Thanks for your further comments on this.

I agree that the laches defense is very weak – I’m also inordinately amused by the image of SVA as a squatter.

For clarification, I didn’t mean to make it sound like the lawyers told RDR it was definitely fair use or completely safe. I’m sure they didn’t. I wish I could remember where exactly I read something to the effect of “RDR had consulted with its legal advisors and was told they should be able to go ahead with publication.” I may be remembering wrong, but I really thought I read that in one of the docs available on Justia.com. Anyway, even if I did read that somewhere, it’s likely that the attorneys did say something much more cautious, and RDR just interpreted that in layman’s terms as, “it’s ok to publish!” I wouldn’t be surprised.

The short version is that I think Emily’s analysis is right. Laches is a standard affirmative defense to raise, and courts treat it with a great deal of skepticism. (For legal geeks, it feels in this sense somewhat like adverse possession in property law – open and notorious violations of one’s rights, if left unchallenged over time, can diminish or extinguish those rights.) The brief period of time that Rowling / WB waited isn’t anywhere near laches. The argument is a waste of time, in my opinion.

I think the estoppel claim founders based on the course of dealings (if they can be called that) between the parties: Vander Ark was surely on notice that the book wouldn’t meet with Rowling’s approval, and it would be a stretch indeed to construe positive comments on a fan Web site as a license to produce a printed encyclopedia version of it.

And I’d be deeply surprised if RDR’s lawyers had, in fact, told them that the book either didn’t infringe or was protected by fair use. Fair use is simply too nebulous a doctrine to make any such assertion with legal precision, and the encyclopedia clearly infringes on its face. I’d guess that RDR’s lawyers told their client that the publisher and author had a good, but not clear-cut, fair use claim, and that RDR / VA went ahead based on that. If the lawyers said, “No problem, the encyclopedia doesn’t infringe at all!” or “It’s definitely fair use!”… well, that would be malpractice in my opinion (which is why I doubt it happened).

Having seen the work that a patent firm puts in before issuing an opinion letter on non-infringement, I’d be shocked if copyright lawyers (who work in a more doctrinally murky area) were any less careful.

Praise is not implied consent, and the Christopher Little Agency and WB have monitored the Lexicon site over the years. On several occasions, they asked Steve to remove certain information for various reasons, and he complied.

From West’s Legal Thesaurus/Dictionary (c. 1985): “Laches arises when there has been an unexplained delay in asserting a right of such duration and character as to render the enforcement of the right inequitable.”

I will quote from an online user at The Leaky Cauldron’s Leaky Lounge by the name of dresdenfilesfan, who puts this very succinctly:

“The book contract between Vander Ark and RDR was signed August 23, 2007; there was no monetary advance. According to Roger Rapoport’s private emails dated September 6th and October 5th {2007}:

1. “We do not want to sell this to any of the publishers currently publishing the Potter books.”
2. “I am assuming you will NOT be discussing this book with Editorial Presence, the publisher of Harry Potter and the Deathly Hallows. Please confirm this. They are not a candidate for this book.

In regards to a flyer to market the book, Rapoport states in an email date September 30, 2007 “I do want to have it ready to go on short notice and it sounds like you are close.”

RDR deliberately kept this book below the radar to keep Potter publishers out of the loop. One is dated prior to the first C & D, and one is dated after RDR asked for extra time to respond because of a death in his family. The marketing flyer was authorized by him all the while knowing that WB/JKR were issueing him C & Ds.

Then there is the Publisher’s Market Place site, which lists the page generation date of September 6, 2007 and a page update of September 10, 2007. Neil Blair stumbled upon the listing and sent off an email to Steve and RDR on September 12. After waiting six days with no response, he sent another email on September 18th. From that point there were several more emails, formal letters, and informal phone calls all attempting to get RDR to stop publication and/or allow them to review the book.

For RDR to claim that WB/JKR didn’t act soon enough to prevent financial harm to them is completely absurd. They asserted their rights as soon as they became aware that their rights were being violated.”

For a number of years, Steve Van Der Ark had personally eschewed enquiries with regard to a print version of the lexicon and emphatically denied that he had any plans to do so, claiming he felt it would be a copyright violation. In several of the Plaintiff’s exhibits are email exchanges of this nature, and one or two in particular where he discourages others from publishing their own Encyclopedias. CLLA, JKR, Bloomsbury/Scholastic and WB were all aware of Mr. Van Der Ark’s stance.

I would also direct you to a couple of interesting entries in the Lexicon’s FAQ, as well as in their What’s New section:

From the FAQ: http://www.hp-lexicon.org/help/hp-faq.html#copy

From the What’s New section:
http://www.hp-lexicon.org/whats_new.php?year=2007 (you have to scroll down to the May 11th entry: Something I had to do.

This is no simple, cut and dried case for either side, however, I would submit that both the Defendant RDR and Mr Van Der Ark have been less than forthright, and their inclusion of both “Estoppel/Laches” and “Unclean Hands” Affirmative Defenses in lieu of the above is fairly laughable.

Matthew – RDR is claiming both laches and estoppel (and a number of other affirmative defenses). They haven’t specified what facts/arguments particularly they are alluding to with those claims, but we can probably guess.

Estoppel: The standard as applied to this case could go something like this:
If RDR/SVA had an expectation based on JKR’s statements or actions, and reasonably relied on that expectation, and acted on that reliance, and would suffer a detriment if the expectation were false, JKR could be estopped from enforcing legal rights.

Here, I assume RDR would argue that JKR commended the site and awarded it a fan award, and SVA thus expected that JKR would approve of his project to produce the Lexicon in another format, and acted on it, and now RDR may have put time and money into preparing to publish (it’s unclear what stage of production they were at, so who knows) and now they’ll argue if they can’t print, they’ll be harmed.

One key point here is “reasonable” reliance. Was it reasonable for SVA to think that, because JKR commended him for creating a really good free fansite (something she did for at least 2-3 other fansites), she would approve of him publishing that work in a different form for profit? Even after he approached her about collaborating on such a project and she turned him down? And then her lawyers contacted RDR to try to stop publication, well before the publication date? Yeah, I don’t think that’s “reasonable” reliance. I think there were plenty of clues in advance that this would not go down well with JKR.

Laches is a form of estoppel that is based on a delay in the other party asserting its rights. In this case, RDR might argue that by JKR/WB waiting until right before the book publication date to file suit, instead of earlier, RDR had acted on the belief that it could publish to a point where it is now in a worse position than before – for example, if RDR had prepared for and/or begun printing of the books, and then JKR won the case and there was an injunction against distribution, RDR would be harmed by losing the time and money it put into preparation and printing, and by having to deal with deals already made that now can’t be carried through (i.e. rights sold to publishers in other countries) for which it may even have already received some payment.

On the other hand, if JKR’s lawyers can pull out the 3-5 letters they claim they sent trying to meet with RDR and work something out, and can prove the delaying tactics that RDR supposedly used in order to avoid talking to them, then RDR really has no argument. It’s likely that WB/JKR can show their delay in asserting their rights was based on a good-faith effort to work something out, and that they filed suit late in the publishing game because they had been trying to avoid a suit at first. The judge isn’t going to fault them for that (I would hope).

One interesting thing I remember reading is that RDR had consulted with its lawyers and been told it was not infringing, or something to that effect, during the time right before suit was filed. If that’s the case, RDR must have talked to the worst lawyers that ever passed the bar.

(Sidenote: I love how RDR is claiming the doctrine of unclean hands as an affirmative defense. As the internet cats would say: “WHUT?” That’s just ridiculous.)