Military Documents Verify More of Perfect Killer's Factual Premise

Pardon this break from lawsuit matters, but some very exciting things have been happening with my new novel, Perfect Killer (whch comes out in September). PK is the fourth time I have written fiction that has turned out to be true.

As I explained on the Perfect Killer web site, one of the three main threads of PK involves a secret military program designed to turn the average soldier into the fighting equivalent of special forces.

As I explained in a Perfect Killer blog post today, military documents have verified not only my basic premise, but are showing that even more of my "fiction" is atually true.

Some the documents are heavy reading, but the 27 military documents obtained under the Freedom of Information Act, confirm that Perfect Killer's premise -- the military's secret development of a drug that can turn the average soldier into the equivalent of special forces -- is far, far more NON-fiction than I ever thought.

The LEGITIMATE Book Synopsis

Last Sunday, I blogged about how unjust and unfair it was for Judge Daniels to copy the inaccurate and distorted Random House synopses of The Da Vinci Code and my own books. The RH descriptions were pushed beyond all reasonable approximations of the truth in an attempt to emphasize the differences, even where they did not factually exist.

I also mentioned that in our filings, we decided to rely upon an independent third party for the synopsis of the Da Vinci Code. We then compared my books to this third party who had no vested interest, no stake in the outcome of the litigation and no reason to create a synopsis but one which was as accurate as possible.

We used that in our filings, but our attempt at being accurate and even-handed counted for naught with this court which, instead, borrowed the inaccurate Random House version mostly word-for-word.

My son William extracted the comparison from our legal papers and prepared a web page which you can look at and make up your own mind.

UNequal Justice & Court Shopping

While I can't talk much about the long conversation from yesterday's conference call with my attorneys -- both New York and Los Angeles -- one of the more interesting conclusions was that had this case been heard here on the West Coast, I would clearly have won. This conclusion is based on written decisions by both the Federal District Courts as well as the Courts of Appeals, namely the Second (New York) and Ninth (West Coast.)

Equally as clear, was the fact that Random House filed against me in New York (rather than engage in a civil conversation) in order to venue-shop for a court most likely to give them a better decision.

Judicial enforcement of copyright infringement law, you see, varies greatly from place to place in America. Federal courts in the East lean toward publishers and denying trials on the facts and merits of a case while federal courts in the West tend to favor allowing trials to move forward and have the disputed facts heard in court -- something that Random House knows is bad for them.

It's also bad for justice when someone can shop around for a court and bad when equal justice can be had in one region but not another. Federal laws are supposed to be consistent from place to place and they are not in this case which (among other factors) results in many of the quirky things I have been blogging about.

Just as cognitive dissonance forces us to reconcile our ways of thinking about things, this judicial dissonance also demands a change.

Fortunately, the American judicial system allows for that. It's called the U.S. Supreme Court.

There is, of course, no guarantee that the Supreme Court would consider my case (called "granting certiorari") in the event that the Second Circuit Court of Appeals upholds the District Court's decision.

However, one of the things the Supreme Court is known for liking is the opportunity to decide a case where it can reduce or eliminate judicial dissonance and make an area of federal law more coherent.

Yes, it's rare that a client actually has a conversation with half a dozen experienced attorneys on both coasts to talk about going after the standard. And yes, it may bankrupt me. My wife and I have discussed that and we're prepared to move forward. Otherwise, what sort of example are we setting for our children? We do not want to teach them to stand up for what is right ... except when it's not personally convenient.

I am heartened when I look at how the Supreme Court has looked at copyright cases it has heard coming out of the Ninth Circuit. While the Ninth Circuit has a reputation for having more decisions overturned by the Supreme Court than any other appeals court, it enjoys the OPPOSITE distinction when it comes to copyright.

We have as long row to hoe here, but there's no alternative. We gotta do the right thing.

The Da Vinci Exclusion - Covering Up The Smoking Gun

One of the more curious things about this case is how a Random House brief incorrectly asserted that we had abandoned our claims to infringements in my 1983 book, The Da Vinci Legacy, and how the judge's decision seems to have followed this false lead as well.

Could it be that one of my strongest pieces of evidence -- the repeated factual error -- was an INconvenient pothole on the decision's railroad to exonerating Random House and Dan Brown?

Back on April 24, I blogged about Random House's blatant fabrication that I had abandoned the claim. The judge's decision seems to have gone along with that and fails to address any of those similarities or the smoking gun.

The smoking gun is that Brown copied a factual error. A discussion of the experts and the repeated error can be found at this blog post.

Ignoring the evidence is not justice.

AP's Errors Are Now Understandable

As a former wire service reporter myself, I understand that the AP reporter did not have the time to read all the filings. Indeed, NO reporter has taken the time to read all the filings.

So, in order to get the story out, the AP reporter grabbed the judge's decision and quoted from it, trusting that the statements were accurate and unaware that many were not.

What's needed is an enterprising journalist who will take the time to read everything in the filings.

To paraphrase Mulder, "The truth is IN there."

The Truth is Golden

Like the Random House briefs, the judge's decision makes it seem that we are claiming copyright protection for generalities and stock elements when that is demonstrably not the case.

For example, on Page 15, footnote 7, the judge writes: "Indeed, although there is clearly a gold key in The Da Vinci Code, Daughter of God references a “very small ingot fixed into a recess of the wood substrate on which the paint had been applied.” Daughter of God at 312 (emphasis added)."

This makes it seem as if we're claiming protection for a general and trivial issue. Gosh, both books have gold keys.

But that's not the way it is at all. Remember that what is protected is expression, and that includes context, tone, sequence and other specific creations. Below are a set of details we gave the court.

In Da Vinci Code and Daughter of God, the following sequence of events takes place precisely as presented in BOTH books and are strikingly similar in events, pacing, tone and sequence in both books:

A slain curator of art leaves a gold key,

• Concealed in a work of art,
• Painted on wood.
• That work of art is named for the divine feminine at the center of the book.
• The gold key is not a traditional key that opens a tumbler. Indeed, owing to gold's softness and malleability, a key made of it is patently impractical and, for that reason, not employed by banks, Swiss or otherwise.
• This unique gold key is left (with no instruction) for the book's heroine
• Who is, herself, a symbol of and related to the divine feminine.
The gold key allows access (but does not turn a lock) to a safe deposit box in a Zurich bank.

• At the Zurich bank, the Protagonists are met by an elderly old world Banker.

• While at the bank, the Protagonists make an error in behavior that could tip-off the bank officials they are not legitimate. But the moment passes.>

• While at the bank, the Protagonists are locked inside the viewing room.

• Finally, at the end of the scene, the Protagonists must break OUT of a bank. [Very, very unusual for a thriller].

• The contents of the container holds additional clues to finding the object of their search that send the hero and heroine to a foreign country.

• The object of their search is a set of physical evidence and documents relating to the divine feminine at the heart of the book.

The Viewing Room

Analysis by John Olsson

In the viewing room at the bank The Da Vinci Code:

"Langdon and Sophie stepped into another world. The small room before them looked like a lavish sitting room at a fine hotel. Gone were the metal and rivets, replaced with oriental carpets, dark oak furniture, and cushioned chairs. On the broad desk in the middle of the room, two crystal glasses sat beside an opened bottle of Perrier, its bubbles still fizzing. A pewter pot of coffee steamed beside it."

In the viewing room at the bank from Daughter of God

"Ridgeway and Zoe looked silently about them. The room was the size of a luxury hotel room and furnished in much the same way. Besides the sofa and chairs, there was a television set, a rack of current magazines, a small computer terminal displaying financial quotes, and a wet bar stocked with liquor. Ridgeway went to the wet bar, set the wrapped painting down on the counter, and filled a tumbler with water from a chilled bottle of Perrier."

Langdon and Sophie = Ridgeway and Zoe

hotel room...lavish = luxury hotel room

cushioned chairs = sofa and chairs

bottle of Perrier = bottle of Perrier

"Interesting you chose Perrier," Olsson wrote. "I would have imagined most Swiss banks would probably have had Henniez, since Perrier, though owned by Swiss company Nestle, is of course French."

Locked inside the viewing room

DoG: "The door slid shut as firmly and solidly as a vault door. Ridgeway tried the knob. It was locked."

DVC: "Leaving, the banker closed the door behind him and twisted a heavy lock, sealing them inside."

We have here, significant, specific and protected elements of expression. The sequence of the events, as well as the events themselves must be considered. While I believe these are protected elements, it is possible to argue (although that argument raises the issue of the substantial issues that needed to be decided at trial) that one or more of the items in the sequence might be a stock element.

However, just as a musical scale has just eight notes -- and no one can claim to copyright "C" -- the Supreme Court has held that the arrangement of UN-protected elements can be protected because it is the arrangement that involves the creator's expression.

Doesn't that, along with the scores of similar issues I will present here on an ongoing basis, merit a jury trial of lay readers

Kafka Had An Easier Time

After getting over the word-for-word copying of inaccurate book descriptions that are duplicated in the judge's decision and the Random House briefs, the shock has grown even more intense as we get into the rest of the decision.

It appears as if the judge is referring to some other case entirely, or has not read our legal briefs as carefully as he has Random House's.

Take this astounding quote from page 13 where Judge Daniels writes, "The gravamen of Perdue’s complaint is that Brown copied the basic premise underlying Daughter of God...."

That is simply UNtrue.

Even a first year-law student knows that a basic premise is NOT protectible. What is supported in several hundred pages of our filings (all available here for any reader to see) is that my unique expression, my original creation was copied. We presented detailed evidence, comparisons and examples of this.

This astounding situation is compounded as the judge goes on to cite a number of generalities that were section headings to our specific arguments. He cites these generalities as if they were our entire argument rather than an organization of the evidence as to the infringements of expression.

Certainly, if the generalities were the only arguments we presented, then we'd be trying to claim protection for the unprotectible. But that is not the case.

We'll look very carefully in the next post at one specific example of what we said in our filings versus what the judge SAID we SAID.

Errors in Associated Press Article

I have sent this and other information to Associated Prtess, but have received no reply. Because of that lack of reply, I have now sent this to all newspapers and other media outlets that ran the AP story.


Dear Editor:

Please consider this letter for publication (or information for a follow-up) because it offers some perspective on a news story in your publication involving my copyright infringement litigation with Random House, Dan Brown and others regarding similarities between my published work and The Da Vinci Code.

It is misleading to state that Judge Daniels decision on Friday (Aug. 5) has cleared The Da Vinci Code of copyright infringement issues or that the issue has been settled.

Contrary to the headlines, Judge Daniels did not "acquit" Brown, but quite to the contrary, acknowledged that there were many similarities in the setting, plot and characters, in other words the key ideas making up my books. However, in one of those interesting quirks of law, he found that Brown's expression of the ideas was different and, therefore, that in the legal meaning of the word he had not plagiarized. We believe the evidence the Judge improperly excluded from consideration proves that my expression was infringed upon, not merely my ideas.

There has been no trial on the issues. What occurred exploits a quirk in American copyright infringement law whereby all facts and expert witness testimony can be excluded from consideration. This quirk is the "lay reader" test which says that the judgement relies on the gut-level response of an average reader as to whether similarity exists or not.

Ironically, the controversy with Da Vinci Code began with average "lay" readers – strangers who sent me unsolicited emails saying they felt I had been plagiarized. While this is a self-selected population, those who feel I have been plagiarized run approximately 10-to-1 in my favor. This indicates there is a substantial legal question to be addressed.

But NONE of those true, average "lay" readers – many of whom were identified in our legal briefs --counted. Only one reader counted in this case: Judge George Daniels who obviously fell into that 1-in-10 category. Because of that, I did not get a trial. Justice demands that a jury hear the evidence.

The summary judgment process has an admirable goal: to keep frivolous lawsuits from clogging up the courts. However, as my legal team amply demonstrated with expert testimony and hundreds of solid examples of fact and similarity, this legal action is well-founded on fact, raises substantial unresolved issues and deserves a trial.

The Second Circuit Court of Appeals has been clear on the following issues:

(1) Summary judgement should NOT be granted unless there is "no genuine issue of material fact."

(2) The Court should, "resolve all ambiguities and draw all inferences in favor of the non-moving party." I am the "non-moving party."

(3) A motion of summary judgement should NOT be a decision on whether copyright infringement has taken place. "Clearly, the duty of a court on a motion for summary judgment is to determine whether there are any genuine issues of material fact to be resolved by trial and not to decide factual issues."

(More details about this as well as the case citation can be accessed at: http://davincicrock.blogspot.com/2005/05/2nd-circuit-appeals-court-decision.html

Thus, I believe Judge Daniels erred in his decision. In addition, item (3), above, makes it clear that the Judge's decision should not be considered a decision on the merits of whether copyright infringement has taken place.

Thank you very much for your consideration. More information, including the original legal papers filed with the court, can be accessed at: http://www.davincilegacy.com/Infringement/

Plagiarism Software Finds Some Curious Things With Judge Daniels' Decision

The plagiarism-detection software developed by the University of Virginia (http://plagiarism.phys.virginia.edu/Wsoftware.html) has found some curious and extensive, word-for-word duplications between Judge Daniels' written decision and the Random House briefs.

That software was run on the sections of Judge Daniels' ruling that described Da Vinci Code and Daughter of God against the same descriptions in the Random House filing.

The word-for-word, near-duplication of the Random House text which appears in Daniels' ruling is significant for many reasons. One of those is the fact that Random House carefully shaped its descriptions of DVCode and DoG to emphasize the DIFFERENCES between the books. That careful shaping did not present an accurate picture of the books.

As we showed in our filings by citing third party descriptions of the books ... including Dan Brown's own public descriptions (which actually helped our cause), different readers of the books have different descriptions of the books ... and that is reasonable.

Every reviewer who has read The Da Vinci Code has a somewhat different take on what the book is about. Some are close to each other, some not. But all of them are different.

All of them except Judge Daniels and Random House.

Not only that, but we pointed out that the Random House description of Daughter of God is factually inaccurate in places, and carefully spun to cast any similarities in the light of scenes a faire and other unprotectible facts.

Daniels' use of the Random House language -- word-for-word in many cases -- is troubling and curious. It is further significant because this case is about how these books are similar or different.

If the Judge adopts the Random House position right down to using the very same words, then logic dictates that the rest of his ruling must follow the Random House briefs -- this is what happened. Precisely and without any deviation from the Random House script.

Take a look at the actual words for yourself.

To see how nearly identical are the Daniels' decision and the Random House brief on Da Vinci Code, go here.

THEN

Go here for the same comparison with Daughter of God ... Daniels clearly used the inaccurate Random House description of the book, not ours.



YOU CAN CLICK on the red text in one window and it will faintly highlight the text in the other window where the exact words appear.

I'd be interested in reader opinions as to what all this means.

Code NOT "Cleared" of Plagiarism.

Far from it.

But it's interesting to read the headlines about how Judge Daniels has "cleared" The Da Vinci Code of plagiarism.

The fact is that Daniels' decision -- an opinion by one person on one day -- went along with Random House to deny this issue the trial by jury that it deserves. But, as you'll see below, nothing's been "cleared."

Daniels made a mistake. He's a brilliant man, but he is not perfect. That's why we have appeals courts. This earlier post, "2nd Circuit Appeals Court Decision Supports the Notion That a Trial Is Needed" outlines the governing precedent:

(1) Summary judgement should NOT be granted unless there is "no genuine issue of material fact."

(2) The Court should, "resolve all ambiguities and draw all inferences in favor of the non-moving party." I am the "non-moving party."

(3) A motion of summary judgement should NOT be a decision on whether copyright infringement has taken place. "Clearly, the duty of a court on a motion for summary judgment is to determine whether there are any genuine issues of material fact to be resolved by trial and not to decide factual issues."

The continuing disagreement among lay readers proves that there are genuine issues of material fact.

And number three clearly means that Daniels did not "clear" Random House, Da Vinci Code or Dan Brown of plagiarism. He simply made a mistake as regarding genuine issues of material fact.

So, this isn't over. It's hardly begun.

Let's Put This in Perspective

A week ago, a day ago, I would have been unimaginably angry and upset over Judge Daniels' decision. And the "flame" posts here on the blog from Dan Brown's loyal defenders would also have stirred up my anger.

But that was before yesterday.

Now, I suppose that we mortals can always imagine ways that God enters our life, but yesterday was a significant experience for me.

Yesterday, I got the news of the judge's decision as I was threading my way through Napa Valley tourist traffic on the way to a memorial service for the boy scout and scout leader of Troop 1, St. Helena, killed by lightning a week ago.

I've known the Scoutmaster of the troop, Stuart Smith (founder of Smith Madrone Winery) for 15 years and called him right after he returned home. He and three others were knocked unconscious by lightning, but recovered and began a heroic CPR effort on the two. They managed to keep the 13-year-old scout, Ryan Collins, alive but he was later declared brain dead at the hospital in Fresno. But their efforts kept him alive so that his organs could be donated, and thus save more lives.

Stephen McCullagh was the 29-year-old scout leader killed. Like me he had bailed out of scouts two merit badges short of Eagle. He went back to scouting to help others.

I went back to scouting because my son, William (12) is a scout. There are many, many parallels between the my son and the dead scout, between McCullagh and my fellow scout leaders...so many that it's impossibly not to think: "There, but for the grace of God go I ... or William."

William's troop hikes that very same trail where the lightning killed Collins and McCullagh. A group from William's troop is heading out to the High Sierra tonight, just north of there.

But there's more. William was at scout camp in the sweltering, 105-degree boondocks of Mendocino County when the Scout Jamboree tragedies happened, and the ensuing heat exhaustion among the scouts there, and when Collins and McCullagh were killed. I accompanied the scouts for the first part of scout camp and spent a lot of time urging all the scouts to stay hydrated, that heat stroke can kill quickly.

Then I went home when my replacement scout leader arrived. Afterwards, I had some anxious days as a parent.

Then there was yesterday.

Before William and I got to the memorial service -- 1,500+ people from Boy Scout troops from all over -- I received a phone call from a NY Daily News reporter giving me the news from U.S. District Court that I didn't want. On the other hand, I expected the bad news given that we were fighting a foreign legal war on foreign soil which certainly harbors the publishing industry like Haditha harbors insurgents. Not to mention that my enemy, Random House, is the biggest publishing empire in the world and can spend a lot more money on lawyers than I can.

Anyway, I spoke with the reporter and emphasized that we would appeal and explained why (see other posts on this blog.)

Afterwards, I felt pretty discouraged.

Then God adjusted my attitude.

With William by my side, I watched, and listened to two sets of parents who'd lost their boys. Yes, they were a man and a boy becoming a man, but in a parent's mind, they are always their boys. I was connected by the events, affected by the events: Parents up there talking about the loss of a child. There is nothing worse for a parent. And my son was alive, next to me. In the middle of the sadness, I felt relief and thankfulness.

We listened to friends, brothers, and others talk about the lives lost. That was when I realized how ultimately trivial the whole Dan Brown, Random House case is.

After all, I had my son, alive and by my side. What was Judge Daniels' decision next to that? Fame, wealth, fortune -- are all gone in the blink of eternity. They do not endure and are unworthy of dedicating our lives to. And at the end of a life they count for nothing.

That is not to say that I don't plan to bring one hell of a fight right to Dan Brown's doorstep, right to the Random House doorstep. I will do that because it is a fight worth fighting and one that I'm not going to let go of until justice is done. After all, my integrity, my intellectual property and my writing career are at stake. I will fight for those and I will not stop until justice is done.

But when it comes to the things that truly matter, to the things that count when a life comes to a close, it will not be winning or losing this lawsuit that truly matters. Next to my son, my wife, my daughter -- Dan Brown and Random House and Judge Daniels will be trivial footnotes.

That's how God adjusted my attitude yesterday.

Ironically, it's given me a peace and perspective that are energizing. I have a calm about this plagiarism thing that frees me from the anger and the frustration. That gives me more energy, a greater clarity of thought and a stronger resolve than I had before. Perhaps it is a Zen-thing where I have gained strength from realizing the place this battle deserves in my life.

Overall, it has refreshed me and offered me a lot more strength to wage this battle than I had a day ago.

Judge's Decision

The Judge's decision can be found in this .pdf

Neither my attorneys nor I have had time to completely dissect it, but in addition to the two errors mentioned in the previous blog post, there seem to be quite a number of errors of fact that could be made only by either ignoring the expert witness documents or by selectively choosing items to support the Random House case.

Stay tuned ... we're just getting warmed up.

The Empire Strikes Back

Well, Random House scored one today in their attempt to deny a trial for the truth behind Dan Brown's The Da Vinci Code copyright copycat caper.

Judge George Daniels sided with the world's largest publishing conglomerate and issued a decision that would keep the Da Vinci Cover-Up complete.

I've already talked with my lawyers.

We're appealing because there is ample evidence and law to indicate that Dan Brown copied my work and that a jury trial is the ONLY procedure that will bring any measure of justice.

The law and the evidence indicate that Judge Daniels erred in at least two significant ways.

First, the rules for federal courts require that if there is any substantial matter in dispute, the the issue should be taken to trial.

The massive amounts of expert data -- concluding that my work was copied -- raise just these issues which require a trial under federal rules.

Second, the ruling decision should come as judge by an average, "lay" reader, as dealt with below.

Judge Daniels, while a respected and learned jurist, is not average and not a lay reader. He is only ONE reader (albeit a very important one) but his conclusions are totally at odds with the vast, VAST -- nearly unanimous -- opinion of lay people that substantial copying took place.

I'll have more to say once I dissect Judge Daniels' ruling. So, like the Empire, Random House/Bertelsmann has struck back, but the law and the evidence say that this will be overturned on appeal.

It's early in this ball game, but my gloves are coming off. No more Mr. Nice Guy.

Yet Another "Lay Reader" Finds Suspicious Similarities

The posts here have been sparse as we wait for the judge to decide whether to allow this to go to trial.

But in a post titled Big BROWNish Untalented Fraud?, this blogger doesn't wait for the judge to make his call.