Why Justice Demands That This Case Hear Experts and Credible, Third-Party Evidence
Random House has slavishly stuck to its contention that the judge should not consider ANY expert witness testimony and should not consider ANY evidence beyond the books in question. If the judge does that and grants their request to keep the case from going to trial, it will probably offer us one of a number of grounds for appeal.
While Random House has made a number of misleading and factually incorrect statements to the effect that I am claiming copyright protection for historical facts, the truth is that in a number of significant areas (already blogged on below -- Gnosticism, the Heroine as a symbol of Sophia, etc.), what I have done is to look at the history then ask, "What if?"
That "what if?" has resulted in the creation of a number of unique expressions of Gnostic theology, of what Constantine may have done, of how and why the human vision of God has transitioned from female to male.
The issue is that those unique expressions form literary "fingerprints" that I created, but which showed up in The Da Vinci Code.
This case NEEDS experts in history to show that what Random House is claiming are historical facts are not history at all but a unique expression of "what if?". The same holds for the Gnostic theology and a number of other significant expressions that were plagiarized.
Significantly, the literary fingerprints of those protected expressions may not be apparent to a "lay observer" and may not be detected by someone who is NOT an expert. Nevertheless, those expressions are significant, unique, created by me and MIS-appropriated in Da Vinci Code.
In works where symbolism and other esoteric things are vital to the core of the expression, there need to be experts in the same way as there are in software copyright infringement cases.
In those cases, identical source code -- the expression of the software in a programming language -- could be used in many parts of an application without that plagiarism being visible to lay observers. How? The guts of the software -- the kernel, services, input/output etc. -- could be identical, but a lay observer would never know it if the graphical user interface were different.
While the lay observer test works for the determination of many literary copyright infringement cases, this case involves books with many symbolic and other hidden elements and needs the assistance of experts and credible third-party evidence.
That situation is undoubtedly the reason that Random House fears experts and outside evidence and the reason they have studiously avoided addressing any issues of symbolism -- odd for a book filled with and based on symbolism, right down to its hero's occupation.
While Random House has made a number of misleading and factually incorrect statements to the effect that I am claiming copyright protection for historical facts, the truth is that in a number of significant areas (already blogged on below -- Gnosticism, the Heroine as a symbol of Sophia, etc.), what I have done is to look at the history then ask, "What if?"
That "what if?" has resulted in the creation of a number of unique expressions of Gnostic theology, of what Constantine may have done, of how and why the human vision of God has transitioned from female to male.
The issue is that those unique expressions form literary "fingerprints" that I created, but which showed up in The Da Vinci Code.
This case NEEDS experts in history to show that what Random House is claiming are historical facts are not history at all but a unique expression of "what if?". The same holds for the Gnostic theology and a number of other significant expressions that were plagiarized.
Significantly, the literary fingerprints of those protected expressions may not be apparent to a "lay observer" and may not be detected by someone who is NOT an expert. Nevertheless, those expressions are significant, unique, created by me and MIS-appropriated in Da Vinci Code.
In works where symbolism and other esoteric things are vital to the core of the expression, there need to be experts in the same way as there are in software copyright infringement cases.
In those cases, identical source code -- the expression of the software in a programming language -- could be used in many parts of an application without that plagiarism being visible to lay observers. How? The guts of the software -- the kernel, services, input/output etc. -- could be identical, but a lay observer would never know it if the graphical user interface were different.
While the lay observer test works for the determination of many literary copyright infringement cases, this case involves books with many symbolic and other hidden elements and needs the assistance of experts and credible third-party evidence.
That situation is undoubtedly the reason that Random House fears experts and outside evidence and the reason they have studiously avoided addressing any issues of symbolism -- odd for a book filled with and based on symbolism, right down to its hero's occupation.
posted by Lewis Perdue at 9:33 AM
2 Comments:
This case NEEDS experts in history to show that what Random House is claiming are historical facts are not history at all but a unique expression of "what if?". The same holds for the Gnostic theology and a number of other significant expressions that were plagiarized.
Probably they're trying to advance the argument that you and Brown did the same types of research in the same area of historical fiction and simply reached the same conclusion.
I'm not an expert, or even a lawyer (2/3rds of the way there) but from my one measly Copyright Law class, I know there is a case that supports such a stance.
If they can persuade the judge of that and cut off the case before trial, they win.
I'm not saying they're right--I don't know enough about the books OR the law to make a conclusion either way--that just seems to be their position: there's a term for it that kept coming up in their briefs "scenes de faire" or something along those lines.
"they're trying to advance the argument that you and Brown did the same types of research in the same area of historical fiction and simply reached the same conclusion."
Absolutely correct! They ARE trying to do that.
But their argument HINGES on Dan Brown affirming UNDER OATH that he did research and detailing the sources.
He has not done that and in the absence of that, they have no legally acceptable evidence to support their argument.
I filed my affidavit. Where's Dan's?
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