAM 18 18 LAW OFFICE OF DAVID S. HAMMER 19 Attorney for Defendant 19 BY: DAVID S. HAMMER 20 -and- 20 STANFORD LAW SCHOOL CENTER FOR INTERNET AND SOCIETY 21 BY: ANTHONY T. FALZONE 21 JULIE A. AHRENS 22 -and- 22 CREATIVE INDUSTRY LAW GROUP 23 BY: LIZBETH HASSE 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 246 84F5WAR1 1 (Trial resumed) 2 MS. CENDALI: Shall we call our next witness, your 3 Honor? 4 THE COURT: Your next witness I guess, right? 5 MS. CENDALI: Yes, your Honor. 6 THE COURT: All right. 7 MS. CENDALI: Plaintiffs call Steven Vander Ark. 8 STEVEN JAN VANDER ARK, 9 called as a witness by the Plaintiff, 10 having been duly sworn, testified as follows: 11 THE DEPUTY CLERK: Please state your name, spell your 12 last name slowly for the record, please. 13 THE WITNESS: Steven Jan Vander Ark. That's 14 V-A-N-D-E-R A-R-K. J-A-N. 15 MS. CENDALI: Shall I proceed, your Honor? 16 THE COURT: Yes. Please do. 17 DIRECT EXAMINATION 18 BY MS. CENDALI: 19 Q. Good morning, Mr. Vander Ark. My name is Dale Cendali. 20 A. Hi. 21 Q. I represent Ms. Rowling and Warner Brothers Entertainment 22 here today. You and I have never met, have we? 23 A. No, we haven't. 24 Q. Now, Mr. Vander Ark, you understand that you were subject 25 to a witness exclusion order yesterday, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 247 84F5WAR1 Vander Ark - direct 1 A. I -- could you define that for me? 2 Q. Sure. You weren't permitted to watch Ms. Rowling's 3 testimony yesterday, correct? 4 A. That's correct. 5 Q. And you weren't able to watch Mr. Rapoport's testimony 6 either? 7 A. That is correct. 8 Q. Did anybody tell you what happened in court yesterday? 9 A. Just very generally. 10 Q. I believe you once said that you read every article or 11 interview that Ms. Rowling has ever given? 12 A. I think I have, yeah. 13 Q. Did you read any of the articles or interviews about 14 yesterday's day in court? 15 A. I saw a headline as I was coming here this morning. 16 Q. And you consider yourself someone who is a Harry Potter 17 expert, correct? 18 A. Well, I'm -- I don't know about that. I know a lot about 19 it. 20 Q. But you never met Ms. Rowling until today, isn't that 21 right? 22 A. No, I haven't. 23 Q. You have never been, as far as you know, in the same room 24 with Ms. Rowling until today; right? 25 A. Only Radio City Music Hall -- which is quite a large room. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 248 84F5WAR1 Vander Ark - direct 1 Q. Did you meet with any of RDR's attorneys last night? 2 A. Yes, we met. 3 Q. Let's go back to the summer 2007 and how you came to work 4 with RDR. You had been working as a library media specialist 5 at a middle school in Michigan, is that correct? 6 A. That is correct, yes. 7 Q. You don't have any advanced degrees of any sort, do you, 8 Mr. Vander Ark? 9 A. I have taken courses, graduate courses in library science 10 and literacy. 11 Q. But you don't have any advanced degrees beyond the BA, is 12 that correct? 13 A. That is correct. 14 Q. And the middle school you had worked for asked for your 15 resignation in 2007, is that true? 16 A. That is correct. 17 Q. And when was that? 18 A. I believe it was in October. 19 Q. Well, in the summer of 2007, were you in a position where 20 you needed some extra money? 21 A. I'm always in a position where I need extra money. 22 Q. And, isn't it true that at that point you were interested 23 in moving to London? 24 A. Yes, that's true. 25 Q. And, isn't it true that you had contacted Emma Schlesinger SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 249 84F5WAR1 Vander Ark - direct 1 at the Christopher Little Agency? 2 A. Yes, I did. Several times. 3 Q. And, let's look at Exhibit 12C, which would be on the 4 monitor right there next to you, Mr. Vander Ark. 5 A. Okay. 6 Q. And let's look, in particular, at the portion of the second 7 page of Exhibit 12C. There is a paragraph that starts: 8 THE COURT: You will have to bear with me because 9 these books are arranged, the books that I have been looking 10 at. 11 All right. 12 BY MS. CENDALI: 13 Q. So, Mr. Vander Ark, turning your attention again to the, 14 your July 9th e-mail to Ms. Schlesinger in Exhibit 12C, you 15 wrote: I have no idea what Rowling's plan is now that the 16 novels are finished, but if she is thinking of working on an 17 encyclopedia or other references to the series, I would be a 18 good candidate for work as an editor. 19 Do you see that? 20 A. Yes. 21 Q. And you went on to say in that e-mail: Please give me your 22 honest opinion on this. I am 49 years old and have proved 23 myself to be a lot more than just some teenaged fan with a 24 website. 25 Do you see that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 250 84F5WAR1 Vander Ark - direct 1 A. Yes, I do. 2 Q. So you were approaching Ms. Rowling's representative for a 3 job, correct? 4 A. Yes. 5 Q. And this was at a pretty busy time in the Harry Potter 6 world, wasn't it? 7 A. Yes. 8 Q. This was the -- during the same month that Deathly Hallows, 9 Ms. Rowling's seventh book, was coming out, right? 10 A. Yes. I had actually contacted them early in May as well so 11 this was a follow-up. 12 Q. And May was a pretty busy time too? 13 A. I'm sure it was. 14 Q. And you were turned down, weren't you, by Ms. Schlesinger? 15 A. Yes. She said that it wasn't -- they didn't need an 16 editor. 17 Q. And that Ms. Rowling didn't need a collaborator -- 18 A. That's correct. 19 Q. -- to write things? 20 A. Right. 21 Q. Okay. Now, you had, as was your custom, is it true that 22 you were reading and following pretty closely the statements 23 Ms. Rowling has given in connection with the release of Deathly 24 Hallows? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 251 84F5WAR1 Vander Ark - direct 1 Q. And so, you were aware of the various statements she made 2 on or about July 26th about her intention to do her own Harry 3 Potter encyclopedia? 4 A. Yes, I was aware of those. 5 Q. And you saw her Meredith Vieira interview on The Today Show 6 about it, right? 7 A. No, I actually didn't see that one. 8 Q. But you saw other things that she had said? 9 A. Yes. 10 Q. And, in fact, it is fair to say that you had read various 11 things she had said about wanting to do an encyclopedia over 12 about a 10-year period, right? 13 A. Yes. 14 Q. Now, in August of 2007 RDR -- Mr. Rapoport -- contacted you 15 about possibly doing a book, correct? 16 A. That is correct, yes. 17 Q. And when RDR contacted you, you discussed with RDR that 18 Ms. Rowling might be planning to do her own encyclopedia? 19 A. Yes, I did. 20 Q. And, isn't it true that you told RDR that you were 21 concerned the Lexicon might present copyright problems? 22 A. Yes, I did. 23 Q. And, isn't it true that in your contract with RDR you 24 specifically asked for an indemnity provision that would have 25 RDR indemnify you if Ms. Rowling ever filed lawsuit? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 252 84F5WAR1 Vander Ark - direct 1 A. Yes, I did. 2 Q. Now, I take it that you are the owner of the Harry Potter 3 Lexicon.com website, correct? 4 A. I am the owner of that website, yes. 5 Q. Is it fair to say that you are familiar with the people who 6 run a lot of the other big Harry Potter websites? 7 A. Some of them, yes. 8 Q. And, are you familiar with the site called Mugglenet.com? 9 A. Sure. 10 Q. Is that another Harry Potter fan site? 11 A. Yes. Uh-huh. 12 Q. Now, isn't it true that the Mugglenet.com team published a 13 book, What Would Happen in Harry Potter book 7? 14 A. Yes. 15 Q. Had you read that book? 16 A. No. 17 Q. You are aware that that book did very well, correct? 18 A. I heard that. Yeah. I really wasn't aware of it until 19 later, but yes. 20 Q. Isn't it true that you discussed the Mugglenet.com book and 21 its success with RDR? 22 A. I don't recall. It is possible. I don't recall that 23 conversation. 24 Q. Do you remember Mr. Rapoport telling you that -- that 25 Mugglenet.com's book had been published by Ulysses Press? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 253 84F5WAR1 Vander Ark - direct 1 A. Yes, he mentioned that. 2 Q. And, did Mr. Rapoport also tell you that he used to work at 3 Ulysses Press? 4 A. Yes, he did. 5 Q. And he told you he was pretty familiar with that, correct? 6 A. As I recall, yes. 7 Q. Isn't it true that the two of you discussed that, gee, 8 maybe a published version of the Lexicon might make a lot of 9 money, the same way the Mugglenet book did? 10 A. I don't remember a discussion like that. We didn't talk a 11 lot about the money aspect of it. 12 Q. Well, you knew from reports that the Mugglenet book had 13 sold over 330,000 copies? 14 A. I didn't know that at the time. The only thing that I knew 15 about it was that it had been on the New York Times Best-Seller 16 List but I didn't know the number of copies. 17 Q. When did you know the number of copies? 18 A. That was probably a couple of months ago. 19 Q. Did you discuss that with RDR? 20 A. I think I saw it in a news release. I don't think I heard 21 that from him. I may have, though. 22 Q. Okay. 23 Now, you have a provision in your contract with RDR 24 that you will get a bonus if the Lexicon book is ever on the 25 New York Times Best-Seller List? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 254 84F5WAR1 Vander Ark - direct 1 A. Right. 2 Q. So, is it fair to say that you and RDR were hoping great 3 things for this book? 4 THE COURT: Objection. Sustained to the form of the 5 question. 6 Q. Is it fair to say that you discussed, with RDR, the 7 possibility that the book would be on the New York Times 8 Best-Seller List? 9 A. Not at any length. I brought that up almost as a joke. 10 Q. Now, your contract with RDR didn't give you an advance on 11 royalties, is that correct? 12 A. That is correct. 13 Q. But you share -- if this lexicon book is published you 14 stand to make money, correct? 15 A. I would assume so. 16 Q. So, it's fair to say that you have an interest in RDR 17 winning this case, isn't that true? 18 A. Yeah, I think that's evident. 19 Q. Now, isn't it true that you and RDR discussed that the 20 Lexicon -- the Lexicon manuscript, in your view, would be the 21 first comprehensive Harry Potter encyclopedia? 22 A. Yes; because book 7 had just come out. 23 Q. And, did you discuss with RDR the idea that this might give 24 you a marketing advantage to be the first book out covering all 25 seven books? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 255 84F5WAR1 Vander Ark - direct 1 A. I think that -- I'm trying to remember the discussions that 2 we had. At the time we had discovered that Mugglenet was 3 planning an encyclopedia of their own and I think our 4 discussions really centered around that. 5 Q. You wanted to beat Mugglenet to the punch, right? 6 A. Right. 7 Q. Because you thought there was an advantage in being the 8 first one out, right? 9 A. Of the two books, both of them coming from websites, they 10 would be seen as more or less equal in a sense and so, yeah, in 11 that particular case it would be an advantage to be the first 12 of those two; uh-huh. 13 Q. So the answer to my question is yes? 14 A. Yes. 15 Q. So now, isn't it true that after you signed the contract 16 with RDR at the end of August you rushed to complete the 17 manuscript by September 15th? 18 A. Yes, we did. 19 Q. And that's because you were anxious to get the book in 20 stores as soon as possible, right? 21 A. Yes. For two reasons. 22 Q. Now, what are those two reasons? 23 A. First of all, because of the Mugglenet book, and also 24 because of the Christmas selling season which would obviously 25 be a time to want to get a book in the stores. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 256 84F5WAR1 Vander Ark - direct 1 Q. Was there a third reason? Were you also thinking that, 2 gee, given the -- all the interest in Harry Potter in the 3 newspapers in the summer of 2007 it might be good publicity -- 4 good for the book to come out at the time when there is big 5 interest in Harry Potter book 7? 6 A. I don't remember thinking that, no. That really wasn't a 7 concern. 8 Q. Now, isn't it true, Mr. Vander Ark, that you consider 9 yourself very knowledgeable about copyright issues? 10 A. I'm no expert, no. 11 Q. Well, isn't it true that as a media specialist, one of your 12 responsibilities is copyright? 13 A. Yes, that's correct. 14 Q. And, isn't it true that you read a ridiculously large 15 number of related books and articles, etc., and even go to the 16 occasional conference on copyright law? 17 MR. HAMMER: Object to the form of that question. 18 THE COURT: Objection sustained. 19 Q. Isn't it true that you read a lot of books about copyright 20 law? 21 A. I don't think I read a lot of books about copyright law, 22 no. 23 Q. Isn't it true that you have gone to conferences on 24 copyright law? 25 A. I have attended seminars on it, yes, as it relates to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 257 84F5WAR1 Vander Ark - direct 1 children using copyright for their writing. 2 THE COURT: For what? 3 THE WITNESS: As a teacher, the conferences I would go 4 to would have to do with how do you teach children -- as 5 they're writing reports and things like this -- what is allowed 6 and what isn't. 7 So, that's the kind of copyright things that I'm 8 knowledgeable about. 9 Q. Well, isn't it true that you also consider yourself 10 knowledgeable about copyright and the internet? 11 A. I'm really not sure how to answer that because I know some 12 things about it but I'm not sure how to define knowledgeable. 13 Q. Isn't it true that you posted on a -- are you familiar with 14 Newton's Talk? 15 A. Oh, having to do with the Newton computer? 16 Q. Yes. 17 A. Yes. Uh-huh. That was a long time ago. 18 Q. And, isn't it true that you posted on Newton's Talk? What 19 is -- Newton's Talk is a chat board, right? 20 A. Right. 21 Q. What is it about? 22 A. A Newton was a hand-held computer that we used 10 years ago 23 that Apple had. 24 Q. Isn't it true that you posted on Newton's Talk that you 25 felt that the web was full of copyright violations which SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 258 84F5WAR1 Vander Ark - direct 1 doesn't make them any less illegal? 2 A. Yes. 3 Q. And, isn't it true that you posted on Newton's Talk that 4 you read ridiculously large numbers of related books, articles, 5 etc., and even go to the occasional conference on the subject 6 of copyright? 7 A. I don't recall writing that specifically but I'm sure I may 8 have; yeah. 9 Q. Well, I would be happy to refresh your recollection. 10 THE COURT: What year are we talking about? 11 MS. CENDALI: 2000, your Honor. 12 May I approach and refresh the witness' recollection? 13 THE COURT: All right. Just show it to Mr. Hammer. 14 MR. HAMMER: I have it, your Honor. That's all right. 15 MS. CENDALI: I did. 16 THE WITNESS: Thank you. 17 THE COURT: What have you got -- 18 MS. CENDALI: Marked for identification as Exhibit 19 193. 20 THE DEPUTY CLERK: 193. 21 MS. CENDALI: Would you like a copy, your Honor? 22 THE COURT: I think it is probably in the book. Thank 23 you. 24 BY MS. CENDALI: 25 Q. Does that refresh your recollection as to whether you made SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 259 84F5WAR1 Vander Ark - direct 1 those comments? 2 A. I don't doubt that I made the comments. I just don't 3 remember writing this particular post. 4 Q. Now you can put that aside, Mr. Vander Ark. 5 Now, Mr. Vander Ark, isn't it true that you use an 6 electronic copy or electronic -- excuse me. Isn't it true that 7 you used electronic copies of Ms. Rowling's books in order to 8 help write the Lexicon manuscript? 9 A. Yes, we did. 10 Q. I would like to put on the screen what's been marked as 11 Exhibit 101. 12 THE COURT: When we talk about the Lexicon are you 13 talking about the website? 14 MS. CENDALI: Pardon me, your Honor? This is the 15 Lexicon manuscript, your Honor. 16 Q. In other words, just to be clear, Mr. Vander Ark, you used 17 electronic copies of Ms. Rowling's books to help write the 18 Lexicon book, correct? 19 A. Yes. We scanned them in from our copies. We have multiple 20 copies of the books. 21 Q. Now you knew, though, that Ms. Rowling had never released 22 any electronic copies of the books? 23 A. That is correct. 24 Q. So the copies -- the electronic copies of her books that 25 you had were pirate copies, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 260 84F5WAR1 Vander Ark - direct 1 A. I'm not sure of the legal status of that. 2 MR. HAMMER: Objection. It calls for a legal 3 conclusion which he is not qualified to give. 4 THE COURT: He says he is not sure in any event, so go 5 ahead. 6 Q. How did you get those electronic copies of her books? 7 A. Scanned the books. 8 Q. And again, looking at Exhibit 101, it is an e-mail 9 exchange. Going to the first page of it first since we can 10 frame it as this was an e-mail exchange and the e-mail, the 11 second e-mail in the chain is from you on September 3rd, 2007 12 to John Kearns, Belinda Hobbs, L. Bunker. 13 Do you see that? 14 A. Yes. 15 Q. Who are those people? 16 A. Those are the other authors of the Lexicon book, my 17 editors. 18 Q. But they didn't get byline credit on the cover, did they? 19 A. I don't know the current version of the cover. One version 20 had all four names, I'm not sure of the current status, but 21 they certainly are included as authors. 22 Q. But on the version of the cover that was submitted to the 23 Court it is only you, isn't that true? 24 A. I don't know which version you have seen but I have seen 25 several. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 261 84F5WAR1 Vander Ark - direct 1 Q. But those are the people who were working with you on 2 editing the Lexicon book in issue in this case? 3 A. Those are the co-authors, yes. 4 Q. So, turning to the second page of the e-mail at the bottom 5 it says: If anyone has text files of QA and FB, those would be 6 immensely helpful. 7 What is QA and FB? 8 A. That's Quidditch Through the Ages and Fantastic Beast, the 9 two companion books. 10 Q. Why did you think that would be helpful? 11 A. Because it is a lot easier to search electronic copy than 12 to search paper copy, of which we have many. 13 Q. And it says John -- you wrote: John, your complete Word 14 file is a dream. Any way to have chapter numbers interspersed? 15 Do you see that? 16 A. Yes, I do. 17 Q. Isn't it true that it was easier to cut and paste from 18 Ms. Rowling's books when you had electronic copies of them? 19 A. I don't know, because I have never done that. 20 Q. So you did not, in preparing the manuscript for the 21 Lexicon, copy and paste anything from Ms. Rowling's works? 22 A. I don't recall doing that, no. 23 Q. Did you end up getting electronic files for Quidditch 24 Through the Ages and Fantastic Beasts? 25 A. Yes. We ended up scanning them. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 262 84F5WAR1 Vander Ark - direct 1 Q. So you made those copies yourself? 2 A. Right. 3 Q. And, did you think that what you were doing was violating 4 copyright law? 5 MR. HAMMER: Objection. No relevance to this case. 6 THE COURT: I will allow the answer. I am going to 7 allow it. 8 MR. HAMMER: There is no claim, your Honor, or any 9 complaint on that. 10 THE COURT: I'm sorry? 11 MR. HAMMER: There is no claim in any of the several 12 complaints for violation of the copyright through the 13 electronic scanning of the Quidditch book. 14 THE COURT: I will take that into consideration. 15 MS. CENDALI: Your Honor, I'm sorry. I couldn't hear 16 your ruling. I apologize. 17 THE COURT: I said I would allow the question and I 18 will take into consideration what Mr. Hammer just stated that 19 it is not in your complaint or the amended complaint, I gather 20 he sent -- or the second amended complaint. 21 MS. CENDALI: It goes to the process, your Honor. 22 THE COURT: I said I'm allowing the question, 23 Ms. Cendali. I said I'm allowing the question. 24 MS. CENDALI: I understand, your Honor. Excuse me. 25 Q. Mr. Vander Ark? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 263 84F5WAR1 Vander Ark - direct 1 A. Yes. 2 Q. Would you please answer my question? 3 A. Could you repeat the question? I'm sorry. 4 Q. Did you believe that making electronic copies of 5 Ms. Rowling's books to write the Lexicon manuscript was 6 illegal? 7 A. No, I did not. Because we did not distribute them, we just 8 made them from our own copies of the books. 9 Q. But you knew that Ms. Rowling had never released electronic 10 copies of her books, right? 11 A. No, she never has. 12 Q. In fact, you know that that's something that she's 13 concerned about, that electronic copies could proliferate all 14 over the internet, right? 15 A. I would have to make an assumption because I have never 16 heard anything about that, but. 17 Q. Now, you don't believe that you can make, legally make 18 copies of copyrighted books just because you have a paper 19 version, right? 20 A. Well, actually there are circumstances where that is 21 allowed, you are allowed to make copies of things if you own 22 the books for your own use. But, I'm not exactly sure how that 23 fits in this particular case so I better not speak to it. 24 Q. Well, isn't it true, Mr. Vander Ark, that on the Newton's 25 Talk forum in 2003 you wrote: You can't legally make copies of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 264 84F5WAR1 Vander Ark - direct 1 copyrighted books just because you have the paper version. 2 A. Did I -- does it say that in there? 3 Q. Do you remember saying that? 4 A. I don't remember saying that, but. 5 Q. Do you remember saying -- 6 MR. HAMMER: I'm sorry. Can you point out where that 7 statement that you just quoted comes in here? 8 MS. CENDALI: It is a different document, Mr. Hammer. 9 MR. HAMMER: Then why are you referring to this when 10 you are cross-examining him on that point? 11 MS. CENDALI: It is a different document, Mr. Hammer. 12 THE COURT: If you are using a different document you 13 should alert the Court because I was wondering why you were 14 referring to the year 2003 when previously you referred to the 15 year 2000, Ms. Cendali. 16 MS. CENDALI: Okay. I apologize, your Honor. I am 17 now -- I am trying to impeach him with a different document. 18 THE COURT: There is a foundation question you ask 19 before if you are trying to do that in establishing that you 20 are not referring to the year 2000 but are referring to 21 something you wrote later in 2003 for that publication. 22 BY MS. CENDALI: 23 Q. Isn't it true -- let me -- isn't it true, Mr. Vander Ark, 24 that on January 16th, 2003, you wrote on Newton's Talk that any 25 copies of Tolkien books or Harry Potter books in Newton book SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 265 84F5WAR1 Vander Ark - direct 1 electronic format are illegal? 2 A. That's referring to the fact that people would be sharing 3 those books online which of course would be illegal; sharing 4 them, putting them available for other users of that hand held 5 computer. 6 Q. Isn't it true that you wrote that, Mr. Vander Ark? 7 A. I don't have that document in front of me but I'm not 8 disputing it. 9 MS. CENDALI: May I approach, your Honor? 10 THE COURT: Yes, you may. 11 Q. I'm giving counsel Plaintiff's Exhibit 194 and giving the 12 Court a copy. 13 A. Thank you. 14 Q. Please take a look at Exhibit 194 and let's put it on the 15 screen, Mr. Hoy, please. And if you could highlight the 16 paragraph at the top? 17 Now, this is something that someone had raised, a 18 question; right? Books that are copyrighted, that if we have a 19 hard printed copy of our own, we are allowed to make copies of 20 our own personal use. 21 That was the issue that you were addressing, is that 22 correct? 23 A. I believe what I was addressing was whether you may put 24 that online but I don't remember that thread so I couldn't 25 comment on what was being discussed. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 266 84F5WAR1 Vander Ark - direct 1 Q. But you remember saying that actually, no, you can't 2 legally make copies of completed books just because you have 3 the paper version. Right? 4 A. As I said -- 5 MR. HAMMER: Asked and answered, your Honor. 6 THE COURT: I will allow the question and answer. 7 A. Could you ask me the question again, please? 8 Q. Sure. This refreshes your recollection that you wrote: 9 You can't legally make copies of copyrighted books -- such as 10 Ms. Rowling's -- 11 A. Yes. 12 Q. -- harry Potter books? 13 A. Yes. 14 Q. And there is nothing in this post that you are reading that 15 qualifies that by saying anything with any of the other 16 qualifications you just mentioned? 17 A. There is nothing in this post to that effect, no. 18 THE COURT: Where is the question that precedes this? 19 MS. CENDALI: The question is -- 20 THE COURT: Isn't there a question? This is an answer 21 to a question. 22 Q. Could you explain, Mr. Vander Ark, what the italicized text 23 above is? 24 A. This is part of a longer series of discussions which were 25 happening online. I don't know if there is an actual question SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 267 84F5WAR1 Vander Ark - direct 1 but it is a discussion about whether a book would be legal to 2 do if you owned the copy; can you make a copy, for instance a 3 scanned copy of your own. That was the discussion that we were 4 having there and I was giving my opinion. 5 THE COURT: It had nothing to do with online? 6 THE WITNESS: Yes, this is an online discussion. 7 THE COURT: No, I mean online distribution. 8 THE WITNESS: I don't recall the entire discussion. 9 I'm sure that was what we were talking about because the whole 10 point of this discussion group was to discuss software for the 11 Newton. It was a computer which didn't have a huge following 12 and so there was a lot of people who owned these computers who 13 wanted to share what they did have. And so, we had discussed 14 before what was okay to share and what wasn't. 15 There was not a lot of commercially available 16 material. 17 BY MS. CENDALI: 18 Q. There is nothing in the text that says anything about being 19 limiting your statement? 20 A. In this one small entry in that long thread? No. 21 Q. Correct. And you can't sit here today and tell the Court 22 that there was anything like that in the rest of the thread? 23 A. All I can say is what sorts of things we talked about on 24 that list a number of years ago. 25 Q. So the answer to my question is no? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 268 84F5WAR1 Vander Ark - direct 1 A. I believe that -- 2 THE COURT: He has answered your question, 3 Ms. Cendali. Go ahead. 4 Q. Your Honor, I would like to approach and hand the witness a 5 copy of his declaration in this case, Exhibit 502. 6 Now, Mr. Vander Ark, you recognize Exhibit 502 as a 7 copy of the declaration you submitted in this case, right? 8 A. Yes. That is correct. 9 Q. And you signed it under penalty of perjury, correct? 10 A. Yes, I did. 11 Q. And you read it very carefully before you signed it, 12 correct? 13 A. Yes, I did. 14 Q. So everything in it is true? 15 A. Yes. I hope so. 16 Q. Let's look at some parts of Exhibit 502 and, in particular, 17 paragraph 36 of your declaration. Maybe we can put that on the 18 screen, Mr. Hoy. Paragraph 36. And if you can highlight for 19 me the beginning part of the first sentence in paragraph 36? 20 In paragraph 36 you wrote: My staff and I composed 21 the text of the Lexicon book. 22 Do you see that? 23 A. Yes, I do. 24 Q. Does that mean that you believe that you and your staff 25 wrote the book? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 269 84F5WAR1 Vander Ark - direct 1 A. Yes. 2 Q. So you don't believe Ms. Rowling wrote the book, right? 3 A. I'm sorry. Which book are you referring to? 4 Q. The Lexicon manuscript. 5 A. We wrote the Lexicon manuscript; that's correct. 6 Q. Do you think that the Lexicon manuscript copies 7 Ms. Rowling's work? 8 A. The Lexicon book is a reference book to a piece of 9 literature and so, naturally, it refers back to the source of 10 material. That's the kind of book it is. 11 Q. Do you believe that it copies Ms. Rowling's language? 12 MR. HAMMER: He can explain what in fact he does, your 13 Honor. The word "copying" is a large and ambiguous term. He 14 has given a precise explanation. 15 MS. CENDALI: Your Honor, I would appreciate it if 16 Mr. Hammer would not interrupt my cross-examination. 17 MR. HAMMER: I have an objection, your Honor, and I 18 hope I will have the right to interrupt cross-examination. 19 THE COURT: Let me hear the question back. 20 BY MS. CENDALI: 21 Q. Mr. Vander Ark -- 22 Can you read the question back? Is that possible? 23 (Record read) 24 THE WITNESS: There are places where we use phrases 25 that are identical or similar in the process of creating a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 270 84F5WAR1 Vander Ark - direct 1 reference work of this kind. That would be expected. 2 Q. How many places are there in the Lexicon manuscript that 3 copies Ms. Rowling's phrases? 4 THE COURT: Are you asking for a number? 5 Q. A percentage? 6 A. I really don't know the answer to that. The Lexicon book 7 is a reference guide to literature. It is a standard type of 8 reference guide. 9 Q. Mr. Vander Ark? 10 A. Yes. 11 Q. When Mr. Hammer asks you questions you are welcome to 12 expand on your theory of the case. If you could try to answer 13 my questions yes or no I would appreciate it. Okay? 14 A. I will. 15 Q. My question to you is whether, isn't it true that over 90 16 percent of the Lexicon manuscript quotes or paraphrases 17 Ms. Rowling's work? 18 MR. HAMMER: He's already said that he doesn't know. 19 She's testifying now in the form of this question. 20 THE COURT: Objection sustained. 21 Q. Isn't it possible, Mr. Vander Ark, that more than 90 22 percent of the Lexicon manuscript copies Ms. Rowling's work? 23 A. I don't think that that's true. No. 24 Q. But you are not sure? 25 A. I would say no. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 271 84F5WAR1 Vander Ark - direct 1 Q. Can you give me a percentage that makes you think it? 2 MR. HAMMER: He has already answered this and he said 3 he doesn't have a percentage, your Honor. 4 THE COURT: I'm going to allow the question. 5 A. I'm really not sure how to answer that question. I have 6 not analyzed the text in that way. It refers to the text. 7 MS. CENDALI: Your Honor, again I want to object to 8 Mr. Hammer's speaking objections. 9 THE COURT: He has a right to object, Ms. Cendali. 10 Q. Now, let's look at -- so looking at the next sentence in 11 your exhibit in paragraph 36 of your declaration where you 12 write: It is true that in a few places the book employs 13 phrases or sometimes whole sentences that are similar to 14 phrases or sentences in the Potter books. 15 Do you see that? 16 A. Yes. 17 Q. So you wrote: It is true that in a few places the book 18 employs phrases or sometimes whole sentences. 19 So, is it your view that the book, only in a few 20 places, employs phrases or sometimes whole sentences similar to 21 Ms. Rowling's work? 22 A. There are times when we used some of the same terminology, 23 that's true. 24 Q. But only in a few places. Is that your testimony? 25 A. That's what I wrote. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 272 84F5WAR1 Vander Ark - direct 1 Q. And is that what you believe? 2 A. That's what I believe. 3 Q. And now, is it also true that you don't believe that you 4 paraphrase Ms. Rowling's works in creating the encyclopedia? 5 A. I'm not sure how to answer the question with a yes or a no. 6 When you create a guide like this you are going to be 7 referring back to the text and that requires some paraphrasing. 8 Q. Well, let's look at your declaration on page 16 which is 9 paragraph 44(C)(1). 10 It is easier to find, your Honor, by the page number 11 which is page 16. 12 THE COURT: Thank you. 13 Q. If you can highlight, Mr. Hoy, the first part of that 14 through and continuing down to the next two lines. 15 You are writing that Ms. Birchall -- somebody who 16 submitted a declaration in this case -- that, for other 17 entries, the Lexicon makes extensive use of paraphrasing that 18 is alarmingly similar to the Harry Potter text, however few 19 citations are provided. And then you say: This is incorrect 20 for several reasons. 21 Right? 22 A. That's right. 23 Q. And you say: First, the entries in question are not 24 paraphrasings. In each case they were written by me and my 25 staff. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 273 84F5WAR1 Vander Ark - direct 1 A. Yes. 2 Q. Do you see that? 3 A. Uh-huh. 4 Q. Do you consider it your original work if you take one of 5 Ms. Rowling's sentences and change a word? 6 A. I would have to -- 7 THE COURT: I think in order to really -- I think the 8 following sentence is part of the same thought or 9 explanatory -- the same thought, Ms. Cendali. 10 MS. CENDALI: Okay. Well, maybe it would be easier 11 if -- 12 THE COURT: These two sentences. You are taking the 13 single sentence. The answer to your question seems to be 14 contained in more than one sentence. 15 Q. Well, let's go to the next sentence as his Honor suggests. 16 It is true that in some cases they contain words and 17 phrases that are similar to those in the Potter books but, as I 18 earlier explained, that is because the nature of what was being 19 described required that subject and description used similar 20 language. 21 Is that what you wrote? 22 A. Yes. Uh-huh. 23 Q. Now, what was being described were fictional things created 24 by Ms. Rowling, right? 25 A. That's correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 274 84F5WAR1 Vander Ark - direct 1 Q. And, would you agree that one of the big appeals of the 2 Harry Potter books is the universe of creative fictional things 3 and places that she created? 4 A. Oh, of course. 5 Q. And, in fact, isn't that one of the things that attracted 6 you to the Harry Potter books? 7 A. Yes. Very much. 8 Q. Isn't it true that before being a Harry Potter fan you had 9 been interested in Star Trek? 10 A. Yes. 11 Q. And Star Trek 2 has a whole universe of live long and 12 prosper and Vulcan and things like that that is appealing? 13 A. Yes. Uh-huh. 14 Q. Let's look at some of the entries in the Lexicon and I 15 would like to, for the sake of convenience, your Honor, what I 16 have done is I have stapled together and will give to, with the 17 Court's permission, your Honor, and opposing counsel, a set of 18 the same demonstratives I used with Ms. Rowling that were 19 marked for identification as Exhibits 165 through 171 just to 20 make it a little easier given the binders and the like. 21 May I approach and hand one to the witness and to the 22 Court? 23 THE COURT: Surely. 24 THE WITNESS: Ms. Cendali, are we done with this one? 25 MS. CENDALI: Yes. Well, you can put it aside for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 275 84F5WAR1 Vander Ark - direct 1 now. I may likely go back to it. 2 THE WITNESS: That's fine. 3 THE COURT: Go ahead. 4 MS. CENDALI: Thank you, your Honor. 5 Q. Now let's put on the screen the Lexicon entry comparison 6 for Brain Room marked for identification as 165. And on the 7 right side of that, that's the, a portion of the text from the 8 Lexicon, correct? 9 A. Yeah. Could we see the whole Lexicon entry, please? 10 Q. Well, right now I am pointing you to this phrase. 11 A. All right. Thank you. 12 Q. You are more than welcome to -- you see the ellipses? That 13 means that there is more than that but I am focusing on this 14 particular language. Okay? 15 A. That's fine. I understand. 16 Q. And it says: The brains fly out of the tank, unspooling 17 ribbons of thought like strips of film. 18 Do you see that? 19 A. Yes. 20 Q. And if you look to the left, Order of the Phoenix, that's 21 one of Ms. Rowling's books, right? 22 A. Yes. 23 Q. And in that book she wrote: What looked like ribbons of 24 moving images flew from it, unraveling like rolls of film. 25 A. That's right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 276 84F5WAR1 Vander Ark - direct 1 Q. And would you agree with me, Mr. Vander Ark, that what you 2 wrote in the Lexicon copied Ms. Rowling's work? 3 A. No. I wouldn't call that copying. It is similar. 4 If you will allow me, in order to write something like 5 this when I am describing something which exists only in the 6 pages of a book it is not like I can go to the zoo and see a 7 creature and write about it. The only way I can write about 8 these things is from the source text so it is going to be 9 similar. 10 MS. CENDALI: Objection. Move to strike as 11 non-responsive. 12 MR. HAMMER: She is objecting to the testimony that 13 she elicited, your Honor. 14 THE COURT: Objection overruled. You are not going to 15 strike. 16 Q. Mr. Vander Ark, do you consider what you wrote in 165 to be 17 a paraphrase of Ms. Rowling's work? 18 A. I suppose you could use that term. I had never thought 19 about exactly how to describe it, but. 20 Q. Now, you didn't use any quotation mark, right? 21 A. In that part, no. I did cite it, however. 22 Q. You didn't put it in quotation marks. Isn't it true that 23 someone reading this would not know which words were yours and 24 those were of Ms. Rowling? 25 A. I believe it has a citation at the end saying where it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 277 84F5WAR1 Vander Ark - direct 1 comes from which would indicate that its source is the book. 2 Q. That the overall passage came from Ms. Rowling's book, 3 right? 4 A. That what is being described here has come from that 5 section of Order of the Phoenix, yes. 6 Q. But you don't make clear in the Lexicon, isn't it fair to 7 say, which words you and your staff wrote -- 8 Will you let me finish my question and then you can 9 answer? 10 A. Yes. I'm very sorry. 11 Q. Isn't it true that you rarely used quotation marks in the 12 Lexicon of Ms. Rowling's work? 13 A. We do use them in some places but we always cite where it 14 comes from or those, where that comes from in the books. 15 Q. And isn't it true you mingle words that you wrote with 16 words Ms. Rowling wrote, right? 17 A. We use similar descriptions to describe similar things, 18 yes. 19 THE COURT: When you say you cite, you just cite to 20 the chapter, is that right? 21 THE WITNESS: Right. That's correct. 22 THE COURT: You don't cite to the page? 23 THE WITNESS: We decided not to cite to the page 24 because there are so many different versions of the book that 25 the page number wouldn't be the same. But, the chapter numbers SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 278 84F5WAR1 Vander Ark - direct 1 always are. 2 THE COURT: I see. 3 BY MS. CENDALI: 4 Q. And, when you cite to chapters you don't purport to cite to 5 all the chapters that a creature or character is referenced in, 6 correct? 7 A. Not in the book version. We had to do a lot of editing of 8 some of those references and taking them out. 9 Q. So the answer is no, correct? 10 A. That's correct. 11 Q. And you don't even attempt to cite to the first time a 12 character or object appeared, correct? 13 A. The Lexicon book is not intended to be exhaustive, no. 14 Q. So the answer is no? 15 A. I believe so, yes. 16 Q. Let's look at another example that is marked as Plaintiff's 17 Exhibit 166, the Lexicon entry for Armor, goblin-made. On the 18 right there is the language: Goblin-made armor does not 19 require cleaning, because goblins' silver repels mundane dirt, 20 imbibing only that which strengthens it. 21 Do you see that? 22 A. Yes, I do. 23 Q. On the left is the Deathly Hallows quote and that's from 24 Ms. Rowling, right? 25 A. That is correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 279 84F5WAR1 Vander Ark - direct 1 Q. And it says: Goblin-made armour does not require cleaning, 2 simple girl. Goblins' silver repels mundane dirt, imbibing 3 only that which strengthens it. 4 Do you see that? 5 A. Yes, I do. 6 Q. Did you copy Ms. Rowling's words in writing that? 7 A. In the lexicon entry right before that it refers to the 8 fact that this is being said by a character so, yes, we had 9 exactly what that character said. 10 Q. And so, this is a quote of Ms. Rowling's work, is that 11 right? 12 A. Used and cited, yes. 13 Q. But there are no quotation marks? 14 A. No, because that's not the form of the sentence. But, it 15 is clear that that's what it is. 16 Q. And you think it would be clear to someone reading this, a 17 child reading this that this is words that Ms. Rowling wrote as 18 opposed to you wrote? 19 A. Well, it looks like it is what a character is saying but, 20 yes, I would say yes. 21 Q. Can you understand why Ms. Rowling might not be too happy 22 about having her words appear without quotation marks in a book 23 that you wrote? 24 MR. HAMMER: Objection, your Honor. 25 THE COURT: On what grounds? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 280 84F5WAR1 Vander Ark - direct 1 MR. HAMMER: Because it causes him to speculate to the 2 mental state of Ms. Rowling. Second of all, her unhappiness is 3 not really an issue in this case. 4 THE COURT: Objection sustained. 5 Q. Mr. Vander Ark, who wrote the words in the Deathly Hallows 6 book that the character said? 7 A. Ms. Rowling. 8 Q. Now, let's look at what's been marked as Exhibit 167, the 9 entry for Clankers, and on the right is the Lexicon entry, on 10 the left is the entry from Deathly Hallows, correct? 11 A. That's correct. 12 Q. And, isn't it true that you copied the lexicon Entry from 13 Ms. Rowling's descriptions? 14 A. It uses many of the same words, yes. I have never copied 15 it specifically or intentionally but it uses many of the same 16 words. 17 Again, we are describing an object which doesn't exist 18 in reality. In order to accurately describe that I'm going to 19 be using the same kind of words. 20 Q. So if I wanted to accurately describe all the Harry Potter 21 books could I just simply restate all of them using all of 22 Ms. Rowling's words and do you think that that would be okay? 23 MR. HAMMER: Objection. I don't understand the 24 question. 25 THE COURT: Objection sustained. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 281 84F5WAR1 Vander Ark - direct 1 Q. What are clankers, Mr. Vander Ark? 2 A. Do you want me to read from the description here? 3 Q. Well can you answer the question without reading from the 4 description? 5 A. They're metal objects which are used to frighten a dragon. 6 Q. So you are able to describe what a clanker was without 7 taking so much of Ms. Rowling's text, weren't you? 8 A. You asked me to describe it. You didn't ask me to say what 9 I would put in a reference work. There is a difference. 10 Q. Well, it is possible to put in a reference work a shorter 11 description of Ms. Rowling's people, places and things than you 12 put in the Lexicon, right? 13 A. Yes, it is possible to do a shorter version. 14 Q. And it is possible that those shorter versions would take 15 less of her prose in doing so, right? 16 A. Right. When you create a reference work you have to find a 17 balance between the two. 18 Q. And, isn't it true that the balance that you chose in the 19 Lexicon was to quote a lot of Ms. Rowling's prose? 20 A. A reference work of that kind has to have value based on 21 how much information it gives, and so it is difficult sometimes 22 to figure out the balance. And we tried to do the best we 23 could to find a balance between the two. 24 Q. Can you answer my question yes or no? 25 A. I don't know that that's a question that can be answered SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 282 84F5WAR1 Vander Ark - direct 1 yes or no. 2 Q. Well, isn't it true that the Lexicon takes much more of 3 Ms. Rowling's prose than other Harry Potter encyclopedias? 4 A. I guess I can't speak to that. Some of the other 5 encyclopedias that I have seen have done about the same thing 6 and others have had a different focus. 7 Q. Okay. Well, let's take a look at what's been marked as 8 Plaintiff's Exhibit 75, the Magical World of Harry Potter by 9 David Colbert. 10 May I approach, your Honor, and hand it to the 11 witness? 12 THE COURT: Yes, you may. 13 Q. You are familiar with that book, aren't you? 14 A. Yes, I am. 15 Q. It is fair to say that that book is another Harry Potter 16 encyclopedia, right? 17 A. Actually this book has a different focus. I wouldn't call 18 it an encyclopedia. 19 Q. You wouldn't. Okay. Well -- 20 A. There are some similarities to it but it is not intended to 21 be an exhaustive or a complete encyclopedia. It chooses 22 certain topics and discusses them. 23 Q. And in alphabetical order, correct? 24 A. Yes, apparently. 25 Q. And, isn't it true that Mr. Colbert uses much less of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 283 84F5WAR1 Vander Ark - direct 1 Ms. Rowling's prose in writing that book than you did? 2 A. Mr. Colbert's purpose in this book is to talk about other 3 things than Harry Potter books, so yes. 4 Q. And, your purpose was not to talk about anything in the 5 Lexicon, right? 6 A. I'm sorry? 7 Q. Excuse me. 8 Your purpose was -- Mr. Colbert, in the Magical World 9 of Harry Potter, added a lot of commentary or analysis to the 10 Harry Potter books, right? 11 A. That was the purpose of his book, yes. 12 Q. But that's not the purpose of the Lexicon, right? 13 A. No. The purpose of the Lexicon is to be a ready reference 14 to the literature itself. 15 Q. For what purpose? 16 MR. HAMMER: I'm sorry. I don't understand the 17 question. He has just described the purpose of the book. 18 MS. CENDALI: You just said it was to be -- 19 THE COURT: Objection overruled. I will allow it. 20 A. Would you like me to explain what I mean by that? 21 Q. Yes. You just said it was to be a ready -- 22 A. Ready reference, yes. 23 Q. -- reference to the book. What, in your mind, is the 24 purpose of the Lexicon? 25 A. Of a ready reference of that kind? I'm a librarian and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 284 84F5WAR1 Vander Ark - direct 1 some of the reference material that we have available is 2 referred to as ready reference, and that's things where you can 3 look up facts in a hurry. We have different kinds of reference 4 material. Some of it is designed to, for example, go into 5 deeper information, let's say, about the etymology of a word. 6 Other things like a standard dictionary would just give a quick 7 definition. 8 This book is, has a purpose of going into some of the 9 deeper details. 10 The Lexicon book has a purpose of being a ready 11 references a quick reference to fact. 12 Q. So, it is not intended to go into any of the deeper details 13 of the Harry Potter books, is that right? 14 A. We have some in there but, in our interest of length, we 15 couldn't put in nearly everything that we had. We had to make 16 a decision. 17 Q. So the lexicon doesn't spend much time trying to analyze 18 the Harry Potter books, right? 19 A. Not a lot, no. 20 Q. And turning to Exhibit 74, Fact, Fiction and Folklore in 21 Harry Potter's World. 22 May I approach, your Honor? 23 THE COURT: Yes. 24 THE WITNESS: Are we done with this one, Ms. Cendali? 25 MS. CENDALI: Yes. At least for the time being. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 285 84F5WAR1 Vander Ark - direct 1 Q. You are familiar with that book, correct? 2 A. Yes. Uh-huh. 3 Q. And isn't it true that that book is also a Harry Potter 4 encyclopedia? 5 A. Yes. 6 Q. And isn't it true that it also is in alphabetical order? 7 A. Yes. 8 Q. Isn't it true that that book takes much less of 9 Ms. Rowling's prose than your proposed Harry Potter Lexicon? 10 A. Mr. Beahm's purpose again is more similar to Mr. Colbert's 11 purpose in writing the purpose. 12 Q. So the answer to the question is yes? 13 A. Yes. 14 Q. Isn't it true that Mr. Beahm's book provides much more 15 commentary about the Harry Potter universe than the lexicon? 16 A. Yes, that is his purpose. 17 Q. Now, let's look at Exhibit 168, the Chudley Cannons entry 18 to the lexicon. Now what are the Chudley Cannons? 19 A. This is a Quidditch team. 20 Q. And, but you just don't describe the Chudley Cannons as a 21 Quidditch team in the lexicon, do you? 22 A. No. That's correct. 23 Q. You go on to say: The Cannons wear orange robes with a 24 speeding black cannon ball and a double letter C on them. The 25 Cannons have won the league 21 times but the last time was in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 286 84F5WAR1 Vander Ark - direct 1 1982 and I can go on. 2 That language was taken from Ms. Rowling's book 3 Quidditch Through the Ages, right? 4 A. Those facts are taken from there, yes. 5 Q. Those facts don't exist in the real world, right? 6 A. That's correct. 7 Q. So those are fictitious facts, correct? 8 A. Yes. 9 Q. Those facts comprise Ms. Rowling's creative output, 10 correct? 11 A. That is correct. 12 Q. You would call Ms. Rowling a genius, wouldn't you? 13 A. Yes, I would, actually. 14 Q. And, isn't it true that what you have done in the Lexicon 15 is restate the things that she made up? 16 A. I was creating a reference work and it is not much of a 17 reference work if you don't put the facts in there. 18 Q. And so you put all the facts you could in there about 19 the -- 20 A. Actually no. I'm sorry, I didn't mean to interrupt. No, 21 we didn't put all the facts we could. We intentionally left 22 some out especially for Quidditch Through the Ages and 23 Fantastic Beasts. Our intention was never to have the Lexicon 24 book be a replacement for those books. 25 (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 287 84FVWAR2 Vander Ark - direct 1 Q. But you knew that the Quidditch Through the Ages and the 2 Fantastic Beast books were books Ms. Rowling did for charity, 3 right? 4 A. Yes, ma'am. 5 Q. And you have acknowledged in the past, haven't you, that 6 there was the potential that the Lexicon could detract from 7 sales of Ms. Rowling's charitable books? 8 A. Of those two books, yes. 9 Q. And why is it that you thought that the Lexicon might 10 detract from sales of those books? 11 A. Those two are difficult. As librarians, if you put 12 something like this together, most of -- well, most of 13 Quidditch of the Ages, but also most of the books that she's 14 written are stories, they are narrative form. There's no way 15 that someone's going to take an encyclopedia of that and think 16 of it as a replacement. It just isn't logical. 17 You're not going to look at the Lexicon book and then 18 not have to read the novels. In fact, the Lexicon book would 19 be pretty much worthless without the novels. 20 On the other hand, Fantastic Beasts and Quidditch of 21 the Ages had sections of them which were essentially 22 encyclopedias already which presented quite a problem. We 23 wanted to be complete, but we certainly didn't want to replace 24 Ms. Rowling's encyclopedia content which presented us with 25 quite a challenge of how to do that, how to include SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 288 84FVWAR2 Vander Ark - direct 1 information, but not to include all of it. And that was what 2 we decided to do. We said we'll intentionally leave things out 3 and put a very clear note, Please go read her book, which is 4 what we did. 5 Q. Is there a note on the Lexicon entry for Chudley? How much 6 did you leave out about in the Chudley Cannons entry? 7 A. Can you show me the full Lexicon entry? 8 Q. Sure. Let's put it on the screen, from exhibit Plaintiffs' 9 Exhibit 1, can you put up the entire Chudley Cannons entry? 10 THE COURT: What exhibit? 11 MS. CENDALI: Exhibit 1. Chudley Cannons. 12 THE COURT: Is that the whole entry? 13 MS. CENDALI: Yes, that's the whole... 14 BY MS. CENDALI: 15 Q. Is there anything about what Ms. Rowling wrote in Quidditch 16 Through the Ages about Chudley Cannons that you did not put in 17 the Lexicon? 18 A. I don't know. I'd have to go through it step-by-step. It 19 doesn't look like it, no. 20 Q. So as far as you know, you took everything? 21 A. In that particular case, it looks like we pretty much 22 caught it all. 23 Q. And isn't it true that the Quidditch book is only 56 pages 24 long? 25 A. Well, you've got the copy there; but that's fine, sure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 289 84FVWAR2 Vander Ark - direct 1 Q. Sounds right to you? 2 A. Yes, sounds about right. 3 Q. I'm referring to Plaintiffs' Exhibit 2, Quidditch Through 4 the Ages. And isn't it true that the Lexicon has more than 250 5 entries just from Ms. Rowling's Quidditch book? 6 A. I didn't add them up, so -- 7 Q. Okay. Does that sound right to you? 8 A. I have absolutely no idea. 9 Q. Isn't it true that your intent was to take all the facts in 10 the Quidditch book, which you believe everything she wrote in 11 her fictional world in the Quidditch book, and put it in the 12 Lexicon? 13 MR. HAMMER: Object to that as an incredibly complex 14 and confusing question. 15 THE COURT: Do you want to read the question back? 16 We'll have the question read back. 17 (Record read) 18 THE COURT: Objection sustained. Go ahead. 19 BY MS. CENDALI: 20 Q. Isn't it true that you intended to take all the creative 21 things Ms. Rowling wrote in the Quidditch book and put them in 22 the Lexicon? 23 A. No, that's not true. 24 Q. Sitting here today, can you tell me anything you left out 25 of the Quidditch book? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 290 84FVWAR2 Vander Ark - direct 1 A. Probably the first half is -- the first half of that book 2 is more of a narrative, and so there's a lot less of that 3 material. When it comes to descriptions of specific things, a 4 Quidditch file, for example, there's not a lot of information 5 there to condense, and so there would be more of that included 6 and referenced. 7 Q. Mr. Vander Ark, isn't it true in the Fantastic Beasts and 8 Where to Find Them book, Plaintiffs' Exhibit 3, that's 42 9 pages, isn't it true that once again the Lexicon took over 10 200 -- made over 200 entries based on Ms. Rowling's Fantastic 11 Beast book? 12 A. I didn't count them up, but since that is one of the 13 sections which is like an encyclopedia, we would have one entry 14 for each of the entries for that book. The point really is 15 that we didn't include all of that information from that entry 16 in our entry, and we referred the reader back to the original. 17 Q. And isn't it true that your Quidditch -- that your Lexicon 18 also uses material from Ms. Rowling's -- text Ms. Rowling wrote 19 for her Wizard Cards, right? 20 A. Yes. 21 Q. And isn't it true that, generally speaking, the Lexicon 22 used the entire text from Ms. Rowling's Wizard Cards? 23 A. I had permission to use that material. But in some cases 24 it's barely a sentence, and so in some cases we did put that 25 sentence in. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 291 84FVWAR2 Vander Ark - direct 1 Q. Isn't it true that usually the Wizard Cards have one 2 sentence or so, correct? 3 MR. HAMMER: He just testified to that. 4 A. Yes, that's true. 5 Q. And isn't it true that you copied that language in the -- 6 A. As I said, I had permission to use that material. 7 Q. Someone granted you permission? 8 A. Yes, ma'am. 9 Q. Just please let me finish, Mr. Vander Ark. 10 A. I'm sorry. 11 Q. It makes it much easier for the court reporter. 12 A. Yes. 13 Q. And certainly for me. 14 A. I'm very sorry. 15 Q. Okay. Isn't it true -- so is it your testimony that 16 someone granted you permission to use the text of Ms. Rowling's 17 Wizard Cards in a book version of the Lexicon? 18 A. They gave me permission to use the text from the cards on 19 the web site. When we created the book, we took the text from 20 the web site. I don't think until later when we thought about 21 it we weren't realizing that that was, in fact, transferring 22 from one form to another. 23 Q. So you never spoke to anyone about could you use that 24 material on a book that you were publishing for profit, right? 25 A. We spoke to someone and asked if we could use the material SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 292 84FVWAR2 Vander Ark - direct 1 on -- of those cards in the Lexicon. And that was in, I 2 believe, 2002. 3 Q. So just to be clear, in 2002, who was the someone you 4 asked? 5 A. I talked to people at both Electronic Arts and Wizards of 6 the Coast. 7 Q. Okay. And do you have names for those people? 8 A. I'm sorry, I don't. And I no longer have the emails 9 because of a computer crash. 10 Q. So you don't have the emails or the names of the people -- 11 A. No, the person -- sorry. 12 Q. Excuse me. So you don't have the emails of the names of 13 the people who gave you this permission, is that right? 14 A. I know that the person I talked to at Electronic Arts was 15 the person in charge of European marketing, but it was -- the 16 current person I think is Lisa Humphreys. And it was not 17 before her, but it was the gentleman before that person. 18 Q. And you don't remember that person's name? 19 A. I'm sorry, I don't. 20 Q. You don't have any emails confirming -- 21 A. I no longer do. 22 Q. Again, please let me ask the question. 23 MR. HAMMER: In fact, he did. And he waited and he 24 answered. 25 THE COURT: I think it's partly your fault, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 293 84FVWAR2 Vander Ark - direct 1 Ms. Cendali. 2 Q. Mr. Vander Ark, isn't it true that in 2002 the only thing, 3 if there were such a discussion, that would have been discussed 4 was the Lexicon web site? 5 A. Yes. 6 Q. Right? 7 A. That is true. 8 Q. And isn't it true that the Lexicon web site was and is a 9 free fan site, right? 10 A. Yes, that is correct. 11 Q. It doesn't charge fans any money to go to it, right? 12 A. No, it doesn't. 13 Q. And isn't it true that you never asked anyone permission to 14 use the EA cards in the Lexicon book, yes or no? 15 A. No, as I explained. 16 MS. CENDALI: Now, let's take a look -- sticking with 17 Exhibit 1, your Honor, the Lexicon manuscript. 18 Let's take a look at the first page of Exhibit 1 to 19 put on the screen, the Lexicon manuscript. And Mr. Hoy, could 20 you please highlight the first paragraph please? 21 Q. You write, All the information in the Harry Potter Lexicon 22 comes from J.K. Rowling, either in the novels, the school 23 books, or her interviews or from material which she developed 24 or wrote herself. Did you write that? 25 A. Yes, I did. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 294 84FVWAR2 Vander Ark - direct 1 Q. And is that true? 2 A. That is true. 3 Q. And when you wrote "either in the novels," you mean the 4 seven Harry Potter novels, right? 5 A. That is correct. 6 Q. And when you wrote "in the school books," you mean the 7 Quidditch and Fantastic Beasts book? 8 A. Yes, ma'am. 9 Q. Okay. And do you use the term "cannon"? 10 A. Yes, ma'am. 11 Q. What is cannon? 12 A. Cannon is a term that's used in literature to refer to all 13 of the works by a particular author. 14 Q. And the Lexicon is based on the cannon of Ms. Rowling, 15 correct? 16 A. That's right. That's -- a reference book of that kind will 17 typically restrict itself to the cannon of an author, yes. 18 Q. I see. And that includes her famous Wizard Cards and her 19 Daily Prophet Newsletter? 20 A. Yes, ma'am. 21 Q. Now, let's go back to your declaration, Exhibit 502. And 22 let's look at page 17 from Exhibit 502, which is the 23 parenthetical around the letter 3 on page 17. 24 And, Mr. Hoy, could you please highlight, would you, 25 the first part of that, the top half, approximately, of that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 295 84FVWAR2 Vander Ark - direct 1 section of your declaration, page 17. 2 Now, again, this was part of the declaration that you 3 wrote, Mr. Vander Ark, correct? 4 A. Yes, ma'am. 5 Q. And it says, Ms. Birchall also states that no outside 6 sources were used in the writing of the Lexicon book. And you 7 wrote, This is incorrect. Many sources besides the Harry 8 Potter books were used. These include research tools such as 9 reference works for particular historical periods, and then you 10 listed various books and dictionaries such as Bullfinch's and 11 Field Guide and things like that, correct? 12 A. Yes, ma'am. 13 Q. Now, isn't it true, Mr. Vander Ark, that only -- the only 14 one of these alleged sources of the Lexicon that's actually 15 cited in the Lexicon manuscript is the New Shorter Oxford 16 English Dictionary? 17 A. That could be. 18 Q. So there are no citations in the Lexicon manuscript to 19 Brewer's Dictionary Phrase and Fable or Bullfinch's or The 20 Field Guide to the Little People, that's right? 21 A. That is correct. 22 Q. And isn't it true that the New Shorter Oxford English 23 Dictionary is only cited four times? 24 A. I haven't counted it up. I don't know. 25 Q. Does that sound right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 296 84FVWAR2 Vander Ark - direct 1 A. I have no idea. 2 Q. Now, isn't it true that other than the entries to the 3 Oxford English Dictionary, that there are no other citations 4 anywhere in the Lexicon to anything other than Ms. Rowling's 5 manuscripts, Ms. Rowling's work? 6 A. What we were creating was -- 7 Q. Can you answer it yes or no? 8 A. I'm sorry, could you ask me the question again? 9 Q. Certainly. Isn't it true that other than the four 10 citations to the Oxford English Dictionary, there are no 11 citations to any third-party work anywhere in the Lexicon 12 manuscript? 13 A. I think that that's correct. 14 Q. Now, I believe that you said in your declaration that the 15 Lexicon provides etymologies of certain words, isn't that true? 16 A. Yes, we do. 17 Q. And you don't purport to provide etymologies for all the 18 wonderful creative words -- 19 A. No. 20 Q. -- that Ms. Rowling has come up with, right? 21 A. No, we don't, not in the book. 22 Q. And isn't it, in fact, true that you only -- that the 23 etymologies comprise only about one percent of the entire 24 lexicon manuscript? 25 A. I don't know the math on it, but we use etymologies on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 297 84FVWAR2 Vander Ark - direct 1 words where we have -- the word seems particularly appropriate, 2 such as spell names and things like that. 3 Q. Does it sound about right though, it's probably only about 4 one percent of the Lexicon uses any etymologies? 5 A. Is there a way that you know that percentage? Because I 6 don't know it. And if you have counted them up, I'd be happy 7 to agree with you. I haven't counted, so I don't know. 8 Q. So you don't -- do you dispute the idea that -- 9 MR. HAMMER: Objection your, Honor. 10 THE COURT: Objection sustained. He doesn't know. 11 Q. Now, does the Lexicon manuscript have things in it, what 12 you refer to as flints? 13 THE COURT: I'm sorry, could you repeat the question? 14 MS. CENDALI: Sure. Let me rephrase. 15 Q. What's a flint, Mr. Vander Ark? 16 A. That's a fan term for continuity error in the books, of 17 which there are remarkably few. 18 Q. And because there are -- there are remarkably few because 19 Ms. Rowling is a very good writer and knows her work very well, 20 right? 21 A. That is absolutely true. 22 Q. And isn't it true that in light of the fact that there are 23 remarkably few flints in Ms. Rowling's books, there are 24 remarkably few flints reported in the Lexicon manuscript? 25 A. Again, I don't know the number, but there are very, very SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 298 84FVWAR2 Vander Ark - direct 1 few in her books. She's very, very good at continuity. 2 Q. And there are very few times in the Lexicon manuscript 3 where you point out that Ms. Rowling made a mistake, right? 4 A. Very few. 5 Q. Now, isn't it true, Mr. Vander Ark, that you believe that 6 you, yourself only wrote about 60 percent of the Lexicon 7 manuscript? 8 A. Of the book? 9 Q. Yes. 10 A. That would be my guess, yes. 11 Q. And who wrote the other 40 percent? 12 A. That would be the other three authors. 13 Q. Do you consider Ms. Rowling as one of the people who wrote 14 any part of the Lexicon manuscript? 15 A. The Lexicon book is a reference book to an original source. 16 If I was writing a reference book to Shakespeare, I wouldn't 17 list Shakespeare as the author, even though I would obviously 18 quote from his works. So I'm not quite sure how to answer your 19 question accurately. 20 Q. So you don't consider Ms. Rowling as someone who is an 21 author of the Lexicon? 22 A. In that kind of a book you would not list that way, no. 23 Q. Okay. Now, let's look at paragraph 18 of your declaration, 24 Exhibit 502. 25 MS. CENDALI: And could we please, Mr. Hoy, put that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 299 84FVWAR2 Vander Ark - direct 1 up on the screen. 2 THE COURT: What page is that? 3 MS. CENDALI: That is page 5, your Honor. The bottom 4 of the page. 5 Q. Now, this entry of your declaration is in the beginning 6 part of your declaration as you're talking about how you came 7 to write a work on -- 8 A. Yes. 9 Q. -- the Lexicon web site, is that right? 10 A. That is correct. 11 Q. And you wrote in your declaration that -- you can highlight 12 the part that says -- it starts "fans" in the middle of the 13 paragraph. You wrote, Fans send us a steady stream of emails, 14 suggesting changes to existing entries, debating the 15 correctness of information presented on the Lexicon, offering 16 additional background information, and making other suggestions 17 and corrections, is that right? 18 A. That is correct, yes. 19 Q. So when you do -- so the fans contributed a lot to the 20 Lexicon web site, is that right? 21 A. They contribute suggestions and ideas; they don't write the 22 material, no. 23 Q. And isn't it true that the suggestions and ideas of fans to 24 the Lexicon web site are also in the Lexicon manuscript, the 25 manuscript? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 300 84FVWAR2 Vander Ark - direct 1 A. We update the web site all the time using input from fans 2 who get into discussions on things. But we write the material. 3 Q. Well, you write the material in part, as you wrote here, 4 based on what fans submit, right? 5 A. Certainly. 6 Q. And that those submissions appear, as well, in the Lexicon 7 manuscript, correct? 8 MR. HAMMER: I'm sorry, what does that mean, "those 9 submissions"? He stated that he writes -- 10 THE COURT: Objection sustained to the form of the 11 question. 12 Q. Isn't it true that the Lexicon manuscript contains the same 13 fan suggestions and emails and corrections and as would appear 14 in the web site version of the Lexicon? 15 A. Are you saying did they write the material that appears in 16 the book, is that what you're asking me? 17 Q. No, I'm asking you whether the emails, suggestion -- the 18 suggested changes to existing entries that fans submit to the 19 web site, that happens? 20 A. Yes, it does. 21 Q. And you change the web site because a fan says you should 22 make a change, okay? 23 A. There are times when we take fan suggestions into account, 24 yes. 25 Q. And when you do that, do you make that same change in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 301 84FVWAR2 Vander Ark - direct 1 Lexicon manuscript? 2 THE COURT: What is the change? There seems to be a 3 distinction between what the fan contributes by way of 4 suggested change and the language that is then inserted in the 5 web site, and then we have to go from the web site to the book. 6 Your question does not make it clear. You allied the two 7 concepts. 8 BY MS. CENDALI: 9 Q. Mr. Vander Ark, is it your testimony that the Lexicon -- 10 that the web site contains no material written by fans? 11 A. I don't believe that anything that's in the web site or the 12 book is written by those fans. It's usually written by the 13 editors of the web site. I would have to look through 800 14 pages to see if we've ever specifically cited an email, which 15 we may have done. We did not do that when we wrote the book, 16 no. 17 Q. If fans contribute -- 18 A. Ideas? 19 Q. Ideas and suggestions to the web site, do you -- and you 20 incorporate those suggestions in the web site, do you also 21 incorporate those same suggestions in the Lexicon manuscript? 22 A. The Lexicon manuscript is condensed from the material on 23 the web site, so it would be hard for me to say exactly what -- 24 through that whole process of editing, things come and go and 25 change so much, it would be very difficult for me to show SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 302 84FVWAR2 Vander Ark - direct 1 examples, but I'm sure it's possible that an idea which came up 2 in an email from a fan could end up in the entry. Fans are 3 very, very good at finding information and making suggestions. 4 Q. Well, did you ever advise the fans who were contributing to 5 the Lexicon web site that their work might be used by you in a 6 for-profit book published under your name? 7 MR. HAMMER: Objection. He's testified that their 8 work has not been used. 9 THE COURT: Objection sustained, I guess. Aren't we 10 getting off the point, Ms. Cendali? The question here, as I 11 understand it, is whether or not the book, proposed book, the 12 Lexicon, can be published as a matter of fair use, and that's 13 the issue, is whether it's a fair use of Ms. Rowling's novels, 14 for someone to publish this Lexicon. Whether or not the fans 15 contributed in part is a side issue. 16 MS. CENDALI: May I make one more -- 17 THE COURT: It seems to me. 18 MS. CENDALI: I'll move on. I'll move on. 19 BY MS. CENDALI: 20 Q. Mr. Vander Ark, you wrote -- let's look at paragraph 9 of 21 your declaration. 22 A. May I have some more water please? 23 Q. In paragraph 9 of your declaration, which is on page 3, you 24 wrote, Neither Ms. Rowling herself nor Warner Brothers has ever 25 complained about any of the material from the Lexicon web site SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 303 84FVWAR2 Vander Ark - direct 1 that now appears in the Lexicon book. Do you see that? 2 A. That's correct, yes. 3 Q. But you've never discussed with any of Ms. Rowling or 4 Warner Brothers' representatives about getting permission for 5 them to do a book version of the Lexicon web site, right? 6 A. No, I didn't think I needed to. 7 Q. Now, you say -- now, isn't it true, Mr. Vander Ark, that 8 Mr. Blair, Ms. Rowling's lawyer, Christopher Little Agency, 9 asked you not to post the Daily Prophet Newsletters that 10 Ms. Rowling wrote for fans? 11 A. He asked me not to publish them verbatim, and we didn't. 12 Q. He asked you not to post them on the web site, right? 13 A. He asked me not to publish them verbatim on the web site, 14 that is correct. 15 Q. And isn't it true that you had included the material from 16 the Daily Prophet Newsletters both on the web site and in the 17 Lexicon manuscript? 18 A. After Mr. Blair told me that, we put material on the web 19 site, that was in 2004, and there was no objection to that at 20 all. 21 Q. Isn't it true that the Lexicon manuscript contains material 22 from Ms. Rowling's Daily Prophet newsletters? 23 A. I'm sorry, I couldn't hear what you said. 24 Q. Sure. Isn't it true that the Lexicon manuscript contains 25 material from Ms. Rowling's Daily Prophet newsletters? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 304 84FVWAR2 Vander Ark - direct 1 A. It references that, like all the rest of it, yes. 2 Q. Did you ever tell Mr. Blair you were doing that? 3 A. That I was doing what, I'm sorry? 4 Q. That you were using Ms. Rowling's Daily Prophet material in 5 the Lexicon manuscript. 6 A. I never had a conversation with Mr. Blair about the Lexicon 7 manuscript. 8 Q. Let's look at Exhibit 76, an email chain between you and 9 Mr. Blair dated July 27, 2004. And if you look on the second 10 page -- 11 MR. HAMMER: I'm sorry. Just give us a second to come 12 up with this please. 13 THE COURT: Do you want to start on the third page? 14 MS. CENDALI: Third page, your Honor. Forgive me, one 15 second, your Honor. 16 THE COURT: I'm missing a page, I guess. It doesn't 17 seem to... 18 MR. HAMMER: Your Honor, may I? 19 THE COURT: Something is the matter with my exhibit. 20 MR. HAMMER: Might this be an opportunity for a 21 five-minute break, your Honor. 22 THE COURT: Yes, I think it's probably a good idea. 23 The exhibit has a problem, Ms. Cendali, if you were down here. 24 MS. CENDALI: Okay. We'll try to rectify that, your 25 Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 305 84FVWAR2 Vander Ark - direct 1 THE COURT: It doesn't follow; the text doesn't 2 follow. 3 (Recess) 4 MS. CENDALI: Your Honor, I'll proceed whenever you 5 wish. 6 THE COURT: I just have a problem with that exhibit. 7 MS. CENDALI: I understand, your Honor, and I've been 8 advised that somehow that exhibit apparently is not complete. 9 So what we will do is we will see if we could find the missing 10 page and either complete it or withdraw the exhibit. But in 11 light of that, I think I'll just move on. 12 THE COURT: All right. 13 BY MS. CENDALI: 14 Q. Now, Mr. Vander Ark, what's a spoiler alert? 15 A. Are you referring to like in a fan site or something like 16 that? A spoiler alert would be where you put something to warn 17 people that what you're going to be talking about gives away 18 important plot points, for example. Often used, for example, 19 shortly after a new book would come out and everyone hasn't 20 read it yet, and you want to warn them that you're going to be 21 talking about something from the new book. 22 Q. And why do you want to warn people about that? 23 A. In a situation, for example, that I was just talking about, 24 some people would not have had a chance to read the book yet, 25 and they would be wanting to avoid a discussion about something SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 306 84FVWAR2 Vander Ark - direct 1 they haven't read yet. 2 Q. And is part of the purpose of the spoiler alert to not 3 spoil the surprise for someone? 4 THE COURT: What's a spoiler alert? 5 THE WITNESS: It's something we would put on a web 6 site. 7 THE COURT: "We" being who? 8 THE WITNESS: People who run web sites. Because 9 especially, as I said, right after a new book would come out, 10 everybody doesn't read at the same speed; and therefore, people 11 might want to go online, but they don't want to have plot 12 points given away. So particularly right after a book comes 13 out we put a lot of those out on our web sites to kind of 14 guard -- help people not to get -- know the story until they've 15 had a chance to read it. 16 Q. And isn't it true that for some people, knowing the outcome 17 of the story would spoil it for them? 18 A. I think that's the purpose of the spoiler alert, yes. 19 Q. And isn't it true that the Lexicon manuscript has many long 20 detailed plot summaries from Ms. Rowling's novels? 21 A. Depending on the entries, there are plot points, yes. 22 Q. And isn't it true that someone reading those plot summaries 23 would find out, for example, who lived and who died at the end 24 of Book 5 -- Book 7? 25 A. Book 5, as well, actually. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 307 84FVWAR2 Vander Ark - direct 1 Q. You're right about that. 2 A. Yes, very unlikely that someone would pick up a reference 3 guide like that, if they hadn't already read the books, it 4 would be of very little value to them. 5 Q. So isn't it true that you're not limiting sales of the 6 Lexicon to people who read all seven Harry Potter books, right? 7 MR. HAMMER: Your Honor, that's a preposterous 8 question. 9 THE COURT: Objection sustained. 10 Q. Someone could have read just one or two of the Harry Potter 11 books and purchased a copy of the Lexicon, right? 12 THE COURT: Anything is possible. Let's move on. 13 That line of questioning seems to be not... 14 Q. Isn't it true, Mr. Vander Ark, that the Lexicon manuscripts 15 plot summaries could be used to deter people from reading 16 Ms. Rowling's novels? 17 A. I don't see that, no. 18 Q. Now, the Lexicon web site is different from the Lexicon 19 book, correct? 20 A. Yes, it is. 21 Q. Isn't it true that the Lexicon web site contains much more 22 features and information than the -- 23 A. Yes, it does. 24 Q. -- manuscript? There are essays on the Lexicon web site, 25 right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 308 84FVWAR2 Vander Ark - direct 1 A. Yes, there is. 2 Q. And there is artwork on the web site? 3 A. Yes. 4 Q. And what are some of the other things that are on the web 5 site that aren't on the -- in the manuscript of the book? 6 A. The Lexicon web site has sections, for example, which are 7 maps and charts of places in the books. It has essays, it has 8 an entire section which is sort of real-world information about 9 Ms. Rowling's life and the films and things like this. So 10 there are quite a few areas of the Lexicon web site which are 11 not included in the Lexicon book. 12 Q. And it's fair to say that there is much more commentary on 13 the Lexicon web site than there is in the Lexicon manuscript? 14 A. Yes, there is. 15 Q. Now, let's look at Exhibit 14-D. Put that up on the 16 screen, if possible. Let's go to, in particular, I believe 17 it's the second page of 14-D, and it's highlighted in yellow. 18 Can you tell me just in general first what Exhibit 14-D is? 19 A. I believe that's the FAQ page, one of the FAQ pages on the 20 Lexicon web site. 21 Q. And what's an FAQ page? 22 A. Frequently asked questions. 23 Q. And what's the purpose of an FAQ page? 24 A. To answer the questions that people otherwise would be 25 sending an email and asking. It just takes some of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 309 84FVWAR2 Vander Ark - direct 1 pressure off us as staff. 2 Q. So these are your standard answers to frequently asked 3 questions -- 4 A. That's correct. 5 Q. -- is that right? 6 Now, in highlighted it says, Your spell lists and 7 character biographies are incredible. I have a web site of my 8 own. May I copy your stuff and put it on my site. Do you see 9 that? 10 A. Yes. 11 Q. That was a question that was posed, is that right? 12 A. Yes, quite often. 13 Q. And then under it you wrote, Thanks for the compliment. I 14 compile and write this for my own enjoyment. And part of that 15 enjoyment is knowing that others find it interesting and 16 enjoyable, too. And then you go on to say, However, I don't 17 give permission for people to just copy my work for their own 18 use. Not only is that illegal, since everything in the Lexicon 19 is copyrighted, it's also just plain wrong. Hey, I did all the 20 work, I put in all the time, it's my skill and talent in this 21 area which allowed the Lexicon to come into being. No one else 22 has the right to use my work. That's on your web site, 23 correct? 24 A. Yes, ma'am. 25 Q. And you wrote those words, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 310 84FVWAR2 Vander Ark - direct 1 A. I did. 2 Q. Now, you believe you worked hard on the Lexicon manuscript, 3 right? 4 A. Very hard. 5 Q. And you don't like it when people infringe the Lexicon, 6 right? 7 A. I'm sorry, are we talking about the web site or the book 8 now? 9 Q. Either. 10 A. I'm not sure how to answer that question. Would you like 11 me to clarify what this is about? Would that help? 12 Q. Well, let's look at Exhibit 27-N. Maybe I can clarify it 13 that way. 14 Now, let's go to the second page of Exhibit 27-N. And 15 there's -- and it says, Something I had to do, and it's dated 16 May 11, 2007, posted by Steve at 3:10 p.m. Could you explain 17 what Exhibit 27-N is to the Court? 18 A. Certainly. Yes. There was someone in the lead-up to Book 19 7 who was selling -- 20 Q. Forgive me -- 21 MR. HAMMER: She asked him to explain; he's trying to 22 explain. She doesn't like it -- 23 THE COURT: Yes, you asked the question. Let him 24 explain. 25 MS. CENDALI: I just wanted him to explain the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 311 84FVWAR2 Vander Ark - direct 1 document and then -- 2 MR. HAMMER: You asked him to explain; and he's giving 3 an explanation. 4 THE COURT: Let him give his explanation. Don't 5 interrupt him. 6 BY MS. CENDALI: 7 Q. Please explain. 8 A. There was someone who was taking pages, full pages from the 9 Lexicon, and also from Ms. Rowling's web site, and making them 10 available, selling them to people online. They were just 11 taking whole pages. Maps, charts, pages from Ms. Rowling's web 12 site, pages from the Lexicon. 13 What I did at that time was try to contact that person 14 to tell them not to sell whole pages from the Lexicon web site 15 I also contacted Mr. Blair, or I think it was Mr. Blair, it 16 could have been Ms. Schlessinger, just to let them know that 17 that was going on. I had no idea whether they did anything 18 about it. 19 But what was objectionable was full pages, I mean with 20 everything included, hyperlinks and everything, was just being 21 sold on the web. 22 Q. Now, you wrote -- I just wanted to know what was the -- 23 what were you posting this to? What forum were you writing 24 this on? 25 A. This is the What's New on the Lexicon web site itself. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 312 84FVWAR2 Vander Ark - direct 1 Q. Okay. So this is part of what you put on the Lexicon web 2 site. 3 A. That's correct. 4 Q. Okay. 5 A. Sort of a blog. 6 Q. And you wrote in this paragraph, Believe me, two days ago I 7 did something I've never done before, I sicked my lawyer on 8 someone. And you wrote, Believe me, this is not the way I like 9 to operate. People steal material from the Lexicon all the 10 time. Contributions for Wikipedia are famous for it. Yeah, it 11 bothers me -- 12 THE COURT: Contributors. 13 MS. CENDALI: Forgive me. Thank you, your Honor. 14 Q. Stealing is wrong. At least three published books had 15 plagiarized quite shamelessly, and never even given credit to 16 the Lexicon. It bothers me a lot. 17 What three published books do you believe had 18 plagiarized from the Lexicon? 19 A. I don't remember exactly which ones those were. I knew at 20 the time. 21 Q. So you knew the three books that you believe plagiarized 22 from you shamelessly in May of 2007, and none of them come to 23 mind now? 24 A. I couldn't be absolutely sure. At the time I was seriously 25 thinking about this in deciding what to do, so I was paying SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 313 84FVWAR2 Vander Ark - direct 1 attention to those kinds of details, and I don't recall exactly 2 what they were. 3 Q. Because it bothered you a lot, right? 4 A. Yes, it bothered me when someone was taking whole pages and 5 selling them, yes. 6 Q. Were the books that plagiarized quite shamelessly from you, 7 what did they do to plagiarize quite shamelessly from you, do 8 you remember? 9 A. Copy text from the Lexicon. You see that would be -- 10 from -- if someone is creating a reference book, then they are 11 copying the exact reference book over again. It's a little 12 different than taking material from a totally different format, 13 say like a story. 14 Q. Okay. Now -- 15 A. Would you like me to explain a little bit what I mean by 16 that? 17 THE COURT: Just -- 18 THE WITNESS: I'm sorry. 19 THE COURT: Just answer the question. 20 Q. Now, you understand that -- you don't remember what books 21 that you were talking about, so we can't look at what it is 22 that these books copied in order to see how it was that they 23 plagiarized you shamelessly, is that right? 24 A. That's correct. I'm sorry. 25 Q. So we have no way of knowing whether these books, other SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 314 84FVWAR2 Vander Ark - direct 1 than what you've testified to, whether they copied your text or 2 paraphrased your data, right? 3 MR. HAMMER: Your Honor, I object. This is not an 4 issue in this case. And he's answered that question two or 5 three times. 6 THE COURT: As I understood it, you said these books 7 downloaded your material, is that right, distribute them for 8 sale? 9 THE WITNESS: No, sir. What was being distributed for 10 sale was not these books. That was a web site that a man had 11 set up where he was selling pages from Ms. Rowling's web site, 12 from my web site and a couple of others. He was selling them. 13 THE COURT: So this is something else. 14 THE WITNESS: This is something else, yes. 15 THE COURT: Do you know whether this was a downloading 16 situation also or -- 17 THE WITNESS: No. This was published books that had 18 used material from the Lexicon in the published work, and 19 that's what I was referring to. 20 THE COURT: Used it, paraphrased it or directly 21 quoted. 22 THE WITNESS: I'm sorry, I don't recall exactly what I 23 was referring to. 24 THE COURT: All right. 25 BY MS. CENDALI: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 315 84FVWAR2 Vander Ark - direct 1 Q. Mr. Vander Ark, you have in front of you, I believe, the 2 George Beahm book, Fact, Fiction and Folklore? 3 A. Mm-hmm. 4 Q. Isn't it true that that's one of the books that you believe 5 plagiarized shamelessly from your Lexicon? 6 A. What Mr. Beahm did was not plagiarize. What he did was use 7 the Lexicon as the sourcing structure for his material. 8 However, what he did was not wrong. It bothered me, but it 9 wasn't wrong. 10 Q. Let's put on the screen, Mr. Hoy, if you can, one of the 11 exhibits I used in my opening statement. I believe it was the 12 one that mentions Mr. Beahm and his book. I think it was in 13 the P.S. to the email to Cheryl Klein of Scholastic. 14 THE COURT: Do you have an exhibit number? 15 MS. CENDALI: Yes, your Honor. As soon as they find 16 it, I will reveal it to all. 17 THE COURT: How much longer are you going to be? 18 MS. CENDALI: I'm towards the end, your Honor. Now, 19 do you have the exhibit number? Is that Exhibit 29-A? Exhibit 20 29-A, your Honor. 21 THE COURT: Thank you. 22 BY MS. CENDALI: 23 Q. Now, this is an email that you wrote to Cheryl Klein, the 24 P.S. portion of an email that you wrote to Cheryl Klein of 25 Scholastic on August 3rd, 2006, is that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 316 84FVWAR2 Vander Ark - direct 1 A. That is correct. 2 Q. And you wrote, P.S., It might interest you to know that 3 George Beahm commented that he had originally intended to write 4 an encyclopedia of Harry Potter which Jo has specifically 5 reserved for herself, I understand. But seeing the Lexicon 6 convinced him not to bother. I want you to know that one of 7 the express purposes of the Lexicon is to dissuade people from 8 that sort of thing, so I was particularly happy to hear him say 9 that. The fact that he copies a lot of the material for his 10 books directly from the Lexicon, however, still rankles. 11 How does Mr. Beahm copy a lot of the material from the 12 Lexicon in the Fact, Fiction and Folklore book in front of you? 13 A. What he does is he includes material in the same order and 14 includes things which he would not have except from the 15 Lexicon. As I said, what he did isn't wrong, it just bothered 16 me. And I've spoken with Mr. Beahm about this. 17 Q. Now, you wrote in this email that -- excuse me, go back to 18 where we were in that exhibit. You wrote -- can you just 19 highlight it please, again. Again, we're still on the same 20 exhibit. 21 It says that -- you were talking about Mr. Beahm, 22 commenting that he had originally intended to write an 23 encyclopedia of Harry Potter. And you wrote, Which Jo has 24 specifically reserved for herself, as I understand. What did 25 you mean by that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 317 84FVWAR2 Vander Ark - direct 1 A. That at that point I believe that that was something that 2 Ms. Rowling wanted to have for herself. As a matter of fact, 3 it's interesting that you bring this one up because I actually 4 wrote that in there to Ms. Klein because I was hoping for a 5 response. 6 At that point, I had never heard any official 7 statement to that effect or that I had believed that, and I was 8 kind of hoping that she would come back and say, Yes, I'm glad 9 you did that or something which would have verified. In fact, 10 she never responded to that email. 11 Q. But you knew that Ms. Rowling had said for a long time that 12 she wanted to write her own encyclopedia, right? 13 A. Yes. 14 Q. And you wanted to protect Ms. Rowling, right? 15 A. My understanding was that she didn't want anyone else to 16 publish an encyclopedia. I didn't know that for a fact, which 17 is one of the reasons I put this P.S. on this email, to try to 18 find out, because I wasn't sure. 19 Q. But what you did know, because you wrote it in this email, 20 was I want you to know that one of the express purposes of the 21 Lexicon is to dissuade people from that sort of thing. So what 22 you were saying was one of the express purposes of the Lexicon 23 you were doing was to dissuade other people from doing a Harry 24 Potter encyclopedia because you knew that Ms. Rowling wanted to 25 do it herself, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 318 84FVWAR2 Vander Ark - direct 1 A. That was my belief at the time. And again, one of the 2 reasons I added that P.S. was because I was kind of testing the 3 water. I wanted to get a response. No, she did not respond. 4 Q. Now, you understand that Ms. Rowling has now finished the 5 Harry Potter series, correct? 6 A. Yes, that's correct. 7 Q. But you understand that she still owns the copyrights -- 8 A. Of course. 9 Q. -- to the Harry Potter books. 10 And you know that the Harry Potter isn't in the public 11 domain, correct? 12 A. Absolutely. 13 Q. Now, isn't it true that last August you spoke at a Harry 14 Potter convention, right? 15 A. That's right. 16 Q. And isn't it true that that was the same month you signed 17 the contract with RDR, right? 18 A. That was before I signed that contract. I'd had no contact 19 with RDR at that point. 20 Q. Okay. So was the convention in July or August of 2007? 21 A. I think that one was in August, Toronto. 22 Q. And RDR first contacted you on or about August 6th of 2007, 23 is that right? 24 A. I would have to check, but I don't believe that I've had 25 any contact with RDR Books at the time that I was at that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 319 84FVWAR2 Vander Ark - direct 1 conference. 2 Q. Okay. But isn't it true that at that convention you told a 3 roomful of fans Jo has quit; she's done; we're taking over now? 4 A. Would you like me to explain that statement? 5 Q. Did you say it? 6 A. Yes, I did. Would you like me to explain that statement? 7 Q. Yes. 8 A. Okay. Thank you. I had been asked by the people who ran 9 that convention, there was a lot of concern at that time that 10 with the end of the seventh book, that Harry Potter fans would 11 die because a lot of what sustained the Harry Potter fan boom 12 was wondering what was going to happen next. 13 Book 7 tied up so many of those loose ends and 14 answered so many of those questions, that the promoters of that 15 convention had come to me and said, We'd like you to say 16 something which encourages people to stay fans, to keep 17 writing, to keep creating. And so that small segment which 18 you're referring to is out of a one-hour long talk, the goal of 19 which was to encourage people just because the books are done 20 does not mean that you have to stop being a Harry Potter fan. 21 There's so much more to do, so much more to create in that 22 wonderful world. 23 Q. Isn't it true, Mr. Vander Ark, that what you really said at 24 that occasion was, Fans, disregard the epilogue that 25 Ms. Rowling wrote, ignore it; we're taking over now, we're SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 320 84FVWAR2 Vander Ark - direct 1 going to do our own thing? 2 MR. HAMMER: I object. The question is that he really 3 said that or that he really meant that? 4 A. I would be happy to explain that statement. 5 Q. Well, let's play exactly what you -- 6 THE COURT: Is that statement -- 7 THE WITNESS: Yes. And, again, I would be happy to 8 explain that statement. It was part of an hour-long talk. 9 THE COURT: All right. You'll have the chance. You 10 have a lawyer, and he can bring it out in due time. 11 THE WITNESS: I understand. 12 THE COURT: Let's go on. Your next question. 13 BY MS. CENDALI: 14 Q. Mr. Vander Ark, isn't it true that you told the fans that 15 you did not accept that Ms. Rowling had the right to decide for 16 herself the future of her characters? 17 THE COURT: Future of her characters? 18 MS. CENDALI: Yes, your Honor. 19 A. I really don't remember exactly what was said. It sounds, 20 from the way that you're describing it, as something I wouldn't 21 have said. But it's possible as part of that presentation that 22 I did. Again, it was a much larger presentation with a 23 specific purpose; so I guess -- I'm not going to dispute with 24 you, but I guess I would have to be able to explain how that 25 fit into the -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 321 84FVWAR2 Vander Ark - direct 1 THE COURT: Have you got the -- 2 MS. CENDALI: Yes, let's play it, your Honor. Let's 3 play the video clip for what you said. 4 THE COURT: What's the exhibi