481 84G5WAR1 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 16, 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 482 84G5WAR1 1 (Trial resumed) 2 THE COURT: I wanted to talk to counsel. 3 MS. AHRENS: Your Honor, I believe he is here. He is 4 coming into the courtroom now. 5 THE COURT: The courtroom deputy will get him. There 6 he is. 7 MS. HASSE: Your Honor, I'm sorry to interrupt, but 8 there are computers and phones being allowed through and so it 9 made for a very long line. 10 THE COURT: I'm sorry? I didn't hear what you had to 11 say. 12 MS. HASSE: I just said that there was a group with 13 computers and phones being allowed through and it made for an 14 excessively long line downstairs. 15 THE COURT: What do you want me to do? 16 MS. CENDALI: Shall we proceed, your Honor? 17 THE COURT: No. I wanted to say just a few words to 18 follow up on my rather brief remarks last night. 19 There is a time element here that people want to take 20 into account. This case isn't going to go away at the end of 21 this trial. There is an appellate process. The most recent 22 opinion I just got an affirmance, I think it was last week, 23 didn't involve trial record. It took almost two years to get 24 to the Court of Appeals. Then what do you do after that? 25 This is the kind of case that may well be on the path SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 483 84G5WAR1 1 for certiorari to the Supreme Court because people want to make 2 a point. Now, that's a long time. I was brought up, my father 3 used to read to us the Dickens novels and Shakespeare 4 tragedies, not comedies -- and Sherlock Holmes -- but the 5 longer I have been on the court the more I am reminded about 6 Bleak House, not necessarily this case Bleak House because it 7 is a little different, but in Bleak House I think the delay in 8 the courts was something that was extremely important involving 9 people. 10 I'm a trial judge so I'm somewhat concerned. I regard 11 both sides as my clients and I'm concerned about them. And I 12 have people come before me who are very much like the people in 13 Bleak House and cases have to be resolved. 14 As you will recall in Bleak House not only did 15 Mr. Jarndyce destroy his personal life in litigation, but there 16 was a woman who I found much more appealing than Mr. Jarndyce, 17 I think her name was Ms. Flite, F-L-I-T-E, I think, and 18 Ms. Flite thought she had a claim in Chancery Court connected 19 with the Jarndyce litigation. I can't remember how it was 20 connected although I have read the book several times. But, 21 she would attend every session and the case would drag on and 22 finally she dies in her little attic where she kept her 23 sparrows. It is really a very sad story because of the delay 24 in the courts. 25 Well, that's been brought home to me during the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 484 84G5WAR1 1 time -- the last 20 years, particularly. Litigation isn't 2 always the best way to solve things. I mean, lawyers like it. 3 They get all caught up in the ideas of litigation and facts and 4 things they think are to their benefit. But, the point is the 5 parties, how do the parties fare? Is it really worth it? 6 Can't it be resolved in another way? 7 Too often I feel -- and I'm not pointing fingers at 8 anyone here -- just that the lawyers get caught up in the case 9 and the clients are just part of the baggage. And I just feel 10 that this case could be settled and should be settled. It 11 takes a little imagination on the part of the lawyers and the 12 client and I just wanted you to seriously think about it 13 because I see cases where litigation hasn't proved to be the 14 best answer regardless of who won. 15 MS. CENDALI: Your Honor? I'm sure I speak -- 16 THE COURT: I don't want any comments on it because I 17 don't want to get into any settlement negotiations and I don't 18 want to be influenced in any way by either party's attitude 19 toward settlement or not. That isn't my function. I want to 20 be free from all -- I will hear it is the other side's fault or 21 something like that and I don't want to be influenced by 22 anything in any way like that. 23 So, I just point it out as something the parties ought 24 to think about -- or someone in the parties ought to think 25 about and really devote their time towards because I think that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 485 84G5WAR1 1 this case, with imagination, could be settled, and that it 2 would be -- the time interval would be, while this thing goes 3 on and on and on it would be eliminated and the result would 4 be, I think, that the parties would be happier. 5 So, that's -- for what it is worth it is probably not 6 worth a great deal. However, that's my overall thought. 7 Now, let's proceed with the case. 8 MS. CENDALI: Thank you, your Honor. Among your 9 comments yesterday was that you indicated that you wanted the 10 trial to proceed with alacrity. 11 THE COURT: Well, I think the parties have tried to 12 take that to heart. 13 MS. CENDALI: So, what we are doing is we are finished 14 with our questioning of Mr. Harris which is the expert that was 15 on the stand. 16 In addition -- 17 THE COURT: Don't put anything out because of my 18 desires to go ahead. I don't want you to cut anything out 19 because I believe in trials and quick trials, partly because I 20 was brought up on Bleak House. 21 MS. CENDALI: Well, hopefully we have a ways to go 22 before we get to Bleak House, your Honor. 23 THE COURT: Well, you have quite a ways to go before 24 you get to that. 25 MS. CENDALI: In any case, though, we believe, we have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 486 84G5WAR1 1 already presented our affirmative case, approved our 2 affirmative case as to copyright infringement and so, 3 consequently, we are resting our case with regard to our 4 affirmative case of copyright infringement. We don't intend to 5 call another witness. We assume that we are going to have 6 Dr. Sorensen called by the other side and we will anticipate 7 putting on our expert, Professor Johnson, and Ms. Rowling in 8 rebuttal on the rebuttal case. 9 THE COURT: Well, let me understand something because 10 you have other claims and I noticed in your pretrial order that 11 you didn't say that you were not going to proceed on those 12 claims, you said they're not to be tried. Now, this is the 13 trial of all those claims so I would think that you will have 14 waived those other claims if you do not proceed on them. 15 MS. CENDALI: You mean the claims that we are settling 16 with regard to the -- 17 THE COURT: Well, I don't know if you have settled 18 anything. Look. There are claims for unfair competition, I 19 believe, and things like that that are in the complaint and 20 this is the trial. If you don't proceed on those claims I 21 would think you would have waived them. I have no authority 22 for saying that but it just occurs to me that you probably 23 would have waived them. 24 MS. CENDALI: I believe, and as I'm sure Mr. Hammer 25 will correct me, we have reached an agreement in principal on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 487 84G5WAR1 1 the settlement of the use of Ms. Rowling's quote with regard to 2 the book and we just have to finish papering it. And so, what 3 I suggest to do, in order for judicial economy is that we rest 4 on our copyright infringement case and we see if we could 5 finish perhaps, at one of the breaks, the papering the 6 settlement on the unfair competition trademark claim so we know 7 we don't have to go --- 8 THE COURT: You are referring to the quote on the 9 cover? 10 MS. CENDALI: Yes, the false -- 11 THE COURT: Because, as I understood it, they agreed 12 not to use it. 13 MS. CENDALI: That's right. They agreed not to use it 14 any longer. And we just need to get the final papers written 15 to confirm that they're not going to imply in advertising that 16 Ms. Rowling endorses the book in any way. So, I think once 17 that's done we should be able to proceed with, deal with that 18 claim and move on. 19 So, I believe that that just has an issue, the 20 copyright claim -- 21 THE COURT: Well, there is a right of privacy, there 22 is false advertising. 23 MS. CENDALI: The right of privacy claim also deals 24 with the use of -- 25 THE COURT: Federal trademark infringement claim. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 488 84G5WAR1 1 MS. CENDALI: All those claims deal with the use of 2 Ms. Rowling's quote on the cover of the book as a false 3 endorsement of the book which I think should be pretty clear 4 she doesn't endorse. But, since they've now said that they're 5 not going to do it any longer and since this isn't about money, 6 we are waiving any prior claims for damages and we will just, 7 on that claim, and we will move forward. 8 So, I believe it is just our affirmative copyright 9 case with the idea then that we believe we have established our 10 case of copyright infringement. They have obviously the burden 11 of establishing fair use so that what we assume, the way it 12 would work out is that we would put on our rebuttal case which, 13 most likely, would be Professor Johnson and Ms. Rowling after 14 Professor Sorensen's likely testimony this morning. 15 THE COURT: I see. 16 MS. CENDALI: And then we will hopefully be done. 17 And, we are also assuming, your Honor -- 18 THE COURT: So, you won't put on Professor Johnson as 19 part of your direct case? 20 MS. CENDALI: Right. I think we have already 21 established copyright infringement through Ms. Rowling and the 22 other declarations and witnesses that we have put in but 23 Ms. Johnson -- we are also trying to avoid having to call her 24 two times because, most likely, if we were to put Professor 25 Johnson on now, then Professor Sorensen will be talking about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 489 84G5WAR1 1 Professor Johnson, then we have to put Professor Johnson on in 2 rebuttal and it seems that we might be able to short circuit it 3 and get out of here sooner than in Dickens. 4 THE COURT: All right. Then defense case, I guess, is 5 that right? 6 MR. HAMMER: We actually have an application, your 7 Honor. 8 MR. FALZONE: Your Honor, we would like to move for 9 judgment as a matter of law strictly on the claims for 10 infringement of the copyrights and the video games in which the 11 wizard cards are contained, and that's based on plaintiff's 12 failure to show ownership of those copyrights. They allege in 13 their second amended complaint that those copyrights are 14 registered to another company, Electronic Arts, that's not a 15 party here. 16 The Copyright Act requires them to show either legal 17 or beneficial ownership of those copyrights. They haven't done 18 that, your Honor. 19 MS. CENDALI: Your Honor, Ms. Rowling testified that 20 those copyrights are co-owned by Warner Brothers. That's been 21 unrebutted. That's the truth. We have also advised them in 22 letters over the weekend that the registrations with the 23 copyright office are being corrected to reflect that truth but 24 the issue is the reality -- 25 THE COURT: Being corrected? I don't quite follow SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 490 84G5WAR1 1 you. If they're being corrected why is correction necessary? 2 MS. CENDALI: Only because they were originally in the 3 name of Electronic Arts and that was wrong. They were co-owned 4 by Warner Brothers and Electronic Arts. And Ms. Rowling so 5 testified. 6 THE COURT: Well, how can she testify to something 7 that hasn't occurred yet? 8 MS. CENDALI: It has already occurred that Warner 9 Brothers owns the copyrights -- co-owns the copyrights. 10 THE COURT: Well, go ahead. I see Mr. -- I see Mr. -- 11 I'm sorry. I have forgotten your name. 12 MR. FALZONE: Mr. Falzone. Thank you, your Honor. 13 Your Honor, we would ask the Court to take judicial 14 notice of the actual copyright registrations. We have printout 15 from the copyright office website and, your Honor, if the 16 concept of legal or beneficial ownership is going to have any 17 teeth or meaning, I think that if someone asserts copyrights 18 that are registered to somebody else it is fair to say they 19 have not established ownership. 20 Now, we wrote to plaintiff's counsel over the weekend 21 and asked for any documents that established either actual or 22 beneficial ownership -- we were not provided with any, the 23 Court was not provided with any. And plaintiffs have no 24 standing to assert copyrights that are registered to somebody 25 else. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 491 84G5WAR1 1 MS. CENDALI: We have an assignment of interest. We 2 have testified that we own the copyrights. We do own the 3 copyrights. 4 THE COURT: Ms. Rowling is not Warner. 5 MS. CENDALI: Yes, but she knows who owns those 6 copyrights. 7 THE COURT: Isn't that hearsay then? 8 MS. CENDALI: No, because these are -- it was a -- we 9 could put her on the stand and she can further clarify it if 10 need be in rebuttal to whatever evidence they put on that we 11 don't own the copyrights. 12 We can put Mr. Williams on the stand in rebuttal to 13 their argument that we don't own the copyrights and he can 14 present the assignment agreement that shows that Warner 15 Brothers does own the copyright. 16 MR. FALZONE: Your Honor, first of all, I think first 17 and foremost it is the registrations that matter. The fact is 18 they're registered to Electronic Arts and nobody else. As for 19 any other documentary proof about the ownership issue, it was 20 not on the Exhibit list, it was not provided to us despite the 21 fact that we specifically asked for it. 22 If your Honor would like us to provide registration 23 information from the copyright office we will be happy to do 24 that and I think that would eliminate any question about who 25 has been shown, by evidence, to be the owner of these SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 492 84G5WAR1 1 copyrights. 2 MS. CENDALI: Well, your Honor, if they want to 3 present evidence in opposition to our case of copyright 4 infringement, they're allowed to present that evidence. If 5 they want to add to their list these copyright registrations, 6 they're allowed to do that and then we're allowed to rebut it. 7 And, if so, we will call Mr. Williams and we will present 8 evidence of the copyright assignment that shows that Warner 9 Brothers owns those cards. 10 THE COURT: This is a motion at the end of plaintiff's 11 case. 12 MS. CENDALI: That's right. 13 We presented unrebutted evidence that we own the -- 14 Warner Brothers owns the copyright to the cards. They have not 15 presented any evidence -- they have not presented the copyright 16 registrations they're mentioning. Mr. Falzone is testifying as 17 to what these registrations allegedly say. He hasn't 18 cross-examined Ms. Rowling on them. He could have 19 cross-examined her and said, oh, look. These registrations 20 don't list Warner Brothers. What does that mean? He hasn't 21 done that. These registrations are not an issue in the case 22 from an evidentiary point of view. 23 So, you can't make a motion on evidence when they 24 haven't rebutted it. And the registrations are not before. 25 The time to have done it should have been in cross-examining SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 493 84G5WAR1 1 Ms. Rowling and they didn't do that. 2 MR. FALZONE: Very briefly, your Honor. 3 It is an element of plaintiff's case to show 4 ownership. The fact that a witness who is not alleged to own 5 any of the copyrights on any basis simply says that some other 6 party has some sort of interest -- undocumented, unproved -- 7 simply does not satisfy that burden. 8 I have the registration information here. I would ask 9 your Honor to take judicial notice of it. I think it qualifies 10 for judicial notice and I think on that basis there is a 11 failure of proof on a necessary element of plaintiff's 12 infringement claim in these video games. 13 MS. CENDALI: If defendant is putting in new evidence, 14 they're asking you to take judicial notice of evidence of these 15 copyright registrations, that's new evidence. We're entitled 16 to rebut that evidence which we will do in our rebuttal case. 17 Ms. Rowling could testify, had they asked her, that 18 she -- the process by which, how she created the cards which 19 she did say and how Warner Brothers, by virtue of its ownership 20 of merchandising rights related to Harry Potter, owns a joint 21 interest with Electronic Arts and those cards. She could have 22 testified to that but they didn't rebut her on it, nor did they 23 present these documents when they could have. They're now 24 trying to add documents in an oral motion which is not proper. 25 And if they do add evidence, we should be allowed to rebut that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 494 84G5WAR1 1 evidence. 2 THE COURT: I'm not sure that I have to take judicial 3 notice. That's my problem. I'm not sure that the evidence 4 proffered is appropriate evidence of copyright ownership by 5 third-party. 6 I will reserve decision. 7 MR. FALZONE: Thank you, your Honor. 8 MR. HAMMER: Your Honor, we call Janet Sorensen. 9 JANET SORENSEN, 10 called as a witness by the Defendant, 11 having been duly sworn, testified as follows: 12 THE COURT: Would you give your name to the court 13 reporter and spell your last name? 14 THE WITNESS: Janet Sorensen. S-O-R-E-N-S-E-N. 15 THE COURT: Please proceed. 16 DIRECT EXAMINATION 17 BY MR. HAMMER: 18 Q. Dr. Sorensen, why don't you give us your full name. 19 A. Janet Linda Sorensen. 20 Q. What do you do? 21 A. I'm a professor of literature. 22 Q. Where do you teach? 23 A. At University of California at Berkeley. 24 Q. What is your specialization? 25 A. My specialization has been Eighteenth Century and early SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 495 84G5WAR1 Sorensen - direct 1 Nineteenth Century British literature and language. 2 Q. Do you have a research specialization? 3 A. Primarily Eighteenth Century literature representations of 4 language and texts like dictionaries and glossaries and novels 5 and poems. 6 Q. I would like to clarify certain points right at the 7 beginning. What is a Lexicon? 8 A. A Lexicon is an alphabetically ordered list of terms drawn 9 either from a particular language, sometimes a particular text, 10 a particular field of specialization with definitions of those 11 alphabetically listed terms. 12 Q. How does it differ from an encyclopedia? 13 A. These are, in some way, semantic questions. Encyclopedias 14 tend to be more comprehensive. You might have pages of entries 15 for -- I mean many pages for a single entry, sometimes 16 illustrations. 17 Q. Is it fair to say that there is a continuum from, say, a 18 simple index of words to a more inclusive listing, a glossary, 19 dictionary, a lexicon, an encyclopedia? 20 A. Right. That's part of why I say it is a semantic 21 distinction, because there is a really wide range of works that 22 function as reference guides, if you will, from a very basic 23 index with simply terms listed alphabetically with page numbers 24 through glossaries, through dictionaries with maybe slightly 25 more elaborate definitions, into encyclopedias. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 496 84G5WAR1 Sorensen - direct 1 Q. And these are all A to Z listings of various inclusiveness? 2 A. Historically many of them have been. Not always. 3 Q. Let's deal with your education. Where did you go to 4 college? 5 A. Northwestern University. 6 Q. When did you graduate? 7 A. In 1948. 8 Q. Did you go on for a Ph.D? 9 A. I did. I went to the State University of New York at 10 Buffalo. 11 Q. When did you receive your Ph.D? 12 A. In 1994. 13 Q. Have you taught literature since then? 14 A. I have been teaching literature since 1988. I have taught 15 at the faculty level since 1994. 16 Q. Where did you first teach? 17 A. At Indiana University for 13 years. 18 Q. I'm sorry. I didn't hear what you said. 19 A. I taught at Indiana University for 13 years. 20 Q. What did you teach at Indiana? 21 A. I taught a range of courses from Seventeenth through 22 Twentieth Century British and American literature at 23 undergraduate and graduate levels. 24 Q. Were you tenured? 25 A. Yes, I was. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 497 84G5WAR1 Sorensen - direct 1 Q. When did you come to Berkeley? 2 A. Last fall -- of 2007. 3 Q. Are you tenured at Berkeley? 4 A. Yes, I am. 5 Q. Have you published any books? 6 A. I published a book entitled The Grammar of Empire and 7 Eighteenth Century British Literature in 2000 with Cambridge 8 University Press. That came out in paper in 2005. 9 Q. What was the subject of your book? 10 A. That book was looking at the relationship between England 11 and Scotland in the Eighteenth Century after the active union 12 in 1707. It was looking at literature and how, especially 13 language, uses of language helped to culturally incorporate 14 these two entities. 15 Q. How the standard position of language led to a political 16 unification of these two countries? 17 A. Right. How standard English arises in that period as well 18 as representations of Scot dialects in various capacities. 19 Q. Are you working on another book now? 20 A. Yes, I am. 21 Q. What is the subject of that book? 22 A. In this book I'm looking at a variety of non-standard 23 languages as they were represented in Eighteenth and Nineteenth 24 Century literature from provincial languages to the mariner's 25 argot to slang, gypsy languages; how these were represented in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 498 84G5WAR1 Sorensen - direct 1 poems, novels, glossaries, dictionaries during the period. 2 Q. Now, in addition to your book and your teaching, do you 3 publish essays? 4 A. Yes, I do. 5 Q. About how many essays did you publish? 6 A. I think it is around 15. 7 Q. Where have these been published? 8 A. Oh, it is a wide range of peer-reviewed journals. In 9 Twentieth Century Film Studies to Eighteenth Century Studies 10 and University Press collections of essays. 11 Q. What is a peer-reviewed journal? 12 A. A peer-reviewed journal is a journal that has an editorial 13 board of experts in a particular field that review the works 14 submitted to see if it is original and significant. 15 Q. What have you written on in these 15 essays? 16 A. Oh, everything from the films of Sergei Eisenstein media 17 theory in the late Twentieth Century to my most recent essay is 18 on teaching Sir Walter Scott's languages in the classroom. 19 Q. When you say his languages, can you explain what you mean? 20 A. Well, one of the appeals of Sir Walter Scott's novels was 21 that they represent not only a standard English but a variety 22 of Scott's dialects, Scott's Gaelic and that is sort of an 23 enormously useful way into text. 24 It is an exciting way for students to engage that 25 language and I like to think about how I can use that to teach SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 499 84G5WAR1 Sorensen - direct 1 the novels of Sir Walter Scott. 2 Q. Okay. So in addition to the teaching and the book that you 3 wrote and the essays, is there any other professional work you 4 perform? 5 A. I frequently review manuscripts for publication at 6 university presses from Cambridge University, Edinburgh 7 University, University of Chicago, University of Pennsylvania. 8 MR. HAMMER: Your Honor, the parties have agreed that 9 Dr. Sorensen is an expert in the field of English history -- 10 I'm sorry -- in the history of English literature. 11 Q. Are you familiar with a category of book that we call 12 reference guides to imaginative literature? 13 A. Yes, I am. 14 Q. Just what would you -- how would you define a reference 15 guide to literature? 16 A. Reference guide to that literature would be something that 17 would help readers understand, access, in some cases illuminate 18 layers of meaning in a particular text. 19 Q. Can you give us some examples of reference guides? 20 A. Sure. Some of the earliest ones I've seen are for Milton's 21 Paradise Lost and these range from very simple indexes 22 published separately from the text alphabetically organized 23 with line numbers from the poems where you might be able to 24 find those particular items to, again in the case of Paradise 25 Lost, 400 or 500 page volumes that catalog the angels and the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 500 84G5WAR1 Sorensen - direct 1 various characters in references in Paradise Lost, provide 2 etymological information. 3 Q. What do we mean by etymological information? 4 A. Etymological information considers the roots of a 5 particular word, it often breaks the word into syllables and 6 tries to track its earlier meanings historically where 7 particular -- what languages -- what particular languages are a 8 part of a history of a particular word. 9 Q. Now, you suggested that reference guides started around the 10 time of Milton in the Seventeenth Century, is that correct? 11 A. I see a big expansion of them in the late Seventeenth, 12 early Eighteenth Century. 13 Q. In your judgment, is there a reason for the emergence of 14 reference guides at that time? 15 A. Well, I do know that there was a vast expansion in the 16 amount of published, printed material available and that there 17 were rising literacy rates and so there was a much wider 18 readership for printed texts. And part of what is going on, I 19 think, is that these lesser educated readers are looking for 20 ways into texts that are being published. 21 Q. In your judgment, do these reference guides from the 22 Seventeenth Century on have any influence on the course of 23 English literature? 24 A. Well, I -- as I've thought about the Eighteenth Century and 25 taught it, it certainly suggests that they have been a part of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 501 84G5WAR1 Sorensen - direct 1 how readers have experienced literature historically. 2 One text I teach in particular is Pamela, which is 3 often known as the first novel in English, although that is 4 disputed; but this is a text that came out in 1740, was a 5 massive best seller of enormous proportions. People would buy 6 Pamela fans and there were all sorts of Pamela statues going up 7 and Pamela portraits. But, many critics were dismissive of 8 this work because it was a novel and that was a semi-scandalous 9 and illicit form of writing at that point in time. 10 And Pamela, part of the media excitement about Pamela 11 is that it generated a wide range of guides to it, criticisms 12 of it, and Pamela now is taught as sort of English canon. It 13 is a novel that most English majors have to know before they 14 finish their degree. 15 And, as I teach it and as I think about that novel, I 16 think about the ways in which this sort of media frenzy and 17 publishing frenzy that took place in relationship to Pamela 18 helped to establish it as something that people needed to take 19 seriously. 20 Q. Let's turn to Mr. Vander Ark's Lexicon. First of all, 21 would you describe that as a lexicon, an encyclopedia? How 22 would you classify it in terms of that continuum that you 23 mentioned? 24 A. I suppose I put it somewhere in between. It is certainly 25 comprehensive. Its entries tend to be a little -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 502 84G5WAR1 Sorensen - direct 1 THE COURT: In between what? I'm sorry. 2 A. In between a lexicon and encyclopedia. Its entries are a 3 little bit shorter than a standard encyclopedia entry with some 4 exceptions. 5 THE COURT: I'm sorry to interrupt. 6 MR. HAMMER: No. No. Fine, your Honor. 7 Q. In preparation for your testimony today, what materials 8 have you reviewed? 9 A. Well, I have read the Harry Potter novels. I read the 10 Lexicon. I went and looked at some of the more recent 11 companion guides, reference guides to the works of J.R.R. 12 Tolkien and C.S. Lewis. Then I did a little bit of the 13 research into Nineteenth Century from Charles Dickens to Thomas 14 Hardy and looked at the kinds that came out in relationship to 15 these. I looked at some of the declarations that have been 16 submitted to the Court for this case. 17 Q. For all that work how much are you being paid? 18 A. $10,000. 19 Q. Now, Ms. Rowling has stated that she wants to publish a 20 companion guide of her own. Have you encountered any examples 21 of other authors who have written their own reference or 22 companion guide? 23 A. Sure. Richardson wrote his own largely in response to the 24 others that were coming out. Tolkien co-authored one of the 25 many guides that is available on his works. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 503 84G5WAR1 Sorensen - direct 1 Q. Have you noticed any differences between guides that an 2 author writes about his or her own work and guides that are 3 written by third-parties? 4 A. Well, since there is such a wide range of guides, you know, 5 there is always going to be distinctions from one to another. 6 I can say that in the case of Sir Walter Scott, which is 7 probably the one I know the best since I have done the most 8 research on him, that he was somebody deeply invested in 9 heavily annotating and commenting on and providing guidance for 10 his texts. And those often accompany the text when they're 11 published still today but I frequently need third-party 12 guidance -- certainly my students do -- to work their way 13 through Sir Walter Scott despite his guidance. There are 14 certain things he assumes readers will know, like a Jacobite, 15 that my undergraduates don't know they need a guide to explain 16 that. That is something he assumes everyone knows about. That 17 is not something everybody will know. 18 Q. Is it fair to say, in your judgment, that an author is not 19 the best judge about what it is about his or her own work that 20 requires explanation? 21 A. Well, it was certainly true for Sir Walter Scott. For 22 instance, as a Scot speaker there were plenty of terms that he 23 took for granted that a reader would know as Scott's terms that 24 not a London-based reader would know. And I'm of the 25 persuasion that an author isn't always the final word on what a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 504 84G5WAR1 Sorensen - direct 1 printed text that he produced might mean. 2 Q. Now, have there been reference guides in connection with 3 fantasy literature? 4 A. Fantasy literature seems to generate an abundant number of 5 guides. It is especially given to producing these sorts of 6 works. 7 Q. What do you mean by fantasy literature? 8 A. Fantasy literature is literature that invents very 9 elaborate universes, creates places, imaginary beings, 10 imaginary flora and fauna, often of a sort of layered and 11 extensive variety. 12 Q. In your judgment, do the Potter novels fall within the 13 genre of fantasy literature? 14 A. They certainly create a very rich universe of invented 15 beings, places, things. 16 Q. What is it about the Potter novels that might lead a reader 17 to want to use a reference guide? 18 A. Well, they're thousands of pages long. There are all sorts 19 of characters, creatures, spells that will appear one place in 20 a book and then maybe several hundred pages later. It is the 21 kind of elaborate world for which some kind of assistance, 22 particularly just in terms of memory refreshers, is really 23 helpful. 24 Q. Can you given us an example through your own reading? 25 A. Well, I hadn't read the Potter novels before. I spent my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 505 84G5WAR1 Sorensen - direct 1 Christmas holiday do doing that. And I remember reading the 2 first novel and coming across toward the end -- maybe the fifth 3 book -- of characters of Filch and Peeves and thinking, oh, I 4 remember that these are characters I should know because the 5 names are familiar but I don't remember who or what they are. 6 And so, I had the Lexicon with me at that time and was really 7 relieved to be able to quickly refresh my memory so that I 8 didn't have to scan back over a couple of hundred pages to find 9 that reference again. 10 Q. Now there are seven Potter novels? 11 A. Correct. 12 Q. Does every character in these novels appear in every single 13 one of the novels? 14 A. No. 15 Q. So, if you are reading in the fifth novel of a character to 16 find out where he had previously appeared, what would you have 17 to do? 18 A. Well, you would have to go and thumb back through the pages 19 of the book which is something I generally enjoy doing after 20 I've finished my first read. 21 Q. Books themselves don't have an index of characters? 22 A. They don't. 23 So, to give another example, I was reading the sixth 24 book and came across Amelia Bones and I thought, is this a new 25 person? I just don't remember. And I wanted to know if that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 506 84G5WAR1 Sorensen - direct 1 character had been there in another place. And so, I again 2 looked at the Lexicon. It had been in the fifth book, I could 3 go on. It didn't provide -- I didn't need a sort of character 4 sketch, I just was curious, Has this person appeared before? 5 Has this character appeared before? 6 So, my curiosity was satisfied. 7 Q. And, did the Lexicon provide the information you sought? 8 A. Yeah. 9 Q. Now, can you give us examples of other fantasy literature 10 that has spawned reference guides? 11 A. Well, as I was trying to think about what kind of 12 literature would likely do this I thought of C.S. Lewis and 13 J.R.R. Tolkien and, indeed, they have spawned quite a bit of 14 reference material guides in relationship to them. 15 Q. And for those of us who have limited capacities for 16 fantasy, who is Tolkien? 17 A. I think it is Tolkien but I could be wrong. 18 Q. What did he write? 19 A. He wrote The Lord of the Rings. He wrote a series of books 20 in the Twentieth Century that have been very popular. 21 Q. And what did C.S. Lewis write? 22 A. The Chronicles of Narnia. 23 Q. Did you find a lot of reference guides for these two 24 authors' works? 25 A. Quite a few. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 507 84G5WAR1 Sorensen - direct 1 Q. Can you give us an idea of how many? 2 A. In the case of Tolkien I found I think 19 or 20. I think 3 in the case of Lewis around 15. And these were very wide 4 ranging in their approaches but there was a high number of 5 guides. 6 Q. Are the Tolkien and Lewis novels multi-volume novels? 7 A. Yes, they are. 8 Q. Is there something about multi-volume fantasy novels that 9 lend themselves to reference guides? 10 A. Well, I think both in the capacity that we are dealing with 11 fantasy literature where we have created, invented characters, 12 beings, places that inhabit these works and in the fact that 13 they're going over several volumes, a reader might put a volume 14 down and pick up the next one a while later. I think in both 15 of those ways it is helpful, it is useful to have something to 16 remind readers of who these characters are, what their 17 relationship might be, what the significance of a particular 18 power or creature might be. 19 Q. I think you said that in the case of Tolkien there were 20 20 companion guides you found. By the way, I'm using companion 21 guides, you are referring to reference guides. Is there a 22 distinction between these two? 23 A. Again, I see them functioning on a spectrum. I imagine 24 reference guides to be more organized for a reader to get quick 25 access to work as opposed to companion guides which frequently SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 508 84G5WAR1 Sorensen - direct 1 feature essays, critical commentary. But these are, in some 2 ways, fine distinctions. As I see it there is a kind of 3 spectrum from one to the other. 4 Q. All right. You say there are about 20 guides of whatever 5 kind for Tolkien and perhaps 15 for Lewis; is that correct? 6 A. Yes. 7 Q. By the way, where did you do your research on that? 8 A. I went to the University of California at Berkeley's 9 library. 10 Q. So that was simply in the Berkeley collection? 11 A. Correct. 12 Q. Does that large number of books for each of these authors 13 suggest something to you? 14 A. Well, it suggests something that I think I already knew, 15 which is that great works of literature or works that have 16 captivated readers can sustain multiple approaches and, in some 17 cases, demands multiple texts; that there usually isn't one 18 single authoritative way into a book and that multiple 19 reference guides, companion guides are helpful to readers -- 20 they must be, in order for there to be so many of them. 21 Q. Professor Sorensen, based upon your review of English 22 literature since the Seventeenth Century, have you encountered 23 any other author other than Ms. Rowling who has ever tried to 24 suppress a reference guide to her novels? 25 A. I haven't encountered that in my research. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 509 84G5WAR1 Sorensen - direct 1 Q. All right. I would like to turn to Mr. Vander Ark's 2 Lexicon. How would you describe the value of Mr. Vander Ark's 3 Lexicon? By the way, would you like a copy of it up there? Do 4 you have it with you? 5 A. A copy of that would be helpful. And if I could get some 6 water, that would be really great. 7 MR. HAMMER: Your Honor, I will be water boy and give 8 her the Lexicon. 9 Q. All right, Dr. Sorensen, describe for us what, in your 10 judgment, is the value of Mr. Vander Ark's Lexicon? 11 THE COURT: Well, what have you put in front of the 12 witness? 13 MR. HAMMER: I'm sorry. Which number is that? 14 MS. CENDALI: Plaintiff's 1 at least is a copy of the 15 Lexicon. 16 THE COURT: The Lexicon. 17 MS. CENDALI: Yes, your Honor. 18 MR. HAMMER: As always, I rely on Ms. Cendali's help. 19 MS. CENDALI: May we have that in writing, your Honor? 20 MR. HAMMER: Why? Nothing else in your case on your 21 side has been in writing. 22 Q. How would you describe the value of that Lexicon? 23 A. The key value of the Lexicon, as I see it, is its 24 restructuring of material so that readers have ready access to 25 this very rich and dense and complicated universe when they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 510 84G5WAR1 Sorensen - direct 1 need to remind themselves of something when they need -- when 2 they're curious about a relationship of a character where they 3 might have appeared. 4 I have also, as somebody interested in language, found 5 the etymological information really interesting and helpful. 6 MR. HAMMER: Your Honor, we have prepared a power 7 point which is -- 8 THE COURT: Let me ask the witness something. 9 MR. HAMMER: 557. 10 THE COURT: I would like to ask the witness something. 11 Do lexicons quote or paraphrase the copyrighted work 12 of the authors? 13 THE WITNESS: In my experience -- 14 THE COURT: The ones that you are talking about or do 15 they -- 16 THE WITNESS: I have seen ones, the ones that I know 17 say -- there is, in the Eighteenth Century, when works are 18 under copyright, books that come out that alphabetically 19 catalog, say Moral Sentiments. And so, they'll be in 20 alphabetical listing of avarice, appreciation, down to virtue, 21 and they're simply lifted quotations from the volumes and 22 nothing more than that. 23 THE COURT: So they're actually word-for-word 24 quotation? 25 THE WITNESS: Word-for-word quotations. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 511 84G5WAR1 Sorensen - direct 1 Beauties of Henry Fielding, Beauties of Lawrence 2 Sterne, Moral Instructions of John Bunyan; these are lifting. 3 There is nothing else added. 4 THE COURT: What about paraphrases? 5 THE WITNESS: Sure. There is plenty of paraphrasing, 6 yes. 7 THE COURT: And are these in any particular works that 8 you are talking about? 9 THE WITNESS: Shakespeare Illustrated has, starts with 10 summaries of Shakespeare's plots, paraphrasing of what 11 characters said to each other. 12 THE COURT: But are they copyrighted? 13 THE WITNESS: I don't know. 14 THE COURT: Common law copyright, I suppose, but. 15 THE WITNESS: I'm sorry, I don't know that. I don't 16 know the answer to that. 17 THE COURT: You don't. 18 THE WITNESS: I can say that more recent works like 19 the J.R.R. Tolkien guides will paraphrase and sometimes, I 20 think, quote when they're explaining beings, imaginary beings 21 from the Tolkien novels; yes. 22 MR. HAMMER: Your Honor, may I just ask that 23 enthusiastic members of the audience be asked to keep their 24 voices down during the testimony? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 512 84G5WAR1 Sorensen - direct 1 MR. HAMMER: Thank you, sir. 2 Q. All right. I would like to turn to our PowerPoint. 3 MS. CENDALI: Can we have the exhibit number, 4 Mr. Hammer? 5 MR. HAMMER: I believe we e-mailed the page we added. 6 I will give it to you again. 7 MS. CENDALI: That's fine. 8 MS. AHRENS: 587. 9 MR. HAMMER: Your Honor, I don't know if this has been 10 placed in the Court's copy. This is an extra page. 11 BY MR. HAMMER: 12 Q. All right, Doctor. On the page right after this we have 13 listed what you believe the attributes of the Lexicon are. So, 14 the first one is Etymology and, once again, just briefly tell 15 us why etymology is a useful thing to have in this lexicon. 16 A. It is especially useful for this lexicon because many of 17 the terms have been created by the author but they're drawn 18 from a very rich terrain of multiple languages, and so the 19 etymologies will clue readers into that in a way that doesn't 20 happen in the novels themselves. 21 Q. You now have Mythical References. What did you mean by 22 that? 23 A. At points the Lexicon will describe myths from various 24 cultures that are drawn on in the texts and so this just points 25 some of those moments out for readers. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 513 84G5WAR1 Sorensen - direct 1 Q. Geography - Both Real and Fictional. What examples of real 2 geography does the Lexicon mention? 3 A. Oh, um -- 4 Q. Let me withdraw it. Why is it useful to have references to 5 have references to geography, both real and fictional? 6 A. These are interesting novels in that they are both set in 7 the real world that we all know, our own geographical space, 8 and there are also invented spaces. And so, the Lexicon will 9 tell readers both where a sort of small town in Ireland, you 10 know there is an entry for Bandon which is the small town in 11 Ireland. If I am remembering right it is a coastal town. 12 So, it will provide that kind of information or 13 topographical information about the invented spaces of the 14 novels. 15 Q. Let's combine the next two. Vernacular and Slang and 16 Cultural References. What do you mean by that? Why is it a 17 virtue? 18 A. This I found in light of a Sir Walter Scott's work because 19 there are all sorts of vernacular terms from British English, 20 which I think are part of the charm for American or U.S.-based 21 readers but often unfamiliar. And so, these are places where 22 readers that might not know a vernacular or slang term from the 23 language as it is spoken in Britain find out what those terms 24 mean. 25 Q. Then, finally, we say that the Lexicon is educational for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 514 84G5WAR1 Sorensen - direct 1 young readers. In a general sense, what did you mean by that? 2 A. Simply that in bringing this additional reference material 3 maybe basic things for us, like Brazil is the largest country 4 in South America, would be helpful for somebody who is younger 5 that might not know that. It is certainly helpful in terms of 6 exposing them to mythologies that this book is drawn from, the 7 sort of richness of language. 8 So, in some ways we can go back to what is going on 9 earlier in the bullet points to talk about, in some ways, why 10 this is helpful for younger readers. 11 Q. Let's turn to the next page or move to the next page. 12 We have an example of etymologies of the name of Albus 13 Dumbledore. Who is Albus Dumbledore in the Harry Potter 14 novels? 15 A. He is the master of Hogwarts in Harry's time there and for 16 decades before that. He's one of the main characters. He's 17 sort of very wise, almost a kind of father figure to Harry. He 18 is the leader of the sort of good force in the novel. 19 Q. He has five names: Albus, Percival, Brian, Wulfric, 20 Dumbledore. What are we told about Albus? 21 A. Here we are told that it is from Latin; white, especially 22 the flat white of stones or clothing, and that it was an 23 ancient poetical name for Britain. 24 This was really interesting for me to think about in 25 terms of the character because he is on the side of good and he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 515 84G5WAR1 Sorensen - direct 1 is associated with whiteness here and there is this connection 2 to ancient Britain. That's part of the sort of ongoing motif 3 of the novels. 4 Q. The next name that is identified and given derivation for 5 is Percival. What are we told about Percival? 6 A. This is a particular Knight of King Arthur's round table 7 and who was granted a glimpse of the Holy Grail. 8 Again, I think there are all sorts of ways to think 9 about the significance of that term in relationship to this 10 character who is also somebody who has, you know, we sense 11 throughout the novels, glimpsed into certain kinds of wisdom, 12 certain kinds of information that are key to, you know, 13 thinking about his character. 14 Q. The third name is Dumbledore. And what are we told about 15 the world Dumbledore? 16 A. That this is an Eighteenth Century English term for the 17 word bumblebee. It is actually a term I have come across in my 18 own research when I have been looking at dictionaries of 19 English dialect in the Eighteenth Century. So, I was really 20 impressed and pleased to see that connection made there. 21 I just want to add, too, that as we go through these 22 we have started with Latin, we have moved into King Arthur and 23 ancient Britain and here we are moving into sort of early 24 modern vernacular. And so, this is really giving me a sense of 25 the depth of the novels of this character, the sort of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 516 84G5WAR1 Sorensen - direct 1 thoughtfulness of the naming, the sort of interpretations one 2 might take away from this name. 3 Q. Let's go on to the next name, Wulfric. We have just gone 4 through Latin derivations, where does Wulfric come from? 5 A. This is an Anglo-Saxon term apparently for wolf power or 6 wolf ruler. Also a Twelfth Century British hermit saint known 7 for his miracles and prophecies. 8 So, we have now another layer of linguistic 9 information, another layer of historical information, another 10 layer in terms of this character who, while he is on the side 11 of good is also, as we see in the novels, capable of fierce 12 warfare, what he needs to be, and at times a hermit, somebody 13 that excludes himself, at least from Harry, in ways that are 14 mysterious for him. 15 Q. What might it mean that a character is named after both 16 bumblebees and wolves? 17 A. One of the running motifs of the book are the relationship 18 between humans and animal worlds. There are characters who can 19 transform into animals. There are, I think it is called a 20 Patronus, a sort of guardian that often takes the form or can 21 take the form of an animal. 22 So another way of thinking about the information we 23 are being given here is the way it is playing on some of those 24 particular motifs. 25 Q. The last name is Brian. What are we told about Brian? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 517 84G5WAR1 Sorensen - direct 1 A. That this might be a reference to Monty Python's The Life 2 of Brian poking fun at the pretentiousness of the other names. 3 Here we get an entirely pop cultural reference. I'm, 4 in talking to British friends, am told that Brian has a lot 5 more -- The Life of Brian as a film is a pop cultural reference 6 that is ready access, people know it and it is a sort of 7 frequently, you know, used term. People have an understanding 8 of that film, that it is very important to the sort of British 9 pop culture. 10 And so, here is sort of another layer that, in some 11 ways, adds a kind of humor. 12 Q. Let's go on to the next example. The next example is the 13 derivation of the name of a character named Fenrir Greyback, 14 who is Fenrir Greyback in the novels? 15 A. He is a werewolf. He is a friend of the relatively evil 16 Malfoy family. A low-level death eater. 17 Q. When are you told about the derivation about the name 18 Fenrir? 19 A. That it comes from Fenriswolf, Fenrisulv, Fenrisulf, the 20 gigantic wolf of the God Loki in Scandinavian mythology. 21 So here is another whole cultural repository that the 22 novels are drawn from that I didn't realize as I was looking my 23 way through the text. 24 Q. Let's go on to the next. The next entry is for a spell 25 named Colloportus. Are there a lot of spells in the Potter SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 518 84G5WAR1 Sorensen - direct 1 novels? 2 A. There are quite a few, yes. 3 (Continued on next page) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 519 84GVWAR2 Sorensen - direct 1 Q. Okay. And they often have invented names? 2 A. They always have invented names. Most are Latin, I think 3 there are a few Greek. 4 Q. Do the Potter novels themselves give an English equivalent 5 to these names? 6 A. No, they tell you what the spell can do, but they do not 7 provide this kind of etymological information. 8 Q. So in the books what does the Colloportus spell do? 9 A. It seals doors so a character can cast a spell on a door 10 and it will be sealed shut; it won't be able to open. 11 Q. And what does the Lexicon tell us about the derivation or 12 the etymology of the name Colloportus? 13 A. That it comes from colligo, to bind together, and portus, 14 Latin for door. 15 Q. Now, Dr. Johnson, the plaintiffs' expert, has submitted a 16 declaration, the second -- submitted two, and in the second 17 declaration, paragraph 11, she states, The Latin etymologies 18 show no real linguistic understanding. And as an example, she 19 says the entry for Colloportus, that is the example we are 20 referring to, describes the word as having been derived from 21 the Latin colligo, to bind together, and portus, door. 22 However, the term portus normally is translated as 23 harbor, rarely is entrance. Porta, now that might well give 24 you door. So I guess she's saying that that spell should be 25 translated as seal the harbor. Do you have a comment about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 520 84GVWAR2 Sorensen - direct 1 that? 2 A. She might also be saying that the author has not chosen the 3 correct entry for her invented word, which I like the sort of 4 playfulness with the Latin of the book. I like that this is 5 not an academic book, it's not -- neither the novels nor the 6 Lexicon are setting themselves up as academic texts. 7 My sense of why this etymology looks the way it does 8 is that it's being true to the text and it's explaining to 9 somebody that does not know Latin that the rough origins of 10 portus, as the word appears in the novels, is door. This is 11 not an especially troubling moment for me etymologically. I 12 don't think that somebody is going to walk away from this 13 etymology while leaving us informed about the origins of this 14 particular word based on the fact that it's the masculine "u-s" 15 and not the feminine "a" ending of the term. 16 Q. By the way, in the Potter novels, are there a lot of 17 harbors that are suddenly sealed by spells? 18 A. None that I can remember. 19 Q. Okay. But there is a door that is sealed by a spell? 20 A. Many. 21 Q. Let's go on to the next example. And my Latin is 22 nonexistent, so if I mispronounce this, be indulgent. No, 23 there is another example that we added, Animagi. I think, 24 here. 25 THE COURT: Skipping around in your -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 521 84GVWAR2 Sorensen - direct 1 MR. HAMMER: No, Judge. What happened was when I sent 2 this out originally, for some reason this example was not 3 included. I sent copies to the plaintiff, who graciously 4 agreed they would not object to the inclusion, and it actually 5 should be a original response, and I believe I've handed this 6 up to the Court. 7 THE COURT: Yes, you did. 8 BY MR. HAMMER: 9 Q. Okay. Now, the next entry, is it pronounced Animagi or 10 Animagi? Well, whatever. The next entry is Animagi/Animagus. 11 Who are the Animagi in the novels? 12 A. These are witches or wizards that can transform themselves 13 into animals and retain human consciousness. There aren't many 14 of them. They need to be registered. 15 Q. Okay. And what are we told about the derivation of these 16 words? 17 A. That it's a composite word of Latin for "animal" and 18 Persian for "magic user." 19 Q. "Animal" is put twice there; I assume that's because animal 20 in Latin is equivalent to the English word animal? 21 A. I would assume that, as well. 22 Q. Now, Dr. Johnson also quarrels with this derivation. And 23 she says in paragraph 12 of the same declaration, Errors 24 proliferate throughout the remainder of these entries. And as 25 an example, she says, Under Animagi we find animal, Latin for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 522 84GVWAR2 Sorensen - direct 1 animal, English, plus magus, Persian for magic user. But the 2 word "magus" in Persian meant a wise man, not a magician. It's 3 the Romans who took up the word and applied it to a magician. 4 So evidently she believes that that should be animal 5 plus wise man, not animal plus magic user. You have a response 6 to that? 7 A. To be honest, that's kind of -- it's the kind of 8 hair-splitting that I think gives us academics a really bad 9 name. 10 The first thing I want to say about this etymology and 11 about all etymology is that it's often subject to debate; 12 that's one of the reasons I'm drawn to it professionally is 13 because it's a really rich and interesting terrain that is 14 often fought over. And so in this case, in order to establish 15 that this is Persian for "wise man" and not "magic user," one 16 would have to know enough about ancient Persian culture to know 17 whether those two things were understood as distinct entities. 18 In many ancient and older cultures, Scotland, up until 19 the 16th century included, a person that was wise and educated 20 was also understood as having magical powers of a sort. I 21 don't know if Persia and ancient Persia maintain this 22 distinction, I'd be surprised, but I'm not a scholar in ancient 23 Persian, and I would want a scholar in ancient Persian cultures 24 up here to tell me that's a fixed distinction. I would be 25 surprised if it were. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 523 84GVWAR2 Sorensen - direct 1 To give this the status of one of the sort of errors 2 that are proliferating troubles me, because I find that we are 3 getting some really useful and helpful information in this 4 etymology, and I don't find it -- as a professor of English, I 5 don't find it especially troubling. I don't look at that and 6 hear that information and say, Oh, my goodness, a terrible 7 mistake has been made. 8 Q. Let's go to the next example, please. Okay. We are now 9 out of the realm of etymology, into the realm of reference. 10 And the first example is Weird Sisters. Who are the Weird 11 Sisters in the Potter novels? 12 A. The Weird Sisters are a rock band. They play at a 13 Christmas party at Hogwarts one year. 14 Q. And what are we told about the name Weird Sisters by the 15 Lexicon? 16 A. That one of the allusions being made is to Shakespeare's 17 Macbeth, Macbeth to the three witches that accost Macbeth and 18 foretell his future. Again, that there is another allusion 19 being made to foretelling the future. 20 In Norse mythology there are three sister goddesses of 21 faith, the norms who are also referred to as the Weird Sisters. 22 And then we get a third piece of information here, the 23 archaic term "wyrd" means fate or destiny. 24 This is an entry that gives me a sense of how complex 25 and how much thought went into this particular naming of a rock SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 524 84GVWAR2 Sorensen - direct 1 band, which I hadn't thought all that much about. And when I 2 got this information, it allowed me to sort of rethink the 3 scene where they play and to think about what happens on that 4 Christmas Eve and to think about the ways in which there are 5 certain destinies foretold there, affections between characters 6 arise there, genealogies of certain characters come out. 7 And so there is a way in which that is a sort of fatal 8 scene, as it were. And then I hadn't thought about that till I 9 sort of looked at this entry and thought about these various 10 allusions that are being made to fate from a variety of 11 cultures. 12 Q. Let me just ask you globally, looking at it as a whole, 13 does the Lexicon enhance or demean the reader's sense of the 14 achievement of Ms. Rowling? 15 A. Well, I certainly walked away from the information I was 16 getting from the Lexicon with a sort of deeper knowledge and 17 appreciation of what's going on in the novels themselves. 18 I would imagine for most people, seeing that a term 19 that they might not have thought very much about has a variety 20 of meanings that are drawn from a variety of literary 21 linguistic and cultural sources, I don't think there's a way to 22 walk away from that information without a deeper appreciation 23 of the text. I can't imagine it. 24 THE COURT: The full text of the entry for Weird 25 Sisters is not limited to that definition. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 525 84GVWAR2 Sorensen - direct 1 MR. HAMMER: No, sir. But what we are trying to show 2 now is what's been added to the text; how certain parts of the 3 text enhances a reader's understanding of Potter novels. 4 THE COURT: So when I look up there at the board, I 5 don't have the words from the Lexicon other than the words that 6 are -- 7 MR. HAMMER: That's correct. If you would prefer that 8 we show the whole Lexicon entry -- 9 THE COURT: It's just in listening to the testimony, 10 that one cannot consider the -- how the Weird Sisters are 11 described in the Lexicon and whether or not their description 12 relates in some way to the definition that she used in the 13 Lexicon for Weird Sisters. 14 MR. HAMMER: Would the Court like us to put the entire 15 entry on the board? 16 THE COURT: All right. I can follow it. But just 17 point out to the listener of the testimony, it's a little hard 18 to, unless you have a Lexicon in front of you, to see 19 whether -- the purpose of the definition in relationship to the 20 description of who the Weird Sisters are and what role they 21 played in the novels. 22 MR. HAMMER: Let me address that question. 23 BY MR. HAMMER: 24 Q. Dr. Sorensen, you've made some connections in 25 interpretations about the role of the Weird Sisters based upon SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 526 84GVWAR2 Sorensen - direct 1 the information in this entry. Does the Lexicon always make 2 these explicit connections that you're making from the stand? 3 A. Rarely. 4 Q. Okay. So then what is the value -- so you are making 5 critical interpretations based upon information that the 6 Lexicon gives you, correct? 7 A. I am doing that. And when I teach, at least at the 8 university level, I want my students to have this kind of 9 information without that commentary. I want them to have this 10 sort of etymological information so they can speculate and 11 interpret and do that kind of work. 12 I rarely send my undergraduates out to read somebody 13 else's commentary on what they think a text means; but I will 14 send them to dictionaries and reference guides, that they get a 15 deeper sense of how they might start thinking about a work. 16 Q. So in these examples we've been going over, you're saying 17 the Lexicon enables commentary, not that the Lexicon in these 18 examples provides the commentary? 19 A. Yes, I am saying that. 20 Q. Let's turn to the next example. Weird Sisters suddenly 21 popped weirdly on the screen. Okay. That was interesting. 22 Can we have the Avada Kedavra. 23 The Avada Kedavra is described as the killing curse. 24 What exactly is the role Avada Kedavra plays in the Potter 25 novels? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 527 84GVWAR2 Sorensen - direct 1 A. Well, this is a curse somebody can -- a spell or, I guess, 2 a curse that somebody can use to kill another character. 3 Q. And what are we told about the derivation of Avada Kedavra? 4 A. That it might be from adhadda kedhabhra, which is Aramaic 5 for "let the thing be destroyed." 6 And then we get this note about alternative 7 etymologies for this word. It might be from abracadabra, a 8 cabbalistic charm in Judaic mythology that is supposed to bring 9 healing powers, which is not an association I had initially 10 brought to this. I was surprised by that. 11 One of its sources is believed to be from the Aramaic 12 avada kedavra; another is the Phoenician alphabet 13 abra-ca-dabra. So this is another instance where we are 14 getting material that's not in the books about layers of 15 possible meaning, and information, etymological information, 16 about what's going on in this curse name that I found really 17 fascinating and surprising, both in terms of the bringing 18 together Judaic-Phoenician-Aramaic possibilities to that word 19 and that sort of very rich and complex history. 20 Q. Does it trouble you that the Lexicon suggests that the 21 killing curse may have derived from a Hebrew healing charm? 22 A. No, my understanding is the healing charm is about letting 23 the disease be destroyed, let the thing that's making you sick 24 be destroyed. That's my understanding of it. 25 Q. Let's turn to the next set of references. Okay. You SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 528 84GVWAR2 Sorensen - direct 1 mentioned earlier that the Lexicon has entries for real-world 2 geographic places that appear in the Potter novels. We have 3 three on the board now: Surrey, Burkina Faso and Albania. And 4 why is it useful for the reader to have entries on these three 5 places? 6 A. I would assume most U.S. readers would not know where 7 Surrey is. They would probably know it's in England based on 8 the text of the novel, but it's helpful to know that where 9 Harry grows up is southwest of London. I think that's a useful 10 piece of information. 11 Burkina Faso I would imagine is a term, a place, where 12 many adult readers might not know where it's located; it's in 13 western Africa. We're not getting a huge amount of 14 geographical information, but I think it's helpful in the 15 context of the novels to know that Albania, where a murder 16 takes place, some key plot information takes place, is a small 17 European country along the Adriatic Sea. 18 Q. By the way, this was a little bit out of order, but there 19 were some Latin derivations earlier that we went over. I don't 20 know if you heard Ms. Rowling on the stand said these were all 21 trivial; that a seven-year-old with his pocket Latin dictionary 22 could do the same. Do many seven-years-olds, in your 23 experience, in America have pocket Latin dictionaries? 24 MS. CENDALI: Objection, your Honor. Argumentative. 25 THE COURT: I don't know that she's taught SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 529 84GVWAR2 Sorensen - direct 1 seven-year-olds. 2 Q. How about 20-year-olds? 3 A. No. 4 Q. All right. Assyria. Okay. So what is the reference in 5 the Potter novels to Assyria? 6 A. One of the characters has an uncle who gets him -- I think 7 this is a plant from Assyria. And the reference material here 8 is that Assyria is an ancient name for an empire which no 9 longer exists. 10 Q. So does this set up some sort of problem, logical problem? 11 A. Well, the reader might initially think has he 12 time-traveled. You know, if they know enough about Assyria to 13 know that it's an ancient empire that doesn't exist, they might 14 get the mistaken notion that there's time traveling go on here. 15 Then it goes on to explain that this is modern-day Iraq, Syria 16 and Lebanon, but it's possible that wizarding governments 17 recognize different borders and country names from their Muggle 18 counterparts. 19 So we are getting information about this ancient 20 kingdom; we are getting distinctions between ancient and 21 contemporary geography; and we are getting some plot 22 information about the difference between wizard geographical 23 borders and Muggle or, you know, regular people's geographical 24 borders. 25 Q. This also poses a playful hypothesis to resolve what seems SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 530 84GVWAR2 Sorensen - direct 1 to be a logical inconsistency in the text, right? 2 MS. CENDALI: Objection. 3 THE COURT: Objection sustained to the form of the 4 question. 5 MR. HAMMER: I withdraw the question. 6 Q. Let's go on to the next -- the next entry is for Harfang 7 Longbottom. Who is Harfang Longbottom in the Potter novels? 8 A. He's a relative of both Neville Longbottom and of the 9 character Sirius Black. There are a number of characters who 10 are in the Black family, and so he is one of those characters. 11 And we get the information that this is possibly taken from the 12 Chronicle of Narnia, the House of Harfang was the large castle 13 of a clan of Northern Giants. 14 Q. Chronicles of Narnia is written by whom? 15 A. That's the C. S. Lewis books that I referred to. 16 Q. Why might it be useful for a reader to know that there is a 17 reference here to another set of novels? 18 A. Right. This is just another place where you get 19 information that's not given in the novels about the sort of 20 allusions, the references to other texts. I would hope that a 21 young reader that's turned on by reading the Harry Potter 22 novels will see Chronicles of Narnia and maybe think about 23 turning to those, as well. 24 Q. Okay. This raises another question. In your judgment, 25 does Ms. Rowling herself borrow from other novelists? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 531 84GVWAR2 Sorensen - direct 1 A. There is a lot of -- there are a lot of allusions 2 references to other novels, other languages. Yes, there is 3 borrowing taking place. 4 Q. And in your judgment is there anything improper about that? 5 A. No. It's part of the allure of the books for me. 6 Q. Okay. Let's go on to the next category, Cross-Cultural 7 Translation. And, once again, what are the cultures that are 8 being connected by the Lexicon? 9 A. Can you repeat the question please? 10 Q. Yeah. When we say cross-cultural, what are the cultures 11 that are being crossed? Which are the two cultures that are 12 being crossed? 13 A. The main ones that happen in the Lexicon are translating 14 British references for a U.S. audience or at least a nonBritish 15 English-speaking audience. 16 Q. Okay. The first entry is for Barnabas the Barmy. Who is 17 Barnabas the Barmy? 18 A. He is a wizard who tries to teach trolls ballet and he 19 appears on a tapestry in the Hogwarts school. 20 Q. Okay. And what are we told about his name? 21 A. That "Barmy" is British slang for "crazy;" again, not 22 something most U.S. readers would know. That term "Barmy" I 23 don't think would have a lot of meaning for them. 24 Q. And does that have some reference back to the character who 25 tries to teach a troll ballet? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 532 84GVWAR2 Sorensen - direct 1 A. I think we're supposed to make an assumption about the 2 folly of that enterprise, but the name "Barmy," also meaning 3 crazy. 4 Q. Okay. The next entry is for fairy lights. What does the 5 Lexicon tell us about fairy lights? 6 A. That these are Christmas light strings; and that this is a 7 play on words. So in the novels they are literally fairies 8 that are used as decorations at Christmas. 9 And then here we get this British vernacular reference 10 to the fact that that's also a name for Christmas tree lights; 11 that's not something that would be familiar to a U.S. reader. 12 Q. Let's go on to the next one. Okay. The next set of 13 examples are for entries on Eton and Bath. Why are these 14 entries useful for an example of cross-cultural translation? 15 A. Again, I'm going to assume that they would be familiar to 16 most British readers, I don't know for sure. But I know for 17 certain that they are not terms that are familiar to a U.S. 18 reader; they will not know what an Eton is when they come 19 across it in the novel. And this explains that it's a private 20 boarding -- a famous and private boys' boarding school; gives 21 us a little bit of information about this character that Harry 22 encounters early on. 23 And Bath, I know from teaching Jane Austin, is not a 24 term or place that U.S. readers are familiar with; they don't 25 know that it's a place named for elaborate Roman public baths. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 533 84GVWAR2 Sorensen - direct 1 It enhances the quality of reading for readers to know this 2 kind of information. 3 Q. Okay. Let's go to the next category which we have 4 described in a somewhat vague and slightly grandiose phrase, 5 Mapping the Wider Universe. What is it that we mean by Mapping 6 the Wider Universe? Who's universe? 7 A. This is the universe created in the Harry Potter novels. I 8 think what we have in mind here is both the kind of structuring 9 and ordering of that universe as it takes place in the Lexicon, 10 and the ways in which fans in particular are so devoted to the 11 relationships of this invented universe, that they want to know 12 places where there are inconsistencies. I think in my 13 experience that's particularly of interest to fans. 14 Q. Okay. The example is a flint. What is a flint? 15 A. A flint is a moment of an inconsistency in the text. One 16 thing is said one place, and then contradicted in another 17 place. 18 Q. And where are we told that that term comes from? 19 A. It comes from a character named Marcus Flint, who appears 20 in his third year; initially, I think, in the first book, and 21 then appears as if he were in his eighth year. So he ends up 22 being at Hogwarts, according to the books, for another five 23 years. So instead of the normal seven years, he's there for an 24 eighth year. 25 Q. So spending eight years at a seven-year school is supposed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 534 84GVWAR2 Sorensen - direct 1 to be a logical inconsistency? 2 A. Correct. 3 Q. Of course if this were written about New York schools, it 4 might not be an impossibility, right? 5 A. Probably not. 6 Q. Okay. 7 THE COURT: Not in the present administration. 8 MR. HAMMER: Not in my own life history, Judge. 9 Q. Why is it useful to point out inconsistencies in the text? 10 A. My sense is that this is really something fans get very 11 excited about. 12 Q. So it enhances pleasure of reading? 13 A. Yes, for very devoted fans, they sort of crave these 14 moments for some reason. 15 Q. Does the Lexicon point out a lot of flints? 16 A. No, very few. 17 Q. An indication that Ms. Rowling's work is pretty consistent 18 logically? 19 A. I would say so. 20 Q. Okay. Let's go on to the next examples. The next examples 21 are for Azkaban Fortress and King's Cross Station. 22 Let's take the first one, Azkaban Fortress. What is 23 the function of that entry in mapping the Potter universe? 24 A. Well, this is a prison that criminal wizards, witches, go 25 to. And when one of the characters breaks out of it, Ron is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 535 84GVWAR2 Sorensen - direct 1 really excited and says, Nobody's ever done that before -- no 2 one's ever done that before. And the Lexicon simply reminds 3 readers that that's not true; that this had happened before in 4 the case of Barty Crouch Jr. 5 Q. And what about King's Cross Station is addressed by the 6 Lexicon entry? 7 A. This is a very endearing entry. It tells us that the 8 author's parents met at King's Cross; and that she had the 9 layout of Euston Station in her head while she was writing it. 10 Q. Okay. Let's go on to the next set. Okay. We have a new 11 category of Critical Interpretation. Is there a lot of 12 critical interpretation in the Lexicon? 13 A. There is not. 14 Q. And when it appears, in what form does it usually appear? 15 A. It tends to be around the characters. 16 Q. Let's take -- 17 A. Not always, but usually. 18 Q. Let's take this example. This is an entry about Neville 19 Longbottom. Who is Neville Longbottom in the Potter novels? 20 A. He is one of the central characters. He's a friend of 21 Harry's. He's not in his inner circle; he's often this kind of 22 pathetic character. He tries really hard; he doesn't always 23 succeed. And this entry gives us information about the kind of 24 complexity that's actually involved in this character. 25 On the surface he's not immediately recognizable as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 536 84GVWAR2 Sorensen - direct 1 brave or heroic, but it sort of talks about the ways in which 2 he is. And then it goes on to identify key points in the 3 novels where we see him transforming into a more recognizably 4 heroic figure. 5 Q. Why is that useful? 6 A. Well, it lends a depth to the understanding of the 7 character. It gives a little bit of interpretation of how one 8 might see this character based on compiling information about 9 him from the books. 10 Q. The next entry is for Draco Malfoy. Who is Draco Malfoy? 11 A. He is Harry Potter's key nemesis, sort of arch nemesis at 12 Hogwarts School. He's forever taunting Harry; he's a very 13 mean-spirited kid, as we get the sense in the novels. 14 Q. Okay. What are we told about Draco Malfoy -- let me 15 withdraw that. 16 Do the entry about Draco Malfoy slightly modify the 17 initial impression on reading about him in the novels? 18 A. Yeah, I think they do, because they remind us or sort of 19 alert us to certain aspects of this character that might 20 complicate this very black-and-white scenario. 21 He's an arch nemesis; he's a very easy character to 22 hate. And here we get some information that might revise our 23 understanding of him, so that gives a sense that he's really 24 frustrated by always being in the shadows of Harry's limelight. 25 We get this information about his relationship to his very evil SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 537 84GVWAR2 Sorensen - direct 1 parents; we get the sense that by the end of the novels, even 2 though he's been the sort of, in some ways, powerful enemy of 3 Harry's, that his day is over. And then we get information 4 about the ways in which they come to have a kind of respect for 5 each other. 6 So I think a first initial reading, especially by a 7 young reader would say, Oh, that Draco Malfoy, pure evil; I 8 don't have to think about that. And these are just places 9 that, I think, ask people, a reader, to think a little bit more 10 about what's going on with that character. 11 Q. Let us go on to the last entry. This is paragraph 19 of -- 12 we call her Dean Johnson, I think she prefers to be called Dr. 13 Johnson, Dr. Johnson's declaration. 14 Nothing that Defendant has -- I'm reading now from the 15 declaration. I'm being stared at. Did I make a mistake? No? 16 Nothing that Defendant has presented in its papers 17 changes the fact that the Lexicon merely rearranges 18 Ms. Rowling's intellectual furniture. 19 And then it goes on at the end to, All the Lexicon 20 does do is contort Ms. Rowling's magical world and arrange it 21 into an alphabetical list. This does not make the Lexicon 22 original, nor does it make it a work of scholarship. 23 Do you have any response to that? 24 A. I guess my first response is that this metaphor of 25 rearranging furniture isn't accurate. It's not the one I would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 538 84GVWAR2 Sorensen - direct 1 use. When I think of rearranging furniture, I think of a room 2 and a few items that I'm going to sort of shift into a 3 different place, end of story. 4 These are novels that are -- you know, they're 5 thousands of pages long, there are hundreds of major and minor 6 characters, there are all sorts of invented creatures and plant 7 life and medicines and spells. And so this is this sort of 8 city or multiple cities of sort of created beings. 9 And so if you take that very complicated universe and 10 you put it into a form that can remind a reader of who a 11 character is really quickly, maybe give a little insight into 12 the language that's being used, I would see that as something 13 of a different order, a kind of synthesizing or distillation of 14 a very lengthy sort of text, a very complicated universe. It's 15 not a work of scholarship. I would not claim that this is 16 something that needs to be evaluated by those standards. It 17 doesn't make those claims itself. 18 But I do see it providing, as I've tried to establish, 19 some interesting information that can really enhance a reader's 20 experiences as they make their way through the novels a first 21 time, a second time, multiple times. 22 Q. So is it fair to say that you find the Lexicon to be a 23 useful tool for readers of the Potter novels? 24 A. Yes, I found it useful. I would imagine in this 25 restructuring that's taking place, that's giving me a reference SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 539 84GVWAR2 Sorensen - direct 1 and giving me additional information not found in the novels, 2 yes, I think it's a useful text. 3 Q. Do you think it should be suppressed? 4 A. No, I don't. 5 MR. HAMMER: One second, your Honor. I have no 6 further questions of Dr. Sorensen. 7 THE COURT: Do you want a break? 8 MR. HAMMER: May we have a break, Judge? 9 MS. CENDALI: That would be great, your Honor. Thank 10 you. 11 THE COURT: All right. Then you are not going through 12 the other exhibits in the folder you handed to me? 13 MR. HAMMER: My goodness, I'm sorry -- 14 THE COURT: Exhibit 586 through 600. 15 MR. HAMMER: They are not for Dr. Sorensen, no, Judge. 16 THE COURT: Hold on. 17 (Recess) 18 MR. FALZONE: Your Honor, if I may. Can we have just 19 a moment? I think Mr. Hammer is in the rest room. 20 MS. CENDALI: I won't start without him, your Honor. 21 Shall I proceed? 22 THE COURT: Sure. 23 CROSS-EXAMINATION 24 BY MS. CENDALI: 25 Q. Good morning, Dr. Sorensen. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 540 84GVWAR2 Sorensen - cross 1 A. Good morning. 2 Q. I'm Dale Cendali from O'Melveny & Myers, counsel for Warner 3 Brothers and Ms. Rowling. Have you been present for the entire 4 trial so far? 5 A. Yes. 6 Q. Let's talk about the declaration you submitted in this 7 action. 8 MS. CENDALI: Your Honor, I'd like to approach and 9 hand the witness her declaration, Exhibit 503. 10 THE COURT: Yes, you may. Do we have an exhibit 11 number? 12 THE DEPUTY CLERK: 503. 13 Q. Now, you signed that under oath, right? 14 A. I did. 15 Q. And you did your best to make it as accurate as possible, 16 right? 17 A. Yes, I did. 18 Q. Now, I believe that you said earlier this morning that you 19 thought that the Lexicon could be useful as a reminder to 20 somebody who one of Ms. Rowling's characters was, is that 21 right? 22 A. That's right. 23 Q. Okay. And let's look at paragraph 32 of your declaration, 24 which is on page 17 of it. Right after you say, These 25 interpretive moves are occasional, and that's a reference to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 541 84GVWAR2 Sorensen - cross 1 what you were talking about above in your declaration, right? 2 You say, They are finally not the chief point of the Lexicon. 3 You write, Its main aim is to provide an accessible guide for a 4 wide range of users and, in fact, its entries in general tend 5 to be concise and pithy, using only enough material from the 6 texts to provide a thumbnail sketch of a term and relevant 7 etymological and referential material not available from the 8 texts themselves. You wrote that, right? 9 A. I did write that. 10 Q. And you believe it to be true? 11 A. I do believe it to be true. 12 Q. Okay. So it's your testimony that the entries in the 13 Lexicon only take enough of Ms. Rowling's work to provide a 14 thumbnail sketch, is that right? 15 A. In general. 16 Q. Okay. Well, let's take a look at the entry from the 17 Lexicon, Plaintiffs' Exhibit 1, for Bertie Bott's Every Flavor 18 Bean. And you know that there's no such thing as Bertie Bott's 19 Every Flavor Bean in real life, right? 20 A. Unless someone is marketing it. 21 Q. That's right. Now, this entry -- and on the screen could 22 you just initially, Mr. Hoy, scroll down so we can publish the 23 length of the entry. 24 Okay. Now, the entry, going back then to the 25 beginning of the entry, it starts off by saying that these are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 542 84GVWAR2 Sorensen - cross 1 famous sweets in the wizarding world, right? That's how the 2 entry starts, One of the most famous sweets in the wizarding 3 world is Bertie Bott's Every Flavor Beans, right? 4 A. That's how it starts. 5 Q. Then it goes on for a long paragraph telling about how 6 Bertie Bott invented them, the various flavors the various 7 characters had experienced and where the Hogwarts students had 8 bought them, right? 9 (Pause) 10 A. So I just refreshed my memory on the entry. Can you 11 restate your question for me? 12 Q. Sure. What I'm saying is that the entry goes on to provide 13 a lot of details about the Bertie Bott's Every Flavor Beans, 14 correct? 15 A. It provides more information about them. 16 Q. And that information is all Ms. Rowling's creative 17 fictional facts, right? 18 A. Yes. 19 Q. There's no analysis of what Bertie Bott's Every Flavor 20 Beans, you know, could have been inspired by or what the 21 etymology is for them or anything like that, right? 22 A. I don't think the etymological information would be all 23 that enlightening, but I could be wrong. I think the 24 etymological information often appears with words that have a 25 layered meaning, and so it doesn't surprise me there is no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 543 84GVWAR2 Sorensen - cross 1 etymological information here. 2 Q. Well, Dr. Sorensen -- 3 A. If I can continue. There's also -- there isn't much 4 analysis here, but as I've been saying in my declaration and 5 this morning, I don't see it as doing that kind of work 6 usually. It's not primarily an analytical tool. 7 Q. As you said, the Lexicon doesn't provide much analysis, 8 right? 9 A. No. 10 Q. The Lexicon does not provide much analysis, correct? 11 THE COURT: Of what? 12 Q. Of Ms. Rowling's work, correct? 13 A. I guess it depends on how you define "analysis." As I 14 understand you using the term right now, "analysis" means 15 critical commentary, interpretive information or interpretive 16 commentary. It does not provide that, most of the entries 17 don't. 18 Q. Okay. So but I'm talking about something a little 19 different right now. I'm talking about in paragraph 32 of your 20 declaration you say that the entries tend to be concise and 21 pithy, using only enough material from the texts to provide a 22 thumbnail sketch of a term. 23 And I'm asking you, Dr. Sorensen, isn't it true that 24 it would be possible to write a much shorter description for 25 Bertie Bott's Every Flavor Beans? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 544 84GVWAR2 Sorensen - cross 1 THE COURT: You're not reading from her paragraph. 2 Her paragraph goes on and says, A thumbnail sketch of a term 3 and relevant etymological and referential material not 4 available from the texts themselves. 5 Q. Is there any material in the Bertie Bott's entry that is 6 not available from Ms. Rowling's text itself? 7 A. I think the case in the entire Lexicon is one in which most 8 of the material has been drawn from the -- I wouldn't dispute 9 that in this entry or most of it. 10 Q. So you don't see anything in the Bertie Bott's entry that 11 didn't come from Ms. Rowling, is that correct? 12 A. That is correct. 13 Q. And turning just to your point about the thumbnail. I 14 realize you have other points in your sentence, as his Honor 15 pointed out, but just turning to the point about the idea of 16 the Lexicon being some sort of an aid to memory. Isn't it true 17 that this entry provides more detailed information about Bertie 18 Bott's Every Flavor Beans than would be necessary to just 19 remind a reader what they were? 20 A. Yes, that is often the case in these. When I say 21 "thumbnail sketch," maybe I should be more clear. I don't mean 22 one word or a sentence; I mean information cold and compiled 23 synthesized and distilled from the texts that reminds a reader 24 of what these are, what role they played, who's been related to 25 them. That's what I had in mind when I talk about a thumbnail SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 545 84GVWAR2 Sorensen - cross 1 sketch. It provides -- distills information. 2 Q. And that information is usually from Ms. Rowling, isn't 3 that right? 4 MR. HAMMER: Asked and answered. 5 THE COURT: But that's not a proper objection 6 theoretically, Mr. Hammer. Let's try not to be repetitive, if 7 we can. 8 Q. Let's look at the entry for Buckbeak. Who is Buckbeak in 9 the Harry Potter novels? 10 A. He is an invented creature that Hagrid brings to the school 11 for part of his instruction in creatures. 12 Q. And isn't it true that the Lexicon entry for Buckbeak goes 13 on a lot longer than you just did to describe a lot of plot 14 details with regard to Buckbeak? 15 A. Can you let me refresh my memory? I'm sorry, I don't have 16 these entries right at the top of my memory, and so I need to 17 remind myself of what the entry states. So I'm going to take a 18 moment and read the entry. 19 Q. Certainly. 20 (Pause) 21 A. Okay. So I have reread the entry. Can you ask me the 22 question again? I'm sorry. 23 Q. Can I have it read back please? 24 THE COURT: Yes, can you read it back. 25 (Record read) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 546 84GVWAR2 Sorensen - cross 1 A. That is true. If you asked me to compile an entry for a 2 Lexicon on Buckbeak, I would expand beyond the couple of words 3 I gave you. 4 Buckbeak is kind of an interesting character because 5 he's something that Sirius Black inherits -- sorry, that Harry 6 Potter inherits after Sirius Black, his only living relative as 7 he knows at that point, has died. And so I remember reading 8 that section when he inherited Buckbeak, and I remembered that 9 he had been this creature. It would actually enhance my 10 reading to go back and remind myself of what all was entailed 11 in that particular creature. 12 I actually think in a strange way that creature has 13 this kind of emotional poignancy, and so I don't see anything 14 here that I think is inappropriate to the entry. I don't think 15 it's overly long, given that this particular creature has this 16 emotional weight to it in the novel. 17 Q. Would you say this is a thumbnail sketch that would help 18 remind a reader who Buckbeak was? 19 A. Yes, I would. 20 Q. Doesn't it go beyond -- the first sentence simply says, 21 Buckbeak is a gray hippogriff, which was one of the group of 22 creatures Hagrid brought to his First Care of Magical Creatures 23 lesson with the third-year students in the fall of 1993. Do 24 you see that? 25 A. Yeah. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 547 84GVWAR2 Sorensen - cross 1 Q. Wouldn't that remind the reader who Buckbeak was? 2 A. It would. The additional material also reminds me of why I 3 cared about that character when I came across the name in the 4 novel. 5 Q. And that goes beyond a short pithy thumbnail sketch, 6 correct? 7 A. Not for me. But when I say "thumbnail sketch," I defined 8 how I understand it; it might be different from how you 9 understand it. 10 Q. And isn't it true that there's no outside referential 11 material or etymologies in that paragraph? 12 A. There is not etymological or referential material here. 13 Q. Okay. Let's look at the Lexicon entry for the Harry Potter 14 character, which I believe is, since it was provided 15 separately, is Exhibit 11-A, your Honor. 16 THE COURT: 11-A. 17 BY MS. CENDALI: 18 Q. That's on the screen, Dr. Sorensen. And the entry for the 19 Harry Potter character is about ten pages long, isn't that 20 true, Dr. Sorensen? 21 A. I'm going to have to take your word for it, because I'm not 22 finding it in this particular Lexicon. 23 Q. Let me give you a hard copy that was provided afterwards. 24 And that entry for Harry Potter goes on for ten pages, isn't 25 that true? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 548 84GVWAR2 Sorensen - cross 1 A. Yes. 2 Q. And isn't it true that it tells the plot of the Harry 3 Potter character through the seven Harry Potter novels? 4 A. No, it does not. 5 Q. You don't see a lot of Ms. Rowling's plot in that entry, 6 Dr. Sorensen? 7 A. A plot is a sequence of events that takes place in a novel 8 in the order in which they take place in the narrative. This 9 is not a plot or a plot summary. 10 Q. So you wouldn't describe this as a plot summary? 11 A. I would not. 12 Q. And you don't describe it as something that tells what 13 happens to Harry Potter at the end of Book 7? 14 A. It might do that; that doesn't make it a plot summary. A 15 plot summary would look something like, Harry Potter lives in 16 this house. And then he finds out this information about 17 himself. And then he goes to the Hogwarts School. And then 18 this happened, and then that happened. That's a plot summary. 19 This isn't a plot summary. 20 Q. Okay. This isn't a plot summary. Can you show us where 21 there's any etymological or outside reference material in this 22 entry? 23 A. This isn't the kind of invented term that I would expect 24 there to be etymological information. I can't show you that 25 here because it's not provided here. It doesn't surprise me SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 549 84GVWAR2 Sorensen - cross 1 that it's not provided here. 2 Q. In teaching students, have any students written papers for 3 you on the role of the hero in literature? 4 A. No. 5 Q. There's no literary analysis of the Harry Potter character 6 in this entry, is there? 7 A. I would be happy to sit here and read it for the next 20 8 minutes. I wouldn't be surprised if there weren't character 9 analysis in this; but if you genuinely want me to read it, I 10 will do that. I read slowly and carefully, so it will take a 11 while. But the point of the book, as I understand it, is not 12 about analysis. 13 Q. Isn't it true, Dr. Sorensen, that this entry goes far 14 beyond a thumbnail that would be necessary to remind the reader 15 who Harry Potter was? 16 A. If you read my sentence, it says in general this is one of 17 the places where that is not the case, and it doesn't surprise 18 me. He is the lead character of a seven-volume, 19 several-thousand-page text. I would be surprised if this entry 20 were shorter. 21 Q. Have you ever known any of your students to try to get out 22 of reading a long book? 23 A. I don't know of that. I assume it happens, but I have 24 never had concrete evidence; but sure, I'm sure it happens. 25 Q. And as a teacher, do you recognize that giving long SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 550 84GVWAR2 Sorensen - cross 1 detailed plot summaries of what happens in the Harry Potter 2 novels might discourage somebody from reading the novels 3 themselves? 4 A. This is not a plot summary. 5 (Continued on next page) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 551 84G5WAR3 Sorensen - cross 1 BY MS. CENDALI: 2 Q. Now, Dr. Sorensen, would it be possible to do a Harry 3 Potter guidebook that uses less of Ms. Rowling's fictional 4 facts and more reference material? 5 A. I think there are some of them out there. 6 Q. And, do any come to mind at the moment? 7 A. I -- having seen the testimony I have seen other kinds of 8 books that people -- like the George Beahm book. As a literary 9 historian I know that when works come out, when critical works 10 come out, when referential guides come out they are of a vast 11 spectrum and this is somewhere on a spectrum and those are 12 somewhere else. 13 Q. And the George Beahm book, Facts, Fiction and Folklore, I 14 believe that's Exhibit 74, this book has more -- has less of 15 Ms. Rowling's prose in it and provides more analysis, isn't 16 that true? 17 A. Based on the way I have heard it described that's true. 18 Q. Okay. Now, when you read the Lexicon manuscript you didn't 19 see very many quotation marks for Ms. Rowling's words, right? 20 A. That's correct. 21 Q. And, would you agree with me that it would be possible to 22 do a Harry Potter guidebook that used quotation marks? 23 A. I guess it depends on how you define guidebook. Certainly 24 if it were a guidebook that were providing essays and somebody 25 who was quoting material to make a point and was working in a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 552 84G5WAR3 Sorensen - cross 1 scholarly manner then, yes, I would assume I would see 2 quotation marks. 3 Q. Well, you hadn't ever read the Harry Potter books until you 4 were asked to be an expert in this case, right? 5 A. That is correct. 6 Q. And, in fact, Twentieth Century literature is not your 7 speciality, right? 8 A. I have written and published on Twentieth Century 9 literature. It is not my -- at the moment my research is in 10 Eighteenth and Nineteenth Century materials but I have taught 11 it routinely. 12 Q. Isn't it true that when you read the Lexicon it was hard 13 for you to know which words came from Ms. Rowling and which 14 words came from Mr. Vander Ark? 15 A. I wasn't focusing on that so I can't say if it was hard for 16 me to tell. I wasn't trying to tell, to be honest. 17 Q. Well, going back to -- let's go back to the Bertie Bott's 18 Every Flavor Bean entry that you read before. Can you put that 19 on the screen? That's Lexicon Exhibit 1. 20 Can you tell in there what words were quoted from 21 Ms. Rowling? 22 A. Well, when I -- when I see, "According to Ron" or 23 "Dumbledore said," that suggests to me that those are in the 24 novels. 25 Q. But you are not sure? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 553 84G5WAR3 Sorensen - cross 1 A. No. 2 Q. Now, when you, Jane Austen is one of the people you write 3 about, right? 4 A. Yes, I write about her and teach her work. 5 Q. And, in fact, you talk about Jane Austen in your book, The 6 Grammar of Empire in Eighteenth Century British Writing; 7 correct? 8 A. Yes, that's my epilogue. That's the last chapter. 9 Q. And, your epilogue is about Jane Austen, correct? 10 A. Correct. 11 Q. And you admire her, correct? 12 A. I do. 13 Q. Isn't it true when you write about Jane Austen you use 14 quotation marks to quote her? 15 A. That's a work of scholarship. Of course I do. 16 Q. Well, why do you do that? 17 A. Because when I submit a manuscript to an academic publisher 18 there are standard protocols of quotation that you are asked to 19 follow. 20 Q. And you wouldn't want your reader to think that you were 21 taking credit for Ms. Austen's words, would you? 22 A. I wouldn't -- can you repeat that question for me, please? 23 Q. Sure. 24 You wouldn't want someone reading your book to think 25 that you were taking credit for Ms. Austen's prose? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 554 84G5WAR3 Sorensen - cross 1 A. I don't see how that would be possible. 2 Q. Now, let's go to paragraph 16 of your declaration, it 3 refers to etymologies. Tell me when you have it, Dr. Sorensen. 4 A. I will, thanks. 5 Q. Do you have it in front of you? 6 A. I do. 7 Q. The first sentence of paragraph 16 you write: The 8 etymological information, for instance, is one of the real 9 strengths of the Lexicon. 10 Do you see that? 11 A. I do see that. 12 Q. Is that what you believe? 13 A. I do believe that, yes. 14 Q. But isn't it true, Dr. Sorensen, that most of the entries 15 in the Lexicon do not contain etymologies? 16 A. As I tried to explain, I think that the etymologies are 17 appropriate for the invented words, for words that have 18 suggestive layers of linguistic heritage that they're drawing 19 from. And so, there are many entries that simply don't qualify 20 for that. 21 So, yes, there are entries in here without a lot of 22 etymological information. 23 Q. Just to be -- if you could answer my question yes or no. 24 Isn't it true that most of the entries in the Lexicon do not 25 contain etymologies? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 555 84G5WAR3 Sorensen - cross 1 A. That is correct, yes. 2 Q. And, in fact, isn't it true that etymologies comprise only 3 about 1 percent of the text of the entire Lexicon? 4 A. I would have no way of knowing that. I would be very 5 curious as to how you have a way of knowing that because I read 6 this Lexicon and marked up my pages and I was finding them on 7 every, you know, every several pages. 8 So, just by my percentage anecdotally, that wouldn't 9 hold up. But, if you have some kind of evidence for that, it 10 would be helpful for me to see it. 11 Q. Did you try to count how many etymologies there were in the 12 Lexicon before testifying that the etymological information is 13 one of the real strengths of the Lexicon? 14 A. That is never the basis on which I do literary analysis. 15 That is not a methodology I use. 16 Q. So you don't know how many etymologies are in it, the 17 Lexicon; is that correct? 18 A. That is correct. 19 Q. Now, I believe you testified on direct when Mr. Hammer was 20 asking you, that you had read the supplemental declaration of 21 Ms. Johnson in this case; correct? 22 A. I read two declarations from Ms. Johnson. 23 Q. And, did you read the declaration -- and there only were 24 two I will represent to you -- and isn't it true that in Dean 25 Johnson's declaration she wrote that of the 2,437 entries in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 556 84G5WAR3 Sorensen - cross 1 the Lexicon, less than 200 of them contain etymologies? 2 A. I don't have the declaration in front of me so if you are 3 asking me that she said that and I read that, yes. The answer 4 is yes. 5 MR. HAMMER: Objection, your Honor. There was a 6 specific ruling on the question of Dean Johnson's 7 quantifications. They were not allowed -- not only were the 8 exhibits not allowed, the testimony was not allowed. 9 This sort of back-dooring of testimony should not be 10 allowed. There was no Rule 26 report on any quantification 11 study she did and it shouldn't be allowed in this case. 12 MS. CENDALI: Your Honor, Mr. Hammer misstates the 13 record. 14 Dean Johnson's supplemental declaration is in 15 evidence. It contains exactly what I just said. I'm happy to 16 give it to the witness and put it on the screen. And I am 17 questioning her about that declaration. She has also put in 18 issue the issue of the etymologies and it is proper 19 cross-examination to inquire about how many of them there 20 actually were. 21 MR. HAMMER: Well, if it is a reference to something 22 that was in a declaration I withdraw my objection. 23 Can I have a second to look at the declaration, your 24 Honor? 25 MS. CENDALI: Let's give you -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 557 84G5WAR3 Sorensen - cross 1 THE COURT: Yes, you may have a second. 2 If there has been a Rule 26 violation, then we have a 3 problem. 4 MR. HAMMER: May I just -- can you give me the 5 paragraph of the declaration in which this appears? 6 MS. CENDALI: Let me get the declaration. It is 7 Exhibit 28. Let's put Exhibit 28 up on the screen. Let's put 8 paragraph 6 on the screen. 9 MS. AHRENS: Did you say Exhibit 28? 10 MS. CENDALI: Yes, Plaintiff's Exhibit 28, paragraph 11 6. It is on the screen in front of you. 12 THE WITNESS: Can I have the declaration, please? 13 MR. HAMMER: Your Honor, I now renew my objection. 14 That says absolutely nothing about etymologies. 15 Counsel made a specific reference to the number of 16 etymologies in the text. That is not supported by anything in 17 the declaration. It evidently refers to material that was 18 specifically kept out during our Rule 26 objection. I object 19 again. 20 MS. CENDALI: Your Honor, I apologize in that I 21 misstated my memory of the paragraph of the declaration but I 22 am cross-examining the witness who has just testified to the 23 importance of the etymologies as to how many she remembers. 24 THE COURT: The question is improper. 25 MS. CENDALI: And I withdraw it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 558 84G5WAR3 Sorensen - cross 1 BY MS. CENDALI: 2 Q. So, my question: You read, as you said, both of Dean 3 Johnson's declarations, correct? 4 A. Correct. 5 Q. And in her supplemental declaration, paragraph 6 she wrote: 6 In fact, a line by line review of the Lexicon reveals that out 7 of the 2,437 entries, 2,034 entries simply lift information 8 straight out of the Harry Potter books. 9 Do you see that? 10 A. I do see that. 11 Q. Do you have any reason to believe that's not correct? 12 A. Yes, I do. 13 I would dispute "simply lift." I don't understand how 14 that is being used. "Simply lift" implies to me that it is 15 taking material and as the phrase has been cut and pasted. I 16 don't see that happening here. 17 So, if that is the argument, then no, I wouldn't agree 18 with that. 19 Q. Do you know how many entries of the Lexicon add outside 20 referential material? 21 A. No, I don't. 22 Q. And you don't know how many of them have etymologies, 23 correct? 24 A. That's correct. 25 Q. And you don't know how many of them add flints or refer to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 559 84G5WAR3 Sorensen - cross 1 flints, right? 2 A. I think it was either four or five because that's an easy 3 one to go and -- 4 Q. And you don't remember how many of them have cross-cultural 5 translations, right? 6 A. No. As I say, I don't count. 7 Q. Well, in paragraph 19 of your declaration, let's put that 8 on the screen, this is your declaration you wrote, in the 9 highlighted second sentence: One finds hundreds of such 10 etymological and referential entries in the Lexicon. 11 Do you see that? 12 A. Yes, I do see that. 13 Q. Did you count how many there were before you signed this 14 declaration? 15 A. What I did was I was marking my pages and so, yes, this is 16 my sense of what it was. I didn't actually sit down and go 1, 17 2, 3. But when I saw something of from, I highlighted it on a 18 page. 19 Q. So you have no -- you can't testify as to how many there 20 actually were then? 21 A. That's why I didn't put an exhibit number in. 22 Q. Now, let's look at -- isn't it true that where an etymology 23 is provided it is typically a small portion of a larger entry 24 about one of Ms. Rowling's characters? 25 A. That's always how dictionaries work. They are usually the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 560 84G5WAR3 Sorensen - cross 1 small -- unless it is an etymological dictionary, they tend to 2 be the smaller part of the entry. 3 Q. So, even an entry that contains an etymology, most of that 4 entry would be from Ms. Rowling's work, right? 5 A. Yes. 6 Q. Now, in your declaration at paragraph 27 you wrote: Last, 7 although clearly subordinated to the referential material, 8 moments of critical interpretation are in evidence in the 9 Lexicon. 10 Right? 11 A. Right. 12 Q. And, isn't it true by "clearly subordinated to the 13 referential material," you meant that the instances of what you 14 call critical interpretation appear less frequently than the 15 referential material, correct? 16 A. Yes. That's correct. 17 Q. And you don't know how many times the reference material 18 appears, correct? 19 A. I did not count. 20 Q. Now, you went on in your declaration to describe examples 21 of theorizing, correct? 22 A. Is that in this paragraph or the next one? 23 Q. Look in the next paragraph of -- it says paragraph 31, you 24 wrote: The Lexicon wears such theorizing lightly. 25 Do you see that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 561 84G5WAR3 Sorensen - cross 1 A. Yes. 2 Q. And, by saying it wears it lightly means that it doesn't do 3 it very deeply, correct? 4 A. Right. That is not what we usually expect from a ready 5 reference guide. I wouldn't expect it. 6 Q. And, in paragraph 32 of your declaration you wrote: These 7 interpretive moves are occasional. 8 Correct? 9 A. Yes, that's correct. 10 Q. And you wrote that because you knew that they didn't occur 11 very often in the Lexicon, right? 12 A. That's right. 13 Q. And continuing in that same sentence in paragraph 32 you 14 wrote that these interpretive moves are not the chief point of 15 the Lexicon, right? 16 A. Right. 17 Q. And, in other words, you would agree that the Lexicon's 18 chief point is not to be a work of critical interpretation or 19 scholarship, right? 20 A. That's right. 21 Q. And, you were in court and you heard Mr. Vander Ark testify 22 that the Lexicon doesn't spend much time trying to analyze the 23 Harry Potter books. Do you remember him saying that? 24 A. Yes, I think so. 25 Q. And you agree with Mr. Vander Ark? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 562 84G5WAR3 Sorensen - cross 1 A. Yes. 2 Q. Now, you cited in your declaration a lot of historical and 3 contemporary reader's guides and lexicons, is that right? 4 A. Yes. 5 Q. And you discussed some of those this morning with 6 Mr. Hammer, correct? 7 A. Correct. 8 Q. Isn't it true, Dr. Sorensen, that none of the lexicons -- 9 excuse me -- that none of the lexicons or companion books cited 10 in your declaration quote and paraphrase and author's work as 11 much as the lexicon does in this case Ms. Rowling's work? 12 A. Well, I want to point out that genres evolve. One of the 13 things I kind of find exciting about the moment we are living 14 is that people can do the kind of compilation, they have the 15 digital tools to do that that they haven't had historically. 16 And so, yes, I would agree that this is in some way a 17 more comprehensive guide of some of the ones I have seen 18 historically. I don't think that's a bad thing. 19 Q. Just to get a clear answer to my question, again, if you 20 can answer yes or no. Or not -- 21 THE COURT: Let's not have a speech. Let's just ask a 22 question. 23 Q. Isn't it true that none of the lexicons or companion guides 24 cited in your declaration uses much of the author's creative 25 expression as does the Lexicon in issue here of Ms. Rowling's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 563 84G5WAR3 Sorensen - cross 1 work? 2 A. None are as comprehensive if that's what are you asking me. 3 None are as extensive, no. 4 Q. And, none of them quote and paraphrase as much as the Harry 5 Potter Lexicon at issue in this case does of Ms. Rowling's 6 work, correct? 7 A. I would say with the exception of the Milton text that I 8 mentioned -- the 500-page Milton reference that I talked about 9 this morning. 10 Q. And, that Milton reference was when Milton was out of the 11 copyright, correct? 12 A. I don't know. 13 Q. You have no reason to believe it was in copyright at the 14 time that text was created? 15 A. I don't know. 16 Q. Let's look at some of the examples you cited in your 17 declaration, Exhibit 503, and let's start with paragraph 9. 18 Now, in paragraph 9 of your declaration you talk about 19 a book: On the Track of the Wessex Novels: A Guide to the 20 Hardy Country by William Parker. 21 Isn't that right? 22 A. Yes. 23 Q. That permission was given to the author of that book to 24 have quotations to Mr. Hardy's work? 25 A. I don't know. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 564 84G5WAR3 Sorensen - cross 1 Q. I would like to show you what we will mark or has been 2 marked as Exhibit 59, two pages from it. 3 MR. HAMMER: What is Exhibit 59? Can I get a copy? 4 THE COURT: We don't have it. 5 MS. CENDALI: I have one for the Court too, your 6 Honor. 7 Q. Do you recognize Exhibit 59 as excerpts from William 8 Parker's book that you referred to in your declaration? 9 A. Yes. 10 Q. And, you note that it indicates thanks to the publisher for 11 giving permission for quotations? 12 A. Yes, I see that. 13 Q. And, in the course of your work have you ever had to write 14 to publishers and ask for permission to quote an author's work 15 in your books that is still protected by copyright? 16 A. No, I have not. 17 Q. Now, you also mentioned this morning that there was a book 18 called Pamela that was very popular, correct? 19 A. Correct. 20 Q. And that that was a best-seller and big excitement at the 21 time? 22 A. Yes, it was. 23 Q. And who was the author of the Pamela book? 24 A. Samuel Richardson. 25 Q. And I believe you said that Samuel Richardson did a guide SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 565 84G5WAR3 Sorensen - cross 1 to the Pamela book? 2 A. He did something called A Collection of Moral Sentiments 3 and Instruction. It was also known as Pamela Illustrated at 4 the time. 5 Q. And, would you agree with me that scholarship about the 6 Pamela book was benefitted by having the author do his guide? 7 A. Sure. 8 Q. And if authors were discouraged from doing guides of their 9 work that would be a bad thing for scholarship, correct? 10 A. The interesting thing about Richardson's guide is he wrote 11 it because he didn't like the other ones that were out there. 12 That's why he produced that. 13 Q. And, do you think that that was a good thing from the point 14 of scholarship? 15 A. I do. 16 Q. And it would have been a loss if Richardson didn't do that, 17 right? 18 A. Yes. 19 Q. Now, you also cited in your declaration in Exhibit 503 at 20 paragraph 9 a book called, Pynchon's Character Names: A 21 Dictionary, by Patrick Hurley; correct? 22 A. Yes, although when I saw it it was not published. It was a 23 dissertation and I wasn't sure if it was going to be published 24 or not so I haven't seen the published version. 25 Q. But you have seen the dissertation version, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 566 84G5WAR3 Sorensen - cross 1 A. I did not see the dissertation version. I was unable to 2 access it from my library at the time. 3 Q. So what did you base putting it in your declaration on? 4 A. The title: Pynchon's Character Names: A dictionary. 5 Q. I would like to show you what we have marked as Plaintiff's 6 Exhibit 60, an excerpt from that book. 7 THE COURT: Excerpts from what? 8 MS. CENDALI: An excerpt from -- an excerpt from 9 Pynchon Character Names: A dictionary, by Patrick Hurley 10 referred to in your declaration. 11 MR. HAMMER: Your Honor, I object. She said she 12 doesn't know that. This cannot be used to impeach her. She 13 has not seen the book so it cannot be introduced through her. 14 This should be introduced through their own witness. It should 15 not be introduced in this cross-examination. 16 MS. CENDALI: Cross-examining, your Honor, on 17 something she put in her declaration. 18 THE COURT: Well, you can ask her questions about it 19 but you can't -- you can ask her questions as to why she put it 20 in her declaration but I don't think you can get into the 21 content. 22 She said she based it on the title, as I understood 23 her answer. 24 BY MS. CENDALI: 25 Q. So you don't know then, Dr. Sorensen, when you put in your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 567 84G5WAR3 Sorensen - cross 1 declaration, this example of a helpful reference guide, what 2 was in this one; correct? 3 A. Its, I imagined it looking like this. I was hoping it 4 looked like this. 5 Q. Isn't it true that the Pynchon reference guide that you 6 mention in your declaration has much smaller descriptions of 7 Pynchon's characters than the -- 8 MR. HAMMER: Once again, I object as to the text of 9 the material, which she is seeing for first time today. That 10 is not proper cross-examination. 11 THE COURT: You have just attached page 100. If you 12 want to give her the whole book and spend the time 13 differently -- 14 MR. HAMMER: That's true. 15 MS. CENDALI: Well, I have the book. May I give it to 16 the witness, your Honor? It is marked as Exhibit 60. 17 THE COURT: I guess you can show it to her. 18 BY MS. CENDALI: 19 Q. My question, Dr. Sorensen, is whether -- isn't it true in 20 this particular book -- and I appreciate that you are saying 21 you haven't seen it before, that you didn't put it in your 22 declaration -- 23 THE COURT: I thought she did put it in her 24 declaration. 25 MS. CENDALI: Yes, she did use it in her declaration, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 568 84G5WAR3 Sorensen - cross 1 that's right. 2 Q. But, isn't it true that in this guide to Pynchon it doesn't 3 just -- it has -- excuse me. 4 Isn't it true that this lists various characters in 5 the Pynchon novels but, rather than simply write whatever it 6 was that Pynchon wrote about them, the author here goes on to 7 do outside research to identify what the character was based 8 on? 9 A. You know, it takes me a while to familiarize myself with 10 text. What I am seeing are many passages that are much longer 11 than the ones cited on the page that you furnished today which 12 doesn't surprise me. These are more modern characters. In 13 Pynchon the more major characters I would expect to be longer 14 pages. 15 To see what it is doing and see how it is working, 16 what its methodology is I would need some time with this book, 17 to be honest with you. 18 Q. And you haven't had time with this book before you referred 19 to it in your declaration? 20 A. This book came out in 2008. I wrote that declaration at 21 the very beginning. It wasn't available to me. I saw the 22 title and thought this was one of the spectrum of books that 23 I'm trying to identify as reference guides that are out there. 24 Q. Well, in the Shakespeare Illustrated book by Charlotte 25 Lennox cited in your declaration, that book doesn't simply take SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 569 84G5WAR3 Sorensen - cross 1 Shakespeare's plays and reorganize them in alphabetical order, 2 does it? 3 A. No. It does plot summaries. 4 Q. Isn't it true that in that book it discusses the real life 5 histories that Shakespeare based his plays on? 6 A. No, that's not true. 7 What Shakespeare Illustrated does -- it is a really 8 interesting book. It does plot summaries of Shakespeare's 9 plays and then it talks about the mainly romantic texts, there 10 are sort of romances of the content which were identified with 11 female writers to try to reclaim Shakespeare as having derived 12 his material from those texts and those authors which is a 13 really interesting project. 14 But it does also -- and one of the reasons it was a 15 popular text is that it provides plot summaries of his plays. 16 That's how each entry starts. It is a long plot summary. 17 Q. And isn't it true that it goes on to talk about the real 18 life events that Shakespeare based his plays on? 19 A. As I just said, it does not go on to talk about real life 20 events. It goes on to talk about romantic texts written by 21 women on the continent and to try to reclaim them for 22 understanding Shakespeare. 23 So, yes, it is doing a kind of critical work but it 24 also has long plot summaries. That's where each entry starts. 25 Q. Was Shakespeare subject to copyright protection at the time SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 570 84G5WAR3 Sorensen - cross 1 that book was written? 2 A. I don't know. 3 Q. Now, in your declaration at paragraphs 11 and 13 you cite 4 various contemporary guides based on the works of Tolkien and 5 C.S. Lewis; right? 6 A. Yes. Right. 7 Q. And did you read those books before you put them in your 8 declaration? 9 A. These I did have an occasion to go to the library and 10 review. The ones I thought were most interesting I took home 11 with me. 12 Q. And, isn't it true that Exhibit 34, The People's Guide to 13 J.R.R. Tolkien, is not an alphabetized dictionary or 14 encyclopedia of Tolkien's work? 15 A. That one I couldn't get my hand on so I would need to see 16 it. I don't know if it is alphabetical. 17 Q. So you don't know -- this is another example of something 18 you referred to in your declaration that you hadn't read 19 beforehand? 20 A. Well, sadly, as I say, I saw all of these -- that one 21 actually our library didn't hold it. I think it is a British 22 publication. 23 Q. Let me show you then a copy of Exhibit 64. Here it is. 24 Forgive me, I have it. 25 THE COURT: Can we have the name of the work because SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 571 84G5WAR3 Sorensen - cross 1 it is a little hard for the Court to -- 2 Q. And the name of this is The People's Guide to J.R.R. 3 Tolkien, giving excerpts from it to the -- 4 THE COURT: What paragraph of her declaration are you 5 referring to for this excerpt? 6 MS. CENDALI: It is 11 to 13. And I will give you the 7 exact paragraph. 8 THE COURT: That's good enough if I have the page. 9 Thank you. 10 BY MS. CENDALI: 11 Q. And, isn't it true, Dr. Sorensen, that this book is a 12 collection of essays and is not an A through Z guide that 13 reproduces Tolkien's prose? 14 A. It looks like a collection of essays. It looks like 15 critical commentary. It looks like it is on that end of the 16 spectrum of books that get produced in relationship to a text 17 to try to explain it. 18 Q. So it doesn't look much like the Lexicon at issue in this 19 case, right? 20 A. It does not -- it is not alphabetically ordered, that's 21 right. 22 Q. And it provides a lot more analysis and commentary, 23 correct? 24 A. Yes, it is on that end of the spectrum. 25 Q. And, you also mentioned in your declaration the book, The SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 572 84G5WAR3 Sorensen - cross 1 Way Into Narnia by Peter Schakel, is that correct? 2 A. Correct. 3 Q. Isn't it true that that book is also not an alphabetized 4 dictionary or encyclopedia, right? 5 A. That one I did see. I don't remember it off the top of my 6 head. I know that some had lexical alphabetical and some did 7 not. 8 My argument is I understand it wasn't that there are 9 all these alphabetical lexicon works out there but there is a 10 spectrum of reference guides that readers turn to. 11 Q. Well, could you tell me what contemporary companion guide 12 or reference guide in -- that is about a work that is still in 13 copyright is most like the Lexicon at issue in this case? 14 A. Well, I cited Ford's Guide to Middle-Earth. That does have 15 critical commentary but it also has a lexicon component. 16 Q. Have you seen that book? 17 A. I have seen that book. 18 Q. Isn't it true that the lexicon at issue in this case 19 provides much less analysis than that book does? 20 A. I'm sorry. Can you repeat the question? 21 THE COURT: I think if you are down below the podium 22 it is a little hard to hear you. 23 Q. Isn't it true that the lexicon in this book in this case 24 provides less commentary than that book? 25 A. I am not sure what the "this" in "that book" is. I'm SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 573 84G5WAR3 Sorensen - cross 1 sorry. I'm not following your question. 2 Q. You just mentioned the book, right? 3 A. I mentioned -- 4 Q. And that was the Ford book? 5 A. Ford's -- yes. Uh-huh. 6 Q. And isn't it true that that book is -- are you referring to 7 the companion to Narnia, that Ford book? 8 A. The Guide to Middle-Earth -- Ford's Guide to Middle-Earth 9 is the one I'm thinking of because I have the citation of the 10 celeborn. 11 THE COURT: What page is that on? 12 THE WITNESS: That is on page 6, paragraph 11. 13 Q. Are you perhaps referring to the Colin Duriez book about -- 14 MR. HAMMER: I'm totally lost right now in this. 15 THE COURT: I am lost too, Ms. Cendali. 16 MS. CENDALI: Forgive me. 17 Dr. Sorensen, are you perhaps confused? Are you 18 perhaps referring to Tolkien and The Guide to the Middle-Earth 19 as the book? 20 MR. HAMMER: Can we remember what the response was 21 that is supposed to have been confusing? I don't remember the 22 context of this any longer. 23 THE COURT: We have gotten into Narnia and I don't 24 know where we are and I don't know where we are in connection 25 with her declaration because the pages given for me as citation SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 574 84G5WAR3 Sorensen - cross 1 did not turn out to be correct. 2 MS. CENDALI: Okay, your Honor. 3 BY MS. CENDALI: 4 Q. Ms. Sorensen, could you please look at your declaration and 5 tell us which of the things cited in your declaration you think 6 is most like the lexicon at issue in this case? 7 A. I'm thinking the Duriez or the Paul Ford, probably either 8 of those have a lexical or lexicon component. Either of those 9 would do. 10 Q. Okay. And let's look at the Paul Ford companion to Narnia 11 book that you mentioned in paragraph 11 of your declaration, 12 okay -- 13 A. Okay. 14 Q. -- which has been marked as Exhibit 62. 15 THE COURT: This is not the complete book, this is 16 just excerpts from it, Ms. Cendali. 17 MS. CENDALI: Yes, your Honor. 18 Q. Isn't it true that that book does not take as much of the 19 text of C.S. Lewis' work as the Lexicon? 20 MR. HAMMER: I just ask that if you are going to be -- 21 THE COURT: If you are going to do that you have to 22 give us the whole book. It is some 450 pages, apparently, and 23 you have 30 or 40. I may be wrong. 24 MS. CENDALI: Your Honor, these are among the -- I 25 thought the agreement was that the witness could get the book SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 575 84G5WAR3 Sorensen - cross 1 and we would just be able to use excerpts with the witness 2 given the volume. And your Honor -- 3 THE COURT: Well, if you are asking -- 4 MR. HAMMER: We were not provided with the books. 5 THE COURT: It depends on what your question is. If 6 you are asking here to compare one book to another book in toto 7 then I think -- 8 THE WITNESS: I mean I have a book in front of me and 9 the first page I turn to is Mrs. MacReady, housekeeper to 10 professor Digorykirke. She is not fond of children and 11 dislikes being interrupted when she is telling visitors all she 12 knows about the house. When the children return from Narnia 13 she is still talking with visitors outside the spare room, an 14 indication of the wide discrepancy between the Narnia time and 15 English time. Ms. MacReady's name is -- 16 THE COURT: You have to slow down. 17 A. -- probably based on that of Mrs. McCreedy, a woman who 18 kept house for Lewis' parents when he was two years old, 19 although that it may be a play on the words "make ready." 20 This doesn't strike me as significantly different from 21 what I see in the Lexicon. 22 Q. Isn't it true, Dr. Sorensen, that all of the contemporary 23 lexicons and companion guides cited in your declaration contain 24 much more -- much more essays and other information than do the 25 Lexicon? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 576 84G5WAR3 Sorensen - cross 1 A. No. 2 Q. Well -- 3 THE COURT: And this is an alphabetical listing of 4 material that is paraphrasing. And I don't know Narnia well 5 enough to know if there are elements being quoted or not, but 6 it doesn't seem that far afield from what I see in the Lexicon. 7 A. It is not the same kind of book. In some ways it does have 8 critical commentary but it, in this lexical portion. It is not 9 significantly different, in my view. 10 Q. Well, let's look at -- I am giving a copy of an excerpt of 11 it to Mr. Hammer, looking at the A entry. 12 Isn't it true that in the entry for adults on page 39 13 of that -- excuse me. I will give a copy to your Honor, of 62. 14 Isn't it true that the entry for adults discusses, 15 provides a lot of analysis about the role of adults in the 16 Narnia books, correct? 17 A. It looks like it. I haven't read it very closely but it 18 looks like it. 19 Q. And isn't it true that it quotes, in quotation marks, from 20 Lewis? 21 A. I see quotation marks, yes. 22 Q. And isn't it true that this is more than just a restating 23 of what Lewis wrote about adults? 24 A. If you are asking me to do a thorough reading of this and 25 give you a sense of where it is in relationship to the Lexicon, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 577 84G5WAR3 Sorensen - cross 1 I would need more time. 2 What I was intending in my declaration is to provide a 3 series of titles that give you a sense of the spectrum of 4 guidebooks that are available. This one looks a lot like the 5 Lexicon in that it has entries that paraphrase, maybe quote. I 6 don't know. I would have to do the research on that. It has 7 commentary. 8 Q. Let me just cut through it and let me ask it this way. 9 You say there is a spectrum of different kinds of 10 guidebooks, right? 11 A. Right. 12 Q. Can you name me a single book that is further down the 13 spectrum in terms of quoting and paraphrasing from the author's 14 work? 15 A. I'd say this one is getting there. 16 Q. I'm asking you, can you name me a single lexicon or 17 companion guide that you looked at that quoted as much, quoted 18 more and paraphrased more of an author's work than the Lexicon 19 at issue in this case? 20 A. I don't think that I can speak to that with authority. I 21 don't know. 22 MS. CENDALI: Thank you. No further questions. 23 THE COURT: Redirect? 24 MR. HAMMER: I just have one. 25 REDIRECT EXAMINATION SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 578 84G5WAR3 Sorensen - redirect 1 BY MR. HAMMER: 2 Q. You testified that the Lexicon provides valuable 3 etymological information to readers of Harry Potter novels, is 4 that correct? 5 A. That's correct. 6 Q. At the same time you testified in response to 7 cross-examination that you did not count every single 8 etymological reference that's contained in the Lexicon, is that 9 correct? 10 A. I did not do that. 11 Q. And I think you also said that simply counting the number 12 of references was not, in some sense, a good way of determining 13 whether or not the Lexicon, as a whole, provided useful 14 etymological information; is that correct? 15 A. I did not think so. 16 Q. And, can you explain to us why mere counting is NOT a 17 useful way to provide that information? 18 A. Well, I think my primary way of thinking was that this 19 is -- the chief use and value of this text is the way in which 20 it is synthesizing and distilling information for quick 21 reference material for a reader. On that level, there is no 22 way in which counting would have any meaning or wouldn't help 23 you establish that. That's not the way you would establish 24 whether this is a useful book if it is using -- if it is going 25 to summarize and explain what Parseltongue is or what a Squib SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 579 84G5WAR3 Sorensen - redirect 1 is or, to take another example, medical magic, as we saw the 2 other day, it is doing a kind of compiling work. It is taking 3 material from different texts and putting them in one place for 4 a reader to get quickly to remind themselves of something and 5 maybe to, you know, get some information to help them with 6 their reading. 7 In that case there would be no value to counting. I 8 can't see how that would help me establish whether this is 9 useful on that level. 10 And, the other point I was making is that the 11 etymologies are really helpful for these invented terms that 12 are these interesting composites of different words or 13 different roots from other languages. That's not always the 14 case with everything that is being defined here so it doesn't 15 surprise me that this doesn't happen for every entry. I 16 wouldn't expect it to. 17 Q. And just further on that, why might -- does the name Harry 18 Potter seem to require an etymological explanation? 19 A. It might. 20 Q. That seemed to disturb -- how about Bertie Bott's candy 21 wizard licorice factory, whatever it was. Is there a reason 22 why in your mind that did not require an etymological 23 explanation? 24 A. They're monosyllables. I don't think that that would have 25 been a good instance of where -- where there, you know, a space SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 580 84G5WAR3 Sorensen - redirect 1 that where there is a rich sort of linguistic background to the 2 term. There might be. 3 I wouldn't be surprised if there were all sorts of 4 information about Harry Potter's name. That's to be expected. 5 That's the beauty of having multiple guidebooks, that people 6 will supplement and add. 7 MR. HAMMER: I have no questions. 8 MS. CENDALI: Just one more, your Honor. 9 THE COURT: All right. 10 RECROSS EXAMINATION 11 BY MS. CENDALI: 12 Q. Dr. Sorensen, when you wrote your declaration, did you 13 realize that some of the etymologies you referred to in your 14 declaration were wrong? 15 A. I would not agree that they are wrong. 16 Q. Do you think that etymologies are helpful if they're wrong? 17 A. I think etymologies are helpful and interesting because 18 they point to the very complex history of language which is not 19 usually something that can be established with absolute 20 accuracy. 21 Q. So, even if they're wrong you think they're helpful? 22 A. I'm going to take alohomora. I think it is great that the 23 author meant one thing and that there are other ways to 24 understand that. That gives information about this being a 25 Hawaiian term. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 581 84G5WAR3 Sorensen - recross 1 That's what draws me to literary studies. I love 2 moments when a printed text goes out into the world and people 3 find meaning there whether the author intended it or not. 4 That's exciting for me. 5 Certainly I want to hear what an author says. I want 6 to hear what other people think about how that language is 7 working. That's how books like these get written. He is 8 speculating. He's speculating. That's part of the excitement 9 of it -- for me anyway. 10 Q. Alohomora is not one of the etymologies referred to in your 11 declaration that Dr. Johnson said was wrong, correct? 12 A. That's right. 13 MS. CENDALI: Thank you. 14 Your Honor, may we have a break to get ready for the 15 next witness? 16 THE COURT: You are excused. You can get ready but it 17 will have to be a short break. 18 (Recess) 19 THE COURT: Please be seated. 20 MR. HAMMER: Your Honor, that completes our case with 21 one exception. I just want to make sure we don't -- that 22 double-star exhibits on our list have been moved into evidence. 23 I think counsel stipulates that anything that is double-starred 24 is admitted. 25 MR. SHALLMAN: We moved them all in at the beginning SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 582 84G5WAR3 Sorensen - recross 1 of the case so we have no objection to this, obviously. 2 They're already in. 3 MR. HAMMER: That's fine, your Honor. 4 THE COURT: All right. 5 (Continued on next page) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 583 84G5WAR3 Sorensen - recross 1 MR. HAMMER: That's the end of defendant's case. 2 THE COURT: All right. Rebuttal? 3 MS. CENDALI: Then in rebuttal, plaintiffs call Jeri 4 Johnson. 5 MR. HAMMER: So are we going to start this now, 6 interrupt in the middle and have lunch or is this -- 7 THE COURT: No, we're going to start it now. 8 JERI JOHNSON, 9 called as a witness by the Plaintiffs, 10 having been duly sworn, testified as follows: 11 THE DEPUTY CLERK: Please state your name, spell your 12 first and your last name slowly for the record please. 13 THE WITNESS: My name is Jeri Johnson. Jeri, J-E-R-I; 14 Johnson, J-O-H-N-S-O-N. 15 MS. CENDALI: May I continue? 16 THE COURT: Yes. 17 DIRECT EXAMINATION 18 BY MS. CENDALI: 19 Q. Good morning, Ms. Johnson. Where do you live? 20 A. I live in Oxford, England. 21 Q. What do you do for a living? 22 A. I teach at the University of Oxford. I'm senior tutor and 23 fellow in English at Exeter College, which is one of the 30 24 colleges of the University of Oxford. 25 Q. Are you English? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 584 84GVWAR4 Johnson - direct 1 A. No, I'm not. I'm American. 2 Q. How did you come to teach at Oxford? 3 A. I went to Oxford on a fellowship, a scholarship, to do 4 graduate work. 5 Q. And how long ago was that? 6 A. Too long ago. Thirty years ago. 7 Q. Now, you mentioned that -- what position do you hold at 8 Oxford specifically? 9 A. I'm senior tutor of Exeter College, which is the equivalent 10 of being the academic dean here. I have all academic 11 responsibility for policy, for the appointment of colleagues, 12 for tenure review, for the academic progressive students in the 13 college, all the way down from undergraduates and up through 14 the graduates, as well as the progress academically of the 15 fellows, my colleagues, other tenured professors, as it were. 16 Q. Do you teach, as well as serve as dean? 17 A. I do. I teach English literature from -- most recently 18 from 1832 to the present. Previously from 1640 to the present. 19 I lecture at the University of Oxford in 20th Century 20 Literature, English and American. 21 Q. Do you supervise any doctoral research? 22 A. I do. I have doctoral students in 20th Century Literature. 23 Q. Do you have any experience in publishing? 24 A. I've published editions of James Joyce's works, an edition 25 of James Joyce's Ulysses, of A Portrait of the Artist as a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 585 84GVWAR4 Johnson - direct 1 Young Man, of Dubliners, of Virginia Wolff's 1930's novel, The 2 Earth. I've done critical introductions for editions for 3 Sigmund Freud, that kind of thing. 4 Q. Do you have any role in assessing scholarly monographs? 5 A. I do, both internally within the university as colleagues 6 come up for tenure review, and externally for university 7 presses. I've read since the early 1990s for the University of 8 Oxford Press and for Cambridge University Press. 9 Q. Have you been retained as an expert by the plaintiffs in 10 this case. 11 A. I have. 12 Q. Have you read J.K. Rowling's Harry Potter books? 13 A. I have. More than once. 14 Q. When did you first read them? 15 A. I began to read the Harry Potter books when the first one 16 came out. My students were avid readers, that is one of the 17 characteristics of undergraduates reading English at Oxford. 18 And I remember the point at which the generation, the Harry 19 Potter generation, hit the college. Lively debates about the 20 first book. And I knew that there was nothing for it but I was 21 going to have to read it. And then I could keep up with the 22 argument about whether or not Quidditch was a brilliant 23 invention. And I had to concede it was. 24 Q. Have you reread the Harry Potter books since you originally 25 read them? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 586 84GVWAR4 Johnson - direct 1 A. Yes, I reread the Harry Potter books about a month ago. 2 Q. Was that in connection with this case? 3 A. Yes, it was directly in connection with this case. 4 Q. Now, before this case, had you ever heard of the 5 defendant's web site, the Harry Potter Lexicon? 6 A. No, I'd never heard of the Harry Potter Lexicon. 7 Q. Had you ever heard of Mr. Vander Ark? 8 A. No, I had never heard of Mr. Vander Ark. 9 Q. Now, in the course of your work on this case, have you read 10 the Lexicon manuscript at issue? 11 A. I have. 12 Q. And have you been at trial in the past two days listening 13 to the various witnesses testify? 14 A. I have. 15 Q. And did you hear the testimony of Mr. Vander Ark yesterday? 16 A. I did. 17 Q. Now, do you remember Mr. Vander Ark testifying yesterday 18 that the Lexicon book is a reference guide to literature, it's 19 a standard type of reference guide? 20 A. Yes, I did hear him say that. 21 Q. Do you believe that the Lexicon is a standard type of 22 reference guide to literature? 23 A. No, I do not believe it's a standard reference guide. The 24 reference guide is a standard type, absolutely. The reference 25 guides to literature exist, as Dr. Sorensen has rightfully SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 587 84GVWAR4 Johnson - direct 1 said. Do I think this book falls into that category? I do 2 not. 3 Q. Could you explain why? 4 A. Reference guides to literature, and it is true, as Dr. 5 Sorensen says, that they do fall across a spectrum. But as the 6 term is standardly used, you would expect entries on historical 7 contexts; you would get essays, you would get alphabetical 8 listings. There would be a much higher level of commentary. 9 But the most striking difference, the most striking 10 difference, is that those books would not take in substance or 11 in quantity from the primary text, in this instance, the Harry 12 Potter text, to the extent that this book does. 13 Q. Do you know any reference guide in which you've ever seen 14 that has taken as much of an author's text as the Lexicon at 15 issue in this case has done of Ms. Rowling's work? 16 A. No, not by a factor of ten have I seen any book that's 17 taken as much as this one. 18 Q. Now, is an encyclopedia a type of reference guide? 19 A. An encyclopedia is not necessarily a type of reference 20 guide; but you might have a literary encyclopedia or an 21 encyclopedia devoted to the works, you know, in the general 22 term, the cannon of an author's works. You could have an 23 encyclopedia, you could have a Harry Potter encyclopedia, for 24 example. 25 Q. Do you consider the Lexicon at issue in this case to be an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 588 84GVWAR4 Johnson - direct 1 encyclopedia? 2 A. No, I do not, because, again, we come back to the matter of 3 quantity. How much of this text is taken as paraphrase or 4 verbatim uncited quotation from -- actually simply straight 5 from the Harry Potter books. 6 Encyclopedias we'd expect to have, again, a range of 7 kinds of information available, and that range of information 8 to be lots of things on this and lots of things on this and 9 lots of things on this. In other words, etymologies, 10 histories, biographees, character analysis, etc., if it were an 11 encyclopedia dealing with a particular literature. 12 In this case, that simply is not true. The material 13 that would be in a reference work is very small in quantity 14 and, as my declaration says, rather dubious quality of them. 15 Q. Would you normally expect an encyclopedia to contain essays 16 or analysis? 17 A. Most typically, yes, they would. 18 Q. And does the Lexicon at issue in this case do that? 19 A. No, it does not. 20 Q. Now, the book at issue in this case, the manuscript, is 21 called the Lexicon, correct? 22 A. Yes, the so-called Lexicon, yeah. 23 Q. Do you believe it to be a lexicon as that term is commonly 24 used? 25 A. Well, I think even Mr. Vander Ark doesn't believe it to be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 589 84GVWAR4 Johnson - direct 1 the correct term as he says on his web site. He thinks a 2 lexicon is a word list. And he knows that this is not just a 3 word list. 4 But what do I think? I think it is not a lexicon 5 either. A lexicon would be a word list, yes, where the word is 6 most frequently reserved for Greek or Latin dictionaries for 7 historical reasons. But we would expect a lexicon to have the 8 kinds of information systematically and uniformly given that 9 this doesn't, like etymologies or like pronunciations. 10 "Lexicon" is another word for dictionary. 11 Q. Would you expect a lexicon to explain information about a 12 word as opposed to merely restate what an author said about a 13 word? 14 A. Well, I've said I would expect it to include, you know, 15 when relevant, etymological material or -- and a definition, 16 yes, absolutely. Will I expect that to be a succinct -- the 17 nature of dictionaries is that the information that they 18 provide, what makes them a ready-reference, is the succinctness 19 of the information that they provide. 20 Q. Do you consider the Lexicon at issue in this case to be a 21 ready-reference? 22 A. I do not, as the term is standardly understood. 23 Q. And why is that? 24 THE COURT: As what term is standard? 25 THE WITNESS: A ready-reference guide. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 590 84GVWAR4 Johnson - direct 1 THE COURT: The two words. 2 THE WITNESS: Yes, sorry, often hyphenated. 3 THE COURT: You said one. 4 THE WITNESS: I did. Not to split hairs, but yes. 5 THE COURT: All right. 6 BY MS. CENDALI: 7 Q. Well, Mr. Vander Ark -- you recall Mr. Vander Ark 8 testifying yesterday and use the term ready-reference to refer 9 to the Lexicon, correct? 10 A. Yes. 11 Q. What is a ready-reference book in your mind? 12 A. A ready-reference is a generic term for the kinds of books 13 you find in the ready-reference section of the library. In 14 other words, you come in and you want to find where Albania is 15 or Assyria is, have problems with that one. And you would go 16 and and see a gazetteer. Or you want to know who the last 30 17 presidents of the United States have been, and you look at an 18 almanac or a Who's Who or Who Was kind of volume. 19 Information distilled succinctly, yes, alphabetically 20 arranged, in which you could go and immediately get a pracy or 21 a fact that you needed. 22 Q. Do you consider the Lexicon to be a ready-reference book? 23 A. I do not. 24 Q. Why? 25 A. Because, again, this is about the quality and the quantity SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 591 84GVWAR4 Johnson - direct 1 of the information that it provides. It is true that it 2 arranges all of the elements -- I have yet to find an element 3 that it doesn't put in from the Harry Potter books -- arrange 4 them in alphabetical order. But what it then provides is 5 certainly by no means, in most cases, is a succinct definition. 6 You would have to read your way through a lot of 7 information frequently. And if it were trying to refer you 8 back to another place in which you can find the material where 9 you really need it, it's not very helpful with that either. 10 Q. Do you believe that the Lexicon manuscript uses more of 11 Ms. Rowling's prose and text that you would expect in any kind 12 of -- 13 THE COURT: I think you ought to use nonleading 14 questions. 15 A. I think when I said -- 16 THE COURT: Wait a minute. 17 A. -- succinct. 18 THE COURT: I'm telling her to rephrase her question. 19 THE WITNESS: Sorry. 20 BY MS. CENDALI: 21 Q. Do you have a view as to how much of Ms. Rowling's text is 22 being used in the Lexicon in terms of it being a 23 ready-reference book? 24 A. Yes, I think far too much is used. 25 Q. Do you consider the Lexicon to be an index? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 592 84GVWAR4 Johnson - direct 1 A. Oh, no, certainly it's not an index. 2 Q. And why is that? 3 A. An index would be a full alphabetical listing of all the 4 elements that are in the text. It does that. But an index 5 would give -- might, if it were an index moving in the 6 direction of a glossed or an index that gave more information 7 than just a name, would certainly give you a name and give you 8 an exact citational reference for every occurrence of that 9 character. 10 So Voldemort would be a very long entry in the index. 11 But it might also have subcategories like Voldemort in dueling. 12 Voldemort's various incarnations and so on. But no, no, this 13 is not an index. It doesn't do any of that. 14 Q. Do you have a view as to what extent the Lexicon gives page 15 or other citations to where material for Ms. Rowling's books 16 appear? 17 A. It depends on the entry really. It almost never gives 18 citations in the long character entries of any kind. Now, 19 that's because they are long and they are giving us a summary 20 of the events that the character moves through over the course 21 of the seven books, what I would call a plot summary. But 22 there aren't citations there. 23 Perhaps my favorite entry, junk shop -- there is a 24 junk shop in Diagon Alley -- you would get a citation by book, 25 and I think this is in Philosopher's Stone, and chapter, as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 593 84GVWAR4 Johnson - direct 1 somebody who tried to work with the Lexicon to check back and 2 forth the accuracy of its entries, how frequently it was using 3 paraphrase or actual citation or actual, excuse me, full 4 quotation from Ms. Rowling's work, I found it enormously 5 frustrating as it were to try to use to find the elements that 6 are defined. 7 You will get a chapter -- and sometimes those chapter 8 entries are incorrect. You'll get a chapter entry which is up 9 to 35 pages long. So if you want to go back to the book to 10 check, you're going to spend anywhere -- you saw Dr. Sorensen 11 trying to acquaint herself this morning -- you will spend much 12 more time than that trying to find a character in a chapter. 13 Q. Now, in terms of going back to the nature of an index, does 14 an index, are you familiar with any -- does an index typically 15 provide as much of an author's text as -- 16 A. An index would simply provide the major terms and perhaps a 17 phrase. And if it were a direct quotation, in quotation marks, 18 of the author's words, it wouldn't, no. Other than that, no. 19 Q. Now, Mr. Vander Ark -- do you recall Vander Ark? 20 THE COURT: Let me ask you a question. 21 THE WITNESS: Sure. 22 THE COURT: Mr. Vander Ark says that the various 23 editions of the book have different paginations; and that, 24 therefore, the only practical way for use by people who use 25 different editions was to cite chapters and not cite pages SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 594 84GVWAR4 Johnson - direct 1 because a lot of people find that incorrect. 2 THE WITNESS: Yes. 3 THE COURT: Is he right in that or is he -- 4 THE WITNESS: No, he's not right in that. 5 THE COURT: Why not? 6 THE WITNESS: Perhaps it's easiest to explain by 7 giving an example. I work on the works of James Joyce. And 8 James Joyce exists, if we were simply to limit ourselves to 9 England and America, in very different texts in England and 10 America. 11 Common practice is to give a letter or in this case 12 you would need two or three letters or an italics or marking in 13 some way to say English edition, so the letter E, page 110, or 14 in America, A, page 132. It's very, very simple. It's done 15 all the time to help in exactly these kinds of situations to 16 give a reader who has that kind of text. 17 THE COURT: So are there only two different editions, 18 one in America and one in England? 19 THE WITNESS: No there are not. 20 THE COURT: Or are there paperbacks and hardcovers and 21 what have you? 22 THE WITNESS: There are paperbacks and hardcovers. 23 But what is often the case with these books is that you have at 24 the back a table which allows you to tell the difference 25 roughly in pagination between the two. So citing -- it's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 595 84GVWAR4 Johnson - direct 1 absolutely common practice to give -- well, it's not simply 2 common practice, it's the standard; you would give a page 3 number, not a chapter reference. 4 THE COURT: I understand that. But the question I was 5 raising is whether he has somewhat of a good excuse, in view of 6 the number of different editions and different formats. 7 THE WITNESS: There are lots of different editions and 8 different formats. It's also generally the case that you would 9 refer to -- Ms. Rowling writes in English, and I do realize 10 that these books have been translated in many, many, many 11 languages. But the text in which most readers would be 12 referring would be the English editions in either England or 13 America. So it wouldn't be difficult -- 14 THE COURT: I'm not talking about foreign editions; 15 I'm not talking about editions in other languages. I'm talking 16 about editions in England and in America or Canada, Australia; 17 English-speaking countries. 18 THE WITNESS: Certainly in England, which are the 19 books that I -- the Potter books that I have and that I've 20 read. The hardback and paperback editions have the same 21 pagination; so there's not that kind of splitting. So you 22 really would be using two or you would cite two, as is also 23 standard practice. I am citing to this -- 24 MR. HAMMER: Can we ask for clarification of standard 25 practice where? I don't understand. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 596 84GVWAR4 Johnson - direct 1 THE WITNESS: In publishing and in -- I'm afraid the 2 arena in which I do have most experience, in universities and 3 publishing in that sense, scholarship citational standard 4 citation; the kinds of things that we teach high school 5 students about citing. 6 BY MS. CENDALI: 7 Q. Now, Ms. Johnson, Mr. Vander Ark, do you remember that he 8 also testified -- do you remember yesterday that I asked him 9 the question: 10 "Q. Isn't it possible, Mr. Vander Ark, that more than 90 11 percent of the Lexicon manuscript copies Ms. Rowling's work? 12 And do you remember him giving the answer: 13 "A. I don't think that's true, no? That's page 270, lines 21 14 through 25 of yesterday's transcript. Do you remember that, 15 Ms. Johnson. 16 MR. HAMMER: Okay. If we are going to get into 17 calculations, I reraise my objection to the entire 18 quantification issue through this witness. It has been 19 excluded. 20 MS. CENDALI: This is rebuttal, your Honor. 21 MR. HAMMER: That doesn't make any difference. It is 22 excluded. We did not introduce any quantification. You asked 23 our witness a question about quantification, he can't give an 24 answer; that doesn't open the door to you introducing otherwise 25 inadmissible evidence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 597 84GVWAR4 Johnson - direct 1 THE COURT: It's a Rule 26 witness bound by Rule 26, 2 Ms. Cendali. 3 MS. CENDALI: This is rebutting Mr. -- experts are 4 allowed to rebut statements made by -- 5 THE COURT: I heard you. You heard my ruling, too. 6 BY MS. CENDALI: 7 Q. Ms. Johnson, you heard Dr. Sorensen speak this morning 8 about etymologies in the Harry Potter Lexicon manuscript, and 9 you heard her describe them, I believe, as being of some value 10 to the manuscript. Do you agree with that? 11 A. No. 12 Q. Could you explain why? 13 A. When they are right, they might be considered to be 14 valuable. They are frequently not right. And as an academic, 15 I'm afraid I am concerned with trying to get things right 16 rather than making a guess. And they are far too infrequently 17 employed. 18 Were I analyzing the Lexicon, I would say the 19 etymologies began, is my guess, with the spells; that's where 20 they're most frequently applied. And the spells happen to be 21 in a foreign language, invariably a foreign language. 22 So if you were going to provide any meaning, you would 23 have to provide something that was -- that looked like an 24 etymology. But the spells, the number of entries on spells, 25 are very few. Sorry, I do count. But there are lots and lots SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 598 84GVWAR4 Johnson - direct 1 and lots of words that Ms. Rowling uses which are derived from 2 other languages. 3 One of her most exciting characteristics as a writer 4 is her capacity for the generation of nouns. And they 5 frequently come -- most often come by -- through foreign 6 languages. My understanding, though I don't know this, is that 7 she studied languages. Certainly that would be my guess from 8 reading the books, because the nouns work that way frequently. 9 So there are etymologies relating directly to the 10 spells; sometimes they are right, sometimes they are wrong. 11 There are certainly not etymologies covering all the terms 12 that, for examples, Professor Sorensen said would be useful. 13 Those terms were it gives us added insight to the nature of the 14 character and so on. Not just etymologies, but definitions. 15 It's a nice little joke, Buckbeak. It's lovely. He's 16 a hippogriff; a horse griffin; a cross between a horse and a 17 kind of a feathered beast. To give him a name Buckbeak is 18 delicious. There's no reference to that at all. That's not an 19 etymology, that's simply engaging with the language that's 20 there. But this happens far too infrequently in the Lexicon. 21 Q. Do you believe that there are incorrect etymologies in the 22 Lexicon? 23 A. I do. 24 Q. Could you explain? 25 A. Well, I split hairs over portus and porta, as was explained SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 599 84GVWAR4 Johnson - direct 1 in Dr. Sorensen's declaration, suggesting that portus was a 2 more general term meaning entry or port and that bigger 3 category, and that porta might mean door. Though I think you'd 4 find it very difficult to find either of them meaning door in 5 that diction. 6 But the mistakes happen everywhere. There's a kind of 7 carelessness in the recording of information here. So expello 8 is misspelled. But the standard words, words that are really 9 significant in these books, like occlumency, 10 O-C-C-L-U-M-E-N-C-Y, the etymology that's given is occulto. 11 But occludo, occlumency, occludo is the source, occludo. And 12 it makes a difference to the meaning and to the understanding 13 of the word. This isn't a matter of interpretation, it isn't a 14 matter of saying, I'd quite like the idea that it might be 15 occulto. Occulto means something else entirely. Occludo. And 16 mens, though he doesn't provide any definition for the mens 17 part of it, which goes to the mind. 18 And frequently they're just muddled. They're -- if I 19 were a sadist, I would say my favorite etymology is the entry 20 for homoinis revelo, which he is trying to talk about "homo," 21 which is the Latin word for man. The etymology says homoinis. 22 This is nonsense. It's not just wrong; it's nonsense. What's 23 happened there is a complete misunderstanding of how 24 dictionaries, Latin dictionaries, work. "Hom" is a stem; the 25 singular has an ending "O," so "homo," man. The possessive has SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 600 84GVWAR4 Johnson - direct 1 an ending I-N-I-S, hominis, meaning mans. The etymological 2 entry here says "homoinis." There's no such word. And this 3 kind of thing just proliferates throughout the Lexicon. It's 4 amateur at best. At best. 5 Q. Let's put on the screen a portion of your declaration, 6 Plaintiffs' Exhibit 28, your supplementary declaration, and 7 turn to paragraph 6, which is on page 3. 8 A. Yes. 9 Q. You wrote, In fact, a line-by-line review of the Lexicon 10 reveals that out of the 2,437 entries, 2,034 entries simply 11 lift information straight out of the Harry Potter books. Do 12 you see that? 13 A. I do. 14 Q. What was the basis of your statement? 15 A. I counted. 16 Q. When you said that 234 entries simply lift information 17 straight out of the Harry Potter books, what did you mean by 18 that? 19 A. Simply lift. Sometimes direct quotations without quotation 20 marks; sometimes out of five words, three of them would be 21 Ms. Rowling's -- sorry, that's counting again. The distinctive 22 language in these entries is the distinctive language of 23 Ms. Rowling. It's not the author's own language, it's 24 Ms. Rowling's language. That's what I meant. 25 Q. Now, of the other entries, the 403 entries that don't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 601 84GVWAR4 Johnson - direct 1 simply lift information straight out of the Harry Potter books, 2 what, are you saying that the entirety of those entries don't 3 lift information out of the Harry Potter books? 4 A. No, no, not at all. 5 MR. HAMMER: If we're going beyond the declaration, we 6 have the problem again. If she's making quantification remarks 7 that are not in her declaration, it is a problem. And the 8 problem is not to the question of can we count, but simply to 9 the fact should the disclosure have been made about what was 10 counted. 11 MS. CENDALI: She's not quantifying, your Honor. 12 She's explaining what she meant and she put things in the two 13 categories. 14 MR. HAMMER: The question was in the other category -- 15 okay. Let us deal with the testimony. 16 THE COURT: You're withdrawing your objection? 17 MR. HAMMER: She is saying that she is not being asked 18 to give a quantification that is not in her declaration. If 19 that is the case, I'm willing to hear the answer. 20 MS. CENDALI: Your Honor, I submit that if you 21 subtract the 2,034 from the 2,437 that's in paragraph 6 of her 22 declaration, you get to 403, and that's the number that I'm 23 referring to. 24 MR. HAMMER: Okay. I'm sorry, but she is being asked 25 information about the remaining 403 that is not in her SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 602 84GVWAR4 Johnson - direct 1 declaration. In that sense, we have a Rule 26 objection. 2 She's being asked to give information as an expert witness that 3 is not in the declaration that she provided. 4 MS. CENDALI: Mr. Hammer misstates. 5 BY MS. CENDALI: 6 Q. Isn't it true, Ms. Johnson, that the rest of your 7 declaration discusses your analysis of the information of those 8 403 entries? 9 A. Yes, it does. 10 Q. And isn't that what, in fact, you do in paragraph -- 11 THE COURT: You know, all these questions are leading. 12 Why don't you have the witness testify to what she says in her 13 declaration. She's a very able witness. Let's just have her 14 do it herself instead of having this leading. 15 Q. Dr. Johnson, could you please explain to the Court what you 16 found when you read the Lexicon manuscript wherein the entries 17 that did not simply just lift information straight out of the 18 Harry Potter novels? 19 A. Okay. In saying there were 2,034 that simply lifted, I was 20 trying then to isolate the cases which supposedly would include 21 things that weren't simple paraphrase or simple citation 22 without quotation or the occasional quotation. 23 So in these 400, to arrive at that, if there were an 24 entry that at any point in the entry had something that could 25 count as commentary or etymology or real-world reference or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 603 84GVWAR4 Johnson - direct 1 either geographical or cultural in the sense that Dr. Sorensen 2 said, then I would put that in that category and say, Okay, 3 that has something that might count as one of those things, and 4 the rest is over here. 5 But when I say that has something, an etymology, it 6 might have an etymology in it which would be four or five 7 words, and then have a much longer entry. So that's a way of 8 isolating the entries I would then look at, and from that point 9 analyze to see whether there was anything substantive in what 10 was there. 11 Q. Let's put on the screen paragraph 7 of your declaration. 12 It starts by saying, Some entries that masquerade as commentary 13 in the Lexicon merely make the most basic of observations. 14 Could you explain to the Court what you meant? 15 A. Well, I tried to do that by example in the next sentence. 16 Dr. Sorensen praises Mr. Vander Ark's noting that seekers don't 17 wear gloves as a significant. I thought she was saying 18 interpretative analytical point. And I was just taking issue 19 with that as a reading of seekers don't wear gloves and saying 20 it's simply the logical conclusion, if snitches have flesh 21 memory, seekers can't wear gloves; it's not interpretation, 22 it's logical conclusion. So it's a basic observation, reading 23 from observation. 24 Q. Could you explain to the Court your views of the Babbling 25 Curse entry? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 604 84GVWAR4 Johnson - direct 1 A. Yes. There are a number of entries that would be among 2 those that I looked up more closely which do exactly that: 3 They simply restate the obvious. It's the earlier example I 4 gave you with junk shop. 5 There is an entry, your Honor, for junk shop, which 6 says there is a junk shop in Diagon Alley. That seems to me 7 factuous. Babbling Curse, the exact effect is not mentioned, 8 but one can assume it causes the victim to babble. I don't 9 know any other way to say it except it's a restatement of the 10 obvious, and couldn't possibly count as useful or commentary or 11 analysis or -- that's what I meant. There's a large number of 12 these. So Abyssinian shrivelfig or and bandon. Bandon is only 13 there because they are the Bandon Banshees, were a Quidditch 14 team. 15 Q. Now, you also state in paragraph 8 of your declaration, On 16 other occasions, Mr. Vander Ark merely adds an adverb to a 17 description wholly derived from the Harry Potter books. Could 18 you explain what you mean in that paragraph? 19 THE COURT: Let me ask you about the Babbling Curse or 20 junk -- 21 THE WITNESS: Junk shop. 22 THE COURT: Are they referred to in more than one 23 place? 24 THE WITNESS: In the Lexicon or in the -- 25 THE COURT: In the seven novels. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 605 84GVWAR4 Johnson - direct 1 THE WITNESS: No. 2 THE COURT: Just once? 3 THE WITNESS: Yeah. 4 MR. HAMMER: I'm sorry, but I'm going to object to 5 Ms. Rowling prompting answers by shaking her head. She clearly 6 was doing that. 7 THE COURT: She isn't doing anything. Don't worry 8 about that. And I don't think this witness is going to be 9 affected by it even if she did. 10 MR. HAMMER: I'll stipulate to that. 11 THE COURT: Now, what about the Babbling Banshees, is 12 that right? 13 THE WITNESS: Bandon Banshees. Bandon Banshees, in my 14 memory, occur only in Quidditch Through the Ages. It's a 15 Quidditch team. They may actually have been referred to in 16 Goblet of Fire, but I think not; I think they are in Quidditch 17 Through the Ages. 18 THE COURT: Okay. 19 BY MS. CENDALI: 20 Q. Turning to paragraph 8 of your declaration and your 21 discussion of the use of adverbs in the Lexicon manuscript. 22 Could you explain your view about the use of adverbs in that 23 text? 24 A. Sure. 25 THE COURT: What paragraph again? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 606 84GVWAR4 Johnson - direct 1 MS. CENDALI: Paragraph 8, your Honor. 2 THE COURT: Okay. 3 A. Most of the entries paraphrase or provide plot summaries 4 for whatever element it is they are tracing, whether it's a 5 character or a beast, let's say. And things happen to these 6 characters and beasts. 7 And a particular habit of Mr. Vander Ark or his 8 colleagues is to make something look like -- I don't mean to 9 ascribe misintention to or mal intention to, but one might 10 mistakenly think something were interpretation, because at the 11 beginning of a sentence which says -- this doesn't occur in the 12 Lexicon, but let us say something like this: Harry stubs his 13 toe. You would get an adverb, unfortunately, Harry stubs his 14 toe. The "unfortunately," the "sadly," the "probably," the 15 "possibly," the "not surprisingly," those are interpretative 16 words. But they are a very facile way of changing what is 17 really plot summary or paraphrase to something that looks like 18 interpretation is what I meant. 19 Q. And when you saw entries -- 20 THE COURT: Hold on. Let me say I was glad to see 21 that someone else had a little trouble following Sir Walter 22 Scott, especially in his long descriptive phrases about any 23 English countryside. 24 THE WITNESS: Indeed. 25 BY MS. CENDALI: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 607 84GVWAR4 Johnson - direct 1 Q. When you reviewed the Lexicon manuscript in order to do -- 2 write paragraph 6 of your declaration that you were just 3 talking about -- 4 A. Yes. 5 Q. -- if you saw an entry with an adverb, what category would 6 you put it in? 7 A. One of the 400. 8 Q. So you would put that in a category as something that 9 didn't just simply take material from Ms. Rowling, you credited 10 it that way? 11 A. Yes. 12 Q. Now, turning to paragraph 9 of your declaration. You 13 write, There are also occasional entries that do nothing but 14 illustrate the author's particular brand of facetiousness. 15 Could you explain what you mean there? 16 A. He has a long line of what I consider bad jokes. So you 17 will find -- and -- I'm sorry, I was about to speculate as to 18 why anyone would include these things, but that's probably 19 inappropriate. 20 So the shop in Diagon Alley filled with, well, junk. 21 It's an attempt to turn this facile comment into a joke, I 22 think. 23 Horned toads. Neville once had to disembowel an 24 entire barrel full of horned toads. Poor Neville had quite an 25 evening, one would guess. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 608 84GVWAR4 Johnson - direct 1 Or decoy detonators emit a loud bang and pour acrid 2 smoke, which reminds the author of an old greenish-gold AMC 3 Gremlin he owned back in the 1970s. 4 This is just -- that's not an interpretation. They 5 are comments, yeah, I don't think they qualify as commentary; 6 they are certainly comments and facetious. 7 Q. Do you believe that they add any value to the Lexicon? 8 A. No. No. 9 Q. In paragraph 10 of your declaration you refer to Dr. 10 Sorensen. And you say Dr. Sorensen points to the etymological 11 information it contains. And to be precise, you wrote, In an 12 attempt to identify some value of the proposed Lexicon, Dr. 13 Sorensen points to the etymological information that it 14 contains. And then you wrote, Such etymologies, however, are 15 sprinkled sporadically and rarely throughout the Lexicon, and 16 clearly are an insignificant part of its content. 17 Could you explain what you mean? 18 A. Well, to do so I think I would just elaborate a little more 19 on what I said earlier. There are lots and lots of words which 20 come from different languages with lots and lots of elements. 21 Most of the elements have some kind of etymological history 22 that could be put in the Lexicon. But the etymologies that are 23 used here, the vast majority of them come from the spells which 24 you would have to say something about them because they are in 25 Latin mostly. But there are lots of things, lots and lots of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 609 84GVWAR4 Johnson - direct 1 things that could have been and, in fact, very, illuminatingly 2 have had an etymology provided and it would have helped, it 3 would have added value. 4 Q. Can you give us some examples of that? 5 A. I thought I did earlier with occlumency and -- well, there 6 are others. Oars. We could start with A. Arithmency, oars. 7 French, bobertun (ph). None of the Gaelic in Ms. Rowling's 8 books is glossed ever, never. 9 A good example: Xenophilius Lovegood. Now, there's a 10 word that stands out as not being in English. Xenophilius. 11 Most people in English would encounter the word through 12 xenophobe maybe, fear of a stranger. "Xeno" means strange or 13 foreign; "philius," one who loves strange or foreign things. 14 Xenophilius Lovegood is the Harry Potter series 15 embodiment of the figure who loves things which are strange or 16 foreign. The name goes absolutely to its purpose; does what it 17 says on the tin. But you wouldn't know that unless you had 18 that etymological information. And the Lexicon is silent on 19 this. 20 Q. What does the Lexicon provide instead? 21 A. In the instance of Xenophilius Lovegood? 22 Q. Yes. 23 A. No comment on his name. 24 Q. Now, in paragraph 14 of your declaration -- 25 MR. HAMMER: I'm sorry, can we see the entry in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 610 84GVWAR4 Johnson - direct 1 Lexicon for Xenophilia (ph) whatever it was? 2 MS. CENDALI: Certainly. 3 THE WITNESS: Xenophilius Lovegood. It would be under 4 L, for Lovegood. 5 MR. HAMMER: All right. Can we see it? 6 MS. CENDALI: It's in Plaintiffs' Exhibit 1. Could 7 you put it up on the screen, Mr. Hoy? 8 MR. HAMMER: The objection to that entry was that 9 there was no derivation for Xenophilius? 10 THE WITNESS: Yes. 11 MR. HAMMER: Okay. All right. 12 THE COURT: I'm sorry, I want to take a look at it. 13 MS. CENDALI: It's under Lovegood. 14 THE COURT: I don't like to look at screens. I've got 15 it. 16 BY MS. CENDALI: 17 Q. Now, Dr. Johnson, could you describe your view of what this 18 entry does do in the Lexicon to the Court? 19 A. It gives an account of Xenophilius Lovegood as he appears 20 in the Harry Potter novels using plot summary across the Order 21 of the Phoenix book. I can't see the bottom of it, so I don't 22 know. 23 THE COURT: Well, you call it plot summary, but could 24 it also be character summary? 25 THE WITNESS: Yes, yes. Absolutely. I mean when SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 611 84GVWAR4 Johnson - direct 1 you -- 2 THE COURT: What's the difference? 3 THE WITNESS: Well, a plot summary, I guess, strictly 4 speaking, would refer to the events, and the character summary 5 to the character. But since events require characters and 6 characters have to do things, they might overlap in an instance 7 like this one. 8 THE COURT: But the previous witness was making that 9 distinction. 10 THE WITNESS: Yes, I think I recount this as a 11 character entry, but it has elements of plot summary in it. 12 BY MS. CENDALI: 13 Q. Doctor -- Dean Johnson, do you believe that the Lexicon 14 manuscript contains plot summaries? 15 A. I do. 16 Q. Could you explain to the Court what? 17 A. Well, I don't want to get into boring technical academic 18 distinctions between plot and story, for example. 19 One of the distinctions that's often made is between a 20 chronological telling and the way the telling occurs in a book. 21 But anything which would give us a summary of the events that 22 the character is engaged in I would call a plot summary. 23 Q. Did you hear me ask Dr. Sorensen whether something to the 24 effect -- 25 THE COURT: Let me ask you -- I'm sorry. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 612 84GVWAR4 Johnson - direct 1 THE WITNESS: Sure. 2 THE COURT: But if one is going to describe the 3 character, doesn't one have to allude to the events? 4 THE WITNESS: Yes, that's what I was trying to say 5 earlier, is that while you would have -- you might have a 6 description of a character in terms of their characteristics, 7 are they good or bad -- 8 THE COURT: Examples of their deeds -- 9 THE WITNESS: Yes. 10 THE COURT: -- to show -- 11 THE WITNESS: But then characters do things, exactly. 12 That's part of how you reveal their character; that's what 13 novels, I think, are all about really. 14 So an entry like this would necessarily have elements 15 of both, the events that the character engaged in and other 16 things, characteristics. 17 THE COURT: If one is trying to enlighten a reader 18 about someone's character, they have to give some explanation 19 that alludes to the plot. 20 THE WITNESS: Yes, I see your point, your Honor. The 21 distinction I would make here again is about the extent of 22 this. There is extensive plot summary. If you were to compare 23 something like the things that are called reference guides that 24 I would consider reference guides, like the Oxford Dictionary 25 to English literature, and you look up Bleak House or you look SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 613 84GVWAR4 Johnson - direct 1 up Ms. Flyte, with a Y. 2 THE COURT: Is it F-L-Y-T-E? 3 THE WITNESS: Yes. 4 THE COURT: All right. Judges can be wrong as anyone 5 else. 6 THE WITNESS: You would find an entry which -- with 7 absolutely Ms. Flyte -- 8 THE COURT: Was I right about the sparrows? 9 THE WITNESS: You are completely right about the 10 sparrows. It might even say that they had names like Hope and 11 Charity and so on. But it wouldn't give a complete account of 12 Ms. Flyte's appearance across the whole of Bleak House 13 summarized. It would just give enough to give you that 14 character. 15 THE COURT: The difficulty I have here is that this is 16 a magical world, as well as a real world, the testimony has 17 said. There are lots and lots of characters. 18 THE WITNESS: Right. 19 THE COURT: It seems to me I can remember characters 20 in Dickens novels, maybe it's because my father read them to me 21 and I was a dutiful son, but I can remember those characters 22 and differentiate them quite easily. 23 Now, I admit I only read the first half of the first 24 Potter novel, because my grandchildren happen to be visiting me 25 at that time, and so I read it aloud to them, and they took on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 614 84GVWAR4 Johnson - direct 1 from there. But I found it extremely complex in comparison to 2 Bleak House. 3 THE WITNESS: We could have a debate about the 4 relative complexities of the Philosopher's Stone or Bleak 5 House. But Dickens seems to be a very good comparison, because 6 Dickens has these novels which are full of hundreds of minor 7 characters. 8 THE COURT: That's right. 9 THE WITNESS: That's exactly right. Again, I hate to 10 turn to a more abstruse author, but someone about whom I know 11 more than I know about Dickens, despite having read Dickens, 12 James Joyce, Ulysses, 732 pages; hundreds and hundreds of 13 characters. 14 There is a book called Who's He When He's at Home, 15 which is a list of all the characters in Joyce with a brief 16 description telling you where they appear, who they are, what 17 their job is, etc. It's entirely possible to do that without 18 giving the complete trajectory of the events that the character 19 goes through. 20 THE COURT: But in Joyce, you're really more 21 interested in the main character. 22 THE WITNESS: Yes, yes. So you might ask, Why would 23 you produce a book with all the minor characters, as well. I 24 have asked myself that before, but I didn't produce it. 25 There are people who want to know all of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 615 84GVWAR4 Johnson - direct 1 characters. In Joyce, it's similar. Though he didn't write a 2 series, as Ms. Rowling does, he wrote Dubliners and then 3 Portrait of the Artist, and then Ulysses. And characters from 4 Dubliners, virtually all of them, reappear in Ulysses. 5 THE COURT: I've never read Dubliners. 6 THE WITNESS: It's very good. 7 BY MS. CENDALI: 8 Q. Dean Johnson, do you have a view as to whether or not the 9 Lexicon manuscript takes more of Ms. Rowling's prose or plots 10 than is necessary to refer to the characters in places she 11 created? 12 A. Yes, I do. It does. 13 Q. Could you explain? 14 A. Well, further to the points I was just making here, it is 15 entirely possible to give a brief description of a character 16 and then a brief summary of where they appear without going 17 taking whole sections with the distinctive and idiosyncratic 18 language of the novels themselves and using it to give an 19 account of that sort. It's done all the time. 20 Q. Are you aware of any book that takes as much of an author's 21 work as this one? 22 A. No, I'm not. 23 MR. HAMMER: The question is are you aware of any book 24 that takes as much of an author's work as this one? Can you 25 refine that question a little bit? I don't understand what it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 616 84GVWAR4 Johnson - direct 1 even means. 2 THE COURT: I find similar trouble with the question. 3 BY MS. CENDALI: 4 Q. Are you aware of any book that takes as much of an author's 5 plot and prose to describe characters and things in a guidebook 6 to an author's work as this work does, Lexicon manuscript? 7 THE COURT: I'm going to allow the question. I think 8 it would be better if you handle that on cross-examination, 9 Mr. Hammer. 10 A. I'm not. 11 Q. Now, turning to paragraph 14 of your declaration, you 12 say -- you write, The Lexicon fails to follow the first rule 13 of -- 14 THE COURT: I lost track of time. 15 MS. CENDALI: Forgive me. 16 THE COURT: How much longer are you going to be? 17 MS. CENDALI: May we take a lunch break, your Honor? 18 THE COURT: Yes. Let's take a lunch break; come back 19 at 2:25. 20 (Luncheon recess) 21 (Continued on next page) 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 617 84G5WAR5 1 A F T E R N O O N S E S S I O N 2 2:25 p.m. 3 MS. CENDALI: Shall I resume, your Honor? 4 THE COURT: Yes. 5 JERI JOHNSON, (Continued) 6 DIRECT EXAMINATION (Continued) 7 BY MS. CENDALI: 8 Q. Good afternoon, Dean Johnson. 9 A. Good afternoon. 10 Q. Could you please put on the screen, Mr. Hoy, paragraph 14 11 of Professor Johnson's declaration? 12 You write, this is I guess on page 6: Further, the 13 Lexicon fails to follow the first rule of scholarly research: 14 Full and proper citation of one's sources. 15 Could you explain to his Honor what you meant by that? 16 A. What I meant is that when one is writing about the work of 17 another and you quote them, either directly or indirectly -- 18 directly, that is to say, taking out an entire sentence or a 19 paragraph; and by indirectly I simply mean paraphrase to 20 rearrange the words of the person, keep the substance of the 21 quotation -- this is not just scholarly research but it is what 22 I said this morning -- high school teachers teach students in 23 high school, you must attribute those words to the author who 24 wrote them. To not do so is to suggest that you wrote them, 25 that they're your words. It is a form of -- certainly teachers SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 618 84G5WAR5 Johnson - cross 1 think of it as a form of intellectual theft. It is not 2 stealing a loaf of bread but you are stealing somebody else's 3 words. 4 That's what I meant by full and proper citation of 5 one's source. 6 Q. To what extent do you believe the Lexicon does not make 7 proper citation of other's work? 8 A. I think there are degrees of this. There are long entries 9 which do repeatedly give an abbreviation when material has come 10 from one of the novels or from the wizard cards or from 11 Quidditch Through the Ages or from Fantastic Beasts. I don't 12 find the form of citation very useful, as we discussed earlier, 13 but they're there. 14 That's not what I'm talking about, really, here. I'm 15 talking about third-party sources, the Lexicon's use of 16 material other than Ms. Rowling's. Though any teacher, I would 17 think, teaching persons how to use the work of another would 18 have great difficulty with the -- there is nothing here in this 19 book except the work of Ms. Rowling or virtually nothing, I 20 should say, to be more accurate. And it is very, very 21 difficult to see when those words are Ms. Rowling's and when 22 they're purported to be the words of the author. And that 23 would be very, very confusing in terms of the determination of 24 who wrote what words. But, there are also instances in which 25 direct quotations are taken, lifted verbatim, from usually SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 619 84G5WAR5 Johnson - cross 1 online sources but -- and no citation is given at all as to 2 their origin, where they came from. 3 Q. You heard Dr. Sorensen testify that she thought it was 4 clear from reading the Lexicon manuscript when words were 5 really written by Ms. Rowling. Do you share that view? 6 A. I don't. A lot of things look to be paraphrased, for 7 example, which use again and again and again the specific, very 8 colorful, idiosyncratic, I have used the word brilliant, 9 particularly nouns and phrasings of Ms. Rowling. And there is 10 no -- there are no quotation marks at all around those words 11 and they're sufficiently distinctive as to deserve being 12 credited to Ms. Rowling. 13 Q. Now let's turn to paragraph 19 of your declaration, the 14 same paragraph that Dr. Sorensen discussed. It says: Nothing 15 that defendant has presented in its papers changes the fact 16 that the Lexicon merely rearranges Ms. Rowling's intellectual 17 furniture. 18 What do you mean by that? 19 A. Perhaps I might just deal with the matter of the metaphor, 20 the poverty of the metaphor intellectual furniture. 21 Dr. Sorensen said this morning that when she heard 22 this phrase she thought metaphorically of a large room with a 23 few items of furniture. 24 The furniture and the intellectual furniture in the 25 Harry Potter universe is voluminous. You would be talking SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 620 84G5WAR5 Johnson - cross 1 about not just a palace with lots and lots of very rich 2 furniture, we would probably be talking about a whole village 3 of palaces, one for each of the seven Harry Potter books. 4 THE COURT: Is there a special meaning to the word 5 "intellectual furniture" or is that your own? 6 THE WITNESS: That's my own. I used the term 7 furniture earlier to say that what the Lexicon did was 8 something like catalog all the furniture, rearrange it in 9 alphabetical order. So, this phrase here is referring to my 10 earlier declaration about that metaphor. 11 But, the long and the short of it is, is it is a 12 metaphor to describe property, I think, and the property in 13 question here is the language, the substance of the Harry 14 Potter books. 15 Q. Do you have a view as to whether the Lexicon uses more 16 language of Ms. Rowling's than is necessary to do a research 17 guide of some sort? 18 A. Absolutely. 19 One of the remarkable things about the time I have 20 spent on this, which is considerable since December, January, 21 and then in re-reading the novels, entries that on the first go 22 seem to me to be paraphrases; and having read the novels and 23 gone back to the Lexicon was to see how frequently actual words 24 and phrases were used without quotation. 25 So, it is not -- but it is not simply a matter of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 621 84G5WAR5 Johnson - cross 1 citation. It is entirely possible, as Mr. Vander Ark showed 2 yesterday, to give a definition for clankers which doesn't 3 require a full taking of the language of the book to provide 4 that definition. Others do it all the time. They give a 5 brief, succinct -- that is what a dictionary is, for example, a 6 brief succinct definition. And then perhaps examples clearly 7 cited as examples -- that's what the Oxford Dictionary does -- 8 but, a brief, succinct definition. And that does not happen 9 here. 10 Well, I'm sorry. If I could revise that. It happens 11 very rarely here. 12 Q. You go on to write in paragraph 19: Entries do not add a 13 new layer of meaning to the Harry Potter books. 14 What do you mean by that? 15 A. That refers to questions of commentary or the questions of 16 etymologies or geography or historical references. These 17 references are so few and there are so many things that are not 18 defined in these ways. 19 And, certainly in relation to commentary, the closest 20 the Lexicon gets to actual commentary is in fact the three 21 extremely well-chosen examples that Ms. Sorensen -- 22 Dr. Sorensen, excuse me, put forward. They're almost the only 23 places -- I can't think of any other places in the Lexicon in 24 which you get such character analysis, for example. 25 So, relative to the totality of this Lexicon, there is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 622 84G5WAR5 Johnson - cross 1 virtually nothing. There is not a new layer of meaning. It is 2 not a layer that is given, it is little tiny bursts that happen 3 every once in a while and fizzle out. 4 THE COURT: It is not very helpful testimony because 5 it doesn't deal with specifics, it is just conclusory. I have 6 to follow by looking at the specifics. I can't accept 7 conclusory statements as an assignment unless I substitute this 8 expert's opinion for my own. And I'm not going to do that. 9 Q. Dean Johnson, is there a particular entry in the Lexicon 10 that you would like to use to illustrate your point of view? 11 A. Well, we could take -- we could take Voldemort. 12 Q. Can we please put on the screen the entry for Lord 13 Voldemort? 14 Dean Johnson, could you explain to me, to the Court, 15 how that entry relates to your view of whether the Lexicon 16 takes too much? 17 A. Yes. 18 If you could scroll through so we can see how many 19 pages, I think it is seven or eight pages. I can't quite 20 remember. 12. No -- I'm sorry, I wasn't counting. 21 Q. Would you like a copy of it? 22 A. That's all right, I can see it. I just didn't count on my 23 way through. 24 THE COURT: It is hard to read it. 25 THE WITNESS: It is hard to read on the screen. Maybe SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 623 84G5WAR5 Johnson - cross 1 I will look at it here. 2 Q. It is in Plaintiff's Exhibit 1. 3 A. Under V, I assume. Okay. 4 Q. Again, could you explain to the Court how this entry 5 relates to your view as to whether the Lexicon takes too much? 6 A. There are nine -- 10 pages here, the first nine of which 7 are what I would describe as plot summary. There is no -- 8 Merope is a wonderful name, it has a rich mythical history. 9 There is nothing here -- I can't honestly remember 10 whether it is defined elsewhere but there is nothing there. 11 So, we get page after page after page. Of course Voldemort is 12 a major character, Voldemort appears in every one of the books 13 in one form or another. So, of course -- and the Lexicon has a 14 long entry but there is no commentary until we get to the end 15 when we get the etymologies. And even when we get to the end 16 we get a series of details which are, again, simply taken from 17 Ms. Rowling's work. And then we get a comment on Tom but 18 that's an internal reference to the book that doesn't gesture 19 outside. Tom was his Muggle father's first name. By Muggle 20 don't mistake that with a person in the non-Harry Potter world, 21 that is Tom. Marvolo was his maternal grandfather's name. 22 Voldemort, we get to the phrase, VOL-duh-more, flight 23 from death. But, then we come back to the book or the books, 24 we come back into the world of Harry Potter, and then we get an 25 aside on the fact that in the films it is pronounced SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 624 84G5WAR5 Johnson - cross 1 VOL-duh-mort -- sorry, I haven't seen the films, I don't know 2 how you would pronounce that -- and then we get what his other 3 names are in the book. 4 So, in a 10-page entry you are getting plot summary, 5 you are getting repeated internal reference which is what this 6 Lexicon actually does. Its interest is in cross-citing 7 everything in this room that is the palace or the palaces that 8 are Ms. Rowling's work. 9 I hardly think Voldemort, flight from death, justifies 10 a little burst of something that isn't Ms. Rowling's. 11 Everything else is Ms. Rowling's. 12 Q. Do you have a view as to whether this is more than is 13 necessary as a memory aid to a student or reader? 14 A. As a memory aid, absolutely. Yes. 15 Voldemort, you know, the Dark Lord, Head of the death 16 agers. Harry's nemesis or hoped-to-be nemesis. Absolutely. 17 You could do it in, at most, a brief paragraph. 18 Q. Now, I asked Dr. Sorensen about some of the books that were 19 cited in her sworn declaration. I would like to ask you about 20 one of those books or at least a couple of them, Plaintiff's 21 Exhibit 61, Tolkien and Lord of the Rings, A Guide to 22 Middle-Earth, by Colin Duriez. 23 If I may approach, your Honor? I believe that you and 24 Mr. Hammer already have this. And I am only going to ask about 25 the table of contents. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 625 84G5WAR5 Johnson - cross 1 MR. HAMMER: I'm sorry. We don't have the Duriez book 2 about Middle-earth. We have many other books. 3 MS. CENDALI: Oh, forgive me. 4 Q. Could you please turn to the table of contents page of that 5 book? 6 A. Yes, I have it. 7 Q. Describe to the Court your view as to how this book 8 compares to the Lexicon book at issue? 9 A. The only part of this, judging from the table of contents 10 that bears relation to the Lexicon, is part 3, an A to Z of 11 Tolkien's Middle-Earth. 12 Q. What else is in this book? 13 A. A section on the life and work of the author, a brief 14 chronology. 15 From memory I have looked at the author -- a 16 chronology of not simply Tolkien's life but the production of 17 the works. The book of the century which introduces The Lord 18 of the Rings makes claims for it critically as the book of the 19 century. A brief guide to the book and its history. And then 20 the other, how it relates to The Silmarillion -- a posthumous 21 book, really, created by Tolkien's son, I think. 22 And then another section which is a look behind which 23 gives you key things, concepts, images, people and places in 24 the life and more about Tolkien's other writings. 25 So, it is absolutely what I expect to be of a reader's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 626 84G5WAR5 Johnson - cross 1 guide. It gives you all those things as well as an A to Z 2 listing of the elements, being, places, things and events. 3 Q. Could you please turn to page 70 of the book which is one 4 of the photocopied pages? It is one of the A through Z entries 5 in that section of the book. And could you please explain to 6 the Court your view as to how those listings from this Lord of 7 the Rings guide compares to the listings of the fictional 8 things in the Lexicon? 9 A. These are brief entries giving exactly what would be needed 10 for an ed. memoir -- sorry -- memory aid for elements across 11 the range of the Lord of the Rings, the three books. 12 It is obvious this has been said repeatedly, but that 13 the difference is quite marked between these entries and those 14 in the Lexicon. 15 Q. I would like to show you the book by Paul Ford, Companion 16 to Narnia that Dr. Sorensen was testifying about, Plaintiff's 17 Exhibit 62. 18 THE COURT: Let me just ask you, there are no 19 quotations in this section of the book. 20 THE WITNESS: No, there are no quotations -- well, 21 there -- are which page were we on? 22 THE COURT: There is no quotation marks on page 70. 23 THE WITNESS: Yes, but it looks to me there is no 24 quotation. These are brief, succinct definitions without 25 phrases taken from the books which is what would usually happen SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 627 84G5WAR5 Johnson - cross 1 in the Lexicon, your Honor. And this is an extraordinarily 2 magical world as the great success of the films. 3 So, again, made up things that could be, the claim has 4 been could only be defined by using that very distinctive 5 language of the books themselves and it is not the case here. 6 It is entirely possible to define those things without vast 7 lifted material from the books. 8 THE COURT: But you say none of this is quotation from 9 the book? 10 THE WITNESS: Well, to be absolutely certain I would 11 have to get the books and look. But, it certainly does not 12 look, to me, to be quotation or lifted phrases and words. I 13 haven't done a line by line comparison, no. 14 BY MS. CENDALI: 15 Q. I would like to show you Plaintiff's Exhibit 62, the Paul 16 Ford book I believe. I had previously given out some excerpts 17 of that book to the Court and to opposing counsel. And I 18 believe that Dr. Sorensen talked about that book. 19 How does that book, in your view, compare to the 20 Lexicon at issue in this case? 21 A. Well, as I open the book the most obvious things that 22 distinguishes it from the Lexicon is that it is it has won a 23 scholarly award, winner of the Mythopoeic Society Scholarship 24 Award for 1982 but then the Lexicon isn't scholarship. 25 But, if you look at the entries, the entries again, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 628 84G5WAR5 Johnson - cross 1 they're longer, by and large than those -- no, we can find 2 short ones as well as Aroth, the calamine goddess otherwise 3 undescribed and so on. 4 But, virtually every entry has a very precise 5 reference to the places in which this character can be found or 6 this element can be found without providing a complete plot 7 summary in order to do that. 8 Q. Well, could you look at the entry for "Adult" which is on 9 page 39 of the book? 10 And it is in the excerpt that was given to his honor 11 and to counsel for RDR. 12 A. Yes. 13 Q. Could you please describe your view as to this type of 14 entry on this book as compared to the entries in the lexicon at 15 issue in this case? 16 A. Well, the most marked thing -- the most obvious immediate 17 thing is that there are quotation marks, lots of them, when 18 sentences are quoted. 19 "Where do you think you saw Aslan," "it is the 20 stupidest grown-up or what are most grown-up," "has the fixed 21 habit of never telling grown-ups anything if he can help it." 22 And so on. There are seven or eight or 10 of these and they're 23 all quoted. And, at the end of the entry you get a footnote 24 referring to other things. You get a list of the adults but 25 without vast -- sorry. I saw Pevensie and thought of penancy. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 629 84G5WAR5 Johnson - cross 1 THE COURT: Does this contain plot summary? 2 THE WITNESS: No, but it is not an entry to be 3 expected to because it is an entry on adults rather than a kind 4 of a thing. 5 THE COURT: Do they discuss: Miraz does not believe 6 in the old stories and instructs Caspian never to talk or think 7 about them. Eventually and almost as a direct result of his 8 life and his kingdom. 9 THE WITNESS: You are going to have to tell me where 10 we are. 11 THE COURT: Second page. No quotation about that. 12 THE WITNESS: No, there wouldn't be, that's a plot 13 summary. It is a paraphrasing. It is not a complete plot 14 summary but it is a brief sketch of the overview of the plot, 15 movement of the action concerning that character. 16 THE COURT: So it is a plot summary. 17 THE WITNESS: Well, a plot summary we would expect to 18 be at greater length and contain all of the principal details. 19 THE COURT: Are you changing your definition -- 20 THE WITNESS: No, not at all, sir. 21 THE COURT: -- than the one in the Lexicon for people 22 who aren't the main actors? 23 THE WITNESS: Sorry, I need some -- 24 THE COURT: Well, you suggested that, with respect to 25 people who were not the main actors in the book, that they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 630 84G5WAR5 Johnson - cross 1 suppose were plot summaries and I suggest to you that this is 2 also a plot summary for a person that isn't a main character in 3 the book. 4 THE WITNESS: It is a very short plot summary, I will 5 agree with you there. 6 BY MS. CENDALI: 7 Q. Are there page number references in this book? 8 A. Not immediately in this reference but throughout the book, 9 the rest of the references, yes. 10 Q. Could you turn to page -- the entry for -- 11 THE COURT: Page 40? 12 THE WITNESS: No, she doesn't -- 13 THE COURT: I don't see any page 40. 14 BY MS. CENDALI: 15 Q. On aging and disability, page 42. 16 A. Yes. 17 Q. Can you contrast what is on that page to what is in the 18 Lexicon? 19 A. Yes. 20 Well, there are three quotations, first of all, and 21 they all have footnotes to them where you can find more 22 information outside the books themselves. 23 You will see at the bottom of the entry there is a 24 parenthetical beginning SC XIV 46, 19. That would be 25 references to the, I assume -- quickly looking forward that you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 631 84G5WAR5 Johnson - cross 1 usually find a list of abbreviations at the front -- SC, the 2 Silver Chair, and you are getting both the chapter and the page 3 number for these things, so where to find exactly elements 4 about that have just been talked about without quoting vast 5 chunks. 6 THE COURT: I see. 7 MS. CENDALI: Thank you. No further questions. 8 CROSS EXAMINATION 9 BY MR. HAMMER: 10 Q. Dr. Johnson, I am Hammer. Do you prefer to be called 11 doctor or Ms.? 12 A. I prefer to be called Ms. Johnson. I don't have a 13 doctorate. 14 Q. Perhaps we can start off with, do we have available her 15 declaration? 16 Do you complain -- 17 THE COURT: I'm sorry. Are you questioning from 18 something or not? 19 MR. HAMMER: No. Right now I am just beginning 20 questioning with regard to her declaration. 21 Q. You complain about the facetiousness of a lot of portions 22 of the Lexicon, is that correct? 23 A. I say that when he -- that one of the elements that you 24 will find in the Lexicon are numerous facetious remarks, yes. 25 Q. You complain about that, you don't like facetiousness; SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 632 84G5WAR5 Johnson - rebuttal cross 1 isn't that true? 2 A. Well I say it is not commentary. It is true I characterize 3 it as weak waggishness which I understand is quite English. 4 Q. So that's a complaint, I assume don't like weak 5 waggishness? 6 A. I was characterizing it. I was saying it was not 7 commentary. 8 Q. Can we turn to paragraph 9 of your second declaration? Can 9 we show paragraph 9 of her declaration? I will just read out 10 paragraph 9: 11 There are also occasional entries in the Lexicon that 12 do nothing but illustrate the author's particular brand of 13 facetiousness. For example, in the entry for parchment that 14 Mr. Vander Ark mentions in his declaration, he states that, 15 with the rate they go through parchment in the wizarding world, 16 someone must be raising and skinning a lot of sleep. Similar 17 examples include: Junk shop, a shop in Diagon Alley filled 18 with, well, junk; horned toads, Neville once had to disembowel 19 an entire barrel full of horned toads, poor Neville had quite 20 an evening, one would guess; and decoy detonators: Emit a loud 21 bang and pour out acrid smoke which reminds of an old greenish 22 gold AMC Gremlin owned back in the 1970s. This is not 23 interpretation, it is self-indulgent weak waggishness, tedious 24 jocularity. If this is meant to amuse young children, it is 25 condescending in the extreme. Ms. Rowling, on the other hand, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 633 84G5WAR5 Johnson - rebuttal cross 1 never ever condescends to her young readers and they have 2 responded with utter devotion. Those readers deserve far 3 better than this. 4 Those are your words, right? 5 A. Yes. 6 Q. It is criticism, is it not? You find those jokes that you 7 have listed in there condescending? 8 A. They're so facile that I would -- I do think they're 9 condescending for children. 10 Q. Professor -- 11 MS. CENDALI: Your Honor, I want to object and please 12 let Ms. Johnson finish her answer before he starts asking the 13 next question. 14 THE COURT: Yes, let's not interrupt the witness, 15 Mr. Hammer. 16 BY MR. HAMMER: 17 Q. You say it is condescending in the extreme, right? 18 A. Yes. 19 Q. Now, that doesn't say you poor kids are too dumb to know 20 what parchment is, does it? 21 A. No. 22 Q. What in that is condescending in the extreme? 23 A. Someone must be raising and skinning a lot of sheep. 24 Q. Why is that condescending to sheep or condescending to the 25 reader of the Lexicon? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 634 84G5WAR5 Johnson - rebuttal cross 1 A. To the reader of the Lexicon. 2 Q. Please identify the element of condescension in noting that 3 a lot of parchment requires the skinning of a lot of sheep. 4 A. It is a joke, it seems to me, unless I am completely 5 misreading it, and it is a joke that is very obvious, does not 6 require any element of wit or interpretative intelligence and 7 that's what I meant by condescending. 8 Q. You are an Oxford don, are you not? 9 A. I am. 10 Q. Many of the readers of the Harry Potter books are 12, 13, 11 14-year-olds, isn't that true? 12 A. Yes. 13 THE COURT: Or younger. 14 Q. Or younger. 15 The Harry Potter books are filled with jokes, are they 16 not, that are directed at 10, 11, 12 and 13-year-olds, correct? 17 A. Yes, there are. 18 Q. In fact, there are jokes about troll boogers, isn't that 19 true? 20 A. Yes. 21 Q. There are jokes about phlegm, isn't that true? 22 A. Yes. 23 Q. You, I assume, don't often joke about phlegm, correct? 24 A. Only with my 9-year-old daughter. 25 Q. So, in fact, you yourself recognize that a 9-year-old might SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 635 84G5WAR5 Johnson - rebuttal cross 1 find something funny that you yourself do not? 2 A. Absolutely. 3 Q. So, in fact, a joke like that may not be condescending to a 4 9, 10 or 11-year-old even though you find it obvious. 5 A. I meant that it wasn't condescending to the readers of -- 6 that it was condescending to the readers of J.K. Rowling. 7 My daughter is not a great reader but she would find 8 this condescending. That's the basis on which I made the 9 statement. 10 Q. Is the fact that you don't like the humor in a book, is 11 that a ground to suppress the book? 12 A. I wasn't making a judgment about suppressing the book. I 13 was making a judgment about the material that's in it. 14 Q. Well, you complain in addition about the obviousness of 15 some of the observations. If we can look at paragraph 7? 16 You say: Some entries that masquerade at commentary 17 in the Lexicon merely make the most basic of observations. 18 Take, for example, the entry for Snitch to which 19 Dr. Sorensen -- forgive me -- refers in her declaration. 20 Mr. Vander Ark derives the definition and properties of a 21 Snitch directly from the Harry Potter book, including that a 22 Snitch has flesh memory so it can identify the first Seeker to 23 touch it in the event of a disputed catch. Mr. Vander Ark's 24 sole contribution to this entry is to note that Seekers can't 25 wear gloves. This is not interpretation or ground-breaking SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 636 84G5WAR5 Johnson - rebuttal cross 1 scholarship, but rather a statement of the obvious. 2 Now, the point that is being made in the Lexicon, is 3 it not, is that there are two facts that the Potter books give 4 us, one is that the Snitch has a flesh memory so that it can 5 identify the first seeker and touch it in the event of a 6 disputed catch, and also that the Seeker's can't wear gloves. 7 And what the Lexicon says, isn't it true, is that 8 those two facts fit together. They don't wear gloves so that 9 there is no interference with flesh memory? 10 A. Well, actually, no. The Harry Potter book in question is, 11 by memory, Quidditch Through the Ages, and it doesn't make the 12 statement Seekers can't wear gloves. That's Mr. Vander Ark's 13 edition and that's what I meant about -- 14 Q. He is making the remark, is it not true, that therefore 15 they can't wear gloves? That's a supposition that he is 16 making? 17 A. Yes. Yes, he is. 18 Q. And you say that supposition is utterly obvious, correct? 19 A. I say -- excuse me -- a statement of the obvious, yes. It 20 is the logical corollary of what is preceded. 21 Q. Again, what is obvious to you as an Oxford don might not be 22 obvious to a 9-year-old, is that correct? 23 A. I agree. 24 Q. By the way, you said that the Voldemort entry that you 25 referred to was nine or 10 pages, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 637 84G5WAR5 Johnson - rebuttal cross 1 A. As I counted them. 2 THE COURT: That's about it. Go ahead. 3 Q. That is not in typeset, isn't that true? 4 A. Relative to the other material we have been looking at it 5 is the same. 6 Q. I'm not saying there -- there is a portion of the Lexicon 7 that you were given that is typeset, isn't that true? 8 A. Yes, but Voldemort is not in that. 9 Q. Right. So, the 9 or 10 pages that you are seeing, if 10 typeset, would be considerably shorter, would they not? 11 A. Yes, it would be. 12 Q. So, in fact the entry, as it would appear in the published 13 book, would be considerably shorter than the nine pages that 14 you saw on the screen? 15 A. But it would be -- yes, that's true, but it would be among 16 the longest entries in the Lexicon. 17 Q. Which as you, yourself, is understandable, because 18 Voldemort is one of the most important characters in the Potter 19 novels? 20 A. Yes. 21 Mr. Hammer, I was drawing attention to the -- 22 Q. I was just asking a yes or no question. 23 MS. CENDALI: Please let her finish her statement. 24 MR. HAMMER: No, I don't want her to finish. I want 25 to her to say yes or no. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 638 84G5WAR5 Johnson - rebuttal cross 1 MS. CENDALI: Please let her answer her questions 2 completely. I believe you objected the other day on the 3 similar issue. 4 MR. HAMMER: This is cross, your Honor. I have a 5 right to ask the witness to confine herself. 6 THE COURT: Yes, you do. 7 BY MR. HAMMER: 8 Q. Now, you say that the Lexicon is not properly an 9 encyclopedia, is that correct? 10 A. Not as the term is usually defined. 11 Q. And it is not a standard reference guide, is that correct? 12 That was your testimony, isn't it? 13 A. I would have to hear my testimony again to hear the exact 14 phrase I used. I think, as I remember it, I was saying that I 15 was responding to the point that in his testimony yesterday -- 16 Q. Is your answer that you don't remember what your testimony 17 is? 18 A. No. 19 THE COURT: Objection. 20 THE WITNESS: No. 21 THE COURT: Now let's not argue with the witness. I 22 think she used the term ready reference guide. 23 A. There were two phrases used yesterday by Mr. Vander Ark, 24 one of them was ready reference guide and one of them -- ready 25 reference book and one of them was research guide. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 639 84G5WAR5 Johnson - rebuttal cross 1 Mr. Vander Ark, yesterday in his testimony, said to 2 ready reference guide and it was a research guide to literature 3 as that term was usually understood. 4 Now, could you repeat your question about which of 5 those we are talking about? 6 Q. Your testimony today was certainly that it was not a ready 7 reference guide, correct? 8 A. It wasn't a ready reference guide as usually understood, 9 yes. 10 Q. You also testified that it is not a lexicon, correct? 11 A. Not as usually understood. 12 Q. So, there was no category as usually understood that you 13 placed it in this morning, isn't that true? 14 A. That's true. 15 Q. Nevertheless, it is an A to Z listing of information, isn't 16 that so? 17 A. It is an A to Z listing of all of the elements of the Harry 18 Potter -- 19 Q. And a library would place it in the reference section of 20 the library presumably, isn't that true? 21 A. I doubt that. 22 Q. Well, are you an expert on library policies? 23 A. No, I'm not. 24 Q. Okay. So, in your mind, is it important precisely what the 25 category that is placed on this book is? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 640 84G5WAR5 Johnson - rebuttal cross 1 A. I was asked a series of questions about whether it was any 2 of these things. I have a strong opinion that it is not any of 3 those things is ordinarily understood either by a layperson or 4 by an academic. 5 Q. Now, you are, I believe you testified, you are a don? 6 A. I didn't use that phrase but you did, yes. 7 Q. Sorry, what is it? 8 THE COURT: She said senior tutor. 9 THE WITNESS: Senior tutor. 10 THE COURT: And Dean of students. 11 THE WITNESS: I'm sorry that the terminology is 12 arcane, I understand that it is. Senior tutor, fellow in 13 English -- Ashby Fellow in English to be precise, university 14 lecturer in English. And, our senior tutor is similar to 15 academic dean of the college. 16 BY MS. CENDALI: 17 Q. Are you, in other words, a professional academic? 18 A. I am, yes. 19 Q. And in your declaration you talk about the standards for 20 academic research, isn't that true? 21 A. I do. 22 Q. And you state that the Modern Language Association in this 23 country provides guidelines for scholarly research, isn't that 24 true? 25 A. That's true. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 641 84G5WAR5 Johnson - rebuttal cross 1 Q. And you say that these guidelines present the gold standard 2 for academic scholarship, is that correct? 3 A. That's correct. 4 Q. And the Lexicon, in your judgment, does not meet those 5 standards, correct? 6 A. That's correct. 7 Q. The Lexicon, presumably, would not be published in a 8 peer-reviewed journal? Portions of it would not be published? 9 A. That's correct. 10 Q. It would not be published by academic press, isn't that 11 true? 12 A. That's true. 13 Q. But, a large portion of the Potter readership, as you have 14 testified, are 9, 10, 11, 12-year-old children; correct? 15 A. Yes. 16 Q. They presumably rarely turn to peer-reviewed literature for 17 reference. 18 A. That's true. 19 Q. And there is no Harry Potter Lexicon that has been 20 published by an academic press, isn't that true? 21 A. I don't know. 22 Q. So, a 9-year-old who wanted an explanation, say, of 23 Abyssinia would not likely turn to some academic treatise on 24 Abyssinia but would want a more ready guide, isn't that so? 25 A. I would hope whatever guide that the student turned to was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 642 84G5WAR5 Johnson - rebuttal cross 1 one that held the basic tenets of truthful, honest citation 2 that are taught to kids in school. 3 Q. That may be. 4 For example, on pagination you say that it is standard 5 practice in the academic world to paginate -- to refer to pages 6 rather than chapters; isn't that correct? 7 A. Yes. But you would find it in books that weren't academic 8 books either. 9 Q. Well, that may be. But, if you went to Barnes & Noble here 10 and went to reference guides, there are a lot of them that cite 11 to chapters, isn't that so? 12 A. I don't know. I haven't been to Barnes & Noble and looked. 13 Q. In paragraph 4 of your declaration -- we can show that -- 14 you write -- well, I think that's the wrong declaration. A 15 fine declaration but not the declaration I want. 16 A. I'm quoting Dr. Sorensen there. 17 Q. I know, but that's not the declaration I want. It is the 18 first declaration. 19 THE COURT: Do we have a number? 20 MR. HAMMER: 17, your Honor? 21 THE COURT: 17. 22 Q. So, we are going to turn to the fourth paragraph of the 23 first declaration. 24 You say in this paragraph both the MLA and the RAE 25 guideline -- the RAE is the English equivalent of the MLA, is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 643 84G5WAR5 Johnson - rebuttal cross 1 it not? 2 A. Sorry. I'm sorry? 3 Q. I know -- 4 A. Can you tell me -- the RAE is the? 5 Q. I believe you state in your declaration that the RAE 6 guidelines are the British equivalent to the MLA guidelines, 7 isn't that true? 8 A. That's not -- no, I don't state that. That is not quite 9 true. The RAE is the Research Assessment Exercise which is 10 a -- 11 Q. Don't you state that the guidelines in Britain that are set 12 for academic research are the RAE guidelines? 13 A. Yes. Sorry, yes, that's -- 14 Q. Don't you state that the guidelines in the United States 15 for academic -- 16 A. The equivalent. They would be the equivalent standards to 17 one another, yes. 18 Q. So, you state in paragraph 4: Both the MLA and the RAE 19 guidelines repeatedly stipulate that, to qualify as scholar 20 Harry Potter or research, a work must possess some degree of 21 originality or invention. It must constitute an original 22 investigation, it must invest or generate... ideas leading to 23 new or substantially improved insights. 24 I am going to move down to: On the analogy of a 25 dictionary on a particular language, a scholarly dictionary of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 644 84G5WAR5 Johnson - rebuttal cross 1 the language of Harry Potter would be required to lay bare its 2 own underlying premises about the grammar of the language and 3 to justify and articulate its own principles for the selection, 4 definition and organization of its parts of speech, its choice 5 of illustration and example, its logic of etymological 6 derivation. Only thus could it purport to make an original 7 contribution. Our understanding of the underlying structures 8 and components of the language or discipline. 9 And then the first sentence on paragraph 5: Lexicon 10 fails to constitute a work of scholarship or research because 11 it lacks any degree of originality or inventiveness, nor does 12 it contribute in any original way to the creation, development 13 or maintenance of the intellectual infrastructure of the 14 language of Harry Potter that is particularly necessary for 15 this type of work. 16 Is it your understanding of the mission of the Lexicon 17 that it was attempting to create a work of scholarship or 18 research? 19 A. I haven't seen a stated statement about the intended 20 mission. I would have to judge -- sorry. I didn't mean to 21 interrupt you. 22 Q. No, no. That's quite all right. 23 A. I would have to judge from the Lexicon itself that it 24 wasn't -- it did not intend to be scholarly. 25 Q. So, if it did not intend to be scholarly it is rather SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 645 84G5WAR5 Johnson - rebuttal cross 1 irrelevant that it didn't meet the standards of scholarly 2 research, isn't that true? 3 A. I was asked a question as an expert witness, Did I find in 4 the Harry Potter Lexicon was it original or was it scholarly. 5 I'm answering the question about what is scholarly here. 6 Q. A reference guide might be useful to a 10-year-old even if 7 it is not an original work of academic scholarship, isn't that 8 true? 9 A. Yes. 10 MR. HAMMER: I have no further questions. 11 THE COURT: All right. Redirect. 12 REDIRECT EXAMINATION 13 BY MS. CENDALI: 14 Q. Ms. Johnson, do you think the Harry Potter Lexicon would be 15 useful to a 10-year-old? 16 MR. HAMMER: This is beyond her area of expertise, 17 Judge. 18 THE COURT: Objection sustained. 19 MS. CENDALI: He just asked her about that. 20 MR. HAMMER: I asked it in principal. 21 THE COURT: He didn't ask that question. 22 Q. Dean Johnson -- no further questions. 23 THE COURT: You are excused. Next witness. 24 (Witness steps down) 25 MR. HAMMER: Your Honor, I don't suppose I could have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 646 84G5WAR5 1 two minutes before the next witness? 2 THE COURT: Yes. You can have a break. 3 MS. CENDALI: Plaintiffs call, in rebuttal, J.K. 4 Rowling. 5 THE COURT: Ms. Rowling, you are reminded that you are 6 under oath. And, no one is to draw any inferences from the 7 fact that I remind the witness that she is still under oath. I 8 am required, as a matter of court procedure, to give that 9 instruction to the witness when they resume the stand on a 10 subsequent day. 11 JOANNE ROWLING, 12 called as a witness by the Plaintiff, in rebuttal, 13 having been first duly sworn, testified as follows: 14 DIRECT EXAMINATION 15 BY MS. CENDALI: 16 Q. Ms. Rowling, good afternoon. 17 A. Good afternoon. 18 Q. You've been here through the whole trial, haven't you? 19 A. I have. 20 Q. And you have listened to the different testimony of the 21 different witnesses, correct? 22 A. Yes, I have. 23 Q. Now, Ms. Rowling, you heard from Mr. Vander Ark and you 24 heard Mr. Vander Ark and Dr. Sorensen testify about the amount 25 of your work that was copied and whether it was necessary in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 647 84G5WAR5 Rowling - rebuttal direct 1 order to do that in order to make a guide to the Harry Potter 2 series. Do you have a view as to that? 3 A. Yes, I do. I -- I have a very strong view and my view -- 4 my view is that it is analogous to me making a cake and that in 5 the creation of this Lexicon, all the plums in my cake, as it 6 were, all the highlights of my work, in other words character's 7 secret history, the jokes certainly, certain exciting narrative 8 twists, all the things that are the highlights of my stories 9 and my books have been taken and put into the Lexicon for their 10 entertainment value. The -- 11 MR. HAMMER: I'm just going to object. This is not 12 rebuttal testimony, this is simply a restatement of her 13 original testimony. 14 THE COURT: I'm going to overrule. 15 Q. Ms. Rowling, does the fact that your work contains 16 fictitious facts in your mind change how much the Lexicon 17 should be allowed to copy from your work? 18 A. It very -- it, to my mind, it very much changes that, yes. 19 And the reason is, as I believe I stated before in my previous 20 testimony, that these things have no existence outside my 21 specific language, my turns of phrase. 22 And I think that those people who are familiar with 23 the seven Harry Potter books would see very easily how much of 24 my distinctive phrasing has been lifted and replicated. 25 And, I find it frankly unbelievable that anyone could SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 648 84G5WAR5 Rowling - rebuttal direct 1 argue that this was necessary. I simply don't see why that was 2 necessary unless it is the argument that Mr. Vander Ark does 3 have the right to resell my work for its entertainment value. 4 Because these narrative twists and these very distinctive 5 phrasings are not -- well, firstly, they're rarely quoted 6 within quotation marks so I am not even being credited with 7 having invented these things -- but, they're not being used in 8 support of anything. He's not making an argument, he is simply 9 restating. He is not discussing, he is simply restating. 10 I believe in the overwhelming majority of this book 11 so-called, this Lexicon, he simply restates in my exact words. 12 That remains my belief. 13 Q. Well, what about Mr. Vander Ark's argument that the book is 14 a memory aid or something like that. Doesn't that justify the 15 taking of your work? 16 A. In my view, absolutely not. 17 I completely accept that a reader of whatever age may, 18 at some point, want to glance at what Mr. Vander Ark calls a 19 ready reference guide. I know what such a guide looks like. 20 What I find absolutely baffling is that, first of all, if it's 21 a ready reference guide then it must be used concurrently with 22 reading my novels. Yes, I think that that is clear because a 23 reader, let's say our hypothetical 9-year-old reader comes 24 across Peeves the poltergeist and thinks: I don't remember who 25 he is -- I find that unlikely because he is normally floating SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 649 84G5WAR5 Rowling - rebuttal direct 1 along in mid-air so I think he is unlikely to be confused with 2 many other characters -- but, let's say they have forgotten 3 that. Of course I would never, for a second, say that no work 4 should be produced that could not give a quick reference but 5 that, of course, such a ready reference guide would be 6 something that would be read along with the novels. 7 Therefore, when the 9-year-old, our hypothetical 8 9-year-old looks up Peeves, in the Lexicon it is my belief that 9 he received -- he or she receives far more information than is 10 necessary simply to place that character, simply to jog the 11 memory. 12 And, in the case of many of my characters, your Honor, 13 particularly key characters, the hypothetical 9-year-old 14 looking up Sirius Black, for example, the first time he is 15 mentioned in my novels, turned to such a memory jogging work, 16 if that work were the Lexicon he would receive, or she would 17 receive, everything that happens to Sirius the first time he 18 turns up. He wouldn't receive the information: Sirius Black 19 is Harry's godfather. He was -- and at the beginning of the 20 book he is in Azkaban. He will receive pages of information 21 leading up to the fact that he is murdered. 22 So, it is not a memory-jogger at all. But then, it 23 seems to me that the defendant's -- 24 MR. HAMMER: I'm sorry, your Honor, but this is pure 25 narrative. If we are going to have questions on this, let's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 650 84G5WAR5 Rowling - rebuttal direct 1 have questions and answers. 2 THE WITNESS: Mr. Hammer, that is my answer. 3 MR. HAMMER: I know, ma'am, but I would like to have a 4 question. 5 THE COURT: Well, it does make it difficult in order 6 to frame the cross-examination when an answer goes on -- 7 THE WITNESS: I apologize. 8 THE COURT: -- at length but I think you are entitled 9 to give examples -- 10 THE WITNESS: Thank you. 11 THE COURT: -- of what you mean because -- 12 BY MS. CENDALI: 13 Q. Can you give me other examples, Ms. Rowling, of entries in 14 the Lexicon where you believe go on for too long and give 15 information away to readers? 16 A. Your Honor, it is my belief that this applies to virtually 17 every entry. 18 If the justification for this book is as an aid to 19 memory -- 20 THE COURT: Let me ask you something. 21 THE WITNESS: Yes. 22 THE COURT: You call it entertainment value. 23 THE WITNESS: Yes. 24 THE COURT: Can you imagine anyone reading this 25 Lexicon for entertainment value, really? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 651 84G5WAR5 Rowling - rebuttal direct 1 THE WITNESS: Honestly, your Honor, no. 2 But, if I may say it without being arrogant or vain, I 3 think there are funny things in there and I wrote them. So, I 4 think the entertaining parts of it buried within it are my 5 entertaining facts or my entertaining jokes. 6 THE COURT: I see what she is saying. All right. 7 BY MS. CENDALI: 8 Q. Ms. Rowling, do you have any concerns about your companion 9 books, Quidditch Through the Ages and Fantastic Beasts, in 10 particular? 11 A. My concerns regarding those two companion books have not 12 changed a jot since we entered this courtroom. I believe that 13 the contents of those books have been plundered, taken 14 wholesale, and repeated in the Lexicon. 15 Q. Now, you heard Mr. Harris, the marketing expert for RDR 16 testify that you would not be hurt if the Lexicon were 17 published because you are so popular. What is your reaction to 18 that? 19 A. Frankly, outraged. Because it seems to me that that 20 argument says because your work was popular, because your work 21 was interesting to so many people you don't have the right -- 22 you don't have rights over your work anymore; that somehow 23 because -- because my work was successful I have weakened my 24 own right to protect my copyright. I don't understand how that 25 holds. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 652 84G5WAR5 Rowling - rebuttal direct 1 Your Honor, I do accept that Mr. Harris was talking 2 very specifically about would this specific book cause harm to 3 my sales. And I can only repeat my previous testimony. I did 4 not fly here because I thought that I would lose some sales. 5 This is not why I am here. I am here because I passionately 6 believe that this is a case that is about an author's right to 7 protect their creation -- their creation. And, I believe that 8 if this book is allowed to be published, the flood gates will 9 open and the precedent is established that anyone can lift an 10 astonishingly large portion of an author's work and present it 11 as their own. 12 Q. Do you believe Mr. Harris when he discussed, when he gave 13 his testimony, discussed or took into account appropriately the 14 issue of not just sales of this particular book but other books 15 that would follow? 16 MR. HAMMER: Just objection on every ground an 17 objection can be made. This is first, leading, and we are 18 being asked about what her beliefs are, not about any facts at 19 all. And, I object to the form of these questions. If they 20 want to ask questions about specific factual disagreements with 21 testimony, that's fine. 22 THE COURT: I have to hear the question back. 23 (Record read) 24 THE COURT: I'm not sure I understand the question. 25 THE WITNESS: I may need it rephrased just because I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 653 84G5WAR5 Rowling - rebuttal direct 1 didn't understand that. 2 BY MS. CENDALI: 3 Q. In light of th equorum on that issue I will rephrase the 4 question. 5 Ms. Rowling, you heard Mr. Harris testify? 6 A. Yes. 7 Q. Do you -- what do you believe the harm would be from 8 publication of the Lexicon book? 9 A. As I have previously stated, I believe that this would 10 inevitably -- inevitably lead to a slippery slope. I believe 11 the flood gates would open. And it is, of course, not just -- 12 not just my work that therefore is endangered. 13 If authors, any authors including much less successful 14 authors than I am cannot protect their work -- and that goes to 15 term papers on the internet, that goes to -- I see this as an 16 incredibly important case. Are we or are we not the owners of 17 our own work. 18 Q. Ms. Rowling -- 19 THE COURT: How long does it -- do you have any 20 idea -- each of these books are how long? 21 THE WITNESS: Of my novels? 22 THE COURT: Yes. 23 THE WITNESS: They vary in length, your Honor. The 24 first book is 95,000 words but the longest one, I believe, is 25 nearly 200,000 words. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 654 84G5WAR5 Rowling - rebuttal direct 1 THE COURT: Pages I was thinking. 2 THE WITNESS: Pages. Oh, pages. 3 THE COURT: I'm talking about the novels. 4 THE WITNESS: In the American edition I believe the 5 longer ones would be six-hundred-and-something pages. 6 THE COURT: And they came out periodically? 7 THE WITNESS: Yes. 8 THE COURT: How far apart were they published? 9 THE WITNESS: The first four novels were published a 10 year apart, annually in the U.K. anyway, and there was a 11 three-year gap between the novels, but during that time the two 12 companion books were written and published. And then the last 13 three novels in the series were published two years apart. 14 THE COURT: So, they were published over a period of 15 time? 16 THE WITNESS: Yes. 17 THE COURT: I don't know how long it would take 18 children to read. I know how long it would take adults to 19 read, too, that's the matter of time the adults have, not the 20 time the children have. So, I guess I won't ask you any 21 further questions, but. 22 BY MS. CENDALI: 23 Q. Ms. Rowling, is this case being driven by Warner Brothers? 24 A. Absolutely not. Not at all. 25 Any representation that Warner Brothers has in this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 655 84G5WAR5 Rowling - rebuttal direct 1 case is for entirely -- I don't even know the correct legal 2 terms, but they're licensees. I have licensed them certain 3 rights in the Harry Potter property to enable them to make 4 their film adaptations. 5 But, I am here on my own account. I am not a 6 corporation driving this, I am an author who is here to stand 7 up for what I believe is an important principle on behalf of 8 creators. Those who create from nothing. 9 Q. Mr. Hammer, in some of his questions to you and to Dean 10 Johnson and to Dr. Sorensen used the word "suppression." Are 11 you opposed to Harry Potter guidebooks, in general? 12 A. I am not only not opposed to Harry Potter guides, I am 13 flattered by their existence. I think that they vary in 14 quality but I don't think that that matters. All I care 15 about -- all I care about is that they don't infringe my 16 copyright. That's all I care about. I think some of them are 17 very good. I think some of them are really not so good. I 18 would even go as far as to agree with Dr. Sorensen that it all 19 contributes to a discussion of a literary property. 20 The Harry Potter novels are some of the most banned of 21 the late 20th, early 20th -- First Century. I am vehemently 22 anti-censorship. I have never wanted -- your Honor, I think it 23 is highly relevant before this case ever came into litigation, 24 I attempted to reach out to Mr. Vander Ark and I have to say 25 that I believe -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 656 84G5WAR5 Rowling - rebuttal direct 1 MR. HAMMER: Your Honor, that really I do object to, 2 your Honor. 3 THE WITNESS: It is highly relevant, your Honor. 4 MR. HAMMER: It may be, but it is also settlement 5 negotiations that I asked -- 6 THE WITNESS: No, no, no. Mr. Hammer, I am not 7 talking about that at all, I promise you. 8 THE COURT: All right, but. 9 THE WITNESS: I am trying to express that -- 10 THE COURT: But it really doesn't go to -- unless it 11 goes to something that is germane to the issues here I don't 12 think that I should be hearing what discussions were had 13 between. 14 (Continued on next page) 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 657 84GVWAR6 Rowling - rebuttal 1 BY MS. CENDALI: 2 Q. I'm not sure, but I think, Ms. Rowling, are you talking 3 about the pre-litigation cease and desist communications -- 4 A. Yes, I am. 5 Q. -- with RDR -- 6 A. Yes, I am. 7 Q. -- and Mr. Hammer? 8 Do you feel that you -- 9 MR. HAMMER: And unless that's rebuttal for something 10 that was stated -- well, but I want to -- 11 MS. CENDALI: Are you trying to suppress Ms. Rowling, 12 Mr. Hammer? 13 MR. HAMMER: No, that seems to be impossible. I'm 14 just trying to state that unless that is rebuttal to something 15 that was stated by Mr. Vander Ark, that it really should not 16 come in on that ground and also on the grounds that it seems to 17 be associated with some sort of settlement offer. 18 BY MS. CENDALI: 19 Q. Ms. Rowling, you heard the testimony of Mr. Rapoport? 20 A. Yes. 21 Q. And Mr. Vander Ark, correct? 22 A. Yes. 23 Q. And you heard them testify about the cease and desist 24 letters and communications they received from your 25 representatives prior to starting this case? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 658 84GVWAR6 Rowling - rebuttal 1 A. Yes, I did. 2 Q. Was litigation your first choice, Ms. Rowling? 3 A. It was my absolute last resort. 4 MR. HAMMER: Really, I just object to that. This is 5 not relevant to the underlying questions that are before this 6 Court. 7 THE COURT: I don't see what it's rebuttal to, 8 Ms. Cendali. 9 Q. Isn't it true, Ms. Rowling, that -- do you agree that with 10 their testimony -- do you disagree with any of their testimony 11 with regard to the prefiling communications in this case? 12 MR. HAMMER: The question is is the book fair use or 13 not. The question is not whether or not beforehand we ignored 14 a cease and desist letter or we should have followed -- I mean 15 I'm speechless. I am suppressing myself. I do not think that 16 this testimony is relevant to this case. 17 Q. Ms. Rowling, why are you opposed to this book? 18 A. It takes too much from me, and I think the justification 19 for doing that is next to nonexistent. But I never, ever once 20 wanted to stop Mr. Vander Ark doing his own guide, never. 21 Never. All I ever said through my representatives repeatedly, 22 and I think beyond the point where some of this would have lead 23 to litigation, I repeatedly tried to say to Mr. Vander Ark, Do 24 your book, but please change it so it does not take as much of 25 my work. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 659 84GVWAR6 Rowling - rebuttal 1 MR. HAMMER: I'm sorry. This is exactly what was 2 objected to. There is no evidence in the record that this is 3 responding to -- this is something that -- 4 MS. CENDALI: You're accusing Ms. Rowling of unclean 5 hands and copyright misuse. She has a right to defend herself, 6 Mr. Hammer. 7 MR. HAMMER: Why didn't she say this in her direct 8 testimony? There is nothing that is rebutting. We then could 9 have followed with our testimony. 10 MS. CENDALI: Cross-examine her. 11 MR. HAMMER: No, ma'am. I'd like to do this according 12 to the normal rules. 13 THE COURT: I don't think it's appropriate for you -- 14 I don't think you should be asking these questions, 15 Ms. Cendali, because if you know what the -- what you're 16 getting at because -- I'm a little troubled because I worry 17 that -- because I said I thought and was afraid yesterday that 18 this case might be lawyer-driven. I'm not referring to either 19 counsel. Counsel in cases get cases. And they get looking at 20 the legal aspects of it and they charge no holds barred in some 21 cases. And that's considered -- I've seen lawyers brag about 22 it in this country. And I think that that happens in cases. 23 And what I was really concerned about is because this 24 case is in a murky state of the law, it's not a clear statement 25 of law. Judge Havell has written two Law Review articles about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 660 84GVWAR6 Rowling - rebuttal 1 this whole area. And he has gotten his share of reversals in 2 this area before he went up to the Circuit Court. 3 Now, it's a murky area. And what I was trying to make 4 clear is that that was the fact. And because that was the 5 fact, and because of the time element that I see in this case, 6 that it made a lot of sense, you just said it, a lot of sense, 7 and that's why I raised the question. And I've listened to the 8 parties and heard them. I'm not sure that you still couldn't 9 settle it if you listen to what people said on the stand. 10 MS. CENDALI: I have no further questions, 11 Ms. Rowling. 12 THE WITNESS: Thank you. 13 MR. HAMMER: I have no cross, your Honor. 14 THE COURT: All right. Thank you very much. 15 THE WITNESS: Thank you. 16 (Witness excused) 17 THE COURT: No more witnesses? 18 MR. HAMMER: I think that's it, Judge. 19 MS. CENDALI: I believe we are done, your Honor. 20 MR. HAMMER: Your Honor, can I ask that the parties be 21 allowed to give a kind of ten-minute closing, oral closing? 22 THE COURT: You could do that. I thought we were 23 going to have findings of fact and conclusions of law. 24 MR. HAMMER: Certainly. Of course. I just mean that 25 we'd like to sum up now what we think are the important points. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 661 84GVWAR6 1 THE COURT: You have your audience. Well, all right. 2 MR. HAMMER: I'm not going to be speaking to the 3 audience, Mr. Falzone is. 4 MS. CENDALI: Since I didn't understand or expect that 5 they were going to ask this, your Honor, I wouldn't mind having 6 a break before having to put on a -- 7 THE COURT: All right. If both sides want to do that, 8 that's fine. 9 MR. HAMMER: Thank. 10 MS. CENDALI: Thank you. And, your Honor, also as a 11 housekeeping, I know you want the findings of fact and 12 conclusions of law. May we have several weeks to put them in? 13 THE COURT: The shorter the better. I go on to other 14 cases, and when I get another case, I try to concentrate 100 15 percent on it. And that affects my memory. Maybe I need a 16 reference guide to this case. 17 MS. CENDALI: Well, as long as it doesn't take too 18 much -- never mind. 19 Would two weeks from Friday be sufficient? It would 20 let me go on vacation next week. 21 THE COURT: Fine. 22 MR. HAMMER: That will be fine, Judge. 23 THE COURT: You both at the same time. 24 MS. CENDALI: Yes. 25 THE COURT: Sure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 662 84GVWAR6 1 MR. HAMMER: So we're going to have a few-minute break 2 now, followed by a few minutes of closing? 3 THE COURT: Yeah. 4 MR. HAMMER: Okay. Thank you. 5 THE COURT: Do you want about a ten-minute break? 6 MR. HAMMER: That will be fine. 7 MS. CENDALI: Thank you, your Honor. 8 THE DEPUTY CLERK: May 2nd for the findings of fact? 9 THE COURT: May 2nd for the findings of fact, 10 conclusions of law. May 2nd. 11 MR. HAMMER: If that's two weeks from Friday, yeah, 12 that will be fine. 13 (Recess) 14 MR. HAMMER: Your Honor, may I have a quick 15 application before we start? It's joint, I think. I think the 16 parties agree that we would like three weeks, if we can, to do 17 the -- we're pretty tired, actually. 18 THE COURT: Give me the reference guide with it, I 19 guess. 20 MR. HAMMER: Okay. If you don't mind. What's one 21 more week. And Mr. Vander Ark, plaintiffs have graciously 22 agreed that the sequestration rule can be lifted and he can 23 watch the -- 24 THE COURT: He should have been in here after his 25 testimony. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 663 84GVWAR6 1 MR. HAMMER: Okay. 2 THE DEPUTY CLERK: So that's May 9th for the findings 3 of fact? 4 MR. HAMMER: Yes, May 9th. 5 MR. SHALLMAN: Yes. 6 THE COURT: All right. Then if you're ready. 7 MS. CENDALI: I guess so. Good afternoon, your Honor. 8 THE COURT: Good afternoon. 9 MS. CENDALI: When we started Monday morning, I stood 10 at this spot and I asked you to -- said at the end of the 11 evidence in this case that plaintiffs would ask your Honor to 12 issue a permanent injunction enjoining this book. We renew 13 that request today. 14 What I said on Monday morning was that the evidence 15 would show that RDR took too much and did too little. The 16 evidence that came in, we respectfully submit, your Honor, 17 confirms that. 18 In terms of the issue of copyright infringement 19 itself, we suggest that there's no real issue as to that. The 20 charts that were put in, the testimony of Ms. Rowling, the 21 testimony, frankly, of Mr. Vander Ark, all show that Mr. Vander 22 Ark sat there, he took notes, he used an electronic copy even 23 of Ms. Rowling's books, to take her works and to put them into 24 an A-to-Z format where the extent to the pages of charts, of 25 copying, of works from her novels, from her companion guides, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 664 84GVWAR6 Summation - Ms. Cendali 1 could not be clearer. 2 THE COURT: I thought he only did that with respect to 3 the last novel. Is my recollection wrong? 4 MS. CENDALI: I believe the email said, your Honor, 5 it's in the record, that one of his editors named John 6 apparently had electronic files of the seven Harry Potter 7 novels. And Mr. Vander Ark testified that they were able to 8 subsequently get electronic copies of the Fantastic Beasts book 9 and the Quidditch book, and that that was used to help 10 create -- 11 THE COURT: So then there were three, three books or 12 are you telling me that all the books were downloaded? 13 MS. CENDALI: From email, from the testimony, they had 14 electronic copies of all seven of her books, plus the two 15 Quidditch books. 16 THE COURT: But they used -- I understood that they 17 had electronic copies. But they used in the book -- in the 18 Lexicon, I had thought he limited it to the last book that he 19 said he -- 20 MS. CENDALI: That was not how I understood the 21 testimony or the import of the email. 22 THE COURT: I'll have to check. 23 MS. CENDALI: But the bottom line is in terms of 24 copyright infringement itself, the defendant has not even 25 attempted to argue very strenuously that there has not been SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 665 84GVWAR6 Summation - Ms. Cendali 1 paraphrasing, quotations, tremendous amount of text that are 2 her words being used. 3 Now, of course, from a copyright point of view, the 4 copyright case is not just about the words themselves, though 5 we have that here, but it's also about the fictional facts, the 6 creations. If they had published a book about Voldemort, even 7 if they didn't use any of her words except for the word 8 Voldemort, that would still be a copyright infringement because 9 that's a character that she created. So the copyright 10 infringement here is two forms of her literal texts and also 11 the characters in her fictional world. 12 So the other thing that is clear, your Honor, is that 13 the affirmative defenses of copyright misuse and unclean hands 14 seem to have been abandoned midway through trial. It's, 15 frankly, a disservice to Ms. Rowling and to Warner Brothers 16 that they had -- that those claims were not dismissed prior to 17 the start of this case. But there was no evidence as to 18 unclean hands, there was no evidence as to copyright use to 19 this use. To the contrary. 20 The only evidence was that rather than being the 21 draconian copyright enforcer that RDR tried to make Ms. Rowling 22 and Warner Brothers out to be, the evidence shows that they had 23 repeatedly, in keeping the leading cases in this circuit, 24 adopted a principal approach to protecting copyrighted 25 expression and to permitting hundreds or at least dozens and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 666 84GVWAR6 Summation - Ms. Cendali 1 approximately 100 copyrighted -- 100 companion books about the 2 Harry Potter series. So those also are not issues. 3 So the real issue then before the Court is fair use. 4 And from your Honor's comments, it seems like your Honor has 5 always been focusing on that issue, as well. 6 Let's go through those factors now, in light of where 7 the evidence is. 8 The first factor: The nature of the copyrighted work. 9 The evidence was that the books were created expressive works, 10 copyrighted expression. There was no contravening evidence. 11 That factor should favor plaintiffs. 12 The second factor: The amount of substantiality of 13 the portion used factor. That should also favor plaintiffs, 14 because the evidence was clear that all of her fictional facts 15 were comprehensively taken. This was not a selective taking; 16 it was a comprehensive taking. 17 Now, one of the issues you may have to address, your 18 Honor, is what we argue is a circular argument, which is that 19 if they can argue that their purpose was to take everything, 20 does that justify their ability to take everything. I don't 21 think, your Honor, that there's justification under the law for 22 such an argument. 23 Moreover, the issue of the Harry Potter companion 24 guides, as evidenced by the testimony of Mr. Vander Ark and of 25 the documents dealing with the Fantastic Beasts and Quidditch SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 667 84GVWAR6 Summation - Ms. Cendali 1 make very clear that those words, including the EA cards, were 2 taken virtually completely. 3 I believe I said in opening that well over 250 entries 4 of the Lexicon came from Quidditch. Well over 250 entries of a 5 lexicon came from Fantastic Beasts: Very small books; very 6 large taking. Those books, since they are not Harry Potter 7 novels, moreover, there's no narrative drive that would 8 encourage someone to read them. The evidence that came in was 9 very clear that though the taking from those books was 10 complete. 11 Now, the other issue in terms of the amount in 12 substantiality of the use is that RDR seems to be arguing that 13 it needs to have long entries and needs to take a lot. But 14 it's not clear, your Honor, for what purpose. And that's what 15 we've been searching for throughout this case. What is their 16 purpose? 17 Well, you heard today, confirmed by Dr. Sorensen, that 18 it's not a research guide. And you heard Mr. Vander Ark say 19 that the Lexicon does not comment very much on the Harry Potter 20 series. So by their own testimony, including the unrebutted 21 testimony of Oxford Dean Professor Johnson -- 22 THE COURT: Senior tutor, please. 23 MS. CENDALI: Forgive me. Senior Tutor Johnson is 24 that as much as we want to talk about these so-called 25 etymologies and facetious phrase, etc., etc., you know, her SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 668 84GVWAR6 Summation - Ms. Cendali 1 testimony that they were negligible and sporadic was not 2 challenged. And Mr. Vander Ark, they agreed, it's not 3 scholarship. They agreed that this material is negligible and 4 sporadic. 5 So then what is left then? What is the purpose of 6 this book? 7 Well, throughout the trial it seemed to be suggested, 8 well, maybe the purpose of the book is that it serves some sort 9 of a memory aid, some sort of reader reference purpose. But 10 the thing about that, your Honor, is that if that's the 11 purpose, the taking is far larger than is necessary for that. 12 As you heard Ms. Rowling and Oxford Senior Tutor Johnson talked 13 about in the sense that you don't need to take all the 14 fictional facts about a character. You saw some of the other 15 Harry Potter guides, you saw some of the guides to Tolkien and 16 the like, and even guides that may exist regarding Dickens. 17 THE COURT: Did I see other Harry Potter guides? 18 MS. CENDALI: Yes, your Honor, there were four Harry 19 Potter guides that Ms. Rowling talked about. 20 THE COURT: You mean The Idiot's -- those four? 21 MS. CENDALI: That's right, The Idiot's Guide, The -- 22 THE COURT: I thought there were more reference works, 23 but -- 24 MS. CENDALI: There were many more Harry Potter 25 reference books. We just put -- rather than have the whole SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 669 84GVWAR6 Summation - Ms. Cendali 1 book, we have a chart of the almost 200 or almost 100 Harry 2 Potter books. 3 But the point is, as is shown by the four A through Z 4 other Harry Potter encyclopedias, and I note that Mr. Vander 5 Ark admits in his testimony, in his declaration, that those are 6 other Harry Potter encyclopedias, he says that in his 7 declaration, that those other books will use Ms. Rowling's 8 creations as a jumping-off point for what they want to do. 9 Now, it doesn't have to be, your Honor, that 10 Mr. Vander Ark has to do a book of adding lots and lots of 11 commentary or analysis, and it doesn't have to be scholarship. 12 We're not arguing that it has to be those things. But what we 13 are arguing is that in terms of the substantiality of the use, 14 it has to be proportionate or balanced for the intended 15 purpose. And the intended purpose, since we know the book is 16 not positioned as a book of scholarship, it seems like for the 17 intended purpose that we are hearing is that it's supposed to 18 be some sort of a memory guide. 19 And if it is supposed to be some sort of a memory 20 guide, your Honor, it seems that you could have, in keeping 21 with other books, shorter entries that just give you the guts, 22 the basic information about the characters, so that you know 23 something about them, your memory may be jogged; but not their 24 entire life story, not the fact that they died in Book 5, not 25 what happened to them in Book 7, and note other things that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 670 84GVWAR6 Summation - Ms. Cendali 1 evidence was discussed could make a child or a grown-up even, 2 perhaps some associates in some law firms who read the plot 3 summaries feel, You know what? I guess I really don't need to 4 read the rest of the Harry Potter books because I just found 5 out all the big giveaways; whether that means our bills will 6 now be paid or not, I don't know. 7 But the point, though, in terms of the amount of 8 substantiality, the portion used, is that if their purpose, 9 since their purpose isn't this research and isn't analysis, 10 they now admitted that it's not about research, it's not about 11 analysis, it seems to be that it's about a memory guide. And 12 if it's about a memory guide, this is too much for that. And 13 it's certainly too much when it comes to the companion books, 14 the EA cards, because as indicated earlier, those books had all 15 of their material taken. 16 So now we look to the factor or purpose and character 17 of the use, which also favors plaintiffs. There's no doubt 18 that this is commercial. And commercial has an extra ring to 19 it here, your Honor, in the sense that Ms. Rowling continues to 20 this day to not object to the material. They want to post it 21 on the internet, it can be posted on the internet. She has 22 never been an internet censor and she's never going to be an 23 internet censor, unless the law says she's going to lose her 24 rights as a result of it. 25 This is about people trying to sell this for 24.95 as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 671 84GVWAR6 Summation - Ms. Cendali 1 the definitive Harry Potter encyclopedia in children's 2 bookstores right next to the Harry Potter books. 3 So now you look at the purpose and character of the 4 use factor and the issue is this transformative or is it not 5 transformative. And then we get into the issue of, Well, what 6 does it add? What does it contribute that one could not get 7 from the Harry Potter books themselves? 8 Well, we suggest the answer to that is nothing, or 9 that the little bit that it adds is not -- if anything, is not 10 enough to justify in proportion to the extent of the taking in 11 the sense that, and it goes back a little bit to this memory 12 point, is that they'd admitted that the book is not 13 scholarship, they've admitted that it doesn't comment on the 14 Harry Potter series. It doesn't try to analyze the Harry 15 Potter series, so it's not transformative in those types of 16 things where someone is creating, like in a 2 Live Crew case, 17 their own great wonderful invention. What it is is about 18 listing all of her things in a place, and does that in and of 19 itself rise to the level of being -- satisfying the purpose and 20 character of the use. 21 And that goes back to some of the questions that were 22 being asked, the evidence that came in on the issues such as 23 indices and things like that. Because if this is supposed to 24 be something to help you find information in the Harry Potter 25 universe, well, clearly there are ways to do that through an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 672 84GVWAR6 Summation - Ms. Cendali 1 index that doesn't take as much of Ms. Rowling's wonderful 2 expression and wonderful thoughts the way this does, especially 3 taking it so sweepingly the way that it does. 4 So the question is how had the Harry Potter books been 5 transformed and being split up A through Z in this fashion? 6 They have done that; it's been done in tremendous detail. Has 7 enough been gained to justify that an author's prose and 8 details and creativity are all there to be sold to someone 9 else? 10 And we believe that the evidence shows that the idea 11 that this is truly adding anything new that transcends or 12 commends on, that I believe that the applicable legal test, 13 your Honor, is whether the Lexicon adds anything new or 14 original to our understanding of the original work. 15 There's been no testimony that it adds anything new or 16 original or comments on the original work. The evidence came 17 in at trial just to the contrary to that. 18 Then we turn to the market harm factor here. And 19 here, the market harm, as I discussed on Monday and as the 20 evidence came in, is comprehensive and multifaceted. 21 Now, the first type of harm here was the harm to the 22 sales and of Ms. Rowling's own encyclopedia. Her concern here 23 is obviously, she said herself repeatedly, not obviously that 24 sales and not about money, but in assessing market harm, we 25 need to obviously talk about economics. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 673 84GVWAR6 Summation - Ms. Cendali 1 We submit that even if Ms. Rowling was not doing her 2 own encyclopedia, it is irrelevant to the issue of market harm 3 because the market harm, she doesn't have to do an 4 encyclopedia, an author doesn't have to -- an author can decide 5 not to license if an author didn't. But the fact that you have 6 someone who has already entered the market for companion books, 7 has those books being plundered for use in this companion 8 guide, and then plans to do her own encyclopedia where the 9 plaintiffs knew that -- or the defendants knew that, and that 10 these books, as the evidence has shown, will be sold 11 side-by-side to her books in bookstores, is clearly a form of 12 harm. 13 The second kind of market harm is the harm that was 14 really unrebutted to Ms. Rowling's companion books, Quidditch 15 and Fantastic Beasts. And I note that defendant's expert, 16 Mr. Harris, never even addressed harm to her Quidditch and 17 Fantastic Beasts books. And that's because, as Mr. Vander Ark 18 himself recognized, if you take the text of those books and put 19 them in some other thing that lists those clever facts, you 20 really don't need to buy those books, and the charitable intent 21 is lost. 22 The third type of market harm is the harm to the Harry 23 Potter books themselves. And again, it's not about lost sales. 24 The harm is, as you heard, there are no spoiler warnings. When 25 you look up something, you get way too much detail. It tells SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 674 84GVWAR6 Summation - Ms. Cendali 1 you all sorts of things about what happens to characters, and 2 it would spoil it for adults and children. 3 And, of course, there's the fourth type of market 4 harm, which is the plaintiffs' overall licensing programs. The 5 evidence was that Ms. Rowling was worked very hard with Warner 6 Brothers to have Harry Potter be of the utmost quality. It's 7 not just in the testimony you heard, but also detailed at 8 length in the declarations that were submitted as part of the 9 record in this case. 10 And the evidence was that the Lexicon is of poor 11 quality. That's what plaintiffs presented. And you heard 12 Sorensen and Johnson discuss that; and there was really no 13 rebuttal to the fact that the -- to the extent that the Lexicon 14 is filled with errors; that it has lots of things that it makes 15 mistakes about; that it does not represent the kind of quality 16 in Harry Potter that would be normally appreciated. 17 Then there's also the issue of bad faith. And I think 18 that that came up significantly with regard to, in particular, 19 the testimony of Mr. Rapoport himself, who, as your Honor, I 20 hope, saw, while we were working very hard to contact him, to 21 talk to him, sending him cease and desist letters, at the same 22 time that he was telling us that he couldn't speak to us, he 23 was embarking on selling the book all over the world, and was 24 specifically not selling the book to anybody who carries the 25 Harry Potter books because he didn't want us to find out about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 675 84GVWAR6 Summation - Ms. Cendali 1 it. 2 And the evidence also shows that while -- and, 3 significantly, there's no lawyers' memo or letter or anything 4 like that indicating or proving that there's any advice of 5 counsel. That's not even one of the defenses in this case. 6 Had Mr. Rapoport and Mr. Vander Ark admit that they 7 talked about the book as being a potential copyright violation, 8 Mr. Vander Ark said, Hey, I always thought this was infringing. 9 I needed to spend a lot of time studying copyright. And RDR is 10 the one who persuaded him to proceed, but with an indemnity 11 clause that still said, But if Ms. Rowling sues, you're going 12 to indemnify me. 13 And then the other thing about the fair use, your 14 Honor, is that it's, of course, the burden on the defendant. 15 Now, I appreciate your Honor's various comments about is fair 16 use murky or not. Now, we submit, your Honor, that it's not 17 murky, it's just the facts in each case may be somewhat 18 different. 19 But in this particular circuit, when there has been so 20 many cases about companion books that are the leading cases of 21 this circuit that are directly on point as to what a plot 22 summary is, as to what a -- how the collection of fictional 23 facts belongs to an author, when you have those leading cases 24 in this circuit, your Honor, and you have the burden on the 25 defendant of proving that their otherwise wholesale copying is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 676 84GVWAR6 Summation - Ms. Cendali 1 excused, we believe that fair use, when analyzed, will show 2 that plaintiffs will prevail on that and the defendants will 3 not be able to meet their burden. 4 And then that gets us to the issue of irreparable 5 injury. 6 In a lot of ways, your Honor, that's the hardest part 7 of this case, because you have to obviously balance a lot of 8 interests and interests of different creators and different 9 kinds of creators. But to hear the purpose of copyright is to 10 incentivize the creative works that's in the Constitution, it 11 grants authors a limited monopoly in order to incentivize them 12 to create. And thank God that there are people like 13 Ms. Rowling who have created, because she has managed to create 14 something. And not a single person in this courtroom, not a 15 single witness has disputed the fact that what she has done has 16 enriched the lives of many. 17 But we've heard a lot about her success. It truly is 18 well-deserved success, and it should not be that just because 19 she's been successful, she should not have the right to be able 20 to protect her rights; because what she's being faced with 21 here, as you've heard, is her own interest in writing more 22 about Harry Potter being undermined by what RDR has done. You 23 heard her testify that she's lost about a month of her work 24 writing because of the turmoil in this case. You've heard her 25 testify about the concern that if everybody is allowed to take SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 677 84GVWAR6 Summation - Ms. Cendali 1 all of her intensely creative fictional facts and put them 2 together in some sort of encyclopedia, and the Lexicon does it 3 this way, your Honor, A through Zed, somebody else will do it 4 with beasts, somebody else will do it with characters, someone 5 else will do the women in Harry Potter; people will slice and 6 dice through books a million different ways and essentially 7 repackage them for sale. And if that happens, as you heard her 8 say, what does she have left? 9 And how compelling would it be for an author to have 10 her own works be used in competition with her; to have her own 11 works undermined by their -- by the loss of distinctiveness. 12 One of the things that you do, and you heard some of 13 this from Ms. Murphy, but one of the things a copyright owner 14 gets to do as a copyright owner, when that person makes a 15 derivative work based on their original work, the copyright 16 owner gets to take more their original work than somebody else 17 would be. The copyright owner gets to quote a lot. The 18 copyright owner gets to have photos of things if it turns out 19 that it's from a movie or something like that. The copyright 20 owner has things in it to make their work special; while 21 somebody else coming to talk about their work, they can still 22 do it, but they can't do it to the same degree. Ms. Rowling is 23 losing her chance to have that distinctiveness for herself. 24 Now, it was suggested by plaintiff, well, you know, 25 she can create her own distinctiveness; she'll just go and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 678 84GVWAR6 Summation - Ms. Cendali 1 write and add new clever things in her new encyclopedia and so, 2 therefore, she's not going to be hurt. But if you think about 3 that, your Honor, that's exactly the opposite of what copyright 4 law should be allowed to do. Why should she be in the position 5 of once again having to come up with something new and great, 6 only to have it be put in the next edition of the Lexicon. And 7 why should she be deterred from creating. 8 Now, what we are talking about in terms of -- and, 9 again, there's absolutely no testimony on balance of in terms 10 of balance of hardships, your Honor. When you heard 11 Mr. Rapoport testify, similar to his declaration, he said not 12 one word that he would be out of business if this book were 13 enjoined; that he would have a hard time if this book were 14 enjoined; that some calamity would happen to him if this book 15 were enjoined. He said not a thing about what would happen to 16 him if the book were enjoined. 17 And then you contrast that to J.K. Rowling, who says 18 because of this, I may not want to write about Harry Potter 19 anymore. And I say to you, your Honor, if that's how the law 20 turns out to be, it would be contrary to what copyright law was 21 intended to be. Because the position Warner Brothers and 22 Ms. Rowling are putting forth in this case is incentivizing new 23 creation. It's incentivizing people who write about Harry 24 Potter to take less, to not just copy, as Ms. Rowling, once 25 again, eloquently put it, not taking the plungs in her cake or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 679 84GVWAR6 Summation - Ms. Cendali 1 cherry-picking out the adorable wonderful clever things about 2 it and selling in her own. Not taking her plungs; so taking 3 less, but doing more. There are already four other Harry 4 Potter encyclopedias that have managed to compete, have managed 5 to coexist, have managed to each add something to the debate 6 and discussion about Harry Potter. There's absolutely no 7 reason that Mr. Vander Ark could not write such a book himself. 8 There's already material on the Lexicon web site that could 9 make that potentially happen. But to incentivize people to do 10 their own new thing rather than simply copy and repackage the 11 work of another seems to be what copyright law is all about. 12 Two final things, in closing, your Honor, and forgive 13 me in that -- I didn't know I'd be giving this closing right 14 now. And that is, in terms of, again, the public policy, you 15 heard Ms. Rowling on the stand. I can't think of a greater 16 public policy than encouraging Joanne Rowling to write. 17 We respectfully ask the Court to enjoin this book, 18 encourage her to write, and encourage Mr. Vander Ark to write 19 something that takes less and that does more. 20 THE COURT: Thank you, Ms. Cendali. 21 MS. CENDALI: Thank you, your Honor. 22 MR. FALZONE: Good afternoon, your Honor. Anthony 23 Falzone, again, for the defendant, RDR Books. 24 Your Honor, the very first thing I said when I stood 25 up here in opening statements was to acknowledge the fantastic SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 680 84GVWAR6 Summation - Mr. Falzone 1 achievement of Ms. Rowling's, and to note how remarkable it was 2 in and of itself and the way she achieved it. But we're not 3 here to pass judgment on whether Ms. Rowling is a fantastic 4 author or should be encouraged to write more. There is no 5 doubt she is, and there's no doubt she should. 6 We are here to decide whether our client, RDR Books, 7 can publish a book, the Lexicon. So surprise that RDR wants to 8 publish a book. RDR is a publisher; that's its business. But 9 its principal, Roger Rapoport, is also an author. And he 10 cares, your Honor, about the right to write and publish this 11 book and others. So when Ms. Rowling told you this is a very 12 important case, she was absolutely right. And she was right 13 because this case is about both the Lexicon and a bigger issue 14 that will affect others. 15 The question here, your Honor, that we started with, 16 as I described it, was whether Ms. Rowling has the power to 17 make the Lexicon disappear. She suggested to the Court that 18 that term is not a fair use. I don't think there is any 19 dispute about that. I think everybody is clear on that. 20 The interesting thing, your Honor, I noted when 21 Ms. Cendali got up to speak to you about the fair use factors, 22 is she switched them around. What do I mean by that. Well, 23 the statute puts them in a specific order. 24 The first one she talked about was the nature of the 25 copyrighted work, that's the second one in the statute. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 681 84GVWAR6 Summation - Mr. Falzone 1 The second factor she talked about was the amount of 2 substantiality of the material used; that's the third factor in 3 the statute. 4 The first factor is the purpose and the character of 5 the use. It's not just first in the statute, it's first in the 6 law. 7 The Supreme Court of the United States has told us 8 that, above all else, what matters in the fair use analysis is 9 whether the work in question has a transformative purpose. And 10 it has gone so far to say, and I'm referring to the Campbell v. 11 Acuff-Rose case that Ms. Cendali cited, the Supreme Court has 12 gone so far to say that the more transformative a work is, the 13 less the other factors matter. 14 So first and foremost, your Honor, we have to talk 15 about whether this work is transformative. And above all, when 16 fair use protects works with a transformative purpose, that 17 means works, the purpose of which is not to substitute for the 18 original copyrighted works, but to provide something useful and 19 valuable that wasn't there before. 20 And I started by saying that plaintiffs had little to 21 say about the transformation issue. And I believe that's still 22 true. And I believe you heard that during the testimony, and 23 in the closing. 24 Plaintiffs tended to speak through their witnesses and 25 themselves over and over in generalities. The phrase of choice SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 682 84GVWAR6 Summation - Mr. Falzone 1 seemed to be "plundered wholesale." And while that is a very 2 colorful phrase, it tells us very little about the actual 3 question your Honor has to decide, which is based not on the 4 colorful descriptions or generalities, but what the Lexicon 5 actually is relative to the copyrighted works. 6 Whereas plaintiffs and their witnesses spoke in 7 generalities, your Honor heard specifics from our witnesses. 8 Professor Sorensen explained not just why lexicons in general 9 are important, she explained why this lexicon is especially 10 useful and valuable. She explained that it organizes and 11 synthesizes and distilled the very complicated and elaborate 12 world of the Harry Potter books. 13 We said before, and we all agree, seven novels, 14 hundreds of chapters, thousands of pages, somewhere near a 15 million words, hundreds of characters, with so much happening 16 to characters, some of which show up and disappear and have 17 lots of interesting things happen to them that are just plain 18 difficult to remember in works that are that long and which 19 come out over a prolonged period of time, and maybe read 20 months, years, who knows how long apart. 21 Ms. Sorensen spoke specifically about that issue and 22 showed you specific entries, and even explained to your Honor 23 how that organizational value rang true for her when she read 24 these books for the first time in preparation for her 25 testimony. And that organizational value, that synthesis, that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 683 84GVWAR6 Summation - Mr. Falzone 1 distillation, is a critical concept, and the critical way in 2 which the Lexicon adds something to the world. 3 Your Honor heard again and again that there are no 4 indices to the Harry Potter books, no glossaries, nothing that 5 helps you find this stuff. If you want to know about Medical 6 Magic or some other term, you can either flip through the seven 7 books and thousands of pages, or you can use something like the 8 Lexicon to help you find out more quickly. And I think the 9 specifics that were discussed with your Honor demonstrated the 10 organizational value the Lexicon brings to this complicated 11 world. 12 THE COURT: What value do the long portions of the 13 Lexicon that deal, for instance, with Harry Potter or 14 Voldemort, what do they -- what's the transformative use of 15 those sections of the Lexicon? 16 MR. FALZONE: First and foremost, your Honor, again, 17 those sections take a very complicated and long story and 18 distill it to refresh readers' recollection, memory, about what 19 happens in this complicated world. 20 THE COURT: This covers all seven books, so, I'm 21 sorry, I've forgotten the phrase you used, but it seems to me 22 that then if you've read all seven books, yes, you might want 23 to have a memory, but what use would you put it to? 24 MR. FALZONE: There are several, your Honor. You 25 heard from Mr. Vander Ark that he's read these books 40 or 50 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 684 84GVWAR6 Summation - Mr. Falzone 1 times. I suspect many fans have read them less, but maybe 2 there are even some who've read them more. Many people read 3 these books over and over, your Honor. And they may go back to 4 the third book, maybe they want to refresh their memory as to 5 something that happened in another book; or maybe, as they get 6 to the sixth book for the first time, they can't remember 7 certain things about Harry Potter that they wish they had front 8 and center in their memory for a fuller and more complete 9 picture to better understand what's happening at any given 10 moment in the book. 11 And I think the Harry Potter entry, your Honor, is a 12 very good example. I'm glad you brought it up. Because if you 13 look very carefully at that entry, your Honor, it starts, I 14 believe, with information we learn about Harry in the last 15 book. And it goes on to discuss lots of things that happen to 16 Harry before we ever meet him in the first book when he was, I 17 don't know how old, 12, 13, whatever it is, living with the 18 Durstlys. So in this way, it finds information across these 19 books and synthesizes it and distills it into a ten-page entry 20 on typeset which will become much shorter when typeset. 21 THE COURT: Well, for what use is that for the reader? 22 MR. FALZONE: Well, it depends on the reader, 23 honestly, your Honor. I think Professor Sorensen testified 24 that there are lots of different reasons that the reader might 25 use the Lexicon. Sometimes it might be to remember things, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 685 84GVWAR6 Summation - Mr. Falzone 1 which I think is the key with the Harry Potter entry, but there 2 might be many other purposes that relate to other entries as 3 well. 4 So really it not just varies by reader, it varies by 5 subject, it varies by the type of information you're looking 6 for. And the point is the Lexicon creates this A-to-Z 7 encyclopedia that no matter what it is you happen to be looking 8 for, whether it's Harry Potter, Medical Magic or something 9 else, you can find it quickly. 10 And it just all depends on what any reader happens to 11 want at any particular moment in time. And I submit it's 12 impossible to predict, even if you were the reader in question, 13 what you're going to want to know as you go through Book 6 at 14 some point in the future. 15 This world is so complicated and so elaborate, there's 16 so much to try to keep track of, so much swimming through your 17 head as you read these books, you want something that helps you 18 organize this complicated universe. And that, first and 19 foremost, is what Professor Sorensen tuned into. 20 And that's not the only thing, your Honor, that makes 21 this Lexicon transformative. There is, of course, the insight 22 on etymologies, mythology, geography. We've never suggested 23 that there are paramount values in the Lexicon, they are there, 24 a couple hundred or so etymologies, I didn't count them either, 25 but they are there. And one might quibble about whether they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 686 84GVWAR6 Summation - Mr. Falzone 1 are right or wrong, but the fact is they are useful and 2 interesting information that a reader might also want to have 3 at hand as he or she goes through the Lexicon. And so this, 4 along with the character insights, which, again, are not 5 paramount, are some of the reasons why readers might want to 6 have the Lexicon as they make their way through these 7 complicated stories. 8 Whereas Professor Sorensen spoke specifically with 9 lots and lots of examples about these values of the Lexicon, 10 you heard by contrast Ms. Johnson talk about a lot of 11 generalities. She started, your Honor, by talking about a 12 bunch of categories. And you heard Ms. Cendali talk about 13 those, too. Is it a standard reference guide? Is it an 14 encyclopedia? Is it a ready-reference guide? Is it a 15 reference guide at all? 16 The point is, your Honor, the label doesn't matter. 17 You have to look beyond the label and look at the actual 18 Lexicon. The way to do that is to look at the specific 19 content, and that's what Professor Sorensen spoke to most 20 clearly and in the most detail out of anybody. 21 Ms. Johnson went on, instead of digging into the 22 Lexicon and its real intrinsic values, she talked about a bunch 23 of other reference guides, whatever you want to call them, 24 about a bunch of other books. She talked about the Waynes of 25 Narnia, Shakespeare Illustrated, The People's Guide to J.R.R. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 687 84GVWAR6 Summation - Mr. Falzone 1 Tolkien, the Pinchton Character Names Dictionary, the Companion 2 to Narnia, the Guide to Middle Earth, she talked about how many 3 quotation marks they had and how many the Lexicon had. That 4 doesn't get at the intrinsic usefulness and value of the 5 Lexicon, your Honor. And plaintiffs have left that point 6 largely unaddressed. 7 Insofar as they did get specific about the nature of 8 the Lexicon, what you heard time and time again, your Honor, 9 was complaints about the quality of the Lexicon, which is 10 exactly what Ms. Johnson talked about over and over when she 11 told you it was careless, it was muddled, it was amateur-ish, 12 dubious quality. She even thought the jokes were bad. 13 Ms. Rowling played exactly that same song. She told 14 you it was poor quality; she quibbled with the etymologies; 15 there were missed opportunities where you could have included 16 additional insight; there should be more, there should be less, 17 they should have said it a different way. 18 Then, at the very end of the case, your Honor, after 19 saying so much about the quality herself and through her expert 20 witness, she told your Honor the quality shouldn't matter. And 21 she was right. She was right when she said it. And she was 22 also right when Suzanne Murphy talked about the quality of the 23 Lexicon and worried that it was going to tarnish the Harry 24 Potter reputation when, in fact, the Lexicon web site has been 25 instrumental in building the reputation and love of the Harry SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 688 84GVWAR6 Summation - Mr. Falzone 1 Potter world. 2 And if, your Honor, the Lexicon is so lousy and it can 3 be done so much better, the answer to that is for Ms. Rowling 4 to write her own Lexicon. The answer is for Ms. Rowling to do 5 exactly what Samuel Richardson did when he decided that he 6 didn't like the existing lexicon or lexicons, I don't know 7 which it is specifically, your Honor, about Pamela. He wrote 8 Pamela Illustrated because he thought it needed to be done 9 right; he thought it needed to be done better. 10 Copyright law does not, your Honor, permit an author 11 to suppress a book simply because she doesn't like it or, for 12 that matter, because the senior tutor at Exeter College doesn't 13 like it or doesn't think it's scholarly. 14 The question isn't whether everything is correct or 15 whether Ms. Johnson would publish it or buy it, or either 16 whether somebody else would do it differently. The question is 17 whether Steve Vander Ark has the right to take a stab at it his 18 way, whether RDR has the right to publish that book. 19 So instead of focusing on the specifics, your Honor, 20 the intrinsic usefulness of the Lexicon, plaintiffs talked 21 about a bunch of other things that are extraneous to that 22 issue. They talked about the so-called rush to market, the 23 supposed veil of secrecy that was put over the Lexicon based on 24 this idea that Mr. Rapoport didn't get the manuscript to 25 Ms. Rowling's lawyers as quickly as they would have wanted it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 689 84GVWAR6 Summation - Mr. Falzone 1 Fair use does not require Mr. Rapoport or, for that 2 matter, Mr. Vander Ark to ask permission first. The case law 3 is very clear about that. It doesn't require an author to 4 submit a manuscript for line editing before publishing it. 5 And the fact is you heard Mr. Rapoport explain he did 6 not blow off Ms. Rowling's lawyers and ignore them; he took his 7 time, he wanted to figure the issue out, and he responded. And 8 when he did respond, he asked them about the reasons, and 9 ultimately concluded he thought he had the right to do this. 10 There's simply no bad faith here, your Honor. That's a 11 distraction. 12 You also heard witnesses talk about spoilers, your 13 Honor. They worried that somebody was going to read the 14 Lexicon, presumably children, instead of reading all the books, 15 when, in fact, your Honor, as at least one witness 16 acknowledged, five of the Harry Potter books have been turned 17 into movies, and that is, as I think everybody knows, the way 18 anybody who needs to know what happened in a story but doesn't 19 want to read the book gets the story; you go see the movie 20 instead of reading the book. 21 The fact is that these plots, these stories, are 22 discussed on thousands of internet sites all over the world. 23 There is no spoiler material in the Lexicon. It's spoiled all 24 over the place; it's everywhere. And if you wanted to address 25 the concern that these witnesses talked in terms of spoilers, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 690 84GVWAR6 Summation - Mr. Falzone 1 you'd have to suppress it all. 2 THE COURT: I don't think there's any evidence of that 3 in the record. 4 MR. FALZONE: Then I'll rest on the movies, I suppose, 5 your Honor. 6 The point is, your Honor, as I think Steve Vander Ark 7 testified, is that the Lexicon is not for people who haven't 8 read the Harry Potter novels; it's for the people who have and 9 who love them. That's the real audience of the Lexicon. 10 THE COURT: What about the degree of quotation and 11 paraphrasing? 12 MR. FALZONE: Glad you asked that question, your 13 Honor, because it's absolutely central here. And I want to 14 focus your Honor's attention on it closely. 15 And what I want to focus your Honor on is the language 16 that you heard in both questions and answers from witness after 17 witness about the amount of material a lexicon draws from the 18 Harry Potter novels. 19 You heard question after question and answer after 20 answer talking about whether the Lexicon takes more than is 21 necessary. That's not the right question. Ms. Cendali told 22 you that when you come time to decide -- sorry, when it comes 23 time to decide whether amount of substantiality of material 24 used favors the plaintiff or the defendant in this case, it has 25 to be considered in light of the purpose for which the material SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 691 84GVWAR6 Summation - Mr. Falzone 1 is used. And as Professor Sorensen and others told you, the 2 overriding purpose here is that organization, synthesis, and 3 distillation, coupled with, again, the insight and commentary 4 that the Lexicon offers along the way. 5 Now, when I told you it was not the right question, 6 here is the right question as it's put by the case law, 7 including the Campbell case, the Blanch v. Koons case, and, in 8 fact, the Castelrod case. The question, your Honor, is not 9 whether it takes more than is necessary; it's whether it takes 10 more than is reasonable. Reasonable is the question here. 11 And, your Honor, if you're going to create a reference 12 guide or whatever you want to call it, something that organizes 13 the complicated and elaborate world of the Harry Potter books 14 to create a ready-reference or whatever you want to call it, 15 it's necessary to use a lot of information from the Harry 16 Potter books. And that's the fact. The amount substantiality 17 of the material taken has to be considered in light of the 18 purpose that is to create this organizational value, and it has 19 to be reasonable in light of that specific purpose. And I 20 submit to your Honor that is true here. It is reasonable in 21 light of the specific purpose. 22 If the Lexicon had another purpose, maybe the amount 23 substantiality question would be different. But Professor 24 Sorensen and others were clear about the organizational value 25 that is paramount in the Lexicon. And to satisfy that purpose, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 692 84GVWAR6 Summation - Mr. Falzone 1 a reference guide has to be comprehensive by definition. And, 2 in fact, Judge Posner recognized that in the Tai, Incorporated 3 case of the Seventh Circuit. 4 THE COURT: What about there's no quotations? 5 MR. FALZONE: Well, you're right, your Honor, a lot 6 was said about that issue, too. And there are two key 7 considerations there. First and foremost, when you saw those 8 snippets, those examples of 10 to 12 words pulled out of the 9 Lexicon and put on the charts and shown to witnesses, 10 oftentimes you saw the citations left out, the citations of the 11 chapters of the Harry Potter novels or other sources where the 12 information shows up. That is clearly an acknowledgment of 13 where the material came from. 14 But, moreover, your Honor, you heard Ms. Johnson talk 15 about plagiarism and the confusion that might arise when 16 somebody holds out their words to be their own. Your Honor, 17 above all, has to remember the context of a lexicon. The 18 Lexicon is a reference guide about the Harry Potter novels and 19 other materials. The cannon. 20 There's no doubt in the world the very point of the 21 Lexicon is to draw information from those sources. Nobody is 22 holding information out as some new and original creation. 23 There is new and original material in there, but no one is 24 going to think that, you know, Steve Vander Ark invented 25 goblet-made armor or anything like that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 693 84GVWAR6 Summation - Mr. Falzone 1 So the fact is the quotations, again, are really 2 beside the point. They do not go to the question of 3 transformation that is paramount, and they really are very 4 tangential here. 5 Ms. Cendali talked about the fourth fair use factor at 6 length. That is, the effect that the Lexicon could have on the 7 value of the copyrighted works. She told your Honor that the 8 Lexicon is a derivative work. Well, I urge your Honor to look 9 for a case that says a lexicon or a reference guide or any kind 10 of companion guide is a derivative work under Section 106. I 11 doubt your Honor will find one. It is simply not a derivative 12 work. 13 Derivative works are things like the abridgement at 14 issue in the Twin Peaks case which was, I forgot the exact 15 number, but somewhere between a 50 and 80-page summary of the 16 first season of Twin Peaks that started at the beginning and 17 went chronologically through to the end of the season, just 18 like Ms. Sorensen told you a plot summary is. This is not a 19 plot summary; this is not a derivative work. 20 So there is no market here that Ms. Rowling gets to 21 claim for herself in the first place. Even if there were, your 22 Honor, the case decided by the Second Circuit recently, Dorling 23 Kindersley v. Bill Graham Archives, tells us that even if 24 you're talking about markets, if a plaintiff's work is 25 transformative, sufficiently transformative, then a plaintiff SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 694 84GVWAR6 Summation - Mr. Falzone 1 doesn't get to foreclose a transformative market. And this 2 Lexicon, if your Honor finds, is highly transformative. The 3 fourth factor falls in favor of RDR on that basis alone. 4 But even if your Honor digs in and looks closely at 5 the market harms asserted here, there simply is no plausible 6 basis to assert market harm. 7 We presented you the testimony of Bruce Harris, 40 8 years in the publishing industry, publisher of Crown Books, 9 president of sales and marketing at Randomhouse. He spoke 10 specifically and again, in detail, not in generalities, about 11 how purchasing decisions are made in the publishing industry at 12 retail stores, at wholesalers, and for online retailers. He 13 gave you an opinion. He said these decisions are made on the 14 track record of the author, and really there is no author with 15 a track record better than Ms. Rowling's. 16 The fact is her sales here are going to be undented in 17 any meaningful way by the Lexicon, even if they came out at the 18 same time, but that's not even going to happen; it's quite a 19 ways away. And even Ms. Rowling told you at the very end of 20 the case, when she testified on rebuttal, that she did not come 21 here because she's worried about sales. 22 THE COURT: Doesn't this testimony only go to initial 23 orders for books? I mean if you have an unknown author, 24 obviously you only order a very limited number of books. But 25 if you have -- if that author pans out, the circulation of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 695 84GVWAR6 Summation - Mr. Falzone 1 books might be quite considerable. 2 MR. FALZONE: Anything is possible, your Honor, I 3 suppose. 4 THE COURT: But didn't his testimony really relate 5 only to the initial order for books, not to the general 6 circulation of the book? 7 MR. FALZONE: He talked about the purchasing decisions 8 that various sources would make. He said that he would 9 probably see something like a million from chain stores, a 10 similar comparable figure from an online retailer like 11 amazon.com. And he said that the initial orders of a lexicon 12 are likely to number in the few thousand. 13 Now, it's true, your Honor, that depending on how 14 sales go, I suppose if it were a big seller, more books would 15 be printed, yes, that's right. But it's hard to speculate, and 16 there's certainly no evidence to suggest that the Lexicon is 17 going to catch fire like that and put any kind of dent in the 18 sales of a companion guide from the world's most popular author 19 whose fans throw parties and line up to buy her books literally 20 by the millions. Your Honor has been given no basis to 21 conclude that these sales are going to be affected in anything 22 but a trivial way. 23 And, in fact, the testimony your Honor heard about the 24 sales impact on the plaintiffs' side came from Suzanne Murphy. 25 She presented your Honor with this idea of the first mover SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 696 84GVWAR6 Summation - Mr. Falzone 1 advantage. She later admitted it was unsupported by any 2 studies or analysis of actual sales. And in fact, on top of 3 that, she admitted, and, in fact, Professor Landis admitted in 4 the declaration he submitted, that there's a Colondurias book 5 out there that came out months ago; it's a comprehensive A-to-Z 6 listing encyclopedia, like a lexicon. So it was the first 7 mover, and it sold all of 201 copies. So much for the first 8 mover advantage. 9 And, in fact, Ms. Cendali stood up here in closing and 10 told you that there were four other companion guides out there 11 already. There's just no evidence that suggests with any 12 plausibility that there's going to be any significant market 13 effect here if the public will be denied a book of undeniable 14 value and insight. 15 So the central question, your Honor, again, fair use. 16 It's a balancing test. It gets at a bigger question, as 17 Ms. Cendali mentioned. It gets at the very purpose of 18 copyright. Ms. Cendali told you that copyright gives authors a 19 limited monopoly. That's absolutely right. It's not an 20 unlimited monopoly; it's a monopoly that has limits. 21 She also told you that the point of copyright is to 22 give authors the incentive to create. That's exactly right. 23 It's designed to give everybody the incentive to create. And 24 the very purpose of fair use is to balance out the need to, on 25 the one hand, protect copyrighted material, yet protect, on the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 697 84GVWAR6 Summation - Mr. Falzone 1 other hand, the right of others to build upon it in a way that 2 doesn't undermine a creative incentive. 3 So the question before your Honor really, ultimately, 4 although guided by these four use factors, is, again, as I said 5 in opening, whether the Lexicon is the sort of book that 6 copyright law ought to encourage rather than suppress. 7 You heard from Steve Vander Ark about the purpose and 8 the value of the Lexicon; you heard it discussed in detail by 9 Professor Sorensen. These witnesses demonstrate and confirm 10 the usefulness and the value of the Lexicon. It's 11 transformative; it helps readers organize this complicated 12 world. It does not take more of the copyrighted works than it 13 needs to to accomplish this purpose. It's not going to create 14 anything but a negligible effect on the sales of any companion 15 guide Ms. Rowling might publish one day. It just isn't a book 16 that should disappear, your Honor. 17 THE COURT: Thank you, Mr. Falzone. 18 MR. FALZONE: Thank you, your Honor. 19 MS. CENDALI: May I have a few more minutes or would 20 you prefer to move on? I know that the answer may be yes to 21 both of those questions, but may I have just a few minutes? 22 MR. HAMMER: Ms. Cendali's powers are permittable, but 23 we've had an hour of argument in this case. I would ask that 24 we just end it now. 25 MS. CENDALI: I'd just like a little rebuttal, your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 698 84GVWAR6 1 Honor. 2 THE COURT: I wouldn't say that he raised anything 3 that you shouldn't have anticipated. 4 MS. CENDALI: Okay. Thank you, your Honor. 5 MR. HAMMER: Your Honor, I do have one request. There 6 was one exhibit we forgot to put in, 529, the Harris 7 declaration. He testified; it was provided in advance. We ask 8 that that be admitted. 9 THE COURT: Which Harris? There are two Harrises. 10 MR. HAMMER: I'm sorry, right. Bruce Harris, the 11 publishing expert. 12 MS. CENDALI: I don't have objections to that, your 13 Honor. I'd like to, I think, move in some of the reserved 14 exhibits that were the books that were used with Dr. Sorensen 15 and Senior Tutor Johnson. We can probably figure out what 16 those numbers are and give it to the court reporter. 17 THE COURT: That reminds me, I would like the actual 18 books, not the Xerox exhibits, because it seems to me I really 19 should have the actual books. 20 MS. CENDALI: Now that the witnesses don't need them, 21 we will make sure that you get them, your Honor. 22 THE COURT: What about the Potter books, are they in 23 evidence? 24 MS. CENDALI: We'd be more than happy -- 25 THE COURT: And the companion books? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 699 84GVWAR6 1 MS. CENDALI: -- to get you -- I thought we already 2 had them, but we will definitely get you -- I think there's 3 some Scholastic people in the back of the courtroom, and I 4 think they walk around with the Harry Potter books at all 5 times. No. We will get you the full set of -- oh, you have a 6 full set of them right there, your Honor. And I believe the 7 two companion books, as well. 8 THE COURT: As I said, I have not read them. I've 9 read one half of the first one. And I haven't got time in this 10 job. Unfortunately, I didn't have time when I didn't have 11 grandchildren around to read them. 12 MS. CENDALI: I suspect they've read them. 13 THE COURT: What? 14 MS. CENDALI: I suspect your grandchildren have read 15 them. 16 THE COURT: I know they've read them. Don't worry. 17 Enjoyed them very much, and currently moved from London to 18 Switzerland, so they're out of my reach. 19 I guess we're all done. Thank you very much. 20 MR. SHALLMAN: Thank you, your Honor. 21 THE COURT: Thank you for everyone's courtesy. 22 * * * 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 700 1 INDEX OF EXAMINATION 2 Examination of: Page 3 JANET SORENSEN 4 Direct By Mr. Hammer . . . . . . . . . . . . 494 5 Cross By Ms. Cendali . . . . . . . . . . . . 539 6 Redirect By Mr. Hammer . . . . . . . . . . . 578 7 Recross By Ms. Cendali . . . . . . . . . . . 580 8 JERI JOHNSON 9 Direct By Ms. Cendali . . . . . . . . . . . 583 10 JERI JOHNSON 11 Direct By Ms. Cendali . . . . . . . . . . . 617 12 Cross By Mr. Hammer . . . . . . . . . . . . 631 13 Redirect By Ms. Cendali . . . . . . . . . . 645 14 JOANNE ROWLING 15 Direct By Ms. Cendali . . . . . . . . . . . 646 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300