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.
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.
posted by Lewis Perdue at 1:32 PM
6 Comments:
i hate it when people steal what i write..
i know how u feel ;)
Not a very good feeling. Not at all.
There is obviously a deep difference of opinion here. That much is clear.
Christian: one cannot copyright a "concept." One can only copyright "expression."
When it comes to the hero, Brown provably copied the specifics of my characters. But neither of us copied the specifics of Indiana Jones.
andking47: I agree with you. I have never claimed any sort of copyright on historical concepts, religion etc.
What Brown copied was my way of "expressing" those ... and there are literally hundreds of those. As just one example, my "expression" of Gnosticism does _not_ appear in any historical or theological work on Gnosticism. In one sense, I created a "sect" of Gnosticism that never existed. Brown's expression of Gnosticism was not something from a common historical work, but from MY expression.
There are many examples of that.
There are two clear-cut things here:
1. Why, in all of this and despite our requests, would Random House NOT allow Dan Brown to file an affidavit under oath that he did NOT plagiarize me?
2. There is a controversy and a difference of opinion about all of this. The federal rules require a trial in those instances. The judge should have granted a trial.
My infringer, if that's what he turns out to be wouldn't answer that question either. In law, say nothing if you're involved.
Expression co-opting without actual copying is a difficult thing to prove for anyone.
Yes, Mark, I agree. A tough thing. But that is why we had experts and that is why Judge Daniels made a mistake by excluding them.
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