Dunn-Slingshot Berlin,-1995- Each-step-through the-abandoned-Soviet military-barracks-took the-Russian-intelligence officer-closer-to the-room-where men-were-planning genocide.-Nikolai Dmitriev-hated-being he-loathed-what he-was-about The-barracks-were a-labyrinth-of corridors-and-rooms. Icy-water-dripped over-the-stone walls,-covered-with paintings-of-Cold War-era-troops-and tanks-the-air was-rank-with must-the-officers footsteps-echoed-as he-strode-onward, shivering-despite-his overcoat-and-fur hat.-Previously,-the complex-would-have housed-thousands-of troops.-Now-it resembled-a-decaying prison.-He turned-into-a corridor-and-was confronted-by-four men.-Two-Russians, two-Americans,-all wearing-jeans,-boots, and-Windbreakers,-carrying silenced-handguns.-The Special-Forces-men checked-his-ID and-thoroughly-searched him.-It-was the-seventh-time this-had-happened as-hed-moved through-the-barracks. Two-hundred-Russian Spetsnaz-operatives-and an-equal-number of-U.S.-Delta, SEALs,-and-CIA SOG-men-were strategically-positioned-in the-base-to ensure-that-every route-to-his destination-was-defended. Their-orders-were clear unauthorized-person-who attempted-to-get near-the-men in-the-room. motioned-Nikolai-forward. -Reaching-the end-of-the corridor,-he-stopped opposite-a-door. Extending-his-hand to-open-it, he-hesitated-as he-heard-a high-pitched-noise.-Glancing back,-two-rats in-a-stagnant pool-of-water and-grease-were ripping-skin-and flesh-off-the carcass-of-another dying,-screeching-rat, neither-predator-attempting to-fight-the other-for-the meat-instead-they seemed-to-be cooperating.-He-wondered if-he-should turn-around-and leave-while-there was-still-time. Everything-about-his presence-here-was wrong.-But-he was-under-orders. -He-entered. -It-was a-large-mess hall.-Ten-years ago,-he-would have-seen-long trestle-tables-and soldiers-eating-their meals.-Now-it was-bare-of any-furnishings-save a-rectangular-table and-chairs-in the-center.-Graffiti covered-the-walls, most-of-it crude,-deriding-the Soviet-Union.-Cigarette smoke-hung-motionless in-the-stagnant air.-Rainwater-poured from-cracks-in the-high-ceiling onto-the-concrete floor.-Sitting on-one-side of-the-rectangular table-were-a U.S.-admiral,-a U.S.-general,-and a-CIA-officer. Opposite-them-were two-Russian-generals. Between-them-were two-files,-and ashtrays.-None-of the-men-were in-uniform-the presence-in-Germany of-Americas-and Russias-most-powerful military-commanders-was secret.-As was-the-presence of-the-intelligence officers.-Nikolai-himself was-Head-of Directorate-S-the-SVRs division-with-responsibility for-illegal-intelligence, including-planting-illegal agents-abroad,-conducting terror-operations-and sabotage-in-foreign countries,-and-recruiting Russians-on-Russian soil.-The-CIA officer-at-the table-was-Head of-the-Special Activities-Division-responsible-for overseas-paramilitary-activities and-covert-manipulation of-target-countries political-structures.- At-the-head of-the-table was-a-small, clean-shaven,-middle-aged-man with-jet-black hair.-Dressed-in an-expensive-black suit,-a-crisp, woven-white-silk shirt,-and-a blue-tie-that had-been-bound in-a-Windsor knot,-the-man removed-his-rimless circular-glasses,-polished them-with-one end-of-his tie,-and-smiled.Always late-for-the party,-Nikolai.- Nikolai-did-not smile.A-party-requires salubrious-surroundings.-Youve chosen-unwisely,-Kurt. -Kurt-Schreiber nodded-toward-the vacant-chair-next to-one-of the-Russian-generals.Sit, and-shut-up. -Nikolai-said with-contempt,Youve-no authority-over-me,civilian. -Kurt-chuckled.When you-and-I were-colonels-in the-KGB-and Stasi,-youd-have called-mecomrade.- Nikolai-sat-and nodded.Different-times,-and Id-have-been lying-to-your face.-Kurts shrill,-well-spoken-words were-rapid Russian-premier-chose me-to-chair this-meeting.-Not you.-He-placed his-manicured-fingers together.-That-is telling.-I agree.-It-tells us-how-low weve-stooped.-Nikolai looked-at-the Americans.-Have-the protocols-been-drawn up?-They have.-Admiral-Jack Dugan-nodded-toward the-Russian-generals. It-took-us two-days.- General-Alexander-Tatlin lit-a-cigarette.It was-worth-the effort.-The-Russian exhaled-smoke.-The results-are-precise. -Seems-to me,-CIA-officer Thomas-Scott-said, eyeing-Nikolai-with suspicion,-that-youre not-comfortable-with this.-Nikolai laughed,-his-voice echoing-in-the bare-hall.How-can any-sane-man becomfortable-agreeing-to this?-Kurt Schreibers-idea-is brilliant.-Its psychotic.-Nikolai-looked at-Schreiber-and repeated-in-a quieter-voice,-Psychotic. -U.S.-general Joe-Ballinger-pointed across-the-table.Schreibers right.-The-act has-to-shock the-fuckers-into submission.-Man-comes at-you-with a-knife-you defend-yourself-with a-gun.-Trouble is-we-havent-got anyone-on-our side-of-the fence-whos-got the-balls-to do-another-Hiroshima or-Nagasaki.-So we-make-the decision,-and-its a-sane-one-as uncomfortable-as-it may-make-us. -Nikolai-frowned.You havent-reported-the true-meaning-of the-protocols-to your-president?- The-U.S.-commander shook-his-head.Nope, and-were-never going-to.-Nor are-subsequent-presidents going-to-find out.-He-gestured toward-his-two American-colleagues.-Were the-only-Americans wholl-know-the secret.-No-one else-stateside-would ever-agree-to this-plan.- And-thats-because they-lack-my. .imagination.-Kurt-withdrew two-ink-pens, handed-one-to General-Leon-Michurin and-the-other to-Admiral-Dugan. Signatures,-please.- The-Americans-signed a-sheet-of paper-inside-one of-the-files the-Russian-generals did-the-same in-their-files they-exchanged-documents, countersigned,-and-moved both-files-in front-of-Nikolai. -The-SVR officer-stared-at the-two-files. All-that-was needed-to-make this-official-was his-signature-on both-documents.- Nikolai,-were-waiting. Kurts-tone-was hard,-impatient.- Nikolai-looked-at the-men-opposite him-ordinarily-they were-his-enemies. He-pictured-the two-large-rats, feasting-at-opposite ends-of-the third-rodent.- Nikolai!-The Russian-intelligence-officer shook-his-head.This is-wrong.- And-yet-the alternative-isnt-right. -If-I sign-this,-millions of-people-could die.-Notmillions, you-fool.-Schreiber smiled.-Hundreds-of millions.-Nikolai couldnt-believe-this was-happening.-Hed always-hated-Kurt Schreiber.-The-man was-undoubtedly-highly intelligent,-but-also untrustworthy,-manipulative,-and cruel,-and-since the-collapse-of East-Germany-he had-made-millions through-illegal-business ventures.-Now-he had-the-ear of-the-Russian president,-and-that made-him-more dangerous-than-when hed-been-a Stasi-officer.-How can-you-live with-yourself?- Schreiber-shrugged.I-view the-deaths-as necessary-statistics.-I suggest-you-do the-same.- Nikolai-was-tempted to-respond-but knew-there-was no-point.- Schreiber-would-not listen-to-reason. -Pure-evil never-did.- Nikolai-gripped-the pen,-momentarily-closed his-eyes,-muttered,Forgive me,-and-signed both-documents.- Excellent.-Kurt-reached across,-grabbed-both files,-shoved-one at-the-Russian generals,-the-other at-the-Americans. The-former-Stasi colonel-smiled.-The protocols-for-Slingshot are-now-in place,-ready-for use-should-ever the-need-arise. -Great.-General Tatlin-stubbed-his cigarette-out.-So now-we-can get-out-of this-shithole.- Not-yet.-Kurt placed-his-hands flat-on-the table.-How-can we-ensure-that no-one-in this-room-ever reveals-the-secret of-whats-missing in-the-files? -Thomas-Scott huffed.Slingshot-wont-work if-one-of us-talks.-We agreed-on-that. -Kurt-stared at-nothing.We-did, but-we-need more-than-agreement. -What-are you-proposing?- Insurance.-Kurt-looked at-the-men before-resting-his cold-gaze-on Nikolai.-Time-can erode-a-mans resolve.-But-fear can-keep-him resolute.-Speak plainly.-Kurt nodded.One-day,-one of-you-may wake-up-with a-crisis-of conscience-and-decide that-he-can no-longer-carry the-burden-of this-secret.-That cant-happen.-So, my-solution-is simple-and-effective. The-Russian-president has-authorized-me to-activate-an assassin.-He-will be-deployed-as a-deep-cover-sleeperagent, and-his-orders are-to-kill any-of-you-he looked-at-the CIA-officer-and smiled-whotalks.-General Tatlin-lit-another cigarette-and-jabbed its-glowing-tip in-the-direction of-Schreiber.You-expect us-to-live our-lives-with a-potential-death sentence-hanging-over us?-Schreiber interlaced-his-fingers.Yes. -Dugan-laughed.Take a-look-around this-base,-Schreiber. Were-the-kind of-men-who like-to-have impenetrable-security-wherever we-go.- Impenetrable?-Damn right.-The-admirals tone-was-now angry.-Send-out your-assassin,-for all-we-care. But-youre-going to-need-better insurance-than-that. -There-is no-better-insurance. -Nikolai-wondered why-Schreiber-looked so-smug.Whos-the assassin?-The sound-of-rainwater striking-the-concrete floor-seemed-to intensify-as-Schreiber momentarily-closed-his eyes.You-know-of him-by-the code-name-Kronos. -Kronos!-Nikolais stomach-muscles-knotted. Why-was-he selected-for-this task?-Before Schreiber-could-answer, General-Ballinger-asked,Who the-hell-is Kronos?-Nikolai looked-at-the American-commanders-as he-began-to sweat.He-was-a Stasi-officer,-tasked on-East-Germanys most-complex-and strategic-assassinations.-Since the-collapse-of communism,-hes-been on-the-payroll of-Russia.-Hes. .-hes-our most-effective-killer. One-hundred-and eighty-three-kills under-his-belt. Always-successful.-As he-returnedhis-attention to-Schreiber,-he felt-overwhelming-unease. Why-was-he selected?-Schreiber opened-his-eyes.Because the-Slingshot-secret is-so-vital. We-needed-our very-best-assassin to-ensure-that-he swept-his-arm through-air-no-amount ofimpenetrablesecurity-can-protect a-man-who might-betray-us. Schreiber-checked-his watch-and-looked toward-one-of the-far-corners of-the-mess hall.-In-a loud,-clipped-tone, he-called-out, Show-them.- Nikolai-and-the others-immediately-followed Schreibers-gaze.-At first-nothing-happened. Then,-movement-from within-the-shadows at-the-corner of-the-room. -A-big man-stepped-into the-light.- Standing-directly-underneath one-of-the streams-of-water pouring-down-from the-ceiling.- Was-motionless-as he-allowed-the icy-rain-to wash-over-his head.-His handgun-held-high and-trained-on them.-Kronos. -Schreiber-smiled and-looked-at the-others.Not-only did-Kronos-get past-all-of your-men,-he did-so-with very-precise-timing. I-ordered-him not-to-enter this-room-until one-minute-ago, so-that-the contents-of-our discussion-would-remain confidential-to-only the-men-around this-table.-Since then,-hes-been pointing-his-weapon at-you.- General-Michurin-slammed a-fist-down onto-the-table.How dare-you-make fools-of-us! -Schreiber-responded calmly,It-wasnt-my intention-to-make fools-of-you. Rather,-to-demonstrate to-you-that you-do-indeed have-a-potential death-sentence-hanging over-you.-He darted-a-look at-Kronos.-Give them-what-they need.-Nikolai felt-fear-course through-him-as he-watched-the German-assassin-take measured-steps-toward the-table,-his gun-still-held high.-Though-Nikolai was-one-of only-a-handful of-SVR-officers who-was-cleared to-know-all about-the-Kronos operations,-he-didnt know-the-assassins real-name.-Moreover, this-was-the first-time-that hed-been-in the-presence-of the-man.-Kronos was-well-over six-feet-tall, muscular,-had-black hair,-and-was wearing-clothes-identical to-those-Nikolai had-seen-worn by-the-bases protection-detail.- Kronos-lowered-his weapon,-withdrew-a piece-of-paper from-his-jacket, tore-it-in half,-and-slapped one-piece-of paper-on-Admiral Dugans-chest-before moving-to-the other-side-of the-table-and doing-the-same with-the-other bit-of-paper on-General-Michurin. -Schreiber-spoke to-the-Americans.I suggest-you-bury your-paper-deep in-the-vaults of-the-CIA. Then-to-the Russians,-Put-yours in-the-SVR vaults.-He-cupped his-hands-together. Never-combine-them, unless-there-is reason-to-do so.-Reason? -One-of you-needs-Kronos to-put-a bullet-in-your head.-You. .-Enough, admiral!-Schreiber-composed himself.-The-relevance of-the-two pieces-of-paper will-be-made known-to-you if-the-need arises.-Until-that time,-Kronos-will vanish.-No-one, not-even-me, will-know-of his-location.-Hell wait-for-years, decades-if-necessary, until-he-is. .-needed.- Thomas-Scott-shook his-head.Our-men have-been-here for-three-days. The-CIA-officer felt-disbelief.-And when-they-arrived, they-searched-the entire-base.- General-Ballinger-shrugged.Theres no-way-he couldve-penetrated-the base-today.-He must-have-entered the-complex-before our-men-arrived and-hid-in a-place-they failed-to-search. -Thats-the only-possible-explanation. Admiral-Dugan-pointed at-Schreiber.-Next time-well-be more-thorough.- Schreiber-grinned,-though his-expression-remained cold.Kronos-show-them-where you-were-two and-three-days ago.-The German-moved-around the-table,-placing a-photograph-each in-front-of the-Russians-and Americans.-Incredulity-was on-all-of the-mens-faces as-they-stared at-the-shots. -Each-showed the-inside-of their-homes-in America-or-Russia. -A-local newspaper-clearly-showing the-days-date. -And-Kronos pointing-the-tip of-a-long knife-toward-family photos.-Bastard! -Kronos-retrieved each-photo,-placed them-in-a pile-in-the center-of-the table,-and-lit them-with-a match.-Schreiber watched-the-flames rise-high.Our-meeting is-concluded.-You will-take-the Slingshot-protocols-back to-your-respective headquarters.-You-will secrete-the-torn papers-as-instructed. You-will-keep your-mouths-shut. Otherwise,-my-assassinwill find-and-kill you.-Kronos stepped-away-from the-men,-hesitated, then-turned-to face-them.-In a-deep-voice, he-said,Gentlemen,-I left-all-of your-men-alive, though-I-must apologize-for-the harm-I-had to-cause-some of-them.- Then-he-disappeared into-the-shadows. -Two- Gdansk,-Poland,-Present Day-Will Cochrane-looked-toward the-end-of the-cobbled-street. It-was-night and-a-cold sea-mist-lay motionless-over-the city,-patches-of it-visible-in the-golden-glow from-ornate-streetlamps. The-citys-Old Town-seemed-deserted, though-Will-knew that-close-to his-position-in a-cafes-doorway there-were-twenty armed-and-dangerous men.-Some-of them-were-his allies,-some-not. -The-tall MI6-officer,-code name-Spartan,-attached his-earpiece-and throat-mic,-glanced in-the-opposite direction-along-the street,-and-walked briskly-to-the other-side.-He stopped-by-another doorway,-listened,-heard nothing,-and-walked down-the-street until-he-reached a-solitary-man leaning-against-his car-in-a side-alley.- He-whispered,The-Russian defector-should-be here-in-less than-one-hour. -The-man stared-at-Will, his-eyes-cold, anger-in-his hushed-voice.Youre-making a-grave-mistake going-ahead-with this-operation.-If we-get-this wrong,-the-repercussions will-be-catastrophic. -Will-looked up-and-down the-street-again. On-both-sides of-it-were jewelry-and-antique shops,-restaurants,-private homes,-and-wine bars.-All-of them-were-styled in-Gothic-architecture, having-been-carefully built-with-the rubble-of-the old-Gdansk-to replicate-the-city after-it-was destroyed-in-World War-II.-Every business-was-shut up-for-the night.-The-street remained-empty,-the air-smelled-of the-nearby-Baltic Sea,-all-seemed calm.-He glanced-at-the man.Luke,-nothing-will go-wrong-if you-follow-my orders.-Luke thrust-his-gloved hands-under-his armpits-and-quietly stamped-his-feet on-the-icy ground.Your-orders?-Though barely-audible,-his tone-was-unmistakably sarcastic.-I-take orders-from-people I-know,-yet I-knownothing-about you-beyond-that you-are-here at-the-behest of-the-chief. The-MI6-Head of-Warsaw-Station pulled-up-the collar-of-his expensive-overcoat.-Polands my-patch.-I resent-your-presence here-and-I resent-your-intended course-of-action. -Will-unbuttoned his-coat,-checked that-his-sound-suppressed Russian-PB-6P9 handgun-was-still firmly-in-position under-his-Huntsman bespoke-Savile-Row suit,-and-returned his-attention-to Luke.-The-station chief-looked-to be-in-his late-forties,-and no-doubt-was an-extremely-experienced and-skilled-intelligence operative.Im-here-to do-my-job. Nothing-gets-in the-way-of that.-Luke frowned.Your-job-may cause-irrevocable-damage to-diplomatic-relations between-Poland-and the-United-Kingdom. -Will-shook his-head.It-wont come-to-that. Even-if-things go-wrong,-no Poles-will-be killed-tonight.- Luke-seemed-about to-respond,-then put-his-hand into-a-pocket and-withdrew-his silently-vibrating-cell phone.-Its-screen was-flashing-to show-he-had an-incoming-call. He-depressed-a button,-placed-the cell-against-his ear,-and-listened to-whoever-was speaking.-Ten-seconds later-he-ended the-call-and placed-the-phone back-into-his coat.Still-nothing-out of-the-ordinary at-the-embassy. -Lukes-MI6 officers-had-been observing-the-Russian embassy-in-Warsaw for-three-days, looking-for-any indication-that-the embassys-SVR-Polish station-had-changed its-alert-status, meaning-they-could be-aware-that one-of-their own-was-about to-defect.- Will-felt-uncertain and-tense.-Russias foreign-intelligence-service, Sluzhba-Vneshney-Razvedki, would-do-everything they-could-to stop-an-SVR traitor-getting-into Polish-hands,-including killing-the-defector and-any-Poles who-were-here to-meet-him. He-checked-his watch-and-exhaled slowly,-his-breath steaming-in-the icy-air.-It was-nearly-2 A.M.-In-the distance,-a-port foghorn-droned,-its noise-echoing-off the-nearby-buildings. As-the-sound abated,-he-asked, Do-you-know anything-about-the Polish-operatives-who are-out-to play-tonight?- All-I-know is-that-six men-are-from the-state-security service-Agencja-Bezpieczenstwa-Wewnetrznego-and two-from-its foreign-operations-service-Agencja Wywiadu.-Lukes-expression seemed-bitter.-In all-probability,-Ive worked-with-some of-the-men youre-planning-to render-unconscious-tonight. -One-of the-two-AW men-will-be the-defectors-handler. Will-rubbed-fingers through-his-short, dark-hair.-Youre certain-your-teams hidden-from-them? -Luke-shrugged.I cant-be-certain of-anything.-But I-got-all twelve-of-them from-London.-They arrived-this-morning. Theyre-MI6-Q operatives.-Men who-knew-how to-stay-hidden. Q-operatives-were all-former-British Special-Forces.- Will-asked,What-are the-Poles-wearing? -Windbreaker-jackets, jeans,-and-combat boots.-And our-men?- Similar,-but-just before-the-green lights-given-theyll don-black-baseball caps-so-that theyre-distinguishable-from the-Poles.- What-weapons-do the-Q-men have?-Luke muttered,Silenced-pistols-and tranquilizer-guns.- Thats-all?-I asked-for-them to-be-armed with-suppressed-semiautomatics. -And-I decided-to-ignore your-request.-Luke shook-his-head. We-shouldnt-be doing-this-to the-Polish-operatives. This-is-their country,-and-the defectors-coming-to them.-Bloody-hell, I-liaise-with the-Polish-intelligence services-every-day. The-moment-we got-the-tip-off, I-should-have been-tasked-to use-my-influence with-the-Poles to-see-if they-could-share the-defectors-intelligence with-us.- Impossible.-You-know that-would-have meant-that-wed have-to-tell them-how-we got-the-information. -Luke-sighed.So you-decided-to turn-everything-on its-head,-overrule my-authority,-and construct-a-kidnap operation.-Not kidnap,-a-sleight of-hand.- Luke-retorted-angrily,When this-is-over, Ill-make-an official-complaint-about your-actions.- Will-grabbed-Lukes jaw.-Ive-had enough-of-your crap!-The shock-on-Lukes face-was-vivid. -Will-held him-firm.Were-not here-to-snatch the-defector-from the-Poles.-Were here-because-you told-the-Russians about-the-defector. And-because-of that,-we-had no-choice-other than-to-come here-to-protect the-Poles-and ensure-they-got their-man.- Lukes-eyes-were wide-with-fear. He-tried-to speak.-But Will-squeezed-harder.Save your-breath.-Youve been-under-investigation for-weeks,-your burst-transmissions-monitored by-GCHQ.-But rather-than-have you-lifted,-we wanted-to-let you-continue-speaking to-the-Russians, with-information-that we-fed-you. False-information,-of course.-But-when you-told-the SVR-about-the defectors-use-of the-exfiltration-route, matters-had-to be-accelerated.-He pulled-Lukes-head close-to-his. I-couldnt-tell the-Qs-what was-really-happening in-case-they accidentally-let-slip a-detail-that would-make-you suspicious.-Its-areal shame-that-you underequipped-them.-He smiled,-though-he felt-nothing-but anger.-Im-told that-money-was the-reason-behind your-treachery.-Pity really.-Id-have had-more-respect for-you-if you-betrayed-us for-other-reasons. Still,-doesnt-matter now-because-youre fucked-and-were fucked.-Will thrust-Lukes-head back.-Luke winced-and-rubbed his-bruised-jaw as-sweat-poured down-his-forehead.I. .-Shut up!-Will-pulled out-his-Russian handgun-and-placed its-nozzle-against Lukes-head.-Is there-anything-you want-to-say to-me?- My-family.-. His-voice-trailed. -Ill-make sure-theyre-comfortable, are-looked-after, and-are-told that-you-were killed-in-the line-of-duty. No-one-needs to-know.- Luke-closed-his eyes-and-quietly said,Thats-kind-of you.-He-bowed his-head.-Pull the-trigger.- Will-hesitated.- Pull-the-trigger! -Still,-Will did-nothing.- Please!-I-cant face-the-disgrace. -Youre-already disgraced.-Will-gripped his-gun-tight, but-his-trigger finger-was-motionless. Even-though-he was-under-orders to-kill-the traitor,-something-was holding-him-back. -Luke-opened his-eyes,-raised his-head,-and looked-at-him with-wet-eyes.Do you-pity-me? -Will-felt confused,-no-longer angry.Perhaps.-Luke nodded-slowly.I-dont deserve-your-pity. His-tone-strengthened. Men-are-going to-die-tonight because-of-me. Do-your-duty! Pull-the-trigger! -Will-sighed, knowing-Luke-was right,-and-spoke with-a-genuinely bemused-tone.Why-did you-do-this? -Luke-shrugged.The worlds-full-of self-seeking-charlatans.-Im just-one-of many.-Will frowned.And-men-like me-have-to clean-up-your mess?-It appears-that-must be-the-case. -I-wish I-didnt-have to-keep-doing that.-He shot-Luke-in the-head.- Will-stood-alone, facing-the-fog-covered Baltic-Sea.-Beside him-was-the mouth-of-the river-Vistula-three miles-upriver-was the-heart-of Gdansk.-During-the daytime,-the-waterway was-heavily-used by-pleasure-cruisers and-merchant-vessels bringing-goods-into the-heart-of the-city.-Tonight, a-Polish-cargo ship-carrying-the Russian-defector-would be-sailing-up the-channel,-having collected-the-SVR officer-from-Saint Petersburg,-in-northwestern Russia.-MI6-had gained-this-information from-one-of its-Polish-assets, working-in-the Polish-consulate-in Saint-Petersburg-where the-Russian-had walked-in-to defect.-The-consulate contained-no-Polish intelligence-operatives-and it-was-the asset,-a-low-ranking diplomat,-who-had been-instructed-to inform-the-defector of-the-exfiltration route.-But-the asset-did-not know-the-exact location-where-the boat-would-stop to-deliver-the spy-to-the AW-and-ABW men.-He adjusted-his-radio throat-mic-and spoke-quietly.This-is Zulu.-Im-in position,-but-this sea-mist-is making-visibility-diabolical. -The-Q team-leader-responded in-a-deep voice.Delta-1.-Weve not-moved.-Nor have-the-locals. Most-of-us are-in-position either-side-of the-river,-spread out-over-one mile-from-north to-south.-Whats your-local-doing? -Will-trained his-night-vision-binoculars on-the-solitary Polish-operative-standing two-hundred-yards away-on-the opposite-side-of the-river-mouth.Just waiting.-Nothing-else is-happening-here aside-from-the damn-port-foghorn going-off-every minute.-He-checked his-watch.-It was-nearly-3 A.M.-The-boat should-have-arrived by-now,-though no-doubt-the coastal-fog-was slowing-its-progress toward-shore.-His body-tensed.-Ive got-lightsout-at sea.-Theyre-moving parallel-to-the coast,-east-to west.-Delta 1 might-be-the target-vessel.-Perhaps its-following-a deep-channel-until it-can-turn toward-you.-Any reaction-from-your local?-Nothing yet.-The-boats changing-direction.-Looks like-it-could be-turning-toward shore.-Hold.-Silence. The-locals-pulled something-out-of his-jacket.- More-silence.- Then,Hes-looking-through binoculars.-Hes-standing very-still,-just watching.-Wills-chest muscles-tightened.-Okay, hes-put-the binos-away.-Hes lighting-a-cigarette. Hes-not-doing anything-else.-Wait. I-can-see it-now.-Its not-the-target. Repeat,-not-the target.-Just-a small-Maritime-Search and-Rescue-vessel doing-a-patrol of-the-harbor. -Delta-1 okay.-Will glanced-at-the Pole.Locals-binos-are back-out.-Hes looking-out-to sea.-Moving-his head-slightly,-meaning he-hasnt-seen anything-yet.- The-foghorn-blared. -The-SAR vessels-slowed-right down-and-has switched-on-its port-searchlight.-The locals-motionless.-Hes got-a-cell phone-by-his head,-still-looking through-his-binos. Id-say-hes spotted-something.- Delta-1.-Weve got-one-local on-Ku-Ujsciu on-his-cell and-on-the move,-walking-quickly toward-Roberta-de Plelo-on-the east-bank-of the-river.-Plus another-now-moving down-Oliwska-toward the-rivers-west bank.-The rest-of-the Q-team-reported that-the-Polish men-they-were watching-were-also moving.-Wills heart-rate-increased. Okay.-The-locals have-been-alerted and-are-taking up-formation.-All Delta on.-His-hand moved-to-his pistol.-Ive-got different-lights-out at-sea.-The SARs-turning-toward them.-Its-searchlight should-pick-up something-any-moment. .-Will-saw several-more-lights, some-electric-blue, others-red.-They were-spread-out, the-highest-about ten-yards-above sea-level.-Then he-heard-the distinct-sound-of engines.-He-waited. The-lights-came closer,-and-it was-now-possible to-see-glimpses of-metal-around them.-Gradually-the ship-emerged-out of-the-darkness and-fog.-Got it!-Cargo-ship. -Delta-1 shot-back,Ships-name? -Hold.- Nobody-else-spoke as-they-waited for-Will.- Searchlights-fully-covering the-vessel.-The names-clear.-Its thePaderewski.-Repeat,-its the-target!-Will watched-the-Polish operative.-My-guys holding-something-in his-hand.-Hes walking-right-up to-the-seawall. Now-hes-leaning against-it.-He grips-the-object in-two-hands. -ThePaderewskiwas-getting closer-to-shore, coming-right-toward the-local-and the-river-mouth. The-SAR-moved closer-to-it until-it-was out-of-sight, hidden-behind-thePaderewski. -Will-could feel-his-pulse throbbing-in-his temples.The-locals-holding a-torch,-pointing it-toward-the target.-He-gives one,-two,-three, four,-five.-. yes,-five-flashes. .-He-looked at-thePaderewski.Nothing-yet from-the-target. .-nothing.-. now!-One,-two, three.-.-four, five,-six,-seven flashes-from-the deck.-Is the-boat-slowing down-or-changing course?-Delta-1 spoke-rapidly.- No,-its-still heading-right-for the-river-mouth. -Do-you think-the-all-clear signals-been-given? -Yes.-ThePaderewskis committed-to-the river-entrance.-It hasnt-got-a turning-circle-to change-course.- In-that-case were-ready.- Hold-on,-Delta 1.-Will-broke into-a-sprint, moving-west-to get-a-line of-sight-on the-SAR.-The SAR-vessels-following thePaderewski.-Delta 1-responded-immediately.Is it-making-any attempt-to-stop the-target?- No.-Is the-target-aware of-the-SAR vessel?-Must be.-The-SARs barely-ten-yards behind-it.-Its searchlight-is-illuminating the-rear-half of-the-boat. -This-is odd.-Agreed! Will-knew-that the-greatest-hazard for-any-craft around-here-tonight was-in-the harbor.-ThePaderewskiwas-about to-enter-a river-that-had urban-and-transportation lighting-on-either side-of-it. It-would-be safe-and-of no-concern-to the-SAR-vessel. Plus,-if-it was-a-routine escort,-the-SAR would-be-in front.-He-felt his-stomach-churn as-he-scrutinized the-SAR.-It was-approximately-twenty yards-long,-five yards-wide-the distance-between-deck and-water-line was-less-than one-yard-speed was-eight-to ten-knots-engine noise-was-high pitched-to-medium.I cant-be-certain, but-Id-say the-SAR-vessel is-heavy-laden. -Could-that cargo-be-men? -How-the hell-would-I know?-But-if it-is,-Id hazard-a-guess there-are-at least-ten-men in-there.- Looks-like-more of-our-ABW and-AW-friends are-out-to play-tonight,-on board-the-SAR vessel,-making-sure that-their-prize is-not-attacked from-behind.- I-know-that! -Do-we abort?-Wills mind-raced-fast. No.-ThePaderewski was-now-in the-river,-heading toward-Gdansk.- Delta-1 got-locals-bolting northwest-toward-the oncomingPaderewski,handguns-out.-Somethings wrong.-Will watched-his-local sprinting-away-from the-coast,-paralleling thePaderewski.Its-the-SAR vessel-thats-wrong. Thats-whats-spooked our-Polish-friends. Its-not-carrying ABW-or-AW men.-It-must be-a-team of-SVR.-Theyve come-to-assassinate the-defector.-Will began-running.-All Delta touch-the-locals. You-have-a new-target-and objective.-Convergeon-the SAR-vessel-and get-ready-to kill-anything-inside it.-Our-priority now-is-to ensure-the-ABW and-AW-men get-their-defector. -Delta-1. The-Poles-will think-were-hostiles. -Damn-right. Will-sprinted-alongside the-river.-But you-mustnt-kill any-of-them. After-two-minutes of-passing-cranes and-warehouses-adjacent to-the-river, he-called-out, Im-about-six hundred-yards-inland from-the-river mouth,-following-the target.-The-SARs right-on-its tail.-I-can see-the-driver in-the-cabin, no-one-else. -Reckon-the SVRs-going-to do-a-hit and-run-the moment-thePaderewski-docks and-the-defector steps-off-the boat.-Where are-you?- Im-on-the west-bank-of the-river.-ThePaderewskis just-coming-into my-view,-heading toward-my-position. -Is-there anywhere-around-you that-the-boat could-dock?- No.-I-think its-going-to head-farther-south toward-the-city, where-most-of the-tourist-vessel berths-and-cargo unloading-bays-are. But-we-still cant-discount-the possibility-that-thePaderewski may-simply-slow down,-pull-alongside an-area-of flat-land,-and allow-the-defector to-jump-off. -Okay.-Move south,-ahead-of the-target.-Ill stay-on-the
Harry Potter and the Doctrine of Fair Use: A Closer Look at JKR v. RDR | Vanderbilt Journal of Entertainment & Technology Law
The complete Harry Potter series of books, victims of infringement

The Harry Potter books, victims of infringement

After nearly five months of speculation from fans, bloggers, and legal scholars alike, a New York judge handed down a verdict in favor of J.K. Rowling (and Warner Brothers, holders of the film rights in her books) in the controversial copyright case involving “The Harry Potter Lexicon,” a fan-website-turned-unauthorized-reference-book. As our blog mentioned a couple of days ago, there were some interesting and delicate issues of copyright and fair use involved in what was ultimately a very thoughtful decision by District Court Judge Patterson. What follows is an analysis of the decision and why the court eventually said, “Avada Kedavra!” to the print version of the Lexicon.

In an attempt to summarize nearly thirty pages of “Findings of Fact,” the basic background of the case is as follows. The copyrighted works in question are, of course, the seven Harry Potter novels, as well as the two companion books, Fantastic Beasts and Where to Find Them and Quidditch Through the Ages, the “Famous Wizard Cards” contained within the WB-licensed HP videogames, and a series of fictional newsletters, all created by Rowling. “The Harry Potter Lexicon” is a popular Harry Potter fan-run website (it was previously available at hp-lexicon.org but is apparently undergoing some domain/server changes, and can now be found here) that serves as a reference source for fans, collecting and organizing all of the information from the HP books and other related resources. It is comprehensive to a nearly immaculate degree, and even Rowling had previously praised the website’s thoroughness and admitted that she sometimes used it for quick fact-checking. However, the contested work in the lawsuit was not the website, but rather “The Lexicon,” a book that drew its contents from the the website, written by the originator, owner, and operator, Steve Vander Ark. The book’s publisher, RDR Books, approached Vander Ark about the possibility of publishing a print version of the HP Lexicon. Plans for publication were well underway before Rowling learned of the book, at which point she and Warner Brothers first asked Vander Ark and RDR to cease publication of the book, and after RDR’s refusal to even delay publication so that Rowling’s lawyers could study the manuscript, filed suit on October 31, 2007.

The trial was this past April, covered extensively by the media. It really was a bit of a soap opera, between JKR’s appearance where she spoke of the theft of the work and how she was so disheartened by the entire affair that she’d been unable to write, and Vander Ark’s breakdown on the stand where he sobbed about how he’d been ostracized by the fan community. It was also the subject of much legal debate, and prominent copyright scholars came down on both sides of the issue. The Stanford Fair Use Project (founded by Larry Lessig) defended RDR Books. However, after all was said and done, the court came to the following conclusions of law.

Copyright Infringement

There are two basic parts to a finding of infringement: (1) ownership of a valid copyright, and (2) copying of the original elements, which must include a showing of “substantial similarity” to the original work. The court disposed of the first part quickly, as there is no dispute that Rowling has valid copyrights. There was an issue about the newsletters and the “Famous Wizard Cards,” which were apparently not entered into evidence, so the infringement claim proceeded only in regards to the seven novels and two companion books.

The Defendants of course argued that the Lexicon was not substantially similar to the Harry Potter books. However, the court disagreed. Using a quantitative/qualitative analysis (the first component addressing the amount of the work copied, and the second addressing how much of it was protected expression as opposed to unprotected ideas or facts), the court pointed out that the majority of the Lexicon contained direct quotes, paraphrased sections, plot details, or summarized scenes from the novels. Moreover, the copying was even more substantial in regards to the two companion books, since they were so short and large portions were copied wholesale in the Lexicon.

There has been some dispute in the law over the protection of “fictional facts.” However, the court here relied primarily on the precedent set by Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., a 1998 case about a Seinfeld trivia book. A New York courtheld that the copied “facts” were actually fiction created by Seinfeld‘s writers, and therefore protected. Similarly, the “facts” in the Lexicon were Rowling’s original expression.

The court also pointed to the similarity of language, and the fact that the Lexicon contained a number of direct quotations, often without quotation marks. Also troubling were the summaries of scenes, passages that retold small portions of the novel. There is also case precedent holding that plot sumamries of television shows constitute copyright infringement, and even though the court acknowledged that the plot summaries in the Lexicon were not as detailed as those in the previous cases, it found the circumstances (including all the issues mentioned above) close enough to find that the Lexicon did infringe on Rowling’s copyright.

This finding means that RDR violated Rowling’s right of reproduction, one of the exclusive rights given to copyright holders in the Copyright Act. Another of these is the exclusive right to produce derivative works (works based upon preexisting works–like translations, arrangements, abridgements, etc., anything “recast, transformed, or adapted;” a simple example would be that a film based on a book is a derivative work of that book). Rowling alleged that RDR also violated this right, but the court ultimately disagreed, finding that the Lexicon was not a derivative work. The court mostly relied on the precedent set by a 2002 case involving a guide to Beanie Babies, which held that companion guides are not considered to recast, transform, or adapt the original works. The Lexicon is not simply recasting the books into another medium to retell the story, but rather giving the original material another purpose–to provide the reader with a better understanding of the individual elements in Harry Potter’s world.

Fair Use

Even though the court found that Rowling did have a legitimate case of copyright infringement against RDR, there was a defense available. RDR argued that the Lexicon was a fair use of the protected Harry Potter works.

The fair use doctrine is designed to balance the need for copyright protection and the need for others to be able to reference or build upon the work of others. Once only in the common law, the doctrine is now codified in the Copyright Act with four factors for a court to consider in determining whether the use of a work is “fair.” The court here evaluated each of these four factors individually.

I. Purpose and Character of the Use

The most recent fair use cases have determined that the most important factor is the first one–to what extent the new work is “transformative.” The court found that the Lexicon is indeed a transformative use, insofar that the purpose of the Harry Potter books is to tell a story, and the purpose of the Lexicon is to make information about the world accessible in a reference guide (basically, entertainment versus reference). However, the court noted that the Lexicon’s appropriation from the two companion books (Quidditch Through the Ages and Fantastic Beasts and Where to Find Them) was much less transformative, because the original purpose of those books is also reference. The two books have the same informational purpose as schoolbooks, even though they are fictional. Even Vander Ark stated in his testimony that the two books are essentially encyclopedias already.

However, the court pointed to the proven value of the website as a reference source (including the fact that Warner Brothers filmmakers used it extensively when making the Harry Potter films) as evidence of its transformative use, distinguishing it from the trivia guide in the Seinfeld case or guides consisting mostly of plot summaries. Moreover, the fact that the Lexicon does not offer much in the way of critical analysis or commentary does not make it less transformative; its chief function is mere reference. Still troublesome, though, is the amount of verbatim copying from the books; the use of distinctive, original language should not be necessary for a work of reference, and minimizes the transformative use, particularly when many of the longest entries contain few or no citations to the original works.

Also part of the “character and purpose” factor is whether the new work is commercial or noncommercial. In general this doesn’t come up much in fair use analysis because there haven’t been many cases where an infringing use isn’t for profit. Profit was certainly the goal here, where RDR planned to capitalize on the existing Harry Potter market, particularly since the Lexicon would have been the first companion guide published after the release of all seven novels. And again, this factor weighs partially for against a finding of fair use–for it in that a reference guide would be beneficial to the public, but also against because RDR did intend to profit at least in part from the entertainment value of the original works.

The last part of this factor concerns whether the alleged infringer acted in good or bad faith in copying the work. The court noted that RDR did delay intentionally in responding to Rowling’s communications, but that this was not enough to constitute acts of bad faith. Similarly, there was no evidence that Vander Ark acted in bad faith, particularly since he did not obtain use material in his writing that wasn’t available to the public.

II. Amount and Substantiality of the Use

The second factor of a fair use analysis should actually be considered along with the “transformative” component, because the question here is ultiamtely whether the amount of the original work copied is reasonable in relation to the transformative purpose. Rowling argued that far more of her work was appropriated than what should have been necessary to create a reference source.

Though the court recognized that it was necessary for the Lexicon to make considerable use of the works, and was hesitant to decide for an author how much material is “reasonably necessary” to create a useful reference, it found that the verbatim copying and close paraphrasing of language from the books weighed against RDR in this factor. The court pointed to specific examples where the Lexicon copied Rowling’s original expression even when it should not have been necessary, such as describing an ordinary object that exists in the real world, like a mirror. The Lexicon was inconsistent in its use of copyrighted material, some entries being appropriate shorter descriptions, but others completely retelling the storyling rather than reporting fictional facts, especially when citations where missing, failing to guide the reader in where to find the information. And again, the court pointed to the companion books in particular, stating that because of the barely transformative purpose of the Lexicon in regards to them, the amount copied weighed very heavily against fair use.

III. Nature of the Copyrighted Work

Courts have already settled that fair use is more likely where the original work is factual rather than fictional, as creative works are generally given more protection. Rowling’s “highly imaginative” work goes to the very core of copyright protection, and thus this factor weighs against a finding of fair use.

IV. Market Harm

The final factor considers the effect of the new work upon the market (both current and potential) or value of the original work. For example, derivative works often fare badly on this factor because they could interfere with what the original creator may eventually decide to market or develop. Here, Rowling presented expert testimony that the Lexicon would negatively impact the sales of her own planned encylopedia (which she has stated her intention of writing in the past, and of which Vander Ark was aware). However, the court pointed out that because of its earlier finding that the Lexicon is not a derivative work, it is actually allowed to compete against Rowling’s encyclopedia. Rowling does not have an exclusive license to develop reference guides; her plans to create one does not automatically make them derivative works.

The court did note that there are potential derivative markets, however, such as the songs and poems contained in the books. Rowling could reasonably license the print publication of these items, or even musical production, which could be harmed by the fact that the Lexicon reproduces them verbatim.

In terms of the Harry Potter novels themselves, the court found no reason to believe that the Lexicon would impair sales. The Lexicon is for a different purpose and would not serve as a substitute for reading the books. However, again the court differentiated the two companion books, finding that the Lexicon could very well harm their sales. Because the works are already reference, are so short, and the information in them has been copied nearly wholesale into the Lexicon, consumers may have no reason to purchase them if they already have the Lexicon. This weighs against fair use.

Conclusions

Though certainly not faced with a cut-and-dry situation, the court held that the four factors when considered together failed to support a finding of fair use. Though the first factor did support transformative use, considered with the third factor in regards to how much copying is necessary to achieve that use, the balance tips against fair use. Moreover, both the creative nature of the works and the potential market harm weighed against fair use.

The court was careful to note, however, that this finding does not apply to reference guides in general, and in fact suggested that they should be “generally encouraged” by copyright law since they provide a legitimate benefit. However, these guides should not be able to (to borrow Rowling’s term) “plunder” the original works. The bottom line here is that the Lexicon simply copied too much of Rowling’s protected expression, far more than would be necessary to create a valuable reference.

So the finding was that the Lexicon is infringement, and does not have fair use as an available defense. The court then had to consider what relief Rowling should be granted. An injunction (stopping the infringing work from being published) does not automatically follow a finding of infringement. However, the court found legitimate sources of harm from the potential publication to Rowling: (1) Rowling testified that if the Leixon were published it would destroy her desire to continue with plans for her own encyclopedia (which would harm not only Rowling, but the potential readers of the encylopedia as well as the chartible organizations that would receive the proceeds), (2) the Lexicon would harm the sales of the two companion books, because readers would have no reason to purchase both, and (3) because of the extensive verbatim copying, publication of the Lexicon could diminish Rowling’s copyright in her original language by resulting in conflicting assertions of copyright between Rowling and Vander Ark.

The court ultimately did issue a permanent injunction against the publication of the book, and also awarded $6,750 in statutory damages, the very minimum allowed under the statute ($760 for each work infringed–the seven novels plus two companion books).

Final Thoughts

Even though this case was a defeat for the Lexicon itself, because of the judge’s thoughtful decision, it is not a severe blow to fair use or to the reference/companion/guide market. Even a lawyer from the Stanford Fair Use Center, who defended RDR, recognized that the court vindicated important principles in regards to reference guides. In fact, this decision may prove to be a valuable resource for the creators of these sorts of guides who want to stay on the right side of copyright law. In most cases, these creators (and Vander Ark probably fell into this category as well, and simply got in over his head) have no desire to infringe upon copyright in any way, as companion books are often works of love, homages, intended to supplement and enhance the original work rather than harm it. Because the decision gives concrete examples of where the Lexicon crossed the line, it can help others avoid the same mistakes in the future.

And in fact, the decision does not cut so broadly as to limit these types of books much at all. In many cases, the weight tipped against fair use not because of the novels but because of the companion books. If the Lexicon had not copied from these books that were already reference materials, it is quite possible that the case could have come out differently, or at least would have been much closer. In fact, based on the praise that the court has for the transformative nature of a good deal of the Lexicon, it seems plausible that it could be edited in such a way that it would be a fair use of the material (for example, taking out the copying from the companion books). However, it is unclear whether RDR or Vander Ark would be willing to go through the legal wrangling to make this happen. Vander Ark, for his part, has already expressed his desire to move on, already planning to publish another book, In Search of Harry Potter, a travel memoir about his experiences traveling to locations similar to those in the books.

Interestingly, though the decision covers many of the issues that legal scholars wrote about following the trial, it also minimizes one that many fans who debated the issue found to be intuitively important: commercial versus noncommercial use. For many, the intuition is that it isn’t “fair” for Vander Ark to profit from Rowling’s work with a book in print form, but that there is no problem with the not-for-profit Lexicon website. This may ultimately simply be a matter of copyright owners’ tolerance than the actual law, though like other not-for-profit fan ventures such as fan fiction, the copyright implications of a website like the Lexicon have never been litigated.

Overall, it seems as if this case had the best possible outcome for social benefit in general by both vindicating authors who stand up for their copyright protection and providing a carve-out for the reference book market. After all, copyright is all about incentive, and the only disinsentive provided by this opinion is against wholesale copying. The lesson for guide creators is ultimately to be careful how much you take and from where you take it. Though the outcome was unfortunate for RDR and Vander Ark on this particular project, perhaps this decision will be a valuable resource for their future attempts to create companion guides, for Harry Potter and beyond.
[digg=http://digg.com/arts_culture/Harry_Potter_and_the_Doctrine_of_Fair_Use_A_Closer_Look_at]
— Casey Fiesler

Image Source.

4 Responses to Harry Potter and the Doctrine of Fair Use: A Closer Look at JKR v. RDR

  1. Steve Vander Ark’s Lexicon was published by RDR Books on January 16 in the United States, Britain and Canada. Here is what Kirkus Reviews has to say about the new A-Z reference guide: “Stealing a march on all competitors by… this wins points for currency, and all but the most obsessive readers will find it unexcelled for ease of use as a quick reference guide.”
    A good summary of this positive outcome, including a statement about the new book from J.K. Rowling’s attorneys appears in Publisher’s Weekly:http://www.publishersweekly.com/article/CA6620114.html?desc=topstory

    The new book follows guidelines issued by Judge Robert Patterson in his September 8 New York Federal Court decision. It adds a significant amount of new commentary that does not appear on the Harry Potter Lexicon wesbite. Steve VanderArk is now on an extensive international tour of bookstores, schools, libraries and book festivals. For more information visit http://www.rdrbooks.com.

  2. […] all time, is something worth protecting. But perhaps their time would be better served going after legitimate copyright threats. The similarity between the two stories in this case starts and ends with the name of the title […]

  3. […] Wall Street Jounal provides an overview of the case, and the Vanderbuilt Journal of Entertainment & Technology Law features a thorough analysis of the […]

  4. […] promised, I wrote a lengthy summary/analysis of the HP Lexicon decision for the JETLaw Blog. I have to say, it is one of the most thoughtful and well-written district […]