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/
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/
posted by Lewis Perdue at 11:52 AM
5 Comments:
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.
Lewis, please don't take this the wrong way, but I think you're running the risk of embarrassing yourself.
A grant of summary judgment does have the effect of declaring that one party or the other has absolutely no chance of succeeding at trial. Frustrating, but necessary in an backlogged judicial system.
Of course, the losing party may appeal. That does not mean that the Judge's decision is not binding.
As journalists, the AP was quite correct in their headline: until the appeal has happened, the trial judge's decision stands as to which party has won.
A proper journalistic expression of the grant of summary judgment WOULD be that Random House has been found to not have plagiarized, even if you are planning to appeal.
Anyway, seriously, no offense intended. I just think you're wasting a lot of effort trying to split hairs over how the legal system OUGHT to work (many have tried), when you would be better served [STANDARD DISCLAIMER: NOT LEGAL ADVICE (just common sense)] to determine your options within the system as it now stands, as far as figuring out where the judge might have erred in reading your side's pleadings and arguments.
Believe it or not, that paragraph was written by my attorney.
From the Second Circuit: "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."
Many people have seen the AP story and concluded there was a trial.
They also do not realize that we are dealing with a quirk in the court system which can produce INjustice.
Look, I risked my life in Mississippi to change an UNjust court system and I will try as hard as I possibly can to either change the system and/or get a trial.
I'm studying law and find this fascinating, but hanging on a thread of reason. And stare decisis of course. What about Daniels' citations as to precedent? Certainly something has to be valid there.
I only know infringement where actual copying has occured: Ambrose, Goodwin and the like. I'm not familiar with the non literary infringement criteria.
There is precedent for allowing experts and for waiving the strict lay reader rule.
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