Da Vinci Code Opinion

On August 4th, Judge George Daniels of the SDNY handed down the copyright opinion heard around the world press, in an infringement suit brought over the popular "The Da Vinci Code." He granted summary judgment to Dan Brown and Random House that there was no infringement. The losing declaratory judgment defendant, Lewis Perdue, has two blogs on the case. Here's the link to the first, called the Da Vinci Crock, and to the second, called Writopia. Both are fairly vitriolic.

Such disputes, common with any famous work (even famous trashy ones), rarely merit serious attention, and this one doesn't either. I say this not of disrespect to Mr. Perdue, a published author who feels he has been victimized, but instead out of the obvious fact that his case, like many, turn overwhelmingly on a fact judgment, and as such, while reasonable people may disagree, that disagreement is not the stuff of broad legal principle, unless something went seriously awry. It doesn't seem to have here. (Brown and Random House conceded access for purposes of the summary judgment motion, so it really was just a straight comparison).

There are a few points worth noting, mostly about judicial technique. After setting out the basic legal principles, Judge Daniels does a comparison of the works, breaking the comparison down into issues like "thematic expression," "total concept and feel," "plot," etc. Helpfully, he prefaces each section with a definition of the issue. The opinion is very readable and thorough.

On his Da Vinci Crock blog, Mr. Perdue raises a question, though: how much of the opinion is Judge Daniel's writing and how much is Random House's? He refers to a University of Virginia The Plagiarism Resource Site that extracts text portions of files and looks through for matching words in phrases of a specified minimum length. A comparison of Judge Daniels' opinion and Random House's brief using this tool showed that there was cutting and pasting. This is of course, quite typical, as is wholesale adoption of the parties' "proposed" findings of fact and conclusions of law. That's the nature of the judicial process and one where the winner wins and the loser loses. But given the courts' heavy reliance on parties' material, one wonders why they object to legislative history. At least a staffer writing a legislative report is a full-time, loyal employee; with findings of fact, trial courts are not only adopting the work of advocates, they then expect appellate courts to review them under the clearly erroneous standard.