The DaVinci Code opinion

I have now had time to read the British High Court opinion in the DaVinci Code case. Here is a link to it. For students of copyright law of all ages, it is a both a fun and informative read. It is also interesting from a comparative view of how British copyright law deals with issues that have long been faced in U.S. copyright law, and it is instructive on the craft of writing judicial opinions. U.S. readers will, I think, be stuck by the degree of skepticism, and sometimes sarcasm directed toward lawyers and witnesses. For example, at the very beginning of the "Legal Matters" section (in a U.S. opinion the section setting forth the applicable legal principles), one encounters:

"137. Fortunately I was told by both parties that there was no significant point of law involved in this case to trouble me.

138. That led to the production of two folders containing only (sic) 20 authorities and the citation of further authorities in the parties' respective closing speeches. My initial feeling on the statements of both Counsel was Timeo Donaos et dona ferentes. I feel having analysed the authorities in light of the submissions that my thought was correct."

By his thought being correct, the judge was referring to the italicized Latin phrase, which may be translated as "I fear the Greeks, even when they bring gifts." What follows is 15 pages of careful review of English case law. In that review, one finds copious quotations from prior opinions on originality, the idea-expression dichotomy, and the standard for infringement of historical works that most U.S. copyright lawyers would be quite comfortable with.

With evdient relish, abuse is heaped on the quality of works, as in this quote from Ravenscroft v. Herbert [1980] RPC 193, where Justice Brightman said: "One must not underestimate the commerical attraction of the rubbish I have attempted to describe. The book is written with much inventiveness and a racy flow of language and incident and the numerous scenes of violence exercise a strong appeal to certain readers. The Defendants' novels have enjoyed great financial success. Mr. Herbert deos not think of himself as a serious novelist."

Justice Smith modestly adds that in the DaVinci Code dispute, he "make[s] no such comments about either book ... as I have not said a quest for truth of speculative conjectures or an exercise in literary criticism of either book."

The failure to call Mr. Brown's wife is held against him, while Mr. Brown is all but called a liar on some points. Not that plaintiffs fared any better: "Mr Baigent was a poor witness. Those are not my words: they are the words of his own Counsel in his written closing submissions. Those words do not in my view do justice to the inadequacy of Mr Baigent's performance." Throughout the 71 page opinion, one gets a very clear impression of the judge's impressions and thought processes on every issue. The only American judge I know of like that is Judge Posner, but his opinions are extremely succinct. The beauty of this approach is that it leads the reader on the path the court itself seems to have taken. It is particularly powerful method of writing.

In the end, the case was a too clever effort to claim protection for a theme, gussied up as a non-literal copying claim, what was called in the old days of software infringement a sequence, structure, and organization claim, the architecture of the work. But plaintiffs could never settle exactly on the nature of their theme, which instead appeared to be ever-shifting to fit a litigation strategy. For all the hype about the trial, it did end with a very worthwhile legal opinion that is well worthy reading carefully.