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.
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.
posted by Lewis Perdue at 2:26 PM
11 Comments:
Some judges can be extremely dense. Judge Hogan ruled that hatchery salmon were the same as the endangered wild species because they reside in the same area. Never mind the former are artifacts on life support and only live by human creation and help. He couldn't, or wouldn't, see the difference and ruled as the president wanted. I'm afraid this is the way the world is run. There are morons on the team.
I think that Judge Daniels is a very smart man, which is why this decision is odd. Very odd.
Back when I lived in Washington, D.C., I often backpacked "the back hills of West by God Virginia" and enjoyed it very much.
This sort of perspective, along with those from other "lay" readers, illustrates precisely why Judge Daniels' decision violates the rules of federal court procedure which REQUIRES a trial if there is ANY substantial issue that is unresolved.
We can see that some lay people (including Judge Daniels) do not see the similarity.
Many MORE lay people DO see the similarity.
That difference in opinion concerning a substantial issue is what MUST be decided at trial. That's one of many issues for appeal
[STANDARD DISCLAIMER: Not a lawyer, this isn't legal advice, don't rely on it, and if you do and lose, don't sue me. Et cetera.]
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.
It depends on whether the standard requires the Judge to consider the expert evidence. After all, as you noted, experts aren't laypersons.
The standard, as Daniels notes in the brief, requires "a detailed examination of the works" by the "finder of fact" (the Judge or the jury). From what I know of Copyright Law, it's entire possible that expert data can be completely ignored by the Court.
Summary judgment requires, as Daniels says, examination of "pleadings, depositions, affidavits, interrogatories and answers"--not necessarily evidence that isn't directly related to the initial part of the case. Expert testimony generally belongs in the trial stage, not in summary judgment stage.
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.
In this matter, Lewis, I'm sorry to say, the standards of how these cases are tried is against you. (Again, Disclaimer: NOT LEGAL ADVICE!)
But you're not likely to get very far by arguing that Judge Daniels is "only one reader" and/or "not an average/lay reader."
Many different kinds of lawsuits require the Court to determine what a "reasonable person" (in other words, "average person," "Joe Six-Pack," "random layperson on the street") would think in the parties' shoes.
The job of the court in these cases is to speculate with all the evidence, how that reasonable anyman would respond. They do not have to "poll" a whole bunch of average Joe's, or consult experts. The law requires them to set aside their own "expert" biases in viewing the evidence and assume the "point of view" of the reasonable stranger.
This is clearly, from Daniels's brief, what the Judge was trying to do. Taking the books, your briefs, initial interrogatories and affidavits and answers, and deciding if a reasonable person would see a substantial similarity between the two books.
My major question regarding the brief would be why Judge Daniels apparently disregarded The Da Vinci Legacy, which from what I know of the plots, seems most related to The Da Vinci Code at face value. (I saw his footnote on the subject, which says that you offered "no arguments in support" of your contentions regarding Legacy, which if true, based on a summary judgment standard, might be enough for the Judge to disregard that book altogether and effectively kill your case.)
Anyway, just some thoughts. I'm sorry there's no better news for you, but your lawyers can certainly offer a deeper analysis of Judge Daniels's findings than I can.
Jocelyn: you make some good points, however, the need for experts at this stage was vital.
I'd refresh your memory on this series of posts.
I DID offer MANY arguments regarding Da Vinci Legacy and have NO idea where he thought we didn't ... unless he was only reading the Random House filings and not mine. The same would hold for his comments on characters, plot etc.
One of the problem with the judge examining the filings, is that -- as I pointed out in April and May -- Random House made many errorsm factual mistakes, distortions and outright falsehoods. If the judge does not look beyond the VERIFIABLE lies, then justice has no chance at all.
Jocelyn: you make some good points, however, the need for experts at this stage was vital.
Whether you're right or not, the legal problem is that at this stage--the summary judgment pre-trial stage--the amount of evidence that can go before the judge or be considered by the judge is very limited.
I don't necessarily personally agree with it, particularly in intellectual property cases where factual findings so often depend on very detailed weighing of the evidence. That's just the way the law is applied.
At the summary judgment stage, expert testimony often need not be considered by a judge at all. Stinks, but that's the way it goes. Although if you can persuade the Appeals Court that this case (or Intellectual Property cases generally) is an exception to that general rule, more power to you.
As one small example: The judge is NOT an expert in Gnosticism. He is NOT qualified to make a decision on how Dan Brown copied my unique expression of this, my own invention.
It is analogous to software: I can plagiarize the heck out of someone's source code, but make the user interface look different. A "lay" user won't see the similarity, even if I have stolen all the code.
And what's more, MOST lay readers HAVE seen the similarities. In a case like this where we have presented the evidence -- names, emails etc -- there IS a demonstrable, substantial and genuine matter of dispute to be decided.
The fact here is that the judge has chosen to take the "word" of Random House despite the provable errors, distortions and factual inaccuracies in their filings.
That's not justice.
As one small example: The judge is NOT an expert in Gnosticism. He is NOT qualified to make a decision on how Dan Brown copied my unique expression of this, my own invention.
But the point of a summary judgment hearing is that he doesn't have to be an expert, nor is he supposed to be.
The standard for copyright infringement of a fictional book is whether an "average reader" would see that hated "substantial similarity," not whether an expert in the field would.
And in a summary judgment case, you look at as little detailed evidence as possible; you look at the books at issue, at the briefs, pleadings, interrogatories, answers, affidavits of each side, and say: "If EVERYTHING Purdue has said in his pleadings is true, does that amount to copyright infringement?"
Daniels's answer was no, because even if Brown DID use your theories and inventions of Gnosticism, he found them uncopyrightable.
The issue here isn't the admission or inadmission of the expert evidence. It's whether your side's pleadings were sufficient to the point where, if taken as 100% true, they demonstrated that you had copyrightable material that was infringed by Brown.
The bigger issue is that many, many average readers have found the similarities. Many many more than have not.
Plus, the judge cannot decide whether the gnostic similiarities are prorected or not. He does not have the qualificiations, any more tnan he would with software source code.
Yes, this is a self-selected group.
No, this group is not statistically significant.
However, the fact that many, many average "lay" readers see plagiarism and are willing to seek me out to say so indicates there is a difference iof opinion.
Therefore a trial -- a jury trial -- would be a good way to settle this.
I have been denied a trial.
I have been denied the opportunity for the evidence to be evaluated by a jury.
All I am asking for is a trial.
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