Vanity fair article

Read Vanity Fair's take (PDF full version with photos)...

...on the plagiarism. Written by Seth Mnookin, now at MIT.

Winners and Losers

After taking some time to think about how things turned, it seems appropriate to add up the scoreboard.

First of all, what I wanted was credit for my writing that wound up in the DVCode. That's why I began posting things on the web. By that accounting, I am very happy.

Second, as was clear from the threatening letter from Random House lawyer Trager, they filed suit to shut me up and to try and ruin me financially for having the nerve to stand up for myself.

They didn't shut me up and the judge denied their demands for more than $300,000 in legal fees.

The judge also said my legal case to defend myself from Random House and Dan Brown's legal assault was reasonable and properly brought. This flies in the face of RH's clearly libelous attempts to smear me and get away with the defamation by using legal filings as a thinly disguised cover for a press release. Yes, I do have a case there.

Third, while justice was never actually done by the court, I think that anytime a global megacorp, multi-billion-dollar bully with deep legal pockets throws everything it has at you ... and you walk away with what you wanted to begin with, then you also have a victory.

Finally, the losers in this whole thing are Katrina victims. I suggested long ago that this whole matter was a waste of time and money and that Random would be better off donating money to the Gulf Coast.

But , they went ahead and pissed the money away anyhow. Dumb. Vindictive. Bully.

Coin-Toss "Justice:" Case of the Dwindling Docket Mystifies the Supreme Court

It looks like Random House simply lucked out at the Supreme Court rather than prevailing because of something more substantial.

The New York Times has an interesting article today (free but annoying login required) on how the current Supreme Court has accepted 40 percent fewer cases this year than last year, leading to court days when they have run out of cases and have nothing to do but twiddle beneath their robes.

No one knows why. It's not like there's a lack of appropriate cases.

"The most important of those criteria is whether a case raises a question that has produced conflicting decisions among the lower federal courts," writes the NYT.

"But there are still plenty of lower-court conflicts that go unresolved, said Thomas C. Goldstein, a Supreme Court practitioner and close student of court statistics who wrote last week on the popular Scotusblog that the justices were 'on the cusp of the greatest shortfall in filling the court’s docket in recent memory, and likely in its modern history'.”

“'I don’t think we’re at the end of history and have fixed all the problems,' Mr. Goldstein said in an interview."

"One theory is that the court is so closely divided that neither the liberals nor the conservatives want to risk granting a case in which, at the end of the day, they might not prevail.... While such behavior may account for a portion of the shortfall, it can hardly provide a global explanation, because only a relative handful of the 8,000 appeals that reach the court each term are ideologically charged."

Lazy, Timid Law Clerks to Blame?

"Another possible explanation is the method by which the justices screen the thousands of petitions. Eight of the justices, all except Justice John Paul Stevens, pool their law clerks and have only one clerk make the initial recommendation for each case.

The recommendation is not binding, of course. But there is a built-in “institutional conservatism” in which law clerks are afraid to look overly credulous and so are reluctant to recommend a grant, according to Stephen M. Shapiro, a former deputy solicitor general who practices law in Chicago with Mayer, Brown, Rowe and Maw.

“'Perhaps the clerks have been trained to be naysayers for so long that they don’t know any other way,' Mr. Shapiro said in an interview."

Justice Denied

Whatever the cause: lazy Supremes or their clerks, it's clear that they have not upheld their constitutional responsibilities as the ultimate arbiters of justice. Perhaps coin-toss justice is the wave of the future.

The BIG, BIG Unanswered Question That Will Always Remain

Why was Random House SO afraid of having the expert witness analysis heard in court?

Supremes Singing Different Tune

Word came down today that the U.S. Supreme Court denied my writ of certiorari and will not hear the case.

They didn't address the substance of my case at all -- it's just that the Supremes didn't want to deal with a messy inconsistency concerning federal adjudication of copyright infringement.

Thanks to that, justice in this sort of issue still depends on shopping for the right Federal Court to hear the case. That and megabucks for lots and lots of lawyers, some of which have a tenuous relationship with honesty and no respect at all for the facts.

Furthermore, the Supreme Court makes mistakes all the time. Hell, it took them over half a century to correct Plessey v. Ferguson.

One part of me is a little disappointed, but overall I am relieved to have this part of things over.

Not having to pay Random House's $300,000+ legal fee demand was the most important issue and having Seth Mnookin and his Vanity Fair article set straight the Random House spin machine pretty well established the point I had tried to make before RH sued me.

As my appellate attorney Luther Munford just said to me in an email, "I believe the petition makes it clear to anyone who cares about such things that Dan Brown and his wife certainly did copy Daughter of God in a substantial way."

Justice = A Matter of Federal Court Shopping

Just like the bad, old Jim Crow days, "justice" in America is, in large part, a matter of where you happen to live. Or -- like my battle with Random House -- where you happen to get sued.

It's clear in my Petition for Certiorari, asking the Supreme Court to hear my appeal, Random House didn't "win" on the facts so much as they won by court shopping -- suing me in in a federal court where expert testimony is not allowed in cases like mine.

My petition clearly shows that federal court circuits are divided about 50-50 in this expert testimony issue. Thus, in half the U.S., Random House could get a case thrown out on this expert-witness technicality while in the other half of the U.S., I would have been allowed a trial on the facts.

The discussion of which federal court circuits are on which side, begins on page 13 of my petition (which is page 21 of the .pdf document).

Secret Service confirms that Dan Brown is a non-truth teller

Back on May 20, 2005, I blogged a Writopia piece called "Sanitizing Digital Fortress" in which I reported that there seemed to be no confirmation of Dan's statement that Digital Fortress had -- as Dan claimed -- been inspired by a 1995 Secret Service raid at Philips-Exeter. Well, of course, Dan's Acolytes (and the MSM) just didn't want to look at THOSE facts ... and thus proclaimed me guilty of making up vicious lies about him.

Seth Mnookin, being the only journalist willing to do his homework, filed a Freedom of Information Request with the Secret Service to see if a raid ever took place.

Nope.

No raid. And no raid anywhere else early enough to serve as "inspiration."

Read the whole story (which you won't get from the NYTimes or other MSM) here: Secret Service confirms that Dan Brown is a non-truth teller.

Random House Attorney's Fee Demand -- My Prayers Answered

U.S. District Court Judge Daniels has ruled that I do _not_ have to pay the $310,000+ that Random House spent in legal fees to sue me.

Judge Daniels ruled that, "...Perdue's claim was not objectively unreasonable, and there was no evidence that Perdue pursued his claims with an improper motive and/or in bad faith. " -- page 2, line 8 of Daniel's Order .

The magistrate's report on which Daniels based his decision is far more detailed and spends a fair amount of time to support his opinion that I was _not_ the money-grubbing, gold-digging opportunist that Random House claimed in its legal papers and which Dan Brown publicly alleged on the Today Show.

The magistrate's report is here.

These two documents also do a very thorough job of describing the circumstances of the litigation that Random House started.

My petition for a writ of certiorari still remains for consideration before the Supreme Court.

Vanity Fair

For anyone still interested, Seth Mnookin -- who wrote the piece -- has the whole thing (minus photos) available at his site.

Petition of Certiorari Filed With U.S. Supreme Court

The document (.pdf) can be found here.



High School Friends Reunite in Petition to U.S. Supreme Court

FOR IMMEDIATE RELEASE
August 9, 2006

CONTACT: John Sneed
PHONE: (601) 360-9354
E-MAIL: sneedj@phelps.com


Jackson, Mississippi – In the ongoing legal battle between authors Lewis Perdue and Dan Brown, author of The DaVinci Code, Perdue has turned to an old friend for help. Perdue has enlisted the services of Luther Munford, partner at Phelps Dunbar LLP in Jackson, MS to take his case to the U.S. Supreme Court.

Perdue and Munford grew up in Jackson, Mississippi, attending both junior and senior high school together in the public school system. Their lives, however, proceeded to take very different paths.

After attending community college, Perdue went on to receive his B.S. at Cornell University and shortly afterwards worked for Mississippi Gov. Bill Waller as his director of travel and tourism and later as Thad Cochran's news secretary when he was in Congress. He has since has authored 20 fiction and non-fiction works and has written articles for national publications such as the Los Angeles Times, The Washington Post and the Boston Globe. Perdue now lives and works in California.

Munford went on to receive his A.B. from Princeton University, B.A. from Oxford University, and J.D. from the University of Virginia. He clerked for Supreme Court Justice Harry A. Blackmun and has focused his career in media law and regularly handles cases in the appellate courts.

Years later, the paths of these two old friends have crossed again. After Perdue publicly stated that Brown had stolen the plot of his book, Daughter of God and used it in The DaVinci Code, Brown and his publisher sued Perdue in New York seeking a declaration that The DaVinci Code did not infringe Perdue’s copyright in his earlier work. Following the rule of the New York federal courts, judges refused to consider expert evidence Perdue offered to establish the uniqueness of his plot and the detail in which Brown copied the story. Because federal courts elsewhere would have looked at the expert evidence, Perdue with the help of Munford, Phelps partner Michael B. Wallace in Jackson and the Cozen O'Connor firm in New York, has now filed a petition to the U.S. Supreme Court asking it to determine the correct rule.

The petition points out, among other things, that a fiction expert said he only knew of two books which claimed that evidence of the divine feminine still existed which was a threat to the Catholic Church: Daughter of God and the The DaVinci Code. In the The DaVinci Code the heroine Sophie is a "daughter of God" because the book and movie claim she descended from Jesus.

In both books, the hero is a professor of religion or religious symbology and the heroine is a younger woman skilled in law enforcement or forgery detection. In an early chapter, an art expert is murdered. He leaves clues for the heroine which lead to a painting named for the Madonna. In the painting is a gold key. The key leads to a lock box in a Swiss bank. The lock box holds yet another container which must be decoded. Because the hero is suspected of murder, the hero and heroine have to break out of the bank. They are befriended by a character who is secretly working, or pretending to work, for a conservative Catholic organization. The head of that organization wants to find the evidence of the divine feminine to force the Vatican authorities to do him a favor. In the end, the evidence, a shroud or a tomb, is destroyed or not found, but the hero is cleared and avoids prosecution.

Dan Brown has been involved in similar litigation in England brought by the authors of another book, Holy Blood, Holy Grail. The English trial judge found that the The DaVinci Code copied its Mary Magdalene story from that book, but nevertheless held for Brown because the story was based on historical facts available to anyone. That decision is now on appeal in the English courts.

###

Perdue's most recent work "Perfect Killer" is the story of a fictional Army laboratory in the Mississippi Delta which experimented with brain surgery that would make soldiers more effective killers. Perdue was born in Greenwood and grew up in Itta Bena and Jackson.

Munford is a partner with Phelps Dunbar LLP, a regional law firm of more than 250 attorneys, with offices in New Orleans and Baton Rouge, Louisiana; Jackson, Tupelo, and Gulfport, Mississippi; Houston, Texas; Tampa, Florida; and London, England.

Quality of Life

I received the following email from a reader and supporter who has expressed the opinion that Dan Brown plagiarized my books:

This probably won't add to the quality of your life - so I've been hesitant - but finally decided all info re: Da Vince Code could be relative.

Tonight on E Entertainment (cable channel) they will rerun Forbes 100 celebrities "Who Made Bank."

Brown is # 11 - I think. The list starts at 100 and goes to 1.

Anyway, the commentators talk about the 100 million Brown made and refer to the lawsuit.

Unfortunately, they seem to think there's humor in it.

I don't remember the exact words they used when referring to the book's success, but it went something like:
This is what happens when someone sues you OR you shouldn't sue someone over a book because this is what happens.

Anyway, you may want to check it out.

I replied as follows:

"Thanks ... it doesn't affect me one way or another ... I have SO gotten over that ... plus, the money thing is pretty irrelevant. My wife and I already give a lot to charity and live very simply. I do not see a large amount of $$ changing that. I have always been afraid of things ... when you accumulate things, they begin to own you ... you start to live your life around those things and make decisions designed to protect those things ... that cuts off options and closed doors on creativity ... things, wealth, money, status, fame -- all that's gone in a blink of eternity. Things are not what count.

Miscarriage of Justice

One thing that the Vanity Fair article has done is create an air of disbelief that the judge denied a trial.

Mnookin's piece clearly proved that there are many substantial issues that should have gone to trial. Even those who have no clear opinion on whether they think plagiarism is present feel that a trial should have been

Blogger North Coast Exile made a post today that is fairly typical. The lengthy post said, in part:

"Not that I agreed with Perdue, but he raised some valid points that should have been addressed by the courts. To dismiss the case out of hand was a bad decision in my opinion. But then look how the courts tried to handle Microsoft. If computer technology baffles them, do you think the publishing industry is going to be any easier?"

This is especially true when you consider that Random House sued ME and then is trying to extort more than $300,000 from me to pay their legal fees.

In addition, the judge's granting of summary judgement (to deny a trial) violates both the Second Circuit's rules and the federal court rules (Rule 56).

The Second Circuit Court of Appeals was clear in its decision:

(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."

I wrote about this and included case citations in this previous post.

One key reason that Random House cannot afford for me to get a fair trial

From The Daily Post

I can prove Da Vinci Code tale was plagiarised
Jun 12 2006

By Ed James, Daily Post

A LANGUAGE expert from mid Wales may come face-to-face in court with Da Vinci Code novelist Dan Brown as the legal battle over the blockbuster erupts again.

John Olsson had been set to testify at the previous trial alleging that the novel-ist lifted whole sections for his bestseller from books written by Lewis Perdue.

But Mr Olsson, director of the Forensic Linguistics Institute in Llanfair Caereinion, near Welshpool, was never called.

The trial judge ruled his evidence did not form part of the case, which Mr Perdue subsequently lost.

Mr Perdue also went on to lose an appeal, leaving him with huge legal costs to pay.

Now however, he plans to fight on and take the case to the Supreme Court in the hope it will order a retrial alleging Mr Brown plagiarised his books The Da Vinci Code Legacy and Daughter of God.

If the appeal is granted, Mr Olsson's testimony will have to be considered by law.

Mr Olsson said: "It was unbelievable that the judge totally disregarded what me and others had to say, ruling that it was based on historical facts and philosophical themes which cannot be copyrighted.

"But the fact Perdue put his own spin on things - like having Da Vinci write on parchment when historically he would have used linen - which then ended up in Brown's book is in my eyes conclusive proof of plagiarism."

Mr Olsson was approached by Perdue in 2004 when the Da Vinci Code was first published.

The novel tells of a conspiracy within the Christian Church to keep secret the relationship between Christ and Mary Magdalene and a child He is said to have fathered.

The Welsh expert, who lives in Llan-fair Caereinion, is confident that Perdue would succeed in his retrial bid.

"If we're successful and the Supreme Court overturns the judge's ruling it'll set a precedent over there in the States," he said.

Ahamedd Saaddoodeen.: The REAL-LIFE Puzzle in the DVCode

I received two emails this morning from France indicating that the real DVCode puzzle (as opposed to the contrived marketing stuff), is WHO is Blythe? Who is Ahamedd Saaddoodeen? Who really wrote the Da Vinci Code?

The lightly edited email, from a mathematician, offers the following (reprinted by permission):


Ahammedd = Ameddha (to praise)
Saaddoodeen= Sa'ad'ud'Din (good luck/good fortune/aid/help).

Perhaps Ahamedd Saaddoodeen is refering together as 'praising good fortune', or something along those lines. He thinks perhaps it is a hymn in a version of a bible, or a passage out of Da Vinci's note book.

The second email, from the same mathematician, offered a slightly different interpretation:

Ahameddha=to praise
Sa'ad=Felicia
ud-Din=al-Din
= (of) the religion/faith.

Perhaps the more specific message is:

To praise Felicia of the Religion (or Faith).

So, the search for answers in the real-life DVCode puzzle is on.

Publisher's Weakly

I've gotten several emails about the inaccurate and slanted coverage by Publisher's Weekly, many of them from people in the publishing industry who are not too happy to learn that their top trade publication is neither accurate nor fair.


"I must apologize to you," wrote a high-level executive at a very large publishing concern, "My impression, formed in most part from reading PW and from talking with other people who also read PW, is that you sued Random House. I never had any idea that they first filed suit against you and were now hounding you to pay their legal fees fore doing so.

"Seth Mnookin has done the entire industry a great service with his Vanity Fair piece which has actually dug beneath the surface and exposed some facts that I am sure Random House would prefer to have remained buried. I read his book on Jayson Blair and found it the only truly credible and complete account of that debacle at the New York Times.

"I am also impressed with the courage that David Morrell displayed in coming forward. My impression is that other authors have not lent you much by the way of support.

"It seems to me that you should consider writing a book on this entire affair," the writer continued. "There certainly seems to be more than enough material. You have set a good example for your son."

My response ewas:

No apologies necessary. At least not from you.

Yes, I am grateful for David's support, one of a very few in the trade who has stood with me from the beginning. I am outlining a book, probably with an attorney as co-author. As for Publisher's Weekly, it's a sad given that most trade publications -- regardless of their market segment -- are captives of the industry they cover. There are notable exceptions, but Publisher's Weekly is not one of those.

As for my son and daughter, regardless of how the fee demand goes, they have learned that it is important to put principal before material things and money. They can understand directly a little bit of the real-life meaning of Rosa Parks and the rallying cry of the Montgomery bus boycott that:"It is better to walk in dignity than ride in shame."

It is important for them to learn that there are some battles worth fighting no matter how bad the outcome may be. And good outcomes are never assured. Sometimes justice is done and sometimes not.

The rich and the poor all eventually die, but dignity lives on. And wealth never confers dignity on its owner.

Publisher's Weekly: Silence Speaks Loudly

I sent the following email yesterday to the Editor-in-Chief of Publisher's Weekly. No reply.

It's more than a little frustrating to have PW's reporting so obviously biased when it's used by many in the book trade to form their opinions in this issue ... or should I say to "misinform their opinions?"

Date: Thu, 08 Jun 2006 10:05:31
To: sara.nelson@reedbusiness.com
From: Lewis Perdue
Subject: Vanity Fair / Da Vinci Code

Dear Ms. Nelson:

PW has consistently stated (most recently June 6) that I sued Random House for copyright infringement. That is incorrect. Random House sued me.

All of my subsequent legal action has been to defend myself, primarily against Random House's written threat of punitive financial retribution against me.

In addition, if your reporters include a comment or quote from Random House on an issue of this sort, don't you think it is appropriate for your reporters to attempt some sort of fairness by contacting me for comment as well? That was not done in your June 6 article nor in any articles previously printed.

I am not asking for special treatment, just for articles dealing with me to be accurate and fair.

There is a lot to this story that runs counter to the Random House spin machine's line. Your readers might even find some of that worthwhile and interesting reading.

Thank you very much for your kind consideration. Please let me know if there is anything I can do to help.

"Legal" Does Not Equal "Moral"

Or just.

Non Sequitur by Wiley Miller says it best:




Copyright 2006, Reprinted by permission. All Rights Reserved.


And there's no doubt which direction Random House/Doubleday has chosen: "The verdicts in favor of Dan Brown, in two United States Federal Courts and the British High Court of Justice, speak for themselves." -- Doubleday spokeswoman quoted in the New York Times.

Visit the Non Sequitur web site for more poignant observations on life's absurdities.

Publisher's Weekly: Standing Up FOR The Big Guy

I received an email from one of my European publishers with a couple of paragraphs from Publisher's Weekly about the Vanity Fair article.

Not surprisingly, the PW article has a solid quote from Random House and nothing from me. PW didn't bother to contact me. Of course not. Why should they? I'm not buying half the advertising in their magazine.

But it does illustrate the way that big money can bias reporting and public perception.

Publisher's Weekly STILL hasn't gotten things correct about who filed the lawsuit: Random House filed it, not me.

The piece emailed to me is below. It's a thin re-write of a Vanity Fair news release started by a new lead with a pro-Random House spin.

'Vanity Fair' Muses: Is There More to 'Da Vinci' Plagiarism?
by Rachel Deahl, PW Daily -- Publishers Weekly, 6/6/2006

Dan Brown and Random House may have been vindicated twice in the courts, but that hasn't stopped Vanity Fair from trying to reopen the plagiarism case against the publishing conglomerate and its star author.

A cover story set to go on stands tomorrow by former Newsweek writer (and, ironically, Random House author) Seth Mnookin called The Da Vinci Clone reexamines the lawsuit writer Lewis Perdue filed in the U.S. claiming his 2000 novel, Daughter of God, was strikingly similar to The Da Vinci Code. In what's mostly a looking-back meditation on Perdue's case—which he lost on April 11—Mnookin, who did a small piece about Perdue’s claims in 2003 for Newsweek, uncovers some odd footnotes to the drama surrounding the case against Brown.

The most interesting and eyebrow-raising tidbit involves "mysterious" e-mails Perdue received from someone called Ahamedd Saaddodeen. Perdue told Mnookin he thought the messages were being sent by Brown's wife (and chief researcher), Blythe. Skeptical, Mnookin ultimately finds, through "an independent database search," that "on at least one credit report" Saaddodeen and Blythe Brown share the first five digits of their social security numbers and a few addresses "from 1979 until very recently."

Although Mnookin's story here may be more about a man who lost everything trying to prove he was wronged in print—Perdue sank his life's savings into the legal battle—it also highlights the fact that Perdue may not have lost simply because he didn't have a case. Aside from the David and Goliath nature of the legal battle, the difficulty of proving more subtle forms of plagiarism is raised. When someone isn't lifting passages word-for-word Kaavya Viswanathan style it's decidedly harder to prove literary theft.

Doubleday expectedly had no comment on the story. A statement from spokesperson Suzanne Herz said: “The verdicts in favor of Dan Brown, in two United States Federal Courts and the British High Court of Justice, speak for themselves. We have heard from one of the most prestigious copyright districts in the U.S. courts with the appeals court ratifying their decision. Those opinions carry a lot more weight than those of Mr. Mnookin and Mr. Perdue. We have no further comment about the Vanity Fair story."

ADDED June 10, 2006:

In response to an email from Mark:

The most blatant example of inaccuracy (about which I complained but never received a response) was here:

http://www.publishersweekly.com/article/CA6326589.html

"Dan Brown, the bestseller author everyone loves to sue, has won another, quieter case filed in the U.S. by Lewis Perdue, author of Daughter of God and The Da Vinci Legacy."

Also note that in this article and the most recent one, PW quotes a RH PR person, but never bothers to contact me.

Don't waste your time writing. With the advertising revenue they get from RH, they can't afford to be fair or accurate in a case like this.

Boston Paper Plagiarizes Plagiarism Story

From Huffington Post:

Boston Herald Rips Off E&P in Meta-Media Plagiarism Story

"In a bizarre irony, HuffPo's ETP has learned that The Boston Herald plagiarized Editor & Publisher's article about Seth Mnookin's Vanity Fair article about...plagiarism. Except for the first paragraph, today's Boston Herald "Code' blue: Vanity Fair calls Brown copycat cowboy" [since taken off Globe web site] is almost identical to E&P's "Upcoming 'Vanity Fair' Article Raises New Issues About 'DaVinci Code' Author," dating from yesterday, June 6th, at 11:45 am ET. The byline on the E&P story is "E&P Staff" and the byline on the Herald story is "Inside Track," which is the Herald's gossip column."

Read the rest here.

Self-Righteous Blather From Random House

From Publisher's Weekly:

"Doubleday expectedly had no comment on the story. A statement from spokesperson Suzanne Herz said: 'The verdicts in favor of Dan Brown, in two United States Federal Courts and the British High Court of Justice, speak for themselves. We have heard from one of the most prestigious copyright districts in the U.S. courts with the appeals court ratifying their decision. Those opinions carry a lot more weight than those of Mr. Mnookin and Mr. Perdue. We have no further comment about the Vanity Fair story'."

As documented on this blog and elsewhere, to accomplish what they have in court so far, Random House had to game the legal system and file a raft of briefs so filled with distortions, falsehoods and misrepresentations that they'd be nailed for perjury IF the briefs had been submitted as sworn testimony.

But RH did not file those as sworn statements for obvious reasons.

As pointed out previously, the only statements sworn under oath and under penalty of perjury are my two affidavits and those of two expert witnesses whose testimony would not be considered by the judge.

So the things that "speak for themselves" are the Random House legal shenanigans and their successful exploitation of loopholes that have subverted any measure of justice.

This was a lawsuit that never needed to happen and never would have happened if Random House had not filed the lawsuit . Their litigation is frivolous, vindictive and an abuse of the process.

Perhaps the law has been fulfilled, but no justice has been done.

There is a lot more to the truth yet to come out.

The Vanity Fair piece could only begin to scratch the surface, but it shows what can happen when a reporter does some independent research rather than being spoon-fed by the Random House PR machine.

Upcoming 'Vanity Fair' Article Raises New Issues About 'DaVinci Code' Author

The July 2006 issue of Vanity Fair, which is scheduled to be on the news stands in New York and L.A. tomorrow (June 13 for rest of world) , has the world's first piece on the controversy that isn't scripted all or in large part from a Random House PR handout.

Newspaper trade magazine, Publisher's Weekly, is the first to summarize Vanity Fair Contributing Editor Seth Mnookin's piece.

Travel expenses for that photo of me in Rome were courtesy of Vanity Fair.

Bad Reporting & Random House's Twisted Spin

This piece by Rachel Deahl from the April 20, 2006 issue of Publisher's Weekly Daily conveniently neglects the truth of the matter: I did not sue Random House.

The reporter in this case also reflects the defamatory nature of truly sloppy reporting, saying that I "had tried to cash in on his own copyright infringement case."

A little fact checking would have revealed that Random House sued me, not the other way around.

Doubleday's president and publisher Stephen Rubin was quoted: "We are tremendously pleased that now two Federal courts have found in favor of Dan Brown and that there were clearly no grounds for the claims against him."

No, Mr. Rubin: the facts are clear and on the web that there is a case. But you have a multi-billion-dollar company and enough money for lawyers to game the system.

Regardless of what the courts decide, the facts are there for everyone to see that there is a clear case against Mr. Brown and that is not going away.

The Battle Continues

The Second Circuit Court of Appeals violated its own rules regarding summary judgement and about considering works as a whole in copyright infringement cases and has affirmed the District Court ruling.

We are currently preparing our petition to have the U.S. Supreme Court consider the case.

The biggest issue (other than the Second Circuit not following its own rules) is the fact that the Ninth Circuit out here on the West Coast has standards regarding infringement that are significantly different from the Second Circuit's especially when it comes to interpreting the lay reader role with regard to summary judgement.

The 9th consistently denies summary judgement (allowing a trial on the facts) even in cases where there are far more significant issues and far fewer of them than we have shown so far in our case.

And while the 9th has a reputation as the most overturned circuit in the nation, the Supreme Court as consistently upheld its rulings in copyright infringement.

More later.

Happy Birthday, Leonardo!

A day late! (Sorry dude). Good details here.

Below are some of the photos taken in 1981 when I researched material for The Da Vinci Legacy.

Lewis Perdue, 1981, inside Leonardo's home in Vinci, click here for larger picture

1981, Leonardo Da Vinci Museum, Milano, click here for larger picture




1981, Leonardo's Last Supper, before restoration, click here for larger picture

Yet Another Plagiarism Suit Against Brown

Brown faces second plagiarism claim

This one in Russia:

"Dr Mikhail Anikin has claimed that Brown has plagiarised his book, Leonardo Da Vinci: Theology In Paint. This book, published in 2000, puts forward the theory that the famed Mona Lisa painting was in fact an allegory for the Christian church, an idea used by Brown in his smash-hit novel."

Good luck. Ideas are not protected. Just the expression.

Why No New Posts Here?

I've received a lot of emails asking why I don't have a lot of new posts.

Well, it's NOT because nothing has been happening and it's NOT because I have thrown in the towel.

It IS because there are some pretty significant things in the works that we do not want Random House to know about and we know they read this blog.

When it happens, you probably won't read about it here first. You won't have to. You'll read about it everywhere else. I'll talk about the details when that happens.

What CAN I talk about now?

Well, the appeals hearing happened April 11. How long before their decision? I'm told perhaps 30 days plus or minus.

I had a chance to talk to the opposing counsel and congratulated them on their represetation of their client. Obviously I disagree with their position and some of the tactics (previously discussed on this blog) but I do think they have presented the RH case superlatively.

After the hearing, we had a short, decent, polite conversation in the hallway waiting for the elevator. It's ironic that had RH engaged me in just such a conversation back in May 2003 (rather than going thermonuclear in response to my inquiry) this entire legal war would never have happened. Like most wars, this one was needless and a waste of resources.

The manner in which Random House/Bertelsmann initiated their Hiroshima legal attack on me without ever once having a discussion reminds me of how wars get started and how they always produce unexpected consequences.

All of that combined with the conversation with the RH lawyers reminds me of the Thomas Hardy poem, "The Man he Killed."

Had he and I but met
By some old ancient inn,
We should have set us down to wet
Right many a nipperkin!

But ranged as infantry,
And staring face to face,
I shot at him as he at me,
And killed him in his place.

I shot him dead because—
Because he was my foe,
Just so: my foe of course he was;
That's clear enough; although

He thought he'd 'list, perhaps,
Off-hand like—just as I—
Was out of work—had sold his traps—
No other reason why.

Yes; quaint and curious war is!
You shoot a fellow down
You'd treat, if met where any bar is,
Or help to half a crown.


I always wonder why courts at every level fail to require both parties to certify that they engaged in a decent conversation before filing a lawsuit. And prohibit such a filing until and unless that conversation has been had.

Not lawyers talking to lawyers, but both parties, sitting down in the same room across a table from each other, speaking to each other directly. Record it, have lawyers present if desired, but have both parties certify that the conversation was had.

That alone would probably eliminate the backlog in the courts ... but then that would impact lawyers' billings, incomes would drop. Thus lawyers have a great incentive to sue and sue and sue regardless of whether court was ever necessary in the first place.

It's like arms merchants who have an incentive to bomb and bomb and bomb and generals who have no job security unless there is a battle to justify their existence.

I think that Random House would never have sued me had we had that conversation. Indeed, had we had that conversation in may 2003, I would never have taken my plagiarism case to the Internet.

Dan Brown Wins in London

MSNBC has the first mention of what should be a tsunami of stories today.

As I pointed out in an earlier post, I felt that Baigent & Leigh made a weak case based on generalities. The fact that they had written a non-fiction book was the death-blow to their case.

The MSNBC story correctly stated that, "A victory by Baigent and Leigh would have challenged the concept that copyright protects the expression of an idea rather than the idea itself."

I agree which is why my case is based on lifting my expression. I have consistently said that despite Random House's falsehoods to the contrary.

As the court filings confirm, my work is fiction and my infringement case based on hundreds of concerted, coherent and substantial similarities too numerous and comprehensive to be coincidence.

A trial would reveal this, but Random House is using its multi-billion-dollar resources to game the court system to prevent the facts from being heard by a jury.

Random House Lies, The Saga Continues

Because there are no perjury penalties for lawyers who lie in their court filings (a lie being distortions, misrepresentations, falsehoods, torturing facts by taking them out of conduct etc), it's not surprising that the Random House briefs are filled with them.

I've documented many of these before on this blog. And now, as we prepare for the appeals court hearing next week, (April 11 in New York City), more and more lies pop out as we go over the filings one more time.

I'll not deal with any major ones until after the hearing, but one which just popped out right now comes from Random House's Rule 56 statement, point 129 on page 31 of the .pdf: "There are no sex scenes in Da Vinci Code, just a simply kiss."

Hmmmm, no sex? Simple kiss?

Perhaps the RH lawyers never read Chapter 74 of DVC (p. 311):

"On a low, ornate altar in the center of the circle lay a man. He was naked, positioned on his back, and wearing a black mask. Sophie in-stantly recognized his body and the birthmark on his shoulder. She almost cried out. Grand-père! This image alone would have shocked Sophie beyond belief, and yet there was more.

"Straddling her grandfather was a naked woman wearing a white mask, her luxuriant silver hair flowing out behind it. Her body was plump, far from perfect, and she was gyrating in rhythm to the chanting—making love to Sophie’s grandfather."

Hmmm ... "No sex please, we're British," now becomes "No sex please, we're Random House's lawyers."

Brown's Witless Statement Critiqued

This blog post, "Dan Brown's statement to the court tells us how little he knows," by Sandra Miesel (co-author with Carl Olson of, "The Da Vinci Hoax"), offers a concise summary.

There are more details, of course and I'd urge everyone to read Dan's witness statement to discover things for themselves.

Dan: Just "Reworking" Not Plagiarizing?

Regardless of how the trial comes out in London, Dan and Blythe are now known as shameless rippers-off of other people's work -- a far cry from their previous statements about their so-called extensive research.

As a university faculty member, I frequently gave an "F" to unoriginal and desperate college students who diligently to altered what they copied in hopes that the copying would not be discovered.

London shows clearly why Random House is so desperate to keep my issues from coming to trial, why they had to sue me to shut me up and why they would not let Dan testify under oath here.

By JILL LAWLESS,
Associated Press Writer
Wed Mar 15, 12:25 PM ET

LONDON - Dan Brown returned to the witness stand Wednesday and acknowledged "reworking" passages from an earlier book for his best-selling novel "The Da Vinci Code," but he firmly rejected charges that he ripped off key ideas for his conspiracy thriller.

Brown said "The Holy Blood and the Holy Grail" was "one of the books in the mix" when he and his wife, Blythe Brown, were researching the novel.

He acknowledged "reworking" passages from the earlier book.

"That's how you incorporate research into a novel," Brown said.

No, Dan. That's NOT how you incorporate research, at least not ethically, anyway.

Steal a little here, steal a little there. Alter the little pieces of fabric to hide the source, then stitch them together and produce a totally derivative and unoriginal patchwork quilt that you call your own and hope that no one notices the copying ... or that you have skirted the legalities.

It's Just Fiction .... (Really!?)

I was clicking around some of Carl Olson's sites and finally found an article I have been looking for since the James Frey, A Million Little Pieces class action lawsuits were filed.

The London trial, along with many of my blog pieces here and at Writopia, pretty well confirm that Dan and Blythe Brown fabricated the details of much of their lives, just as Frey Did.

Further, the trial and the baker's dozen of DVCode "hoax" and "debunking" books have destroyed the notion that Dan conducted any research at all (much less the "extensive" research so heavily promoted by Random House). And much of the testimony showed that Blythe's research was simply retyped pages from HBHG and other sources.

So, like the Frey case, we have fabrications galore.

But has anyone suffered?

In AMLP (also published by Brown's publisher, Random House) , we have read numerous cases of people and recovering addicts, who feel deeply distressed, betrayed, crushed at the exposure of fraudulent claims. Their emotional distress and psychological damage form the basis of the class action lawsuits.

But, according to the loud refrain of the Random House spin machine, Da Vinci Code is "just fiction."

But as we and others have pointed out, that is NOT what Brown and Random House have been telling people. They have leveraged their sales by misleading people to believe that much of it is true and that it is based on the research of two diligent scholars.

But Da Vinci Code is "just fiction." How could that possibly leave anyone emotionally distressed or feeling betrayed?

Of all the counterarguments to this, I have found Carl Olson's March 14, 2005 article, to be the most complete and persuasive.

Yes, again someone who is not Catholic might quibble with some of the few theologically oriented references, but Olson's argument stands even when those are completely gone.

Is Dan Brown a "Liar?"

This post at the Da Vinci Hoax blog indicates that the London judge may think so.

This blog also has a courtwatcher "over there" with some insights and info losts by the MSM (Mainstream Media).

The blog is run by Sandra Miesel (bio) and Carl Olson (bio), co-authors of The Da Vinci Hoax: Exposing the Errors in The Da Vinci Code (Ignatius Press, 2004) and is a companion site to their DaVinciHoax.com site, which contains numerous articles, interviews, and free downloads, as well as extended excerpts from The Da Vinci Hoax.

That last paragraph is brazenly plagiarized almost intact from their site.

Sandra and Carl have a point of view and have done an excellent job of defending a position that is consistent with contemporary Catholic teachings. While it is easy to find theological differences between them and me, I find far more grounds for agreement and recommend their work.

You do not have to agree with their religious viewpoints (nor mine either) to benefit from the work and analysis they have done.

Effects on the DVCode Movie

RC of strangeculture.blogspot.com left an interesting comment last light on my previous post. I've elevated it here because it is a good question:

I personally am most interested to see how this really does or does not effect the may release of DVC the movie. -- Fri Mar 17, 11:04:52 PM PST

My reply:

I don't thing it will -- or should -- affect the movie if the makers of it are careful.

First of all, Baigent & Leigh are making a weak case based on generalities.

Other than Dan Brown confirming that I was correct about the James-Frey-like biographical fabrications over on Writopia, (and that the legions of books debunking DVC's historical, factual and religious errors were also correct) the testimony confirmed that:

• Dan did rely heavily on HBHG,
  

• He was well-coached for cross-examination and conveniently can't remember details or historical fact,
  

• There are contradictions between his statement and the Random House briefs in my case,
  

• Blythe and not he conducted what research there exists,
  

• Most of the well-hyped research consisted of pages of material copied from other authors and,

• Blythe is the real force,
  

Baigent & Leigh don't seem to have proven any specific infringements in the expression.

While I am pulling for B&L for purely psychological reasons, and while I do think that there are probably real infringements there, I do not think that B&L have proven their case.

Testimony in the case has stripped away Dan and Blythe's false and pretentious biographical trappings and revealed DVC as the patchwork derivation of other writers' work that it is. But it does not seem to me (pontificating half a globe away) that they have proved theiir case.

As for the movie, a clever and careful script can avoid infringements. Plus, Baigent & Lee WANT the movie to do well if they win because -- while the movie can skirt plagiarism -- if B&L miraculously come out winners, they want there to be more money coming to RH.

Personally, I really like Tom Hanks and think that Ron Howard is one of the best producers ever. I don't care about the movie money angle, never have. In fact, it was never my idea to go after Sony. The money has never been the reason for my trying to get some measure of justice.

All I have ever wanted was an acknowledgement. Not money

Random House is the one who wanted to go nuclear over the mere suggestion of plagiarism and it was they who sued me.

Random House forced this whole thing out of the realm of private conversation and into the courts rather than having the few milliliters of class and decency it would have taken to have a quiet, private and calm conversation three years ago.

I have been consistent about my goals. Beyond my out-of-pocket costs to fight their ridiculous lawsuit, any money I may win will go to charity. I wish the movie, Tom Hanks and Ron Howard well.

London: Details Devil Dan; Jovial Judge Joshes About

Dan Brown's testimony was book-ended by two publishers who added little to the proceedings.

The first few minutes were taken up by Patrick Janson-Smith (PJ-S) who was Baigent and Leigh's editor in the late 1970s/1980s. He also was the boss of the RH editor who bought the UK rights to DVC.

He indicated that he thought the two books were related, picked up on the Teabing anagram and assumed (erroneously) that Dan Brown had been in contact with Baigent and Leigh in his writing. He was rather shocked by the lawsuit and thought Baigent and Leigh were "making fools of themselves" and that their legal central themes were not ones he thought were central themes of HBHG.

Still, Baigent and Leigh's barrister might have gotten some mileage out of the fact that he saw clear connections between the two books--although a lot of books have been produced in this "genre" over the years.

Then it was back to Dan on the stand and he was again led through his research process--which is to say Blythe Brown's research process--and led to a large number of selections of DVC text that correspond quite directly to HBHG.

Baigent and Leigh's barrister traced out the connections through Blythe Brown's research documents and frequently got Dan to concede that HBHG was the likely source of a range of phrases and sentences.

There were about a dozen of these over the course of the day. The word alterations in a lot of cases were pretty minor "worthy of the Gestapo or KGB" in HBHG became "worthy of the CIA" in DVC in a description of the Church's Friday 13 hit on the Templars.

Dan Brown tried to say that it was all historical fact, which generally it is, but both Baigent and Leigh's barrister and the judge were not quite accepting that, finding some significance in his use of clearly similar language.

The Judge: "that is a different point ... whether it is history or not, you've taken the language from HBHG."

A few of the examples seemed rather overdrawn, but most of them seemed rather clear and had connections in Blythe Brown's notes. Dan Brown was "fine" with a variety of conclusions that HBHG was the original source of the information, although on occasion he would point out where he/RH's research team had been able to find other possible sources.

The Grand Master list was carefully traced back to Dan/Blythe Brown's copy of HBHG in their notes on the list, some alterations, and a few misspellings (including Botticelli) that appeared in Blythe Brown's handwriting.

Misspellings/US-UK spellings seem to play an interesting role in this case. Yesterday it was shown how Blythe Brown misspelled Leigh's name in a document and Dan had corrected it; Dan said Blythe Brown might not have known how to spell his name.

Baigent and Leigh's barrister: "but you did" suggesting Dan's familiarity with Baigent and Leigh at an early stage.

In this vein, the US Perdue case came in at one point as RH had used HBHG in that case as a "historical source" along with a book about the Gnostic Gospels.

Interestingly, Dan's US copy of HBHG had a UK spelling of "Saviour" while the Gnostic Gospels used a similar quote with an American spelling.

In DVC, Sophie when reading has "Saviour" with UK spelling.

Judge: "Further down there is an American 'Savior' (laughter in court room). When Sophie reads, she reads in English.(more laughter in the courtroom)"

Baigent and Leigh's barrister suggests that this indicates Dan Brown was copying from HBHG and the judge chuckled and nodded vigorously in the affirmative.

The they moved to the Council of Nicea for more similarities which included the words "mortal Prophet" -- Dan Brown said many people use "mortal Prophet" and that the whole religion of Islam thought Jesus was a mortal Prophet, was Baigent and Leigh's barrister suggesting that he couldn't use those two words?

Baigent and Leigh's barrister : "we're not saying you can't use the words"

Judge: "can it be in the film? (lots of laughter)". The judge was in a merry mood today, it seemed.

This does raise the point that a Baigent and Leigh win could stop release of the DVC film.

At the end of the day, the judge asked the parties if there was going to be a discussion of the potential damages Baigent and Leigh suffered and the two sides indicated that that was *not* going to be discussed, at least at this point.

Baigent and Leigh's barrister finished his questioning with some relentless questions about how Dan could testify to where anything came from when Blythe Brown did all the research and summarised everything for him, often without citation.

Didn't this sort of research arrangement and unattributed notes create a danger for Dan.

Dan Brown wondered why, he wasn't writing a history textbook.

Then Baigent and Leigh's barrister got into a discussion of what Dan meant by the word "plagiarism".

He didn't come quite out and accuse him of it, but it seemed obvious from the previous questions that Dan would have a hard time knowing one way or the other whether he plagiarised if Blythe Brown was copying things verbatim and handing him computer printout with no citations.

Baigent and Leigh's barrister finished with Dan and judge asked him if it was the position of Baigent and Leigh's barrister that Dan Brown had read HBHG before he came up with the synopsis.

Some discussion occurred between the complainants solicitors--presumably there might be problems accusing a witness of lying--and then they said no, they accepted he might not have read HBHG before then, but it would be their case that Blythe Brown could have and that they would deal with her separately.

So it looks like they will try and saddle Dan with the notorious and not-very-credible plagiarist's classic defence "I had no idea, I was just copying notes and it was my researcher's notes" (Stephen Ambrose comes to mind in this regard).

The final bookend of the day came with the Doubleday editor/publisher testifying. Stephen Rubin testified but didn't really add much to the proceedings. Afterwards, we all picked up witness statements from the publicists/lawyers, but they were short and weren't all that interesting.

No Comment Needed

From Dan Brown's witness statement (points 67, 68)


"I did receive numerous offers for the film rights to Angels & Demons, but I turned them down as they were not enough money and not with major studios.

"This was not an easy time financially. I remember that we were forced to literally sell books out of our car at low profile publishing events."

Brown Whines About Simon & Schuster and St. Martin's Press

Brown's witness statement, posted online by The Times contains some choice comments about his former publishers.

He echoes a common gripe most authors have (whether they deserve to gripe or not). But whining about it in a public forum?

The following are Brown's words which are unchanged. I have added some new paragraph breaks to make it easier to read.

Promotion of The Da Vinci Code

213. I am quite Sure that a great deal of the success of The Da Vinci Code is down to the excellent promotion the book received. The Da Vinci Code got a huge launch.

My first three books were barely promoted.

There were more Advance Reader Copies given away for free of The Da Vinci Code than the whole print run for Angels & Demons.

I am convinced that The Da Vinci Code would have failed if it had been published by my previous publishers - equally, I think Angels & Demons would have been a big success if published by Random House [emphasis added] with as much fanfare as they brought to The Da Vinci Code. Angels & Demons is perhaps even more controversial (it deals with a Pope who had a child), and many people have told me they actually prefer it to The Da Vinci Code.

64. After our trip to Rome, I had completed an outline for Angels & Demons, including a grand finale at CERN, which ultimately I did not use.

St. Martin's Press (SMP, my publisher for Digital Fortress) wanted to buy Angels & Demons, but I had been frustrated by their lack of promotional effort on my behalf.

I had taken matters into my own hands. I spent my own money on publicity. I booked more than a hundred radio interviews, doing several a day for months.

Despite good reviews, a very newsworthy/timely topic, and all of my grassroots efforts, the novel sold poorly. I decided that I would change publishing houses. I got an offer from Simon & Schuster, who wanted to buy Angels & Demons based on my outline and promised me a much larger publicity campaign.

65. Because Simon & Schuster had purchased my book in advance, 1 now was writing knowing that 1 [NOTE: looks like that last was a typo from scanning on the Times site] had a publisher.

I was encouraged because Simon & Schuster said they were extremely excited by Angels & Demons. They promised to give the book considerably more publicity and support than my previous publishers. Their proposed publicity included a much larger print run (60,000), advertising in major newspapers, web advertising, a 12 city tour, an e-book release, and other exciting prospects.

66. Unfortunately, when the book came out, my print run was slashed down to 12,000 copies with virtually no publicity at all.

I was once again on my own and despite enthusiastic reviews, the novel sold poorly. Blythe and I were heartbroken as we had put so much work into this book.

Once again, we took matters into our own hands, booking our own signings, booking our own radio shows, and selling books out of our car at local events.

London: Brown Sweats & Forgets; Blythe Ascends

First a note: Dan Brown's witness statement has been posted online by The Times. It makes for some very interesting reading. Now, for the dispatch from our London correspondent.



Summary of yesterday's (Tuesday) proceedings, 14 March, Court 61, London.

Dan Brown went through some tough moments yesterday; not as excruciating as during Baigent's testimony, but he has found his and Blythe's actions under the microscope in a way that he probably never imagined.

All of the tediousness of Monday's proceedings is starting to reveal its rationale -- having established the sorts of writing that Blythe Brown did in the margins of books, the types of documents she produced and the 39 books that DB/BB consulted, the barrister for Baigent & Leigh started working to establish when DB had access to HBHG.

A quick summary of the timeline as presented by DB -- he/Blythe started research on DVC in the summer of 2000 and he put together a brief synopsis for his agent in Jan 2001 (including the Boticelli Code and the Nostradamus Code).

Shortly thereafter he produced a longer synopsis of perhaps 40-50 pages of DVC. These contained the core outline of the book, although there were numerous changes in the final edition from this synopsis the main outlines of the core plot were present.

A sidenote on elements that changed between synopsis and publication -- Silas was originally named Oedipus (an anagram of Opus Dei that DB "first thought was clever, then thought was a bit too clever"), Sophie's grandfather was originally her father, the Teabing villian was introduced later replacing a consular officer who was the villian, a Shroud of Turin plot line was dropped, etc.

According to DB, he mainly relied on 7 books (primarily the Templar Revelation--TR) which are listed in a bibliography to his synopsis. HBHG was not included in these seven so DB says he didn't use it then. He claims he only got to HBHG later in the research, late 2001 by his reckoning.

However, the barrister for Baigent & Leigh has been able to demonstrate that there is substantial circumstantial evidence DB/BB had access to HBHG prior to the synopsis.

DB's copy of TR has on its cover some blurb about being the best book since HBHG. The judge points this out. They look inside DB's copy of TR and there is on one page where there is a reference to HBHG a notation in Blythe's hand that reads "get this book".

The barrister for Baigent & Leigh suggests this indicates that when DB/BB were intensively using TR they got HBHG and that they know they were using that in the summer of 2000.

DB said no, if he had gotten HBHG he would have put it in the bibliography to impress his publisher. The judge points out that TR refers to HBHG as "the essential source" for Mary bloodline topics and asks sceptically "how could you miss it?"

Brown's synopsis contains a reference in a poem about the Merovingians to "mer" being the French word for sea and "vin" being vine.

His witness statement suggets he got this from Woman in the Alabastar Jar (WAJ), p. 62.

However, that is *not* the construction in WAJ, there "Mer" is referred to as "Mary" so the combination of vine of Mary would have blookdline implications that might be important to DVC's main theme.

Where then does "Mer" as sea appear? It is mentioned in that construction in HBHG, so the barrister for Baigent & Leigh suggests that that little snippet/textual similarity of the synopsis indicates that he had access to HBHG prior to Jan 2001.

DB: "that isn't logical" at which point we had an intervention from the judge:"I think it's very logical; you just don't agree with it."

DB is forced to concede that point. DB claims his "knowledge of French" led him to that conclusion -- this was not mentioned in his witness statement where he said it was WAJ.

The judge suggests to DB "your point is not a sustainable one".

A few other items come up -- HBHG evidently has a constitution of the Priory that indicates that secrets are passed from parents to children.

In the original synopsis Sophie's father is trying to pass the secret to her. This is changed later to grandfather, but the barrister for Baigent & Leigh suggests that HBHG's stress on the parental secret passing was the source of this initial father-daughter line-up.

A weaker point than the previous one, but perhaps indicative.

Some members of the press found it very persuasive in conversations afterwards.

They then move to a document that seems to have come 90% from the internet. It has red text for a direct internet cut&paste job of major portions of Ch 12 of HBHG.

The web page it comes from is known. There is additional commentary in black text. The barrister for Baigent & Leigh suggests that commentary, which summarises portions of ch 12 missing from the direct cut&paste were put in by Blythe.

DB thinks not as much of the black text has British spellings. Seems a good point for DB.

DB also says the document is too well formatted to be Blythe's work as she tended to have just typed out documents she would "never" have had something that was typeset so well.

The barrister for Baigent & Leigh indicates they have another document or two that Blythe created that she did take a great deal of care on in a virtually identical fashion. In any event, DB's copy of HBHG has many markings in ch 12 at exactly the points where text was copied/summarised in this "research document" there is also reference to "notes" in Blythe's handwriting in the margins.

This seems a bit tedious, it is not entirely clear that Blythe did the typing with UK spellings, but the clincher -- of possible great relevance is that the computer file this was all in was created in Sept 2000, a full four months before the synopsis. It again seems to demonstrate that HBHG info was in DB's possession prior to the Jan 2001 synopsis.

A small, but perhaps telling point, DB claims that much of the markings in his copy of HBHG (which far exceed the markings in any other of his 39 books) were done during a "refresher exercise" when he was on book tour and found he couldn't answer the historical questions being raised.

At that point he asked Blythe for help with the history ("I'm a fiction writer, not a historian") and she marked up HBHG extensively as part of that preparation.

The barrister for Baigent & Leigh is doubtful, he is doggedly suggesting that most, if not all, the marking up came during the writing and that reliance on HBHG demonstrates that a lot was borrowed from it. I thought a telling point was that when it came time to defend the key elements that the public were interested in, DB/BB turned to HBHG.

If anything demonstrates that the popularity of DVC is related to themes in HBHG, that reliance during the "refresher exercies" would seem to do it.

Whether it is a basis for a copyright claim under UK law is not clear.

Blythe Brown: The Missing Witness

Dan Brown took the stand today and this morning's testimony was mainly designed to establish how he did research (in collaboration with Blythe Brown) and a timeline of his research.

Baigent and Leigh's barrister appears to be trying to place the order of the books that Dan Brown/Blythe Brown read and the timeframe in which that occurred. As the judge had earlier indicated that the order of the research might be of great importance, this would appear to be the core of the complaintants' case.

They are presumably going to try and put HBHG into a certain slot that will indicate that the central idea (or "Big Idea" as Dan Brown calls it) came from HBHG.

There are some documents that are missing, including the original short proposal for DVC that was sent to Dan Brown's agent -- it was the first of what was a three part proposal for three book, the other two being "The Botticelli Code" (the outline of which survives) and one possibly called "The Nostradamus Code" (one where the outline does not survive. The longer synopsis has survived, although it was created at a later stage than the original proposal.

A few other documents are missing, mainly due to flooding in March 2004 of Dan Brown's Rye, NH, basement. However, a large number of electronic documents (with dates) exist -- these are referred to as research documents and there are about 304 of them.

They mainly consist of notes from Blythe Brown, excerpts of things Dan Brown typed, printouts of things Dan Brown typed or got off internet, photocopies of articles/books and handwritten notes. The other items sent by the defence include Dan Brown's "library" which evidently consisted of 39 books -- Dan Brown: " I'm without a library, its all over here somewhere".

Some of Blythe Brown's research notes are not included because the defence did not ask for them -- the consensus view appears to be that they were unaware of the extent of her role as researcher when they made their requests.

The questioning was pretty tame, although Baigent and Leigh's barrister was able to push back the time that Dan Brown got Knights Templar from when he was doing a book tour for Deception Point (late 2001) as he claimed back to when he was doing one from Angels&Demons (mid-2000). There were some hints that they might even be able to establish that he bought it/ordered it from his hometown bookstore.

Dan Brown's longer synopsis of DVC has a series of redactions for "commercial reasons" -- these appear to be because it was initially proposed as part of a multi-book deal and he wants to keep the possibilities on future books confidential.

The contents though are known to all the attorneys involved in the case and in general they agree they are not relevant to this case, they just won't be released publicly. They might have been overly rigorous on redacting as H&L's barrister wants to ask questions about 2 redacted portions and Mr. Baldwin (Random House's barrister) has no objections.

Da Vinci Court in London: Leigh Proves Strong Witness Against Brown

Dispatch from Da Vinci Crock's London Correspondent:

The afternoon session started when Richard Leigh was called to the stand and contrary to audience expectations he proved a formidable witness.

The legal implications of his testimony might have been different, but it didn't seem Mr. Baldwin (Random House barrister) extracted much from him. Leigh was the writer of the book while Baigent was the researcher, so perhaps there was less to draw out, but the best Baldwin could do was find a few points of text that Leigh had copied from Baigent's notes that were broadly similar to a few of his sources.

There were some clear references to clear textual similarities with DVC (p. 88 of HBHG is nearly identical to p. 245 of DVC, for example) and the judge made reference to the fact that Baldwin had not cross-examined on the similarities as he did not dispute they were there.

There was some debate over whether HBHG sold well in the US because of its "central themes" and Leigh made a convicing statement that the so-called "central themes" were a legal construct foisted onto the book by the case but that the core of the case resolved around the Magdalene bloodline and the central themes all led to that.

To a layman that sounded very plausible--what bearing it has on UK copyright law is unclear.

In response to that statement, the judge asked Leigh "Is that why we're here?"

Leigh responded that Brown should have given them credit in the front of his book as many authors do.

Baldwin's last question was to suggest Leigh was misleading in his statement that he had seen DB's copy of HBHG and that it was heavily annotated. Baldwin said RH's solicitors had had it in their possession all the time it had been in the UK and had no record of him having seen it. Leigh said he'd seen photocopies and when he said "copy" that's what he meant.

Baldwin let it drop at that -- although it is worth noting there was some suggestion earlier in the week that there is a dispute between the parties about those annotations. RH's lawyers say Blythe Brown annotated it after the original complaint was made, Baigent&Leigh's solicitors appear to suggest that the annotations represent the copying that would help make their case.

Leigh did very well on the stand. The most telling questions to him came from the judge who pointed to DVC page 339 where HBHG is explicitly mentioned as an international best seller. Leigh suggested that the reference was condescending and patronising.

"That's because the person making the comments is a condescending and patronising person" replied the judge. B&L's barrister appeared happy enough with the testimony that he had no questions. Except for a few relatively minor amendments, Leigh's witness statement seems to be almost entirely intact. How telling the difference between the legal "central points" and the "real themes" is was unclear.

London: Baigent Does Better, Random House Dodging Key Issues

From our London Correspondent:

There was a mention of Dan Brown testifying on Monday and providing a witness statement Monday morning. Unclear on whether that would be supplementary matters (i.e.-would he testify tomorrow and deal with other things on Monday) or be the start of his testimony?

Court today started with some preliminaries relating to the addition of language similiarities between DVC and HBHG. Baigent&Leigh intend to rely on those "fingerprints" as supporting evidence that demonstrate that their book was used as source material for DVC.

Since the main claim is copyright infringement rather than outright plagiarism, this is considered a small point. Random House's lawyers would prefer not to get into peripheral matters as they are not central, but the judge indicates that he will allow it on the grounds of letting the parties present everything relevant they want so that they can't claim to have had important evidence excluded.

He does allow that they are "faint fingerprints" and that he will look rather favorably on DB testifying that he can't recall where several of the textual similarities came from on the grounds that they are rather late additions to the case. In any event, he also indicates that the case will succeed or fail based on other factors, said the judge: "if you can't win on your primary case, these [faint fingerprints] won't save you."

After the preliminaries, Baigent returned to the stand for his third day. He fared much better today than before and it is unclear how much of his witness statement still stands -- there are hundreds of paragraphs to it and while Mr. Baldwin (RH's lead counsel) has extracted a lot of concessions from Baigent, it is not so apparent to the audience how comprehensive the concessions have been.

For all we know, 300 paragraphs might stand uncontested -- or maybe only 3?

Baigent though is back to conceding points, but scores some points of his own -- although I'm not sure how helpful those are. In one case, Baldwin draws attention to DVC p. 218 that makes reference to Baldwin II and the Knights Templar to suggest that DB's source could have been a book by Addison called "History of the Knights Templar". Baigent indicates that DB's text contains a major historical error in that Baldwin II's reign did not include the Second Crusade (1147-1152) as indicated in DVC and says "HBHG didn't make that sort of egregious historical error."

Point for Baigent on historical accuracy, point for DB on not plagiarising HBHG -- doesn't Baigent know that common ERRORS are often more important for showing copying than common truths?

[ This is why Random House in the United States stooped to an outright lie in claiming -- both in court and in ite filings -- that I had dropped my claims relating to my 1983 book, The Da Vinci Legacy. We proved conclusively that the historical error which I made -- and which Brown copied -- was not coincidence.]

Some give and take between Baigent and Mr. Baldwin on Baldwin II on this point that is stopped by the judge telling Baigent "you know it's not bloody from your book as you didn't make that error." Baigent has to concede that he "finds it difficult to claim he [DB] took it from us."

Later Baldwin makes a nasty insinuation about Baigent's witness statement that Baigent was claiming credit for the idea of dividing the words "Sangraal" into two and coming up with the French for "Blood Royal". He suggests that Mr. Leigh's witness statement indicates that Leigh and Lincoln came up with the idea before they met Baigent and Baigent is trying to take credit for their idea.

The paragraph in question in isolation does appear to suggest this interpretation, but the immediately preceeding paragraph does explicitly say that splitting the words was Richard Leigh's idea. This time, I think "infelicitous" might have been quite properly used, but Baigent appears to have learnt his lesson with that phrase.

He has a new phrase that Baldwin will probably crucify him with once he's had a chance to reflect on it. This time the phrase is "It's implicit" in answer to any question pointing out the absence of a central theme of HBHG from a portion of DVC that Baigent argued did, in fact, contain the central theme.

All too often, it appears that Baigent&co have included every odd mention of Mary or the Holy Grail and claimed it as a direct mention of something like Mary fleeing Palestine and going to France or something more specific. Baldwin is laser-like in arguing "that isn't there, is it?" for every passage so indicated and Baigent responds "it's implicit". On yesterday's form, I think Baldwin might get around to saying something like "Is 'it's implicit' your long word for 'it's not there'?"

Baigent is forced to concede that not all his central themes were included in DVC, so his charge in his witness statement that they were is erroneous and should read "some" instead of "all". As most of the support for Central Theme point 2 (CT2) falls away under cross-examination, the judge finally says to Baigent "all you have to CT2 is that Jesus was a Jew and he married -- are you claiming that that could only have come from you?"

Baigent concedes it couldn't and with the apparent demise of CT2 court adjourned for lunch.

The Importance of Being Blythe

The absence of Blythe Brown on the witness stand in London has been the source of much astonishment given the prominent role everyone says she played in the writing of The Da Vinci Code.

To that issue, I received an email this morning which offered the following:

As for why Dan Brown's wife is not testifying, perhaps the plaintiffs were unable to call her as a witness. In CA, Under CA Evidence Code Section 970 a wife does not have to testify against her husband in a civil case. No idea if the UK has the same rule, if not, I can't imagine why they would not call her. Good luck!

I replied that I think that would apply only if she was testifying against him.

Brown himself is not being sued in London, only Random House. Perhaps they are not suing him so that they _could_ call her to testify against RH and explain her prominent role.

But that still does not answer the question about her absence.

Da Vinci Code in the Dock - Baigent Continues to Shoot Self in Foot

Da Vinci Crock's London Correspondent filed the following dispatch and offered a couple of relevant links.

"The courtroom was less crowded today. The case is being heard in the Royal Courts of Justice, whose main building is a giant Victorian Gothic structure that is quite imposing.

"However, the court where the case is heard is Court 61 in the Thomas More Building, which sounds pretty impressive except that it is a 1970s office block and the court is a modest-sized room on the 10th floor.

"Baigent was still on the stand after yesterday's debacle. The cross-examination continued today and was probably not as bad as yesterday, but Baigent can't like being cross-examined. The consensus appears to be that yesterday went poorly for him and there were fewer reporters in attendance today.

"All-in-all it was fairly boring this morning as they went over specific pieces of DVC and HBHG to ascertain just what Central Themes existed and which were explicitly included and which not.

"While the DVC might have the 'look and feel"'of HBHG, on close examination, finding explciit mention of the themes can prove elusive. I found myself wondering during the hearing whether the barristers and judge had been English majors in college as there was a lot of close reading of texts going on.

"Two important points were highlighted today:

"(1) That HBHG's key conclusion about the Priory desiring to restore the Merovingian blood line to the throne of France and other european countries is absent in DVC.

"On that point, the judge asked Baigent at one point: 'Those points [restoring Merovingian line] simply don't feature in his book [DVC], do they?'

"(2) HBHG has the Priory with an explicit and active political program they want to promote and publicise while the DVC has the Priory trying to keep a secret hidden.

"On this, the judge asked: 'How does he use your results [about the Priory] if he reaches the opposite conclusion?'

"At another point, Baigent was forced to concede (again) that he had used 'infelicitous phraseology' in his witness statement. He seems prone to using 'infelicitous' a lot and Random House's counsel must have come up with his sound bite last night as he quickly came back with 'is "infelicitious" your long word for being incorrect?'

"Baigent frequently had long pauses of 30 seconds to more than a minute; the silence was incredibly lengthy as he contemplated his answers -- which all too often were agreeing that certain pages of DVC that he had identified in his witness statement did not explicitly contain themes from HBHG as he had claimed.

Links:

BBC

The Times

The Guardian

Report from the Da Vinci Code-Holy Blood, Holy Grail Trial

I am extremely fortunate to have a European friend who has been keeping an eye on the Da Vinci Code-Holy Blood, Holy Grail trial. This friend wishes to remain unidentifiable in order to avoid a range of repercussions.

The latest dispatch is below and covers the re-convening of the trial today, March 7. The dispatch adds valuable "color" lacking in media reports. I have added [my comments in brackets].

"In Court 61 in the Royal Courts of Justice this morning, about 30 of us sat while another 30 stood about. Baigent and Lee came in like two aging hippies and Dan Brown came in looking rather thinner and less dapper than his photos.

"Mrs Brown was not there and the counsel made a brief mention that she would not be testifying."

[I am not surprised that the book's key researcher, Blythe, is _not_ on the stand. I imagine that having her under oath could be devastating to Random House. It is, however, surprising given the extensive role that Brown says she played. ]

[On the other hand, if the Random House lawyers can successfully deprive the judicial process of her valuable testimony, then they have a public relations coup: Brown may very well be able to say, truthfully, that he did not read the books in question. And by other skillful coaching by lawyers, Brown may be able to skirt the edges of perjury in his answers. ]

"A few interesting things came out before testimony:

"A few items that were originally claimed to have been copied from HBHG have been dismissed because DB's lawyers can show ... wait for it ... he copied them from a different source, not HBHG. There was a hint that the copying was "textual" (word-for-word?) but that it was of very brief length.

"Baigent and Lee had to declare a list of "central themes" they allege that DB has infringed upon. They came up with 15.

"The case revolves around these central themes and whether they are copyrightable. My guess is they aren't, but seeing how the case revolved around that rather than broad similarities was interesting to see. Baigent was the only witness I saw but he had a very rough time of it.

"Although I am a bit out of sympathy with Baigent, his cross-examination was pretty rough. There was a lot of attention taken to the original proposal to the publisher that itself did not contain many of the 15 central themes ("how can they be central themes if they aren't in your outline?" was a frequent question).

"Of course, the outline pre-dated the book by about 3 years. Anyways, Random House went on about that for a while, but I think the judge was sympathetic to Baigent on that because, in reality, most finished books do not adhere rigidly to the original proposals.

"The judge wasn't so supportive on issues of "other people share my belief" that was included in Baigent and Lee's complaint -- their examples, while referencing the similarities between DVC and HBHG did not reference the 15 central themes, so Baigent was forced to admit that his complaint on that score was either incorrect, false or (his words) 'infelicitous'."

[Despite erroneous media reports that echo the Random House party line, my case hinges NOT on general themes or broad claims but on several hundred very specific and identifiable instances of copying that were comprehensively analyzed by forensic linguist Johgn Olsson, but which the trial judge refused to admit into evidence.]

"The judge forced him to make a few of these admissions. Not very helpful, I think, to his case -- moral: if you cite other people, make sure that you have a statement from them supporting what you're saying they wrote."

[In my case, we introduced into evidence a numbed of unsolicited emails from strangers callig my attention to what they saw as plagiarism of my books by The Da Vinci Code.]

"I imagine several of the people cited might well have agreed with Baigent, they just didn't write it out in a way that coincided with a claim of copyright (as opposed to plagiarism).

"They mentioned a few other books that Dan Brown used for his notes, I recall this one: Woman in the Alabastar Jar (might be off by a bit in the title)."

[That would be The Woman with the Alabaster Jar : Mary Magdalen and the Holy Grail, by Margaret Starbird.]

"The judge indicated that the important feature of the case was the *order* in which DB did his research and whether some of these other sources stemmed from HBHG and when he read HBHG and what he used ("cribbed") of it."