I think they'll be arguing in those briefs that while it would fail if the only test were how much quoted material was used, that's not the test and courts recognize that the work that goes into organizing/indexing/cross referencing gets into the mix of fair use.

Amount of quotation is one of the tests. There's no "I put a lot of work into this" test, and it sounds like it's all quotes, which is arguably not transformative and infringes on JKR's ability to market her own lexicon. It's certainly possible that lexicons created for Tolkien's work were under his permission or copyright. Obviously there's an issue for trial and it's not clear-cut. But the amount of work quoted is a significant part of the analysis.

But the amount of work quoted is a significant part of the analysis.

What I meant to mean is that it -- like the other prongs -- isn't definitive and none of them are. All tests are applied, and all count.

This can only mean one thing: More coffee is necessary.

Also, I'm more limited today in my time to explore this because everyone else is down at the Supreme Court listening to a professor argue in the Irizarry case.

Also, I'm more limited today in my time to explore this because everyone else is down at the Supreme Court listening to a professor argue in the Irizarry case.

she's also busy checking to make sure I haven't suggested to anyone that replacing her 'a' with an 'o' is ver' funny.

::runs really far away::

she's also busy checking to make sure I haven't suggested to anyone that replacing her 'a' with an 'o' is ver' funny.

Sux!

see. you were just sitting there waiting for that.

it's just like when we were kids, sporky.

things like Tolkien's work must have been lexicon-ified while under copyright.

I was curious about this, and from a cursory scroll through Wikipedia, it looks like there haven't been any print lexicons. Online, quite a few encyclopedias, but print has all been (a) journal articles and (b) reader's guides. Of course, in Tolkien's case, it can be kind of hard to develop definitive dictionary-style information without recourse to things like private notebooks, which are under the control of his estate. (Moreso, I mean, than his published letters and canon works.)

Actually, come to think, I read an interesting essay a couple years back about Joyce scholars, and how they have to mollycoddle some grand-nephew of James Joyce (invite him to symposia and let him ramble at length; not publish anything embarrassing etc.) or else they can't get permission to quote from Joyce's works in their scholarship. And how it drove them all bananas, but that there wasn't anything they could do about it. (These weren't lexicon efforts, but the quoting issue is the same.)

I was curious about this, and from a cursory scroll through Wikipedia, it looks like there haven't been any print lexicons.

Sure there have: [link]

The Guardian sums it up this way:

So the fundamental principles of the case are likely to determine the outcome. The first of these is whether there is a material distinction as far as copyright is concerned between something that is published on the web and something that is published in print. [...]Dave Hammer, RDR's New York attorney, doesn't believe the law distinguishes between digital and printed copyright.

Which brings us to the second key principle. How much control can authors exert over works that make use of their characters? Rowling's lawyers claim the Lexicon has no creative value and contributes nothing to the readers' understanding of the Harry Potter series. Merely rearranging facts into an alphabetical order does not turn it into a secondary, scholarly reference work.

Doing his best to demolish that argument is Anthony Falzone, a lecturer in law at Stanford Law School who advises on intellectual property. He will be representing RDR for free - the only reason the case has made it to court, as most publishers of RDR's size don't have the money to take on Rowling or Warner Bros. "This is a hugely important case about a third party's right to create a new reference book that is designed to help others better understand the original work," he says. "No one is going to buy, or indeed make sense of, the Lexicon unless they have read the Harry Potter books."

[link]

I believe RDR's "lexicon expert" is supposed to testify at some point, so we may learn more about lexicons through the ages.

Haven't Joyce's relatives tried to keep his sexay letters private? I wonder how Eco fared when he wrote his Joyce essay.