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.
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.
posted by Lewis Perdue at 3:30 PM
17 Comments:
[STANDARD DISCLAIMER: I'm not a lawyer yet, this is not legal advice, don't rely on it, and even if you do, you can't sue me if I'm wrong.]
Hate to tell you, Lewis, but that doesn't really mean anything.
A Federal Judge's Opinion is often drafted by his/her/its clerks, who often yank chunks of material from the brief of whatever party the Judge has ruled in favor of.
Ergo, even if (I'm not claiming it happened this way, just speculating...) Judge Daniels did read all the books in question in detail, that doesn't mean his clerks did. Hence, when they drafted the Opinion for him, they knew he had already found in favor of Random House, and would therefore use Random House's summaries of the books (in order to spare themselves having to read the books themselves and invent their own summaries.)
It's entirely possible (and likely, based on Daniels's Order) that although Daniels considered multiple perspectives on the books, the fact that he had made his decision in favor of Random House led more of their brief to be quoted in his Order.
That's just how Judges often write their Orders and Opinions--if they agree with one party's interpretation of the law, they quote that party's interpretation. Saves judicial time.
You could very well be right. But I find it disturbing that he accepted a factually inaccurate rendering of the books, even after the mistakes were pointed out.
The Random House summaries were incorrect...as we illustrated with several independent third party sources ... and even Dan Brown himself.
The Random House summaries were incorrect...as we illustrated with several independent third party sources ... and even Dan Brown himself.
If that's the case, it may well have been a clerk error. The writing of a summary of the books for the Judge is just the sort of task that a clerk or reporter would have, not the Judge himself.
All the same, as far as I know, I doubt that would give you much puchase for an appeal of the Judge's ultimate findings.
Dang, I'm just full of bum news tonight. Be glad I'm not a lawyer yet. ;-)
If someone has actually read the books, then that someone should be capable of rendering their own description of what the books are about.
I review books. I read the books I review. I find similarities with other reviewers in how I describe those books, but nothing is exact.
Having a trial by jury is the just way to equitably decide an issue. The notion of being judged on one man's whim -- especially when he differs with 90%+ of readers in America -- unfair, unjust and plain wrong.
The notion of being judged on one man's whim -- especially when he differs with 90%+ of readers in America -- unfair, unjust and plain wrong.
In a perfect world and a perfect America, that would be 100% true, no ifs, ands, or buts.
Unfortunately, the reality is that frivolous lawsuits gum up the works of the legal system something horrible. Hence the summary judgment stage.
The standard is pretty tight: the Judge must find absolutely no genuine issue of material fact exists between the two parties before he can axe the trial pre-jury stage.
But if he finds that to be the case--bang, you're dead.
As for the clerks, as I've said, it may have just been a clerical thing. Judge says: "Hey Clerk, write me summaries of those three books for my opinion finding in favor of Random House." Clerk: "Okay (damn, I don't want to read all three of these darn books!)" and lifts much of the description from the winning party.
In another type of case involving winning briefs and losing briefs, what the Clerk would use is the winning side's brief to cite the cases that the Judge also agreed with, and nobody would notice or care--if the judge agrees with that party, why complicate things? Or they might borrow the description of the "facts" of a case, from the winning party's brief.
It's only when the actual issue is the plot of the books that this is a problem, and it still may not reflect any appealable error on the Judge's part.
Even if it does not offer the _proof_ of unfairness, it certainly offers the _appearance_.
The Random House description of both DVCode and my own book were _demonstrably_ incorrect. FACTUAL errors. We pointed the judge to independent, third-party summaries and even to Dan Brown himself.
So WHY did he opt so wholeheartedly for factually flawed summaries even to the extent of lifting the language?
Even if it does not offer the _proof_ of unfairness, it certainly offers the _appearance_.
Not "unfairness" but certainly you might argue "error." (Slapping my forehead: disclaimerdisclaimer not a lawyer, dangit, not legal advice, blahblahblah)
To yell "bias" at a federal judge without VERY clear evidence is dangerous--and this isn't legal advice either, just common sense regarding the justice system and politics--many of the appeals court judges were trial judges themselves, and won't take kindly to such a claim.
However, to argue that the conclusion was "erroneous" and to point to the obvious problems with the summaries, would be another matter.
I am not accusing the judge of bias. I am saying that the circumstances give that _appearance_.
Joe: earlier ... in one post or another, I mentioned that this whole case got started when I began receiviong unsolicited emails from average readers, people I nhad never met, who told me they thought I had been plagiarized.
We cited some of them specifically in my court filings.
More than 90% of the emails I received were from readers who saw what they described as plagiarism.
Thus the 90% figure ... Sometimes I have to decide whether or not to repeat myself in a post ... the choice is being redundant or unclear and I apologige for having been unclear in this instance.
Lew how does the palgiarism software show DVC and your books? Did Brown copy? It looks to me like actual copying is the only thing that anyone looks for in this type of case. He has to lift the words exactly.
The plagiarism software does not find much word-for-word with Brown.
There is an established legal principle called "comprehensive non-literal similarity" and that is what we are looking at.
I agree with you.
History, facts, themes, basic plots and the like cannot be copyrighted or protected. It is the "expression" of those which is protected.
And my protected expression is what has been infringed.
Plagiarism is something which needs to be stamped on hard. The origin of ideas however is something more difficult to assess.
And therein lies the problem.
We've all been trained since grade school that it's "bad to steal ideas."
Unfortunately, ideas can't be copyrighted, and to use them is perfectly legal.
If for the sake of argument Brown DID get all his ideas for the divine feminine, the conspiracies in the sects of the Church, and the clues in Da Vinci's works, it's entirely possible that not a single one of these ideas is copyrightable.
Lots of lay readers have said they see a strong similarity between Brown's books and Lewis's books. But if those similarities are in the IDEAS, there's not much to be done.
That would be right.
OTOH, our expert (whose data was excluded) presents evidence (to criminal courtv standards) that expression was infringed.
The problem with the "lay" reader standard, is thatn it is rarely decided by a lay reader.
This case involves millions of dollars, reputations and, I'll wager, a few jobs. Am I understanding this right? The judge couldn't read four paperbacks to help him make his decision?
Call me old-fashioned. Wouldn't that be expected? How can he make a decision if he has no idea what he's deciding about? They're all of average paperback length, average vocabulary. Nothing rocket science about it.
Josephine: That would certainly be my expectation as well.
Mine is quite a different case than that in England.
I do not argue that Bropwn stole my "idea" and "architecture."
We have expert proof of hundreds and hundreds of specific things, characters, conversations and other details that were taken.
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