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The Da Vinci Cases: One Down, How Many To Go?

Dan Brown won a plagiarism lawsuit. Which made me realise I haven't heard anything about the other legal case regarding IP theft recently. Lewis Perdue claims Brown stole ideas from two of his books, The Da Vinci Legacy and Daughter of God. I have to admit, reading the book description for Perdue's “The Da Vinci Legacy” does ring some bells. It would not be too strange though, for similar story lines to evolve quite differently over time. Maybe I should check it out some day. See, mr. Perdue, something good may come of this (ah, the benefits of lawsuits). [Source]

[Buy] The Da Vinci Legacy
[Buy] Daughter of God

posted at 22:05:28 on 08/08/05 by RB - Category: Legal issues - No Trackbacks - karma: 9 [+/-]

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Lewis Perdue wrote:

The Da Vinci Code Decision

About this Dan Brown thing: He 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 at: http://davincicrock.blogspo...

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 in
requiring 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.

08/09/05 04:05:31

RB wrote:

Here I was, thinking I got a personal reply from the author, but it was more of a copy from his site. Ah well. Maybe I'll read his book some day and decide for myself. I noticed the Daughter of God book is now in its first Dutch printing, so perhaps more Dutch people will now decide for themselves too.

08/16/05 21:50:33

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