• Random House sued ME; not the other way around.
  • Random House filed suit to silence the facts I was posting on the web.
  • There has been NO trial on the facts, only the Random House effort to prevent a trial.
  • NO expert testimony was allowed despite three international plagiarism experts who were willing to testif that it existed.
  • The only sworn statements made under penalty of perjury are affidavits from me and my experts, nothing from RH.
  • The judge refused to consider any expert analysis.
  • Despite suing me first, Random House & Sony UNsuccessfully demanded that I pay the $310,000 in legal fees they spent to sue me.
  • Contrary to the Random House spin, I am not alleging plagiarism of general issues, but of several hundred very specific ones.
  • This is not about money. Anything I win goes to charity.

Legal filings and the expert witness reports are HERE

I have a second blog, Writopia
which focuses on Dan Brown's pattern of falsehoods
and embellishment of his personal achievements.

Tuesday, May 17, 2005

2nd Circuit Appeals Court Decision Supports the Notion That a Trial Is Needed

As hard as Random House is trying to avoid a trial with their request for Summary Judgement, the last thing they want is for someone to bring up the case of Repp v. Weber. Well here it is.

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."

In Repp v. Weber, the Second Circuit overturned the U.S. District Court's decision to grant a motion of Summary Judgement. Even Random House could not argue truthfully that there are NO genuine issues of material fact.

Justice demands a trial.

EXCERPT from Repp v. Weber (Click here for full case.)

Under the governing Rule, judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The Rule is clear in "provid[ing] that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986) (emphasis in original).

In our review of the district court's decision, it is necessary for us to resolve all ambiguities and draw all inferences in favor of the non-moving party. See Skubel v. Fuoroli , 113 F.3d 330, 334 (2d Cir. 1997). However, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). In making the necessary showing, "[c]onclusory allegations will not suffice to create a genuine issue." Delaware & Hudson Ry. Co. v. Consolidated Rail Corp. , 902 F.2d 174, 178 (2d Cir. 1990). The Supreme Court teaches that a "genuine" dispute over a material fact arises only where it can be said that the evidence would allow a reasonable jury to find in favor of the non-moving party. Liberty Lobby , 477 U.S. at 248 .

We are mindful that factual materiality is governed by reference to the applicable substantive law. Dister v. Continental Group, Inc. , 859 F.2d 1108, 1114 (2d Cir. 1988). In this case, of course, our reference is to the substantive law governing actions for copyright infringement. Because the non-moving parties, here the plaintiffs, bear the burden of proof at trial on their claim that Lloyd Webber's "Phantom Song" copies Repp's "Till You," the defendants may satisfy their burden under Rule 56 by showing "that there is an absence of evidence to support [an essential element] of the nonmoving party's case." Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986).

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. In this regard, the court's task is issue identification, not issue resolution. See Liberty Lobby , 477 U.S. at 249 . In performing this task, we must assume the truth of the non-movant's evidence. See id . at 255. It seems to us that the district court failed to make the requisite assumption. We think that the district court undertook to resolve some material issues of fact revealed on the motion for summary judgment rather than to identify those issues and leave them for trial. We think that the defendants failed to demonstrate the absence of evidence supporting the elements of plaintiffs' copyright infringement case. And we think that the evidence presented by plaintiffs would allow a reasonable fact-finder to find in favor of the plaintiffs.


Blogger Mark said...

Yeah I had read this case.

Tue May 17, 06:49:00 PM PDT  

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