ADDENDUMS AND CORRECTIONS
EDITOR'S NOTE: IT TURNS OUT OUR LOVELY LITTLE DWEEBLETTER ISN'T QUITE A COMPLETE VOICE IN THE WILDERNESS. AN OFF-THE-CUFF SNARKY BIT THE OTHER DAY GOT AN EDIFYING RESPONSE FROM ONE OF THE ACTUAL PARTIES INVOLVED.
SNARK IS ONE THING, BUT WE STILL ENDEAVOUR TO BE FAIR-AND-BALANCED HERE AT THE DWEEBLETTER. (NO...REALLY. NOT THE FOX FAIR-AND-BALANCED, BUT THE GENUINE KIND).
SO I PROMISED THE AGRIEVED AUTHOR REFERRED TO IN OUR DWEEBING THAT I WOULD POST HIS COMMENTS.
FIRST...HERE'S THE ORIGINAL POSTED ITEM FROM WEDNESDAY'S DWEEBLETTER -
DA VINCI CODE is Cleared
On Friday, it was announced that Dan Brown has won a court ruling against author Lewis Perdue who claimed his book THE DA VINCI CODE copied elements from two of his books.
The suit was for $150 million in damages.Perdue had claimed CODE infringed on the copyright of his novels DAUGHTER OF GOD and THE DA VINCI LEGACY, and that Brown had copied the basic premis of DAUGHTER.
The N.Y. judge presiding over the case stated "a reasonable average lay observer would not conclude that 'The Da Vinci Code' is substantially similar to 'Daughter of God'." EDITOR’S NOTE: OF COURSE THE ‘REASONABLE AVERAGE LAY OBSERVER’ CAN’T READ.
AND HERE'S THE EMAIL FROM MR. PERDUE:
Actually, the DVCode was _not_ Cleared.
Dan Brown won a round, but the case is far from over.
The headlines were wrong that the judge has cleared The Da Vinci Code of copyright infringement issues or that the issue has been settled.
Contrary to the headlines, Judge Daniels did not "acquit" Brown, but quite to the contrary, acknowledged that there were many similarities in the setting, plot and characters, in other words the key ideas making up my books.
However, in one of those interesting quirks of law, he found that Brown's expression of the ideas was different and, therefore, that in the legal meaning of the word he had not plagiarized.
We believe the evidence the Judge improperly excluded from consideration proves that my expression was infringed upon, not merely my ideas.
There has been no trial on the issues.
What occurred exploits a quirk in American copyright infringement law whereby all facts and expert witness testimony can be excluded from consideration. This quirk is the "lay reader" test which says that the judgement relies on the gut-level response of an average reader as to whether similarity exists or not.
Ironically, the controversy with Da Vinci Code began with average "lay" readers – strangers who sent me unsolicited emails saying they felt I had been plagiarized. While this is a self-selected population, those who feel I have been plagiarized run approximately 10-to-1 in my favor.
This indicates there is a substantial legal question to be addressed.
But NONE of those true, average "lay" readers – many of whom were identified in our legal briefs --counted. Only one reader counted in this case: Judge George Daniels who obviously fell into that 1-in-10 category.
Because of that, I did not get a trial.
Justice demands that a jury hear the evidence.
The summary judgment process has an admirable goal: to keep frivolous lawsuits from clogging up the courts. However, as my legal team amply demonstrated with expert testimony and hundreds of solid examples of fact and similarity, this legal action is well-founded on fact, raises substantial unresolved issues and deserves a trial.
The Second Circuit Court of Appeals has been clear on the following issues:
(1) Summary judgement should NOT be granted unless there is "no genuine issue of material fact."
(2) The Court should, "resolve all ambiguities and draw all inferences in favor of the non-moving party." I am the "non-moving party."
(3) A motion of summary judgement should NOT be a decision on whether copyright infringement has taken place. "
Clearly, the duty of a court on a motion for summary judgment is to determine whether there are any genuine issues of material fact to be resolved by trial and not to decide factual issues."
(More details about this as well as the case citation can be accessed on my blog. http://davincicrock.blogspot.com/2005/05/2nd-circuit-appeals-court-decision.html
Thus, I believe Judge Daniels erred in his decision.
In addition, item (3), above, makes it clear that the Judge's decision should not be considered a decision on the merits of whether copyright infringement has taken place.
Furthermore, I have never claimed to have copyrighted a notion, a fact, a plot, a bit of history, an idea or any other nonsense.
This quote from the judge's decision is totally false:"Perdue alleged that Brown copied the basic premise of Daughter of God, including notions that history is controlled by victors, not losers, and the importance of the Roman Emperor Constantine inrequiring a transition from a female- to a male-dominated religion."
Just totally incorrect. Take a look for yourself at the original legal papers (including the expert witness reports) filed with the court, at: and you'll see that "expression" is what was infringed and what this suit is about. http://www.davincilegacy.com/Infringement/
EDITOR'S NOTE: THE DWEEBLETTER SENDS ITS APOLOGIES TO MR. PERDUE FOR 'WEAPONIZING' PITH AT HIS EXPENSE. THIS ISN'T "FEAR FACTOR"; WE WANT TO HAVE FUN, BUT NOT BY CAUSING ANY SUFFERING TO BYSTANDERS. (EXCEPT ODDBOB, NATCH). WE'D ALSO LIKE TO OFFER MR. PERDUE CONDOLENCES ON HIS TRAVAILS, AND GOOD LUCK AND GOD SPEED IN HIS PURSUIT OF A JUST OUT-COME.
SNARK IS ONE THING, BUT WE STILL ENDEAVOUR TO BE FAIR-AND-BALANCED HERE AT THE DWEEBLETTER. (NO...REALLY. NOT THE FOX FAIR-AND-BALANCED, BUT THE GENUINE KIND).
SO I PROMISED THE AGRIEVED AUTHOR REFERRED TO IN OUR DWEEBING THAT I WOULD POST HIS COMMENTS.
FIRST...HERE'S THE ORIGINAL POSTED ITEM FROM WEDNESDAY'S DWEEBLETTER -
DA VINCI CODE is Cleared
On Friday, it was announced that Dan Brown has won a court ruling against author Lewis Perdue who claimed his book THE DA VINCI CODE copied elements from two of his books.
The suit was for $150 million in damages.Perdue had claimed CODE infringed on the copyright of his novels DAUGHTER OF GOD and THE DA VINCI LEGACY, and that Brown had copied the basic premis of DAUGHTER.
The N.Y. judge presiding over the case stated "a reasonable average lay observer would not conclude that 'The Da Vinci Code' is substantially similar to 'Daughter of God'." EDITOR’S NOTE: OF COURSE THE ‘REASONABLE AVERAGE LAY OBSERVER’ CAN’T READ.
AND HERE'S THE EMAIL FROM MR. PERDUE:
Actually, the DVCode was _not_ Cleared.
Dan Brown won a round, but the case is far from over.
The headlines were wrong that the judge has cleared The Da Vinci Code of copyright infringement issues or that the issue has been settled.
Contrary to the headlines, Judge Daniels did not "acquit" Brown, but quite to the contrary, acknowledged that there were many similarities in the setting, plot and characters, in other words the key ideas making up my books.
However, in one of those interesting quirks of law, he found that Brown's expression of the ideas was different and, therefore, that in the legal meaning of the word he had not plagiarized.
We believe the evidence the Judge improperly excluded from consideration proves that my expression was infringed upon, not merely my ideas.
There has been no trial on the issues.
What occurred exploits a quirk in American copyright infringement law whereby all facts and expert witness testimony can be excluded from consideration. This quirk is the "lay reader" test which says that the judgement relies on the gut-level response of an average reader as to whether similarity exists or not.
Ironically, the controversy with Da Vinci Code began with average "lay" readers – strangers who sent me unsolicited emails saying they felt I had been plagiarized. While this is a self-selected population, those who feel I have been plagiarized run approximately 10-to-1 in my favor.
This indicates there is a substantial legal question to be addressed.
But NONE of those true, average "lay" readers – many of whom were identified in our legal briefs --counted. Only one reader counted in this case: Judge George Daniels who obviously fell into that 1-in-10 category.
Because of that, I did not get a trial.
Justice demands that a jury hear the evidence.
The summary judgment process has an admirable goal: to keep frivolous lawsuits from clogging up the courts. However, as my legal team amply demonstrated with expert testimony and hundreds of solid examples of fact and similarity, this legal action is well-founded on fact, raises substantial unresolved issues and deserves a trial.
The Second Circuit Court of Appeals has been clear on the following issues:
(1) Summary judgement should NOT be granted unless there is "no genuine issue of material fact."
(2) The Court should, "resolve all ambiguities and draw all inferences in favor of the non-moving party." I am the "non-moving party."
(3) A motion of summary judgement should NOT be a decision on whether copyright infringement has taken place. "
Clearly, the duty of a court on a motion for summary judgment is to determine whether there are any genuine issues of material fact to be resolved by trial and not to decide factual issues."
(More details about this as well as the case citation can be accessed on my blog. http://davincicrock.blogspot.com/2005/05/2nd-circuit-appeals-court-decision.html
Thus, I believe Judge Daniels erred in his decision.
In addition, item (3), above, makes it clear that the Judge's decision should not be considered a decision on the merits of whether copyright infringement has taken place.
Furthermore, I have never claimed to have copyrighted a notion, a fact, a plot, a bit of history, an idea or any other nonsense.
This quote from the judge's decision is totally false:"Perdue alleged that Brown copied the basic premise of Daughter of God, including notions that history is controlled by victors, not losers, and the importance of the Roman Emperor Constantine inrequiring a transition from a female- to a male-dominated religion."
Just totally incorrect. Take a look for yourself at the original legal papers (including the expert witness reports) filed with the court, at: and you'll see that "expression" is what was infringed and what this suit is about. http://www.davincilegacy.com/Infringement/
EDITOR'S NOTE: THE DWEEBLETTER SENDS ITS APOLOGIES TO MR. PERDUE FOR 'WEAPONIZING' PITH AT HIS EXPENSE. THIS ISN'T "FEAR FACTOR"; WE WANT TO HAVE FUN, BUT NOT BY CAUSING ANY SUFFERING TO BYSTANDERS. (EXCEPT ODDBOB, NATCH). WE'D ALSO LIKE TO OFFER MR. PERDUE CONDOLENCES ON HIS TRAVAILS, AND GOOD LUCK AND GOD SPEED IN HIS PURSUIT OF A JUST OUT-COME.
posted by QOTD (the Queen of the Dweebs) at 10:26 AM
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