Evidence? We Don't Need No Stinkin' Evidence!

Federal judges must be really intelligent and psychic as well. Here's yet another one (like the ones in my Da Vinci Code plagiarism case) who doesn't want to be distracted by mere facts.

From The San Francisco Chronicle:

A federal judge in San Francisco dismissed a lawsuit Wednesday that sought to prove President Bush acted illegally in 2001 when he ordered the wiretapping of phone calls between Americans and suspected foreign terrorists without court approval.

Chief U.S. District Judge Vaughn Walker said an Islamic charity on the government's terrorist list could not use a crucial classified document - an accidentally released memo indicating the charity and its lawyers had been wiretapped - to show that it had been harmed by the surveillance program and thus had the right to challenge it in court. But the organization's lawyer said he wasn't giving up.

The Supreme Conflicts of Interest

Yes, it DOES make you wonder what other kinds of conflicts the "Justices" conceal in their portfolios and private lives. Bertlesmann (Random House) stock, anyone?


From theWasington Post
Sell the Stock
Financial conflicts are hobbling the Supreme Court.

Saturday, May 17, 2008; A16

THE SUPREME Court found itself paralyzed this week, unable to decide whether to take up an important class-action case against companies that allegedly aided and abetted South Africa's apartheid regime. The result is unfortunate, leaving in place a flawed lower-court decision that allows the misguided litigation to proceed.

The reason for the impasse: The court fell short of the required six-justice quorum because four justices recused themselves because of conflicts of interest. Justice Anthony M. Kennedy reportedly could not participate in the case because his son works for Credit Suisse Group, a defendant in the case. Three others -- Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer and Samuel A. Alito Jr. -- apparently declined involvement because they own shares in defendant companies. Justice Kennedy's predicament is unavoidable; that is not the case with the others.

Judges must recuse themselves if they have a financial or personal interest in a case. By this measure, the chief justice and Justices Breyer and Alito did the right thing by stepping aside. What makes this situation confounding, however, is that the justices could have averted a conflict if they had kept their investments in mutual funds rather than in individual stock, which are the most likely to trigger a conflict. Chief Justice Roberts, one of the newest and wealthiest arrivals to the court, should be commended for having taken steps in that direction. But he and his colleagues should go further. A law passed late last year allows judges to avert capital gains taxes if they sell financial holdings to resolve conflicts of interest. All of the justices should take advantage of this provision.

No one wants to see justices take a financial hit. As it is, their public-sector salaries are dwarfed by the millions earned by often less talented lawyers in the private sector; Congress could narrow this disparity by giving federal judges a much-deserved pay raise. But there is something discomfiting about the highest court in the land having to retreat from an important legal matter because of the financial considerations of its members. The justices would do themselves and the public a great service by promptly divesting themselves of any holdings that could keep them from fulfilling their professional duties.

RandomDan Sanitizes Wayback Machine and other sites

RandomDan Lawyer Takes Aim at Truth



I've learned that many of the web links referenced on this blog, especially those to archive.org have been sanitized and/or no longer exist.

While that's pretty sleazy, the BIG question is "why?"

If Dan's innocent, then why bother?

Why indeed!

Fortunately, I anticipated they would do that. I have copies of every link they've sanitized.

Guess I'll need to repost these.

Author who sued Dan Brown dies

Well, even though Random House's well-documented distortions and misrepresentations have smeared me, and turned me into publishing's bête noir, that's clearly better than this:

Friday November 30, 2007
Guardian Unlimited

Author who sued Dan Brown dies

Richard Leigh, a writer of alternative history who unsuccessfully sued for plagiarism over themes in Dan Brown's blockbuster novel The Da Vinci Code, has died, his agent said today. He was 64.

US-born Leigh, who had lived in Britain for three decades, died in London on November 21 from causes related to a heart condition, the Jonathan Clowes Agency said.

More at: http://books.guardian.co.uk/danbrown/story/0,,2219843,00.html

Bush Supreme Court refuses to hear CIA kidnap case

Yeah, the very same group of lazy Supremes who wouldn't hear the facts in the Dan Brown/Da Vinci Crock case. They seem to duck the hard questions every time they come up.

The following is from John Dvorak's blog:

The Supreme Court Tuesday threw out a case against the US government brought by a Lebanese-born German, alleging he was kidnapped by the CIA and tortured for months before being freed without charge.

He was demanding an apology from the US administration and 75,000 dollars in compensation, alleging he was flown to a prison in Afghanistan for questioning before being released five months later in Albania, without any explanation.

“When we deny justice to an innocent victim of our anti-terror policies, we make America less safe and we provide the government with the most complete immunity for even the most shameful human rights abuses,” his lawyer told AFP.

When the Supreme Court rejected Masri’s case, then “the government may engage in torture, declare it a state secret and by virtue of that designation avoid any judicial accountability for conduct that even the government purports to condemn as unlawful under all circumstances.”

The Bush administration argued that if the case went to trial information concerning “highly classified methods and means of the program” would have to be revealed to the court.

What’s so secret about our government condoning kidnapping and torture? The whole world knows about it. It’s only a question on Fox Snooze and in the minds of the truly gullible.

The last time the principle of state secrets was examined by the Supreme Court was in 1953, when after a military plane crash it ruled the then government did not have to disclose a military report into the accident to the families of three civilians killed.

But, hey, that’s only 54 years ago. If Bush reached all his goals, we’d have a 19th Century Supreme Court.

Nifong & Random House's Lawyers

Mike Nifong, the prosecutor who was disbarred for misleading the judge and defense lawyers in the Duke rape case has been disbarred. Simply stated, he lied for his own self interest.

This is not a lot different than what happened to me at the hands of the Random House lawyers.

Yes, that was a criminal case and this was a civil one. However, Random House assumed the role of prosecutor when they started the whole legal mess by suing me.

And throughout, (as pointed out by numerous, very specific examples drawn from legal filings) they misrepresented the facts, filed misleading briefs and in the process concealed information from the judge.

Should those lawyers not be subjected to the same standard of justice as Nifong?

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."

Date Set for Appeals Arguments

At 10 a.m., April 11 in New York, Second Circuit Court of Appeals.

On a related topic, I was watching an old videotape of the quickly defunct (and ahead of its time) Max Headroom television series this weekend. One of the characters (Blank Reg, if you know the series) notes that, "Publicity is the last refuge of the innocent."

RH London Lawyer No Better At The Truth Than American

According to this article in the Book Standard, the Random House lawyers in London are as adept at misrepresenting reality as those in this country.

This excerpt contains a gross falsehood by RH lawyer John Baldwin:

"According to Baldwin, Brown's own copy of Holy Blood was annotated after Da Vinci was published, ahead of another, unsuccessful action by author Lewis Perdue, who accused Brown of plagiarizing his books The Da Vinci Legacy and The Daughter of God. "American lawyers have crawled over it [emphasis added] and Mr. and Mrs. Brown have annotated it up in 2003, after The Da Vinci Code was published."

No. No that bolded statement is not true. It's false and totally unsupported by the facts.

Shame, shame.

Justice in this case truly needs a measure of truth and, as here in the U.S., it doesn't look as if RH is going to provide that. As I've said with my own case, if RH has such a great case, why must they resort to falsehoods? And if this is a lie, what else have they said that also cannot be trusted?

London Judge Adjourns Court to RE-read the Books in Question

Some very interesting material here, especially the judge needing to read the books a SECOND time and the RH attorney's statement that:

"You cannot, he said, claim copyright over a few bars of a song; it's the whole tune or nothing."

The second contention is an obvious mistake, at least in America, as any competent copyright attorney here knows.

The first part shows a judicial willingess to consider all the facts. RE-reading after having heard testimony in order to see for himself. This judge seems to understand that determining plagiarism is not always as simple a task as breezing through the works in question.

Da Vinci judge turns back to page one

By Alan Hamilton

The devil is in the detail, and one reading of the two hefty books in question proves insufficient

DID Pepin the Fat assassinate King Dagobert II in AD679? Why did the Knights Templar fall out with the Priory of Sion in 1188? And was the Crucifixion a fake?

Early Christian history dominated the second day yesterday of the hearing in the High Court into whether the American author Dan Brown had infringed copyright by lifting ideas from a book published more than 20 years previously for his blockbusting fiction, The Da Vinci Code, written in 2003.

Michael Baigent and Richard Leigh are suing their publishers, Random House, for breach of copyright, saying that Brown took at least 15 core ideas from their non-fiction work, The Holy Blood and The Holy Grail, written in 1982. It was the turn of the defence yesterday to deny the claims and, as ever, the devil was in the detail.

Read the rest.

Notable Absences at London Trial

From The Guardian

"There were two notable absentees from the court: the third author of The Holy Blood and the Holy Grail, Henry Lincoln, who is taking no part in the action; and Mr Brown's chief researcher, whose habit was to copy, type and hand over to him long extracts from works that she thought might interest him - his wife, Blythe.

Every now and then, in a day of tortuous legal argument about what constitutes "the architecture" of a book, of how plagiarism can be proved in the era of instant information, and of whether a single phrase about the Emperor Constantine being baptised on his deathbed could have copyright, the softly spoken judge, Mr Justice Peter Smith, threw a remark or question into the proceedings that fell like the clonk of a concrete boot.

Inferences

Quietly he remarked that inferences might be drawn from the absences of Henry Lincoln and Blythe Brown.

Quietly he asked what, precisely, the plaintiffs were seeking as remedy? Did they want, as he had heard suggested on the news, to stop the release of the film? Did they want millions of copies of The Da Vinci Code to be destroyed? Or were they just looking to be paid a licence fee?

Quietly he asked whether Random House was not still selling The Holy Blood and the Holy Grail. "Indeed yes," stammered Jonathan Rayner James QC, for the plaintiffs, looking astonished at the question. "Forgive me if I hesitate at your question ... "

"Don't worry," said Mr Justice Smith, quietly. "You'll have a lot more of them before the end of the case."

Ahamedd Saaddoodeen, Redux

Back on May 15, 2005, I offered a reward for the person who could untangle the mystery of Ahamedd Saaddoodeen, an alias which data indicates has been used by Dan Brown's wife, Blythe, since about 1979 and continuing up to the present day. Read those two previous blog posts for the specific details.

The "name" appears to be made up, a code for something.

Today, I received an email from an Arizona man who is tackling the puzzle and has come up with a number of intriguing possibilities:

• demons ado dead ahead
  

• a deed a shade and doom
  

• o so damned dead ahead
  

• a shade a deed and doom
  

• doom a deed and a shade
  

• shade a deed and a doom
  

• o ado ashamed dead end
  

• ado o ashamed dead end
  

• o ashamed and dead ode
  

• o does he add a dead man
  

• o he does add a dead man
  

• o a dead man he does add

In his email, the Arizona writer also added:

"I really know nothing about any of this. I just re-arranged the letters... all of them seem to share that sophomoric, quasi-poetic cheesiness which was the defining characteristic of the anagrams in 'The DaVinci Code' (& pretty much the whole book, which I read in about 6 hours - I thought it was stupid, but it was a page turner, that's for sure...)

"I haven't read your books, but it does seem as if you've gotten a bit of a raw deal & Dan Brown seems like a real jerk.

The reason I think Dan Brown is a jerk is because I am a composer, musician & keyboard player. I do not appreciate people who claim other people's creations as their own. The way he credits his "CDs" & his musical experiences makes it obvious to anyone in the business this is bogus. I know lots of people who self-publish their own music -- I don't know any of them who say their music was "released" unless it was picked up by an actual record label, meaning -- someone paid them to make it, rather than them paying for it themselves.

I am intimately familiar with this type of person - there are ALWAYS lurkers & wanna-be's in the halls of music schools or writing programs - people who really have absolutely no aptitude for the skill they are pretending to learn, but seem to have an uncanny ability to jump through hoops, kiss ass & figure out ways to get famous with other people's ideas.

With all the funny business going on in the publishing world today (Frey, JT what's-is-face, the Indian guy, etc.. etc..) I wouldn't be a bit surprised to learn that Dan Brown's wife is the real author of these books & his claim to have written them is a purposeful attempt at defeating the legal system which prosecutes these matters since the person who ACTUALLY wrote them does not ACTUALLY have to go on trial. that's not to mention the potential motivation of the publishers to stir up controversy/publicity any way they can.

Now that Mr. Brown has 70 million books worth of $ in his bank account & Random House has what could be an ongoing multi-million $ franchise I doubt anyone can afford to uncover his secret plagiaristic ways. Maybe someone should write a thriller about that!

"good luck to you... "

Any London Court Watchers Out There?

I'm not wealthy enough to be sitting in court in London, nor can I afford to have anyone there to gather the data and testimony.

Are there any courtwatchers there who might be able to fill in the many details that the newspapers do not have room for?

Appropriating Theme Points

I'm getting bits and pieces of what is going on over in London, but the following from the NY Daily News is of interest:

'Lawyer Jonathan James, arguing for Baigent and Leigh, charged that Brown "appropriated the architecture" of "Holy Blood" and used as many as 15 of its theme points.'

And that compares with close to 100 theme points that Code appropriated from my works and several hundred more significant, specific similarities as comprehensively presented in John Olsson's analysis.

London Trial

The Boston Globe has one of the more detailed articles on the London trial against Random House.

According to the Globe article, Random House lawyer John Baldwin, "said many important themes of "The Holy Blood and the Holy Grail" did not feature in "The Da Vinci Code," particularly the idea that a secretive order called the Priory of Sion exists and seeks to restore descendants of Jesus Christ to the thrones of Europe.

"Baldwin said this was a 'massive point' in the earlier book but was not stressed by Brown.

Interestingly enough, the Random House lawyers in my case are stressing similarities like this from HBHG in order to divert attention away from the similarities with my own works.

It seems clear that Random House intends to further misrepresent things from one court to another in hopes that no one is watching what's happening on the other side of the Atlantic.

Presenting Fiction as Fact

The James Frey (A Million Little Pieces) case shows how Random House/Doubleday benefits when fiction is misrepresented as fact. Not surprisingly, their lawyers have done the same thing in their lawsuit they brought against me.

One substantial reason I was denied a trial at the District Court level, is that Random House presented "faux history" as real history (something that is at issue in the London case as well.) History is not protectible, but fictional expression of history is. Many of the fictional "faux history" aspects of The Da Vinci Code first appeared in my works.

The judge in my case, however, mistook my fictional creations about history as real history and filtered those out those as not protected.

But the Random House lawyers persisted in their response to my appeals brief. On page 17 of their filing, they write,

"The Gnostics were early dissidents from the dominant branch of Christianity and their beliefs were excluded from the New Testament commissioned by Constantine, which bears close relation to the New Testament of today. (A-116,A-378)."

The lawyers are presenting that statement as FACT ... just as it was presented as FACT in The Da Vinci Code.

But either the lawyers don't know their history or they're deliberately presenting the court with fiction as fact -- because that is not history at all.

One of the best sources on just what is a fact is Truth and Fiction in The Da Vinci Code : A Historian Reveals What We Really Know about Jesus, Mary Magdalene, and Constantine by professor Bart D. Ehrman. In that work, Ehrman debunks that fictional fact.

Ehrman's discussion of this can be found in a number of places, primarily Chapter Four. One of those is page 81.

The point of this is to offer an example (there are many) of how presenting fiction -- especially stolen fiction -- as fact can be very profitable and (in my case) to make sure that justice is not done.

London Trial Against Random House, Brown Starts

In a testiment to the English judicial system, and whether or not the authors of Holy Blood, Holy Grail prevail, at least they got an opportunity to have the facts heard in court rather than being covered-up and stonewalled as has happened here.

Trial coverage here.

How Lawyer Manipulation of the Court Process Can Thwart Justice

At The Da Vinci Legacy website, I have just posted my reply, to the Random House Response,to my Appeals Brief.

As I was doing so, I ran across one of my attorneys' explanation as to why we were not able to reply to ALL of the issues in the Random House brief.

"By way of explanation, there is a 7,000 word limit." He explained.

Thus, here is a classic example of how lawyering can bias the process: Random House threw in every possible issue they could -- even when we had already responded to those issues in the trial briefs and even when out responses clearly showed that they had intentionally misrepresented the facts.

But because there is a limit on the size of our reply, we were unable to respond to every issue raised and were not allowed to address any issue to its appropriate extent.

So despite the fact that my affidavits and declarations are the only SWORN testimony in the entire proceeding, the manipulation of the process prevented us from making a full and complete reply. This is yet another way that justice can be thwarted by "good lawyering."

Sure, it's legal, but it's also sleazy and thwarts the even-handed administration of justice. But attorneys for Random House and Sony have been doing that all along, so it's not surprising.

As we have seen, they both realize that they cannot win on the facts. Thus they must do everything possible to prevent a trial.

Issuing a Half-Apology Is Like Publishing a Half-Truth.

A statement from Random House/Doubleday (which also published the Da Vinci Code), said in part:

"The controversy over James Frey's A MILLION LITTLE PIECES has caused serious concern at Doubleday and Anchor Books. Recent interpretations of our previous statement notwithstanding, it is not the policy or stance of this company that it doesn't matter whether a book sold as nonfiction is true. A nonfiction book should adhere to the facts as the author knows them....."

"We bear a responsibility for what we publish, and apologize to the reading public for any unintentional confusion surrounding the publication of A MILLION LITTLE PIECES."

Given that the same sort of author biographical fabrications and marketing of fiction as fact by Random House/Doubleday were key to its success, the apology and refunds to readers needs to be extended to Code.

Issuing a half-apology is like publishing a half-truth.

Further, it's clear that Frey is being made the fall guy, a way for the corporate types to throw a sacrificial offering to the masses and and distance itself from its own misconduct.

Dan Brown could end up in the same boiling pot if he continues to let RH pull his strings.

My previous offer to let Dan off the hook still stands.

Third Class Action Lawsuit Filed Against RH

A third class action lawsuit has been filed against Random House, this one in Seattle by attorney Mike Myers alleging breach of contract, unjust enrichment, negligent misrepresentation, intentional misrepresentation and violation of the Washington Consumer Protection Act.

In addition, as previous posts here indicate, the re are uncanny similarities with The Da Vinci Code's marketing, a fact which is increasingly being noticed.

As desperate as Random House has been to keep Dan Brown or anyone from the company from testifying under oath, the truth gets closer to slipping out every day.

Presenting Fiction as Fact IS Confusing

In a recent comment, Mark writes: "I never bought the "fact" claim in DVC. I read it as the paintings locations, and the sects were real, but not the scope and context. I think people are confused about that claim, in part at least."

From looking at his online profile, I know that Mark is a scientist, trained to be skeptical and not the average reader. Most folks, however, are not so well equipped to deal with a situation where a big, supposedly respectable company presents fiction as fact.

The fact that SO MANY people took SO MUCH time to write books about how SO WRONG the "facts" were in DVC is a measure of how many people were suckered in by the false and deceptive marketing.

It's easy to say they should not be so gullible, but when you're the average person and you've got a BIG NAME like Random House telling you it's TRUE, then you start to trust.

Obviously this sort of trust in Random House is misplaced and should be properly addressed by the class action law suits.

Two Obvious Reasons RH Can't Back Off DVC's "FACT" Claims

I received an email this morning that asked a question that was SO obvious that I am ashamed not to have thought of it myself:

"Don't you think that -- aside from their lust to sell more books (and movie tickets) -- one key reason Random House cannot afford to publicaly admit that the "FACT" in Code is fiction is that if they do this, then suddenly all the reasons the judge threw out your case will vanish?

"And don't you think another reason is that if they admit this, then they admit that they deceived book buyers and there goes the class action cases against them. Don't you think?"

Class action

As I predicted on January 11, at least two class action lawsuits have been filed against Random House in Los Angeles and Chicago regarding falsehoods associated with James Frey's A Million Little Pieces.

The same sources who dropped that information to me indicate that similar marketing tactics employed in connection with The Da Vinci Code may also be targeted, either to try and prove that Random House has a pattern of engaging in this sort of thing, or as separate class action lawsuits against Code.

This is significant because-- in addition to the continued insistance that Brown's work is factual (in the face of so much credible evidence to the contrary) -- Random House has also used a number of biographical fictions and distortions regarding Brown and his wife in Code's marketing blitz.

Read the Chicago legal filing and that from Los Angeles.

Random House/Sony Appeals Response Reads Like Frey Defense

An analysis will follow after I have an opportunity to read it thoroughly.

But a quick read reveals the same sort of vague and slippery arguments Random House and its supporters have been using to try and extricate James Frey and his "fiction is truth" novel/memoir.

In addition, they have filed 70 pages of regurgitated verbiage, mostly cut and pasted from their previous filings, repeating many of the same distortions and misrepresentations noted and discredited by the facts previously in this blog.

If they're willing to defend fiction as fact for James Frey, how far are they willing to torture the truth when hundreds of millions of dollars are at stake?

Their reply shows their same cavalier disregard for facts and the truth as their schemes to market fiction as fact in A Million Little Pieces, The Da Vinci Code and ... ?

Significantly, they have failed to reply in any meaningful manner to the reversible errors made by the District Court.

They do make a desperate and pathetic attempt to rationalize away the fact that the judge denied me a trial because he mistakenly believed that what Random House had presented as history was actually fiction which I wrote first and Dan Brown copied.

But Random House WOULD try to make that argument. After all, they've got a lot of experience in fooling people into believing that fiction is fact. That also describes their response to my appeal as well.

NY Observer Picks Up On Random House "Lying for Dollars" Marketing Pattern

Mark has brought yet another article to my attention, this one from the N.Y. Observer which connects the lies in A Million Little Pieces to those of The Da Vinci Code.

Other posters on this blog (notably D.L. Stewart) have expressed the opinion that there seems to be a pattern of dishonesty for the sake of marketing and sales.

Mark brought the following part of the N.Y. Observer article to my attention:

"The disclaimer in Leonard [another book by Frey] serves roughly the same role as the author’s note at the front of The Da Vinci Code—which says “All descriptions of artwork, architecture, documents, and secret rituals in this novel are accurate.” It’s a false certificate, a stamp of limited authenticity on a work of no authenticity at all. The Da Vinci Code is actually built around spurious texts and bald-faced inventions, but the conflict becomes publicity. Factual truth, or the appearance of it, is another tool to make the sale. In the end, there comes the Da Vinci Code movie trailer, using the language of inquiry to forestall inquiry: “Whatever you’ve read …. Whatever you believe …. ” Whatever.

The excerpt above can be found here.

So Dan: Call Me.

Frequent blog visitor Mark made a comment to my Lying for Dollars post which said:

"Buried in a USA Today article that once again looks at forthcoming Da Vinci Code-esque books is this report that the working title of THE SOLOMON KEY for Dan Brown's book-in-progress has been dropped. Spokesperson Alison Rich says: "No title, no content, no publication date, no nothing."

Mark concludes: "You got him on the ropes Lew."

After posting my reply (below) I thought the exchange was worth elevating to a post all its own.

My reply:

I don't take any joy in this.

Dan Brown made a mistake but I am not sure he needs to pay for it the rest of his writing career.

If the Random House lawyers hadn't decided to detonate a legalistic IED back in May 2003,instead of having the rational conversation I offered, this would all be over by now.

Why? Because my feeling is that Brown could have said, "Oops! I forgot to give you an acknowledgement. Here is is!"

I would have accepted that. That's all I wanted. I've been clear about that from the very beginning.

If I were Dan Brown, I'd be pissed as hell at the lawyers for making this far bigger than it should have been.

People make mistakes. No one is perfect. I'd STILL settle for a credit and a handshake apology from Dan Brown.

If Brown wanted to call me directly and set the handshake in motion, I'd be happy to accept that and call it quits so he could get back to writing and whatever else he wants to do.

I should add the following to the reply:

(1) I'd drop Brown from the lawsuit for credit and a handshake but not Random House and Sony. They are responsible for this mess and need to pay for that. And yes, I mean PAY but not to me. A charitable donation to specified Katrina-damaged libraries and Delta non-profits in Mississippi would suffice.

(2) I am in this for the long haul. Regardless of what happens in court, if I am denied a trial on the facts, then I will not cease to make the facts known on the Internet, in the media, in radio and TV interviews.

I don't enjoy this, but I do not give up. Not now. Not ever.

Dan Brown can end this in a heartbeat: lperdue@ideaworx.com.

James Frey: An Amateur Compared with RH Lawyers

Random House will soon file their response to my appeals brief and you can be sure it will be filled with the same sorts of fiction presented as fact as they have consistently done in the past.

Compared with the RH lawyers' abilty to misrepresent fiction as fact, Random House/Doubleday author James "A Million Little Pieces" Frey is an amateur.

My appeals brief listed many of the falsehoods in RH filings. In addition, I gave many verified examples of their misrepresentations and outright fabrications in a number of blog posts last year.

The RH/Sony lawyer deviations rom rteality are too numerous to list completely here, but below are a few examples which will probably get re-treaded for the upcoming RH/Sony response to my appeal.

• Lies, Damned Lies and Random House Footnotes

• Misrepresenting the Facts - Part 1

• Misrepresenting the Facts - Part 2

• Misleading Reference Insults The Search for Truth

• Dodge The Issues If Discussing Them Is A Losing Proposition

• We Need to Look at ALL of Random House's Claims in Light of The Abundant Verifiable Mistakes in Their Briefs

• Cooking the Truth Smells

• Selecting and Arranging Reality

• Q. When Is A Thriller NOT a Thriller?

• Abstract Is For Art; Concrete Paves My Plagiarism Case

• Yet Another Reality Disconnect

• The Smoking Guns - Random House Scrapes The Bottom of the Barrel

Yes, these are just a FEW ... there are more in the April 2005 Archives and even more in other 2005 archives.

Perhaps we need to set up a little intellectual game of chance to see which of the old, DIS-proven lies will be recycled in the next Random House/Sony legal filings?

Lying For Dollars

There is an interesting New York Times piece today regarding the value of truth, something with which Random House seems to have an uneasy relationship.

The article "What Is the Value of Truth?" by Dan Mitchell deals with Random House and others trying to brush off the fact that Jim Frey's A Million Little Pieces knowingly lied about the truth, something we have also seen with The Da Vinci Code.

Mitchell writes: If "Pieces" were labeled as fiction, would it still have landed Mr. Frey on "Oprah"? Would his tale of degeneracy, redemption and rehabilitation have ever seen the light of day?

'The Smoking Gun thinks not. If the book were "just some overheated stories of woe, heartache, and debauchery cooked up by a wannabe author," the story concludes, "it probably would not get published." The Web site points to a 2003 article in The New York Observer, which said that Mr. Frey tried to sell the book as fiction until his publisher vetoed the idea.'

Read the entire article.

One can also wonder whether DVCode would have sold so many copies had Brown and Random House not presented so much of the work as fact, and stuck steadfastly to the lie even after so many scholars had thoroughly demolished that idea.

It is dishonest at best to trick people into an intellectual bait-and-switch of these sorts.

On the other hand, the Federal Trade Commission and any number of class-action consumer lawsuits have found that false and misleading advertising and promotion are illegal.

Are "Pieces" and "Code" part of a pattern as other posters here and elsewhere have suggested? If so, what other Random House "facts" are fiction? If Random House knew about these before hand and structured marketing that was knowingly false, they should be investigated by the FTC and other appropriate bodies.

RH Stands By Author, AGAIN!

The following regarding James Frey, Dan Brown and Random House comes via email from D.L. Stewart, who has posted comments previously, has forgotten her blogger password. (As an aside, I apologize for configuring the blog to require a blogger account. While it does not entirely eliminate anonymous posts, it does keep drive-by spamming to a dull roar.)

Anyway, D.L. Steward writes:

Now I ask you: If Frey over embellished, and represented his MS as fact, What effect will this have on RH's reputation?

First Dan Brown and now this? Makes me wonder how many other red flag 'AGAINS' exist with RH.

Like: Did they KNOW about Dan Brown's alleged plagiarism of Lew Perdue’s DoG / DVL. before publishing DVC?

The ‘mainstream media’ is all over Frey for lying. RH is offering refunds. And Oprah is backing Frey.

Whoa! Where was the ‘mainstream media’ when Lew Perdue’s solid appeal was filed in December, 2005? What? No takers? But, you can bet that RH’s response will be heralded

A company that keeps that tight a reign on policy eventually busts its seams and through disgruntled employees becomes grist for the mass mill.

What would it take for someone from RH to admit that their PR policy doesn't include admitting to or taking responsibility for 'errors'?

It does prompt more questions about placing burdens of proof upon an author. Will publishers now have to put authors through lie detector tests? ( RH’s petty cash could probably pay for a lie detector machine.)

Writers lie all the time; when the lies get published: it’s called Fiction.

Frey may have lied; but plagiarism is stealing. Does this mean that at RH it's ok to 'embellish' the facts, as long as you don't steal them?

In my opinion, RH’s rep is in the toilet. Whooosh!

RH has already offered refunds? Does this mean they realize the connection? And are trying to head off media attention?

Someone from RH Legal has seen the connection between your case, the damage potential of its resurrection and the possible inclusion of an organization of legal reform jumping on your bandwagon. (You just won't go away) tsk, tsk.

This is the 'smooth over'.

Random House Offers Readers Refund

Given Dan Brown's obvious and proven errors in his purported "facts" and his refusal to confirm that he did any research at all as warranted, and given the millions of people who bought the book based on Brown's representations of accuracy, it looks logical that RH should refund money to those who bought Da Vinci Code.

Or perhaps a class action lawsuit on behalf of those people really is in the works as some emails I have received suggest?

Of course, RH and Brown can't admit the "facts" were actually "fiction" because they're fiction I made up first ... so they have to keep insisting fiction is fact and the judges have to keep taking random House's word for it, otherwise ...

... otherwise, we must have a trial -- Dan and RH's worst nightmare.

Anyway, here's the refund story from today.

Readers offered refund for controversial memoir

NEW YORK (Reuters) - Random House will offer a refund to readers who bought James Frey's drug and alcohol memoir "A Million Little Pieces" directly from the publisher, a move believed to be unprecedented, after the author was accused of exaggerating his story.

The entire story is here.

Newsweek's Da Vinci Code Chat

Devin Gordon, the author of Newsweek's cover story on the Da Vinci Code, held an online chat today and managed to leave some inaccuracies and false impressions as regards the plagiarism issues.

From the online Transcript:

Aurora, IL: There is still a lot of controversy surrounding whether the author of "The Da Vinci Code," Dan Brown, actually plagerizered another novel that dealt with the same subject material. Do you think that the release of the film will only escallate the controversary, especially if it can be proven that Brown did indeed commit plagerism?

Devin Gordon: That's true--in fact, the story about possible plagiarism first appeared in Newsweek more than two years ago. However, Dan Brown has been cleared by the court system in every case to date, and he has been up front about the fact that the "conspiracy theories" in his book are nearly as old as Adam and Eve. Given that, I doubt this particular controversy will rear its head as the movie arrives. After all, this is the movie, not the book, and anyway the matter seems more or less resolved. But most importantly, I think there are more pressing controversies than accusations of plagiarism.

When Gordon writes, "Dan Brown has been cleared by the court system in every case to date." He's wrong

The lawsuit in London has not been held yet.

And the "court system" is still in the works in my case. As my appeal illustrates, the District Court judge made some very serious, reversivble errors by not hearing most of my evidence before throwing the case out without a trial.

There was no trial on the facts and that hardly counts as "clearing" him.

The issues of plagiarism are not the "conspiracy theories" but the outright theft of my creative expression, numerous examples of which were ruled inadmissable by the District Court who acceded to the Random House motion to deny a trial on the facts at issue.

Gordon writes, "I doubt this particular controversy will rear its head as the movie arrives."

That's hardly the case given my appeal.

Gordon writes, "After all, this is the movie, not the book," without recognizng that the movie studios are party to the lawsuit.

Gordon writes, "I think there are more pressing controversies than accusations of plagiarism." But many people other than me certainly disagree.

Random House & Sony: Artful Dodgers

So, if Dan Brown REALLY didn't plagiarise me; if he REALLY did the research he claims; then what's the BIG DEAL about going under oath to deny that directly?

And why have they tortured the legal process and failed to rebut so many of my key points?

The issue is important because THEY sued ME and need to prove their allegations. By failing to submit a response UNDER OATH they have left most of my key assertions UNCHALLENGED. In other words, without a response under oath, THEY ADMIT that I am correct.

From page 44 of my Dec.21, 2005 appeals brief:

"Plaintiffs did not submit an affidavit of Dan Brown. While Plaintiffs’ attorneys tried to act as Brown’s surrogate by arguing what Brown did and did not do when he wrote Code, Brown never swore under oath that he conducted any research when he wrote Code, what books, if any, he read, that he never read Daughter or Legacy, and that he did not copy portions of Daughter or Legacy. Even after Perdue submitted his declaration (A. 206-225) stating that his discussion of the divine feminine was the product of his own personal synthesis, some of which he invented, and some of which he arranged by using matters in the public domain in an original way, Brown did not respond under oath.

"Even after Perdue presented examples in his memorandum of law of the similarities in the expression between Daughter and Code (A. 337-342, 345, 350-356), and even after Perdue accused Brown of having copied that expression, Brown still did not respond under oath. Indeed, neither Brown, nor anyone else acting on his behalf, ever denied the charges made by Perdue in his Declaration. Because of flaws in the way in which Plaintiffs moved for summary judgment and because of their failure to adequately deny Perdue’s charges of plagiarism, there existed questions of material fact requiring the denial of summary judgment."

Mr. Perdue, what are you talking about?

I am elevating a comment to a post because it many of the problems with blogging about a complicated legal issue.

"Roger" writes:

'Mr. Perdue, what are you talking about?

'Did Mr. Brown not clearly state he'd never read your books, nor even heard of you before writing his bestseller? Did his publisher not make the same statement?

'Why would you say this:

'"Indeed, neither Brown, nor anyone else acting on his behalf, ever denied the charges made by Perdue in his Declaration." ?'

'Your greed has really got the better of you, mate.'

"Roger" is a recent poster and, unfortunately, has not taken the time to read eithert the current filing or the many posts on this blog. The result is an over-simplification and unwarranted jumping to conclusions.

My Reply:

Actually, they have avoided directly stating UNDER OATH those very things. Why not under oath? Hmmm, maybe a perjury charge down the road, perhaps?

In addition, greed has nothing at all to do with it. Please read read the blog better because you'd see that ALL money that may be won will go to charity.

Further, I offered PRIVATELY (and long, long before I even thought of having a lawyer) ... back in 2003 for an "acknowledgement" and nothing more.

Random House and Sony Pictures are the ones who had to drag this into court.

Please read the documents and bring yourself up to speed on the facts before you casually toss accusations of greed around.

Da Vinci Code Infringement Appeals brief filed

I've just posted the final appeals brief here:

http://www.davincilegacy.com/Infringement/PerdueAppealsBrief/

I encourage you to read the brief and/or the condensed version. In there, you will find:

1. One of the key issues is that, despite page after page of arguments, the Random House/Sony lawyers did NOT address or refute many of my key arguments

2. In addition, many of the similarities the court excluded because it said they were history or facts, were actually my creative distortions of the fact and not history at all.

"The District Court erred in holding that virtually the entire quasi-religious and quasi-historical sequence of the novels was unprotected, even though much of Perdue’s “history” was not history at all but was created by him as a literary device and despite the fact that it was Perdue who originally expressed these historical distortions in entirely and new original ways (later copied by Brown) in order to create a more interesting work of fiction."

"The mere fact that an author chooses to characterize something in the context of his writing as historical fact does not make it so for the purpose of making an analysis of similarities between works. The putative “historical facts” may, as in the instant case, be fictional and there would therefore be no reason to characterize such “facts” as unprotected elements. "

"Plaintiffs have presented no evidence to show that Perdue’s historical inventions were instead actual historical facts, yet the District Court accepted Plaintiffs’ arguments as to what was and was not history."

"one author cannot choose to inhabit a fictional universe created by another author."

"the findings of the District Court were based, not upon the evidence submitted by the parties, but rather on the personal perception of the District Court "

3. Despite the District Court pretending to be an average lay reader, it inappropriately made conclusions and decisions only an expert could competently make while inappropriately excluding all my expert testimony.

4. And even if the court were an expert, its use of such expert knowledge does not adhere to the standard and is improper because it bases a judicial decision on evidence that is not part of the proceedings.

"Unless the District Court had a special historical expertise, it could not begin to decide what was and was not an historical fact. But even if the District Court did have such expertise, it would have been reversible error to rely solely upon such expert knowledge because that would have deprived Perdue of the ability to counter the historical opinions of the District Court with his own historical evidence."

"Without the benefit of any evidence or expert guidance, and under circumstances that would make judicial notice inappropriate, the District Court proceeded to speak as only an expert can speak because many of its statements would have required an encyclopedic knowledge of the appropriate genre, as well as world and religious history."

"While perhaps the District Court was an expert, absent an evidentiary basis, the District Court should not be allowed to use that expertise to decide the motions because the determination would not be based on the evidence. "

"the District Court should not have made its determination without any fact or opinion evidence.

5. Neither Dan Brown or his legal surrogates have denied the charges in my declaration.

"Brown never swore under oath that he conducted any research when he wrote Code, what books, if any, he read, that he never read Daughter or Legacy, and that he did not copy portions of Daughter or Legacy. ..and even after Perdue accused Brown of having copied that expression, Brown still did not respond under oath. Indeed, neither Brown, nor anyone else acting on his behalf, ever denied the charges made by Perdue in his Declaration. "

READ THE BRIEF: there's a lot more inside.

Retired District Court Judge Opines

I received the following in an email from a retired U.S. District Court judge. With that judge's permission, I am posting the following:

"I have followed this for months now and can no longer hold my peace. In my court, I always demanded that both parties to a civil action make a good faith attempt to resolve the issue outside of court. That did a far better and fairer job of unclogging my jurisdiction than depending upon summary judgement.

"I am astounded that the judge in your case has not done that. It's not an error to form the basis for an appeal, but perhaps it should be."

More Independent Support

I've been approached by a judicial reform advocacy foundation in Washington D.C. which sees my case as a cause worth supporting. Talks are ongoing.

Regardless of whether this group gets actively involved or not, what this means is that -- regardless of what happens with my issues with Brown and Random House and Sony -- the lack of a trial is spawning a whole new enegetic group of people who smell a rat and have the motivation, means, reputation and resources to carry on independently.

The longer that Random House and Sony prevent these issues from coming to trial, the more of this is going to develop.

Again, the key is that once they are involved, they're yet another independent group I cannot control which has its own beef with this case. Regardless of whether I am dead, gone, ruined, settle or whatever, they continue.

Their involvement -- along with the many ordinary readers who have written me to say they see plagrarism -- also demonstrates that we have a clear controversy of fact here that requires a trial to settle.

Random House and Sony may have the megabucks to bury me by gaming the legal process, but the longer that happens, the more groups like this will develop ... and which will continue long after my fight is done.

Steal a Character, Pay the Piper

Interesting story in the New York Times today: "The Strange Case of the Spoofer Captured by a Spoof"

"As a comedian, actor and satirist, Chris Elliott has made a career out of blurring the line between truth and absurdity. As a novelist, he has unintentionally fuzzied things further by falling for an online spoof and incorporating a fictional robot into his book as a historical figure.

"Now, Mr. Elliott finds himself in a comic nightmare, bending over backward to avoid being accused of a comedian's cardinal sin - lifting someone else's joke - and agreeing to a financial settlement with the robot's creator to head off potential litigation."


Read the rest (free registration required)

Here's the issue: the book in question, "The Shroud of the Thwacker," (Miramax Books, Oct. 2005) is a spoof on period mysteries, but it incorporates a supposedly historical character called "Boilerplate."

Unfortunately for Elliott, Boilerplate is a fictional character created by illustrator and graphic novelist Paul Guinan.

Does this sound familiar?

To readers of this blog it should. It's part of the grounds for my beef with Random House and Sony. How many hundreds of similarities must there be between two characters before infringement can be found?

Certainly the HBHG folks will be looking at this one as well.

Brown's Next Book

This post was originally a response to a comment made by Mark. But I've been told it's interesting enough to elevate to its own blog post.



Random House keeps saying that Dan Brown's next book ... which they originally said was due out this year ... is really coming out next year.

Regardles of when it comes out, it will be possible to tell if the next book is actually written by him.

You see, the forensic guys were totally pissed off to have their work insulted and not to have a day in court, that they have been working on their own time doing some very interesting analysis which is headed for scholarly publication.

They have found that -- measured according to a number of metrics including word choice, placement, pacing etc. -- Da Vinci Code is more like Da Vinci Legacy and Daughter of God than it is to Brown's previous books.

Those results are being vetted for peer review as we speak.

Add that to the procedures and analysis on authorship currently accepted in criminal trials (higher stanhdards than civil trials) and the forensic people will be able to determine whether the next Brown book is written by the same person as Code ... or the previous Brown books.

Expression, NOT Ideas!

The Internet Writing Journal is a very cool site, but like a lot of media, it seems to have gotten snared in the Random House PR machine.

It has a post about the Holy Blood Holy Grail lawsuit, and like nearly everything else printed, published or posted about that lawsuit or mine, it seems to indicate that the controversy is about "ideas" or other vague and general aspects of the infringement.

That's precsely what the Random House PT juggernaut would like people to think.

And as we've pointed out numerous times, that is NOT reality. Yes, I realize the legal filings are long and obtuse, but they are available online and clearly show the issue is about specific expression and not about general ideas and concepts.

How Sharp is the U.K. Press? How Ethical the Bar?

The Holy Blood, Holy Grail folks should pray that:

(1) British courts won't tolerate the sort of distortions and misrepresentations we've seen from Random House's American lawyers, and
(2) British journalists are not as gullible as the American media.

Because, if my experience is any indication, there is NO doubt that if ANYWHERE -- in papers or the press -- that someone on the HBHG side says that their idea was copied, then NO MATTER how much evidence is submitted regarding infringement of specific, protectible expression, the Random House lawyers will twist and distort truth and reality to make it falsely APPEAR that the copied idea is the ONLY thing being argued.

The Random House lawyers did that to me ... and the same PR machine that manufactured the DVCode bestseller phenom blanketed the world with the FALSE idea that I was trying to protect ideas, history, religious concepts etc.

Random House is soooooooooo lucky that the American media seems eager to swallow nearly anything spoon-fed to them by highly paid publicists.

Justice in the U.K. (unlike the U.S.)

Regardless of the outcome of this trial, at least the justice system in the United Kingdom has allowed a trial -- unlike the muzzling of my case before a trial could even happen.

This, despite the fact that we have an even stronger case, given the enormous body of substantial and protected similarities that we have not --so far -- been allowed to present in a trial here in the United States.

It looks as if "justice for all" has some meaning over there instead of "justice for big global corporations with deep pockets" as it seems to here.

Brown stole idea for Da Vinci Code, claim authors
By Hugh Davies
(Filed: 21/10/2005)

Dan Brown, author of The Da Vinci Code, is to face a High Court action brought by the authors of the 1982 non-fiction book The Holy Blood, and the Holy Grail, who allege that his blockbuster was based on their decade of research.

Speaking ahead of a preliminary hearing of the case next week, Richard Leigh, 62, one of the writers, said: "I don't begrudge Brown his success. I have no particular grievance against him, except for the fact that he wrote a pretty bad novel."

The Holy Blood and the Holy Grail

Mr Leigh, an American who has lived in England since 1974, and Michael Baigent, 57, a New Zealander, his co-author, are suing Random House, Brown's publishers, for infringement of their ideas.

They are funding the action with the proceeds of their book, which Random House has reissued in a special £20 hardback edition to cash in on the success of Brown's novel.

Henry Lincoln, 75, a Londoner who also co-wrote the book, is ill and has decided to remain out of the action.

A two-week trial is scheduled for the end of February, with both sides assembling formidable legal teams.

Read the rest of the article
By Hugh Davies

Writer's Life & Extra Features

My friend Lee Goldberg blogged about the Perfect Killer Virtual Tour. Some interesting comments about this and other items on "A Writer's Life," a most excellent writing blog.

Note To Anonymous Faxer from Exeter

Please resend the documents. They are very significant, Thank you, but the pages after page 9 are not all legible.

A Short VERIFIED Synopsis of the Case

Random House's demand for legal fees is outrageous because they started the whole legal process.

Random House has filed a number of briefs that are distorted, inaccurate and have little or no evidence to support their claims, we've provided the court with emails and documents to verify the following:

I began receiving emails from readers in the Spring (March or April) of 2003 expressing their opinions that my work had been plagiarized by The Da Vinci Code. As these emails continued, I finally read the book and was astounded at the similarities. At that point, I wrote a non-threatening, private letter to them seeking information. I mailed the letter and never got a reply.

After several weeks, I went public with their non-reply and resent the letter and also released it to the news media.

The letter is here.

At the time, I was NOT represented by an attorney, had not consulted one, did not anticipate legal action and, in fact, later learned that perhaps half the items in my letter concerned things that were not protected by copyright. Experts, however, would later find hundreds and hundreds of protectible infringements.

In response to my letter, RH sent a nasty reply threatening me with financial ruin should I pursue the issue.

Random House REFUSED to discuss this PRIVATELY or rationally and slammed the door on anything other than court action. My only choice was to take them on publicly or in the courts or just let the matter of infringement drop.

Given that I didn't -- and still don't -- have the resources to sue Random House, I went public.

Contrary to RH's factually incorrect filings that I went public as some sort of campaign to sell books, the truth is that:

(a) I believed that I had been plagiarized and had specific information on which that was based.
(b) I believed that I had written the original works on the topic and,
(c) I wanted credit for my work.

I tried to discuss it privately and they refused.

At NO TIME in this entire unpleasant process did I ever ask for settlement money. At EVERY time, I would have settled for an acknowledgement such as that given to Holy Blood, Holy Grail. (Of course that didn't keep HBHG from suing for plagiarism). But Random House never knew that because they never had the good judgement nor common manners at any time simply to respond without throwing legal hand grenades.

Clearly, Random House decided this should be a legal and public issue, not me.

When you cut through the swamp of verbiage in the Random House briefs, you find their main legal argument is that my position was "objectively unreasonable." That's legalese for "frivolous" as in "filing a frivolous lawsuit."

But I didn't start this legal battle, Random House did.

Random House asserts that I had no objective reason for my lawsuit.

That position, of course, conveniently ignores the extensive work by forensic linguist John Olsson who concluded this was the "most blatant case of plagiarism" he had ever seen.

Olsson's report, the many opinions of readers from around the world as well as research by other experts were certainly objective in that they had no stake in the outcome, had no emotional attachment to the issues and were in a position to judge things from an arm's length.

This lawsuit never had to happen and it was always within Random House's option to be rational and civilized -- a high road not taken.

And now they want me to pay their legal fees!

Booksellers Believe

I spent a wonderful Saturday at the Northern California Independent Booksellers Association (NCIBA) annual convention, talking, listening and signing books.

Almost everywhere I turned, booksellers came up to me and expressed their opinions that The Da Vinci Code had taken my material. Sure, some of those are private conversations, but this continued during the book signing when there were witnesses from both my publisher and NCIBA who overheard the same thing and made comment to me about that.

Yes, we're talking witnesses and we're talking "LAY READERS."

Now, if only we get a level of justice that allows the truth to be heard in court -- something Random House has spent more than $300,000 to prevent. That's a LOT of money to keep the facts from coming to light.

Once again, one can only wonder what it is that Random House is so afraid of having come out in court.

And why Dan Brown won't testify under oath that he did NOT plagiarize my work.

They filed suit against me and have spent an awful lot of money to keep those secrets.

This is What Random House Will Destroy

Random House is screaming and scheming to destroy me so that it can chill any other author who dares to stand up to them.

But if they succeed, this (see news, below) is who will really suffer. Think they care? Uh-uh. When you're big, fat, arrogant and have no effective competition in the marketplace then a little collateral damage is okay.

============================================

First Annual Books 'n Blues Raises $15,000+
Authors, Musicians, Bidders Have Fun While Doing Good

GREENWOOD, MISSISSIPPI -- Authors and blues musicians coordinated by Myrna Collie-Lee (Mrs. Morgan Freeman) raised more than $15,000 for Katrina victims and deserving students during the first annual Books 'n Blues festival and silent auction in the Mississippi Delta on Oct. 1.

Hosted by the Viking Range Corporation at their Greenwood headquarters, Books 'n Blues began as a benefit for Communities in Schools which serves approximately 2,500 court-involved students ages 12 to 17 through artist residency and arts education programs for schools, after-school programs and Adolescent Offender Programs.

Following the Katrina devastation, Books 'n Blues dedicated half of the evening's proceeds and expanded its focus to include:

-- Providing funds to support displaced students who need to buy school supplies, textbooks and other assistance.
-- Providing funds and assistance to make sure that displaced students can comply with the vaccination requirements of their host school districts.
-- Coordinating efforts to make sure that displaced students have desks, computers and other items needed to continue their studies both in school and for home.
-- Coordinating efforts to provide after school homework study facilities for students in shelters.
-- Helping provide books and other educational enrichment.
-- Helping rebuild school libraries
-- Providing assistance and training for affected schools to enable them to create and operate their own ongoing fundraising efforts.

Books 'n Blues also prompted author Clyde Ford to start a parallel effort, "A Writer's Day of Action", which, Ford said, also helped inspire the American Bookseller's Association Special Fundraising Effort. Both the ABA and Ford's effort coincided with the Oct. 1 Books 'n Blues event.

Books 'n Blues is the brainchild of Greenwood native and New York Times best-selling author Lewis Perdue who wanted to use his donation in an entrepreneurial way to create an ongoing organization, modeled after Sonoma wine country charity events, that continue to benefit schools year after year.

The list of authors signing at the event can be found here: www.booksnblues.org/authors.shtml.

Lying By Misleading Is Still Lying.

If you check out footnote 2 at the bottom of page four of the recent Random House Brief, the lawyers try to dismiss the analysis by forensic Linguist John Olsson.

Random House states that Olsson, "did not ultimately draw a conclusion of substantial similarity."

That is a deliberate, knowingly false statement. It is UNtrue, and the Random House lawyers KNEW it was a lie when they wrote it. Are there not ethical and legal prohibitions from knowingly making false statements in a legal document?

Olsson most certainly DID reach that conclusion.

Indeed, Olsson expressed his expert opinion that this was "the worst case of in your face plagiarism" he had ever seen.

Perhaps that is why Random House engaged in yet another dishonesty and tried to make it seem as if I was the source of the "blatant plagiarism" post. (see previous quote).

Again, please ask yourself why -- if their case is as good as they assert -- the Random House lawyers have to skulk through the muck of dishonesty.

The Guilty Attribute Their Own Bad Intentions To Othes

It has been my experience that people who are dishonest and sneaky are quick to accuse others of the behavior that comes natutally to them ("them" being those who are dishonest and sneaky).

So, given the distortions and misrepresentations that have become the Random House legal stock-in-trade for this case, it was ethically disappointing -- but not surprising -- that they'd try and twist yet another reality.

In a demand for recovery of legal fees, the judge is allowed to consider a financial disparity between the parties involved.

While privacy concerns made the choice difficult, my wife and I agreed to submit our most recent tax returns to illustrate that I am no financial match for the multi-billion-dollar power of Random House and its global powerhouse owner, German corporation Bertelsmann.

Page 8 of the Random House filing mocks this release of personal financial information and hints that I may have hidden assets.

As the court would see in a detailed statement, the ONLY substantial asset I have is a home I own jointly with my wife: a two-bedroom, 1,290 square-foot ranch house (valued at below the median price for Sonoma County) built in 1967 on a quarter of an acre and a $175,000 mortage and $80,000 second mortgage.

But the Random House mockery of this illustrates their arrogant, bad-faith attempt to distract from the fact that even if I were substantially more wealthy, that hardly puts me in the category with German global corp Bertelsmann with BILLIONS in income and MULTIBILLIONS in assets.

They sued me; I did NOT sue them!

If Bertelsmann can't AFFORD to sue me, then that would certainly raise bondholder eyebrows.

But, if Bertelsmann can't AFFORD to sue me,they should have thought of that before filing the papers and not try to recover after the fact. After all, I never wanted anything more than credit for my work.

Random House Lawyers Misrepresent...AGAIN!

Random House's latest set of filings

2451_001.pdf
2452_001.pdf

in their attempt to make me pay for the privilege of having them sue me is -- like all their other filings -- filled with distortions, misrepresentations, misquotes and factual errors.

There are serious mistakes on every page ... but here are a couple:

The use of quotes on page 5 ("KEY SELLING POINT" and "major publicity") make it seem as if I said those things. I did not say those things. Is it ethical to do something like this in order to create that false impression?

They also state that "Perdue cannot deny and does not deny that the "KEY SELLING POINT" for the re-launch of the work was Perdue's 'major publicity' for his accusations against Brown."

Well, I CAN and I DO DENY THAT -- my publisher felt that the book IS the original book in the genre and that readers are interested in the topic regardless of the infringement issues.

But Random House clearly tries to make reality seem different by shoving into my mouth words and intent that are provably untrue.

The same sort of thing occurs a few lines lower when the lack of attribution on another quote makes it seem as if I am the one stating the "blatant plagiarism" statement. In fact, that was a quote from forensic linguistics expert John Olsson stating his expert opinion AFTER conducting his thorough analysis.

There are many, many, many more of these and I'll deal with them in a series of posts. The Random House attorneys have whined in the filings, outraged that I have engaged in "personal attacks" on them. They will probably interpret the above as a personal attack as well.

It's not a personal attack; it's just the truth. This whole affair would be a lot better if everyone would just stick to the facts.

FACT: I didn't say those things.
FACT: They wrote the brief to make it appear as if I said those things.

You draw your own conclusion.

But you MUST wonder: if their case is as strong as they claim, why must they resort to distortions and misrepresentations.

Live Free or Die

Ironically, that's the official state motto of New Hampshire where Dan Brown lives, the Dan Brown whose publisher is trying to bankrupt me for exercising my First Amendment rights.

First Amendment rights? Remember:

-- I didn't sue them; THEY sued me.

-- I never asked them for any sort of monetary settlement. They sued me.

-- I even offered to walk away from things if they'd make a donation to rebuild the library in Gulfport, Mississippi which Katrina destroyed. They said no, then filed suit to recover their lawyer's fees.

I have a bankruptcy attorney now.

He thinks that Random House KNOWS that they don't have an honest case for going after their attorney's costs and that their attempt is a cynical manipulation of the court system so they can use a judgement against me as leverage so that I'll drop my appeal. In other words, they're using the judge to help settle the case.

Well, my First Amendment rights are not for sale and not negotiable.

NOT NEGOTIABLE. Ain't going to happen. Period.

It's obvious that Random House is desperate to keep Dan Brown off the witness stand. It's obvious by their actions that they KNOW they can't successfully get through a jury trial.

They also want to make sure that free speech is very expensive for those it disagrees with.

Any other journalist or blogger should beware. If they can do it to me, then you could be next.

Of course, that's just what they want. They want to make me an example to keep others from even thinking of seeking justice.

The First Amendment is not Random House's friend and they're using all their multi-billion-dollar global corporate might to squash it now -- when it's not convenient.

Of course, if someone tried to curb THEIR right to speech, their screams would be orbiting somewhere between Neptune and Saturn.

Live free or die. It means something to me. It means something to people in the armed forces who die, are dying and will die to defend it as one of our basic rights.

To buckle under to an arrogant, multinational corporate bully disgraces those sacrifices.

No. Hell, no.

No negotiations.

That's my answer. So don't ask.

When Lawyers Have Class ...

Yes, it CAN happen.

My attorneys have been handling me on a contingency fee basis. They didn't do that without making a cold business decision that I have a good case. If I don't win; they don't get paid. It's the only way a small individual can take on a multi-billion-dollar global megacorp.

Yet, when I suggested that we settle things for a donation to Katrina relief -- send the lawyers' fees to the victims -- NONE of my lawyers hesitated.

THAT's class.

No hesitation to put themselves into a position where -- after burning through hundreds of thousands of dollars in fees -- they don't hesitate to do the right thing. We have a great, solid case (when given a FAIR trial) and they go ahead and make an offer that gets them exactly $quat!

That's class. That's honorable.

It's unfortunate that Random House and Dan Brown have allowed themselves to be led by the nose by lawyers who don't measure up to that standard.

But then, Random House and Dan Brown's lawyers have a conflict of interest: they want the money, so OF COURSE they'll recommend against a settlement. It's more money for them.

So now, Random House is going to burn through another quarter to half a million bucks with my appeals. Money that's better used for Katrina victims.

Class? Honorable? Not in this universe.

Random House Sues Me to Recover Lawyer Costs of Suing Me

Freedom of speech sure isn't free when it involves Random House.

Multi-billion-dollar global corporation Random House/Bertelsmann now wants me to pay the lawyers it hired to shut me up and deny me a trial.

Just to reiterate: Back in the spring of 2003, I began to receive emails from strangers all over the country telling me that they felt The Da Vinci Code had plagiarized my books.

I initially discounted this, conceding that different authors could write similar books. When I finally read Code in May of 2003, I was astounded and wrote to Random House with questions and asking for a discussion. I had not hired an attorney, did not anticipate litigation.

They responded with a thermonuclear fax which, among other things, made it clear that I'd face financial ruin should I proceed.

This extreme response convinced me that there must be something to my claim and prompted my search for an attorney and for better information about whether we were talking plagiarism or not.

That eventually led me to forensic linguist John Olsson and his conclusion, quoted in the NY Post on March 14, 2004,"This is the most blatant example of in-your-face plagiarism I've ever seen.
There are literally hundreds of a parallels."

Stung by public recognition that something seemed amiss with their big bestseller, Random House sued me to muzzle the discussion, keep the facts quiet, deny me a jury trial and now to ruin me financially so that I might serve as a public example of what happens to someone when they stand up for their rights.

I didn't start this legal battle. I didn't even start the public discussion – numerous ordinary readers who saw the stunning similarities brought it to my attention.

And yet, here we have highly profitable Random House -- the largest book publisher in the world -- demanding hundreds of thousands of dollars from me. To pay for legal action they started. Legal action because I dared to speak out.

Random House's documents can be found below.

Like their previous sets of documents, the filings are packed with provably false distortions, half-truths and outright fabrications of the sort already addressed in this blog's archives.

Please ask yourself: why – if they believe they have the truth on their side – that they must resort to such despicable tactics?

We have a great case. We've already filed the notice of appeal and will fight their outrageous financial demands.

And all I want is a jury to hear the evidence.

• MOL.pdf


• Notice of Motion.pdf


• OrtnerAff1.pdf


• ExA_Ortner.pdf


• http://www.davincilegacy.com/Infringement/RH-cost-demand/ExB_Ortner.pdf


• ExC_Ortner.pdf


• ExR1_McNamara.pdf


• ExR2_McNamara.pdf


• ExR3_McNamara.pdf


• ExS_McNamara.pdf


• McNamaraAff.pdf

No Good Deed Goes Unpunished

Random House lawyers today formally rejected my offer to drop my valid and well-documented infringement claim for more Katrina relief donations.

That's fine by me. We will (eventually) get a trial, and we will get Dan Brown in court under oath.

Again, I'd ask: what is Random House trying so deaperately to hide that they fear a public trial? Why will Dan Brown not testify under oath that he did NOT plagiarize me?

The rejection of my offer means that those questions WILL be answered one way or another, in court or out. Preferably both.

Isn't It Time?

I've been getting a ton of emails, much of it from the media. I can truthfully say the following:

I have no indication that RH made their donation in response to my offer. It was certainly the right thing and they have made substantial charitable donations in the past to help disaster victims and others less fortunate. Kudos!

And I know that they feel as strongly as I do about winning their side of the case. I'm prepared. My lawyers are prepared and have made me an affordable arrangement to slug this out all the way to the Supreme Court.

But somebody needs to ask whether or not this is the time to put an end to this and get on with things. I will if they will.

An Interesting Development

Publishing guru M.J. Rose emailed me last night about a post on her widely read blog, Buzz, Balls & Hype.

"Book Relief and a Curious Coincidence," she wrote.

"According to a press release issued on Wednesday, Random House also announced that they will make a $500,000 donation to the American Red Cross's Hurricane Katrina Relief Fund, along with matching employee contributions to.

"In a curious note, on Saturday, author Lewis Perdue who has been suing Random and Dan Brown for plagiarism said, on his blog that if Random did exactly that he would drop his appeal."

She goes on to quote the previous post here on Da Vinci Crock and ask me for comment, but I cannot do that at this time.

Timing

Two days after we made the private offer to settle in exchange for a Katrina donation, the RH lawyers filed a demand in court asking me to pay hundreds of thousands of dollars in legal fees. This despite the fact that they sued ME (not the other way around) and all I had done was present the facts as best I could regarding the situation.

Remember, this stuff gets filed AFTER I've made the offer.

I would never have made them the offer had I known they were going to make such outrageous and unjustified claims.

We have filed our notice of appeal, and as I stated in an earlier blog post, we're are prepared to take this all the way to the Supreme Court.

Katrina Relief: A Modest Proposal for Random House

Some good might be possible from the litigation over The Da Vinci Code.

While we filed our notice of appeal on Friday, I have instructed my attorneys to tell Random House that if they and Dan Brown would contribute to hurricane relief the equivalent of what they will spend on legal fees to fight my appeal, (perhaps $500,000 in cash or the equivalent in books to affected schools) I would drop my claims.

The fight would go away. I would go away, the victims would receive additional aid and Random House et.al. get the charitable deduction and the "feel good" buzz that comes from helping people in need.

I suggest that their $500,000 can be used to restock the books in the Gulfport, Mississippi public library.

For a look at the need, go to this page: wjtv.com/

scroll down until you get to "PHOTO GALLERIES " in the right-hand column.

Then click on: Gulfport, Miss.

Then, within that series of photos, go to number 24 and 25.

The library has been destroyed.

$500,000 worth of books (NOT at cover price, NOT at wholesaler price but at publisher's COST) will go a long way toward restoring this. They can put up a plaque at the new library thanking Dan Drown and RH ... much great PR, no need to mention me or why they did it.

To reiterate: if they do this, I'll withdraw the appeal and go away.

For reasons stated in earlier blog posts, we are prepared to take this to the Supreme Court.

We have an excellent chance of getting a hearing there given the vast disparities in the standards employed by courts of appeal.

Random House will not grind me down in the legal fee situation. My earlier representation was handled on a contingency fee basis and the coming appeal is based on a very reasonable cap on legal fees. I mention this to emphasize that I am ready and -- thanks to the commitment and generosity of my legal team -- to take this as far as the process will allow in my quest for a trial.

There are many who believe my legal fees (limited, capped and affordable) and that much, much, much larger amount which Random House will expend are far better spent directed to the victims of Hurricane Katrina. I agree with those people.

I'm blogging this because I want Dan Brown and everybody associated with Random House at every level to know about this. I don't want it to get bottled up in a legal wrestling match with people trying to work the angles and maneuver for some sort of advantage.

The need is real, it is vital and its significance transcends this infringement issue. Yes, I still believe in my case and know that I will win once I get to a jury. But in a national catastrophe, we need to put self-interest aside and help those in need.

Military Documents Verify More of Perfect Killer's Factual Premise

Pardon this break from lawsuit matters, but some very exciting things have been happening with my new novel, Perfect Killer (whch comes out in September). PK is the fourth time I have written fiction that has turned out to be true.

As I explained on the Perfect Killer web site, one of the three main threads of PK involves a secret military program designed to turn the average soldier into the fighting equivalent of special forces.

As I explained in a Perfect Killer blog post today, military documents have verified not only my basic premise, but are showing that even more of my "fiction" is atually true.

Some the documents are heavy reading, but the 27 military documents obtained under the Freedom of Information Act, confirm that Perfect Killer's premise -- the military's secret development of a drug that can turn the average soldier into the equivalent of special forces -- is far, far more NON-fiction than I ever thought.

The LEGITIMATE Book Synopsis

Last Sunday, I blogged about how unjust and unfair it was for Judge Daniels to copy the inaccurate and distorted Random House synopses of The Da Vinci Code and my own books. The RH descriptions were pushed beyond all reasonable approximations of the truth in an attempt to emphasize the differences, even where they did not factually exist.

I also mentioned that in our filings, we decided to rely upon an independent third party for the synopsis of the Da Vinci Code. We then compared my books to this third party who had no vested interest, no stake in the outcome of the litigation and no reason to create a synopsis but one which was as accurate as possible.

We used that in our filings, but our attempt at being accurate and even-handed counted for naught with this court which, instead, borrowed the inaccurate Random House version mostly word-for-word.

My son William extracted the comparison from our legal papers and prepared a web page which you can look at and make up your own mind.

UNequal Justice & Court Shopping

While I can't talk much about the long conversation from yesterday's conference call with my attorneys -- both New York and Los Angeles -- one of the more interesting conclusions was that had this case been heard here on the West Coast, I would clearly have won. This conclusion is based on written decisions by both the Federal District Courts as well as the Courts of Appeals, namely the Second (New York) and Ninth (West Coast.)

Equally as clear, was the fact that Random House filed against me in New York (rather than engage in a civil conversation) in order to venue-shop for a court most likely to give them a better decision.

Judicial enforcement of copyright infringement law, you see, varies greatly from place to place in America. Federal courts in the East lean toward publishers and denying trials on the facts and merits of a case while federal courts in the West tend to favor allowing trials to move forward and have the disputed facts heard in court -- something that Random House knows is bad for them.

It's also bad for justice when someone can shop around for a court and bad when equal justice can be had in one region but not another. Federal laws are supposed to be consistent from place to place and they are not in this case which (among other factors) results in many of the quirky things I have been blogging about.

Just as cognitive dissonance forces us to reconcile our ways of thinking about things, this judicial dissonance also demands a change.

Fortunately, the American judicial system allows for that. It's called the U.S. Supreme Court.

There is, of course, no guarantee that the Supreme Court would consider my case (called "granting certiorari") in the event that the Second Circuit Court of Appeals upholds the District Court's decision.

However, one of the things the Supreme Court is known for liking is the opportunity to decide a case where it can reduce or eliminate judicial dissonance and make an area of federal law more coherent.

Yes, it's rare that a client actually has a conversation with half a dozen experienced attorneys on both coasts to talk about going after the standard. And yes, it may bankrupt me. My wife and I have discussed that and we're prepared to move forward. Otherwise, what sort of example are we setting for our children? We do not want to teach them to stand up for what is right ... except when it's not personally convenient.

I am heartened when I look at how the Supreme Court has looked at copyright cases it has heard coming out of the Ninth Circuit. While the Ninth Circuit has a reputation for having more decisions overturned by the Supreme Court than any other appeals court, it enjoys the OPPOSITE distinction when it comes to copyright.

We have as long row to hoe here, but there's no alternative. We gotta do the right thing.

The Da Vinci Exclusion - Covering Up The Smoking Gun

One of the more curious things about this case is how a Random House brief incorrectly asserted that we had abandoned our claims to infringements in my 1983 book, The Da Vinci Legacy, and how the judge's decision seems to have followed this false lead as well.

Could it be that one of my strongest pieces of evidence -- the repeated factual error -- was an INconvenient pothole on the decision's railroad to exonerating Random House and Dan Brown?

Back on April 24, I blogged about Random House's blatant fabrication that I had abandoned the claim. The judge's decision seems to have gone along with that and fails to address any of those similarities or the smoking gun.

The smoking gun is that Brown copied a factual error. A discussion of the experts and the repeated error can be found at this blog post.

Ignoring the evidence is not justice.

AP's Errors Are Now Understandable

As a former wire service reporter myself, I understand that the AP reporter did not have the time to read all the filings. Indeed, NO reporter has taken the time to read all the filings.

So, in order to get the story out, the AP reporter grabbed the judge's decision and quoted from it, trusting that the statements were accurate and unaware that many were not.

What's needed is an enterprising journalist who will take the time to read everything in the filings.

To paraphrase Mulder, "The truth is IN there."

The Truth is Golden

Like the Random House briefs, the judge's decision makes it seem that we are claiming copyright protection for generalities and stock elements when that is demonstrably not the case.

For example, on Page 15, footnote 7, the judge writes: "Indeed, although there is clearly a gold key in The Da Vinci Code, Daughter of God references a “very small ingot fixed into a recess of the wood substrate on which the paint had been applied.” Daughter of God at 312 (emphasis added)."

This makes it seem as if we're claiming protection for a general and trivial issue. Gosh, both books have gold keys.

But that's not the way it is at all. Remember that what is protected is expression, and that includes context, tone, sequence and other specific creations. Below are a set of details we gave the court.

In Da Vinci Code and Daughter of God, the following sequence of events takes place precisely as presented in BOTH books and are strikingly similar in events, pacing, tone and sequence in both books:

A slain curator of art leaves a gold key,

• Concealed in a work of art,
• Painted on wood.
• That work of art is named for the divine feminine at the center of the book.
• The gold key is not a traditional key that opens a tumbler. Indeed, owing to gold's softness and malleability, a key made of it is patently impractical and, for that reason, not employed by banks, Swiss or otherwise.
• This unique gold key is left (with no instruction) for the book's heroine
• Who is, herself, a symbol of and related to the divine feminine.
The gold key allows access (but does not turn a lock) to a safe deposit box in a Zurich bank.

• At the Zurich bank, the Protagonists are met by an elderly old world Banker.

• While at the bank, the Protagonists make an error in behavior that could tip-off the bank officials they are not legitimate. But the moment passes.>

• While at the bank, the Protagonists are locked inside the viewing room.

• Finally, at the end of the scene, the Protagonists must break OUT of a bank. [Very, very unusual for a thriller].

• The contents of the container holds additional clues to finding the object of their search that send the hero and heroine to a foreign country.

• The object of their search is a set of physical evidence and documents relating to the divine feminine at the heart of the book.

The Viewing Room

Analysis by John Olsson

In the viewing room at the bank The Da Vinci Code:

"Langdon and Sophie stepped into another world. The small room before them looked like a lavish sitting room at a fine hotel. Gone were the metal and rivets, replaced with oriental carpets, dark oak furniture, and cushioned chairs. On the broad desk in the middle of the room, two crystal glasses sat beside an opened bottle of Perrier, its bubbles still fizzing. A pewter pot of coffee steamed beside it."

In the viewing room at the bank from Daughter of God

"Ridgeway and Zoe looked silently about them. The room was the size of a luxury hotel room and furnished in much the same way. Besides the sofa and chairs, there was a television set, a rack of current magazines, a small computer terminal displaying financial quotes, and a wet bar stocked with liquor. Ridgeway went to the wet bar, set the wrapped painting down on the counter, and filled a tumbler with water from a chilled bottle of Perrier."

Langdon and Sophie = Ridgeway and Zoe

hotel room...lavish = luxury hotel room

cushioned chairs = sofa and chairs

bottle of Perrier = bottle of Perrier

"Interesting you chose Perrier," Olsson wrote. "I would have imagined most Swiss banks would probably have had Henniez, since Perrier, though owned by Swiss company Nestle, is of course French."

Locked inside the viewing room

DoG: "The door slid shut as firmly and solidly as a vault door. Ridgeway tried the knob. It was locked."

DVC: "Leaving, the banker closed the door behind him and twisted a heavy lock, sealing them inside."

We have here, significant, specific and protected elements of expression. The sequence of the events, as well as the events themselves must be considered. While I believe these are protected elements, it is possible to argue (although that argument raises the issue of the substantial issues that needed to be decided at trial) that one or more of the items in the sequence might be a stock element.

However, just as a musical scale has just eight notes -- and no one can claim to copyright "C" -- the Supreme Court has held that the arrangement of UN-protected elements can be protected because it is the arrangement that involves the creator's expression.

Doesn't that, along with the scores of similar issues I will present here on an ongoing basis, merit a jury trial of lay readers

Kafka Had An Easier Time

After getting over the word-for-word copying of inaccurate book descriptions that are duplicated in the judge's decision and the Random House briefs, the shock has grown even more intense as we get into the rest of the decision.

It appears as if the judge is referring to some other case entirely, or has not read our legal briefs as carefully as he has Random House's.

Take this astounding quote from page 13 where Judge Daniels writes, "The gravamen of Perdue’s complaint is that Brown copied the basic premise underlying Daughter of God...."

That is simply UNtrue.

Even a first year-law student knows that a basic premise is NOT protectible. What is supported in several hundred pages of our filings (all available here for any reader to see) is that my unique expression, my original creation was copied. We presented detailed evidence, comparisons and examples of this.

This astounding situation is compounded as the judge goes on to cite a number of generalities that were section headings to our specific arguments. He cites these generalities as if they were our entire argument rather than an organization of the evidence as to the infringements of expression.

Certainly, if the generalities were the only arguments we presented, then we'd be trying to claim protection for the unprotectible. But that is not the case.

We'll look very carefully in the next post at one specific example of what we said in our filings versus what the judge SAID we SAID.

Errors in Associated Press Article

I have sent this and other information to Associated Prtess, but have received no reply. Because of that lack of reply, I have now sent this to all newspapers and other media outlets that ran the AP story.


Dear Editor:

Please consider this letter for publication (or information for a follow-up) because it offers some perspective on a news story in your publication involving my copyright infringement litigation with Random House, Dan Brown and others regarding similarities between my published work and The Da Vinci Code.

It is misleading to state that Judge Daniels decision on Friday (Aug. 5) 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.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.

Thank you very much for your consideration. More information, including the original legal papers filed with the court, can be accessed at: http://www.davincilegacy.com/Infringement/

Plagiarism Software Finds Some Curious Things With Judge Daniels' Decision

The plagiarism-detection software developed by the University of Virginia (http://plagiarism.phys.virginia.edu/Wsoftware.html) has found some curious and extensive, word-for-word duplications between Judge Daniels' written decision and the Random House briefs.

That software was run on the sections of Judge Daniels' ruling that described Da Vinci Code and Daughter of God against the same descriptions in the Random House filing.

The word-for-word, near-duplication of the Random House text which appears in Daniels' ruling is significant for many reasons. One of those is the fact that Random House carefully shaped its descriptions of DVCode and DoG to emphasize the DIFFERENCES between the books. That careful shaping did not present an accurate picture of the books.

As we showed in our filings by citing third party descriptions of the books ... including Dan Brown's own public descriptions (which actually helped our cause), different readers of the books have different descriptions of the books ... and that is reasonable.

Every reviewer who has read The Da Vinci Code has a somewhat different take on what the book is about. Some are close to each other, some not. But all of them are different.

All of them except Judge Daniels and Random House.

Not only that, but we pointed out that the Random House description of Daughter of God is factually inaccurate in places, and carefully spun to cast any similarities in the light of scenes a faire and other unprotectible facts.

Daniels' use of the Random House language -- word-for-word in many cases -- is troubling and curious. It is further significant because this case is about how these books are similar or different.

If the Judge adopts the Random House position right down to using the very same words, then logic dictates that the rest of his ruling must follow the Random House briefs -- this is what happened. Precisely and without any deviation from the Random House script.

Take a look at the actual words for yourself.

To see how nearly identical are the Daniels' decision and the Random House brief on Da Vinci Code, go here.

THEN

Go here for the same comparison with Daughter of God ... Daniels clearly used the inaccurate Random House description of the book, not ours.



YOU CAN CLICK on the red text in one window and it will faintly highlight the text in the other window where the exact words appear.

I'd be interested in reader opinions as to what all this means.

Code NOT "Cleared" of Plagiarism.

Far from it.

But it's interesting to read the headlines about how Judge Daniels has "cleared" The Da Vinci Code of plagiarism.

The fact is that Daniels' decision -- an opinion by one person on one day -- went along with Random House to deny this issue the trial by jury that it deserves. But, as you'll see below, nothing's been "cleared."

Daniels made a mistake. He's a brilliant man, but he is not perfect. That's why we have appeals courts. This earlier post, "2nd Circuit Appeals Court Decision Supports the Notion That a Trial Is Needed" outlines the governing precedent:

(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."

The continuing disagreement among lay readers proves that there are genuine issues of material fact.

And number three clearly means that Daniels did not "clear" Random House, Da Vinci Code or Dan Brown of plagiarism. He simply made a mistake as regarding genuine issues of material fact.

So, this isn't over. It's hardly begun.

Let's Put This in Perspective

A week ago, a day ago, I would have been unimaginably angry and upset over Judge Daniels' decision. And the "flame" posts here on the blog from Dan Brown's loyal defenders would also have stirred up my anger.

But that was before yesterday.

Now, I suppose that we mortals can always imagine ways that God enters our life, but yesterday was a significant experience for me.

Yesterday, I got the news of the judge's decision as I was threading my way through Napa Valley tourist traffic on the way to a memorial service for the boy scout and scout leader of Troop 1, St. Helena, killed by lightning a week ago.

I've known the Scoutmaster of the troop, Stuart Smith (founder of Smith Madrone Winery) for 15 years and called him right after he returned home. He and three others were knocked unconscious by lightning, but recovered and began a heroic CPR effort on the two. They managed to keep the 13-year-old scout, Ryan Collins, alive but he was later declared brain dead at the hospital in Fresno. But their efforts kept him alive so that his organs could be donated, and thus save more lives.

Stephen McCullagh was the 29-year-old scout leader killed. Like me he had bailed out of scouts two merit badges short of Eagle. He went back to scouting to help others.

I went back to scouting because my son, William (12) is a scout. There are many, many parallels between the my son and the dead scout, between McCullagh and my fellow scout leaders...so many that it's impossibly not to think: "There, but for the grace of God go I ... or William."

William's troop hikes that very same trail where the lightning killed Collins and McCullagh. A group from William's troop is heading out to the High Sierra tonight, just north of there.

But there's more. William was at scout camp in the sweltering, 105-degree boondocks of Mendocino County when the Scout Jamboree tragedies happened, and the ensuing heat exhaustion among the scouts there, and when Collins and McCullagh were killed. I accompanied the scouts for the first part of scout camp and spent a lot of time urging all the scouts to stay hydrated, that heat stroke can kill quickly.

Then I went home when my replacement scout leader arrived. Afterwards, I had some anxious days as a parent.

Then there was yesterday.

Before William and I got to the memorial service -- 1,500+ people from Boy Scout troops from all over -- I received a phone call from a NY Daily News reporter giving me the news from U.S. District Court that I didn't want. On the other hand, I expected the bad news given that we were fighting a foreign legal war on foreign soil which certainly harbors the publishing industry like Haditha harbors insurgents. Not to mention that my enemy, Random House, is the biggest publishing empire in the world and can spend a lot more money on lawyers than I can.

Anyway, I spoke with the reporter and emphasized that we would appeal and explained why (see other posts on this blog.)

Afterwards, I felt pretty discouraged.

Then God adjusted my attitude.

With William by my side, I watched, and listened to two sets of parents who'd lost their boys. Yes, they were a man and a boy becoming a man, but in a parent's mind, they are always their boys. I was connected by the events, affected by the events: Parents up there talking about the loss of a child. There is nothing worse for a parent. And my son was alive, next to me. In the middle of the sadness, I felt relief and thankfulness.

We listened to friends, brothers, and others talk about the lives lost. That was when I realized how ultimately trivial the whole Dan Brown, Random House case is.

After all, I had my son, alive and by my side. What was Judge Daniels' decision next to that? Fame, wealth, fortune -- are all gone in the blink of eternity. They do not endure and are unworthy of dedicating our lives to. And at the end of a life they count for nothing.

That is not to say that I don't plan to bring one hell of a fight right to Dan Brown's doorstep, right to the Random House doorstep. I will do that because it is a fight worth fighting and one that I'm not going to let go of until justice is done. After all, my integrity, my intellectual property and my writing career are at stake. I will fight for those and I will not stop until justice is done.

But when it comes to the things that truly matter, to the things that count when a life comes to a close, it will not be winning or losing this lawsuit that truly matters. Next to my son, my wife, my daughter -- Dan Brown and Random House and Judge Daniels will be trivial footnotes.

That's how God adjusted my attitude yesterday.

Ironically, it's given me a peace and perspective that are energizing. I have a calm about this plagiarism thing that frees me from the anger and the frustration. That gives me more energy, a greater clarity of thought and a stronger resolve than I had before. Perhaps it is a Zen-thing where I have gained strength from realizing the place this battle deserves in my life.

Overall, it has refreshed me and offered me a lot more strength to wage this battle than I had a day ago.

Judge's Decision

The Judge's decision can be found in this .pdf

Neither my attorneys nor I have had time to completely dissect it, but in addition to the two errors mentioned in the previous blog post, there seem to be quite a number of errors of fact that could be made only by either ignoring the expert witness documents or by selectively choosing items to support the Random House case.

Stay tuned ... we're just getting warmed up.

The Empire Strikes Back

Well, Random House scored one today in their attempt to deny a trial for the truth behind Dan Brown's The Da Vinci Code copyright copycat caper.

Judge George Daniels sided with the world's largest publishing conglomerate and issued a decision that would keep the Da Vinci Cover-Up complete.

I've already talked with my lawyers.

We're appealing because there is ample evidence and law to indicate that Dan Brown copied my work and that a jury trial is the ONLY procedure that will bring any measure of justice.

The law and the evidence indicate that Judge Daniels erred in at least two significant ways.

First, the rules for federal courts require that if there is any substantial matter in dispute, the the issue should be taken to trial.

The massive amounts of expert data -- concluding that my work was copied -- raise just these issues which require a trial under federal rules.

Second, the ruling decision should come as judge by an average, "lay" reader, as dealt with below.

Judge Daniels, while a respected and learned jurist, is not average and not a lay reader. He is only ONE reader (albeit a very important one) but his conclusions are totally at odds with the vast, VAST -- nearly unanimous -- opinion of lay people that substantial copying took place.

I'll have more to say once I dissect Judge Daniels' ruling. So, like the Empire, Random House/Bertelsmann has struck back, but the law and the evidence say that this will be overturned on appeal.

It's early in this ball game, but my gloves are coming off. No more Mr. Nice Guy.

Yet Another "Lay Reader" Finds Suspicious Similarities

The posts here have been sparse as we wait for the judge to decide whether to allow this to go to trial.

But in a post titled Big BROWNish Untalented Fraud?, this blogger doesn't wait for the judge to make his call.

Another "Lay Reader" Weighs In On Plagiarism

"Daughter of God by Lewis Perdue (2000), is close enough in plot and content that there has been legal accusation of plagiarism against Brown by Perdue. I read the Perdue book also, and I do find significant similarities. Perdue identifies over thirty "elements." However, if you want more thrills and shoot-em-ups, read Daughter of God."

Read the whole post.

Of Emails and Archived Web Pages

Since its start as Alexa in 1996,Archive.org has archived several billion web pages, with the goal of "building a digital library of Internet sites and other cultural artifacts in digital form. Like a paper library, we provide free access to researchers, historians, scholars, and the general public."

We have noticed that an increasing number of Dan Brown's web pages -- which had been archived on this site -- have gone missing. It is always possible that selected pages could be missing due to technical reasons.

Missing web pages weaken the historical record and make it harder for journalists and others to see what a given page actually said at a specific time in the past.

This destruction of digital documentation also handicaps the ability investigators to gather evidence and makes it difficult to impossible to compare digital documentation delivered to investigators with a disinterested and independent third party in order to confirm that a digital document is accurate as represented.

Courts increasingly are taking action against companies which destroy electronic documents as Morgan Stanley recenty found out. The following excerpt illustrates what can happen.

Morgan Stanley case highlights e-mail perils
Fri May 20, 2005
By Michael Christie

MIAMI (Reuters) - The $1.45 billion judgement against Morgan Stanley for deceiving billionaire Ronald Perelman over a business deal has a lesson all companies should learn -- keeping e-mails is now a must, experts say.

Banks and broker-dealers are obliged to retain e-mail and instant messaging documents for three years under U.S. Securities and Exchange Commission rules. But similar requirements will apply to all public companies from July 2006 under the Sarbanes-Oxley corporate reform measures.

At the same time, U.S. courts are imposing increasingly harsh punishments on corporations that fail to comply with orders to produce e-mail documents, the experts said.

Where judges once were more likely to accept that incompetence or computer problems might be to blame, they are now apt to rule that noncompliance is an indication a company has something to hide.

"Morgan Stanley is going to be a harbinger," said Bill Lyons, chief executive officer of AXS-One Inc. (AXO.A: Quote, Profile, Research), a provider of records retention software systems.

"I think general counsels around the world are going to look at this as a legal Chernobyl."

Clearly the destruction of potential evidence is serious regardless of whether it is in the form of an email or web page. As I said at the beginning, there could be some innocent technical explanation for the missing pages. But I find it odd that some that were available a month ago are no longer there. Fortunately I made my own archive copies.

A "Lay Reader" Weighs in on "Genuine Issues of Material Fact"

One of the "Blog Squad" of people who are scanning the web on their own time sent me the following link posted in January.

The blogger talks about the similarities in Da Vinci Legacy and Daughter of God then says, "The similarities include things that make it very unlikely that Dan Brown independently thought of the same things...[D]o I think Dan Brown based his book on these others? Most definitely."

Not _every_ lay reader is of the same opinion, but more than 75 percent do think I was plagiarized. As I mentioned below, the whole thing started when I started getting emails from readers who thought I was ripped off. Some of those are in my court filings.

At the very least, all these lay readers raise "genuine issues of material fact to be resolved by trial" as mentioned in the post below.

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.

Trial: Doing Justice To The Truth

There are two good reasons for a trial:

1. I mentioned one back on May 10 when I wrote that the complexity of my works and the Da Vinci Code -- the symbolism, hidden meanings, intertwined interpretations and expressions of history and religion -- takes this case several steps beyond something that can easily be decided by the "Lay Observer" test. Even Random House, on page 3 of their April 22, 2005 filing called the books "two complex novels."

This is a really good opportunity for an intellectually sharp judge to move beyond the obvious.

2. Unless we have a trial, we will never put finally to rest a lot of issues like:

• Did Dan Brown and/or someone working with him plagiarize my work?
  
• Why would Dan Brown not testify under oath that he didn't plagiarize me?
  
• What role did Jason Kaufman play?
  
• Who really did the research?
  
• Who really wrote The Da Vinci Code?
  
• Why has Blythe Brown sustained a strange alias, Ahamedd Saaddoodeen, for more than 25 years?
  
• Why does Random House think their case is so shaky that they have to misrepresent the truth?
  
• Why can Random House NOT afford to allow this to go to trial?
  

Without a trial, the sludge and the tarnish and the taint will never be cleared away.

That's why I'm not stopping until I get a trial. That's why Random House can't allow it.

I have everything to gain from a trial where the truth comes out. Random House has everything to lose from the truth.

Brown's Olympics Song Claims Too Hot For Bertelsmann?

Over on Writopia we discussed Dan Brown's claims to a song that other people actually wrote (No Affidavits: Too Many Indiscretions in the Closet?) where Vanessa, the ever-determined apologist for Random House has tried to explain things away like a RH lawyer, by ignoring the full story and context.

That reminded me that Brown's disproven public claim to having written an Olympics song was also on the web site of Bertelsmann, Random House's parent corporation.

That page is no longer there, too hot, perhaps. However, there are archives of old pages all over the world, and this one shows the Olympics claim plain and simple.

If Brown has so provably misappropriated these songwriters work, what does that say about his statements about mine? And why no affidavit?

Rewards Offered For Solving the Saaddoodeen/Kaufman Conundrum

I will name a character in my next book after the first person to decrypt the name Ahamedd Saaddoodeen and determine what it actually means or stands for. See Writopia for more details about this.

In addition, I will also name a character after the first person who correctly provides the answer to the connection between Ahamedd Saaddoodeen and Dan Brown's wife, Blythe Newlon Stafford Brown and why database records show them with the same Social Security number and date of birth.

Finally, I will name the hero or heroine after the first person who correctly provides the definitive role that Jason Kaufman has played in this entire process.

The winner may elect not to use their name but to transfer the reward to a friend or family member.

Fan Mail: "Perdue – You’re a Litigious Bastard!"

As I said over in Writopia, the registration requirement for comments to blogs results in a lot of emails from people who don’t want to register for one reason or another.

The following comes from one of those emails. I figured I might as well post this before this person starts plastering it all over the Web.

“Perdue-you’re a litigious bastard! Why don’t you tell people about your big lawsuit against Pacific Bell and the millions that you coerced our of them because of your little web site? Yeah, you’re a real bastard crying poor little me and being a moneygrubbing asshole for going after Dan Brown who writes better in his sleep than you do on a good day.

“Yeah you asshole! I saw what you did with that archive site over on the other writer’s blog so I looked you up and look what I found: http://web.archive.org/web/*/http://www.patheticbell.com I understand that Pacific Bell paid millions to settle the lawsuit. So tell everybody about that you litigious gold-digging jerk!”

Well, first of all, welcome to my blog. It’s always nice to get letters from fans.

The truth is that I made nothing, not a single penny from the class action litigation that grew out of an online forum I started about atrocious DSL service. PacBell did pay millions and I got the only thing I was looking for, justice.

The details are:

1. Back in 2000, I received feloniously bad DSL service from Pacific Bell, now SBC.

2. After months of not resolving that, I figured there must be a better way to get some sort of justice. Even if I never got the service I was after, I figured there must be a way to hold PacBell to accounts.

3. I also figured that I was not the only person with this problem, so in March 2001, I started an online forum – this is before the blogosphere’s Big Bang.

4. The Pathetic Bell users forum was swamped with both angry customers and many good PacBell employees who were aghast at what was happening. So aghast that they provided some great tips and information.

5. The plaintiff’s bar and its investigators picked up on The Pathetic Bell users forum.

6. I was asked to be a named plaintiff in a class action law suit. I refused.

7. I was offered some pretty substantial consulting fees. I refused those as well.

To accept either of those would have damaged the credibility of the forum and the one thing bthat mattered: justice. I was not going to sacrifice that for money.

8. SBC/PacBell was subsequently the subject of several class-action lawsuits as well as regulatory reviews and investigations by both state and federal authorities. SBC lost or settled all of those. I believe they paid a total in excess of $20 million.

9. I received NOTHING from the lawsuit other than the satisfaction that justice had been done.

* I did NOT start the forum with litigation in mind, but only the idea that shedding light on the subject would make justice easier to find. Millions of people benefited.

* I did NOT initiate the litigation,

* I was NOT a party to the litigation other than as an unnamed member of the class of all consumers with the same DSL “service” from SBC.

* I did NOT accept any money or other compensation from any party associated with the entire process and, indeed, paid for the hosting out of my own pocket and spent countless hours over three years as board administrator.

Was it worth it? Yes. Would I do it again? You bet!

So, here we have yet another case where those defending Dan Brown have chosen to take something and twist it around in order to make me look bad, or to try and convince people that I did something I did not.

I do NOT believe that email was prompted by the Random House lawyers, but it certainly does follow the same pattern, as documented in the posts below.

Bloggers Making an Impact

We're all aware of some of the major stories that were ignored by the old media and picked up by bloggers.

The Dan Brown/Da Vinci Code story seems to be following that pattern. Google, Technorati, Waypath and several other search devices for blogs indicates that Da Vinci Crock has been picked up by several hundred blogs with links to them from more than 2,000 other sites.

Spanish language and Japanese blogs are the largest non-English blogs to pick up the stories, but we have Finnish, German, Austrian, French, Italian, Canadian and other countries.

The foreign media seem to have started to pick up on this and I've done interviews with some of the largest media outlets in Italy, Israel and Spain. They tell me that the sorts of truth-twisting going on in this case would not be tolerated in their courts. They're also tremendously interested in the Dan Brown affidavit issues.

I understand that Random House has a tremendous promotion, media relations and spin machine, but the truth is out there and it won't go back into the bottle. Bloggers don't fit into a mammoth corporation's pockets quite as well as a lot of the old media do.

Finally, there seems to be a universal befuddlement about why Random House is trying so desperately to deny me a public trial on this. If they have the facts, then they should have nothing to worry about.

Why The Double Standard For Lawyers?

I have had any number of emails and phone calls now from attorneys who believe that the statements by the Random House attorneys that I find objectionable would NOT, in fact, be viewed as violations of the New York Bar's Code of Professional Conduct by the panel of lawyers who would decide the issue.

In the opinions of these many attorneys, Random House's distortions, out-of-context quotes, factually flawed and incorrect statements representing that I said things that I did not, or did things I did not, may be "playing fast and loose with the truth" or "intellectually dishonest" but would not be found by other lawyers to be violations of the ethics code.

What kind of twisted system have we produced where a process that is supposed to produce justice can be acceptably filled with falsehood? I am told that is the REALITY of our legal system.

Sure, I understand that, but the _other_ reality is that honest people punish their children for far less substantial falsehoods. Those who don't, provide society with an endless supply of crack dealers and Enron CEOs.

There is probably a book here somewhere.

If you're just beginning to read this blog, take a look at some of the examples. Scroll down to the articles on last Friday's court hearings, or further down to "Cooking the Truth Smells", " Lies, Damned Lies and Random House Footnotes", or " Q. When Is a Bachelor NOT a Bachelor? There are more, but these will offer you a flavor.

It also makes me wonder what they are trying to accomplish. The judge is too smart to let these get in his way. And if their case is as good as they say, then why do they feel this is necessary?

I'll have more to say about this later over at Writopia.