Monday, September 25, 2006

The Little Guy Gets Off the Hook

Following the Second Circuit's affirmance of Judge Daniels' grant of summary judgment in the U.S. DaVinci Code case, Brown et al v. Perdue, the inevitable attorney's fee petition was filed. It was recently rejected by Magistrate Judge Fox, here. Given the virulent campaign Perdue mounted in claiming that his books "Daughter of God" and "The DaVinci Legacy" were infringed by Brown's book, it would be easy to forget that Perdue did not initiate the litigation; instead, Brown and Random House did in a declaratory judgment action. Perdue then filed a counterclaim, although in that counterclaim he brought in various motion picture studios who were not party to the DJ action.

Attorney's fees of $310,580.24 were sought, a not particularly large number. Judge Fox's opinion is a pretty straight, by the numbers opinion. He finds Perdue's claims were not objectively unreasonable, and not brought in bad faith. I have my doubts, by hey, that's what it means to be a finder of fact.


Lewis Perdue said...

By "virulent campaign" I assume you mean my internet and blog posting of the expert analysis, the emails from ordinary readers who called the plagiarism to my attention and other verifiable information?

If there was anything at all "virulent" then it was inherent in the facts themselves. All I did was bring them to the attention of the public: one fact after the other after the other with page citations and other ways to confirm that these were not my mere opinion.

On the other hand, I did not, do not nor do I ever anticipate having access to the highly paid and relentless public relations experts and spinmeisters in Random House's employ who, one might argue, found far more virulent ways to defame me without resorting to the facts.

William Patry said...

No, by virulent I meant quite something else. I think you were quite lucky attorney's fees weren't awarded against you.

Anonymous said...

It seems that Random House requested only attorney fees in opposing the counterclaims of infringement. Was there a separate motion by Random House for its fees in bringing the declaratory action?

William Patry said...

I don't know if there was a separate motion, but I would assume not. If not, it makes Randon House's motion even more reasonable, at least to me

Amy Castaneda said...

I though in the interest of fairness to all parties, I should point out a deceit Perdue is cleverly putting forward here.

While he constantly repeats that Random House sued him, to be fair, that must be seen in the context in which it occurred.

Perdue was leveraging Dan Brown's success to sell his own books by saying horrible and libelous things about Dan in many fora: in interviews, on his website, in a blog, any public forum he could get. He was even spotted by a bookstore owner putting "Dan Brown's a plagarizer" cards he'd printed in copies of Brown's book in bookstores in California.

To his business, if not ethical credit, his campaign worked, and his sales went way up and he found himself on a national stage.

But all this while, though he constantly threatening to sue, months and months went by and he never did. After enough time, it became evident by his actions and his postings on his blog that he had never intended to sue; the threats were merely to gain publicity.

But the problem for Random House was that now Dan Brown found himself faced with all these questions about plagarism and about some author and book he'd never even heard of. Dan's and Random House's image was, as we all witnessed, severely damaged through Perdue's publicity efforts, despite the fact, that was clear to anyone who'd been following it closely, that Perdue had no intention of suing, since he as well as nearly everyone else knew he didn't have a prayer of winning on the merits (as has by now been repeatedly and embarrassingly demonstrated in the courts). But for Perdue, worst of all, beyond the embarrassing legal loss (that we've now all witnessed), doing so would end his publcity campaign and his book sales (which has also happened).

Also, Perdue knew he'd be hit for legal fees if he lost (as he was), and that if that happened it could bankrupt him (as it would have, and may still if Random House' appeal is granted). So he had no intention of suing, particularly as he was happily libelling his way to fame and fortune. And as he continues to do to this day, as demonstrated on his websites.

But back then, Perdue's campaign was generating a big cost to Brown's and Random House's reputations, and potentially to book sales as well. So Random House, who had let Perdue's genuinely vicious libel go on unchecked for months, finally sued for summary judgement, in an effort to have the court for once and for all adjudicate the case on the merits, (which it did, and as we know, Perdue lost in every conceivable way), and to force Perdue "to put up or shut up." If he had a case, he was given his opportunity to prove it.

But as everyone now knows, he didn't, and outside his own mind, the story, and his relevance, have faded away.

Mark said...

"I think you were quite lucky attorney's fees weren't awarded against you."

Why sir? For reporting the truth?

William Patry said...


I don't know what truth you could possbily be referring to. My comments were made with respect to the courts' (plural) finding that the truth was Perdue had no case. You may disagree with their findings, but the unimpeachable truth is they did so find.

Mark said...

Well they came to a falty opinion that read like the transcript from the RH brief. I've read all the books involved. "Expression" was clearly taken here from Mr. Perdue. I'm referring to substantial similarity sir. Perhaps the SCOTUS will see that truth? Just saying something is true doesn't make it so. Politicians of a certain flavor seem to think this is enough but facts have to be factored into one's wishes for it to be valid.

Anonymous said...

What is interesting in Amy Casteneda's post is that she maintains Mr. Perdue was and is perpetrating libel but the choice of action against him was the copyright act and its quite punishing attorney fees clause. If Dan Brown and/or Random House had chosen a libel path, the damages would have been negligible in light of the overwhelming financial success of Brown's book and the ultimately gargantuan value obtained for its allied rights in film and otherwise.

But it hurts the integrity of the copyright laws to see them used in this way. I don't doubt Dan Brown's moral high ground in the dispute one bit. But the Random House tactics seem to be so aggressive against a foe so weak that I can understand the magistrate's reluctance to award attorney fees and I applaud that result.

Unfortunately I need to post this comment anon. Why? Because increasingly clients want to use the copyright law exactly in the way in which Random House chose to do so. And, in fact, the copyright law is an effective offensive weapon for strategic results having little to do with the protection of a copyrighted work. or the purposes of Article 1, section 8. Many would have counseled Random House to do what it did here. I am in that group although I wasn’t asked. But from behind the curtain I am free to opine that Random House shouldn’t be rewarded with a complete kill.

Mark said...

I don't see the so-called "moral high ground" on Brown's end. What I see is "to the victor go the spoils" which so much governs the America the hard right lords over. I've got mine and to hell with you. I stole it fair and square. That just irks the Eagle Scout in this citizen.

Amy CastaƱeda said...

Anonymous, I think that's an excellent observation.

Mark, you have to remember the factual context here, which is that with the exception of Perdue, yourself and a couple other Lew-nies, no one thinks anyone stole anything here.

Lewis Perdue said...

Ms. Castaneda:

Facts are facts and everything I posted on the web -- everything -- was and is provable in a court of law.

If Random House had an issue with the factual nature of those, then an action for defamation would have been appropriate. The facts clearly made RH uncomfortable.

If you had read the entire case and the chronology, you would have found that I tried numerous times to have a civil conversation with Random House ... NOT to settle or to ask for a settlement, but to determine what was going on.

I was NOT convinced for a very long time (until the expert's analysis) that there was plagiarism involved at all.

If you read the legal filings (and my under-oath affidavits) you'll find the details are quite different from Random House's defamatory accusations.

Indeed, I did not "go public" until RH basically told me to go f**k myself.

My affidavits and those of the experts are the ONLY under-oath data in the entire trial ... I daresay that Random House's briefs would have been far shorter and would have been far less defamatory had they been required to file only that which was sworn under penalty of perjury.

Reading the facts of the case, all the facts, would go a long way toward making this a civil discourse .

And as for the Lew-nies: you have just libeled several score readers who wrote and emailed me about this long before I had ever taken any notice at all.

Sticking to the facts, as opposed to name-calling, hyperbole and exageration, always makes for a more rational discussion.

Lewis Perdue said...

And yes, given the Second Circuit's prohibition against expert testimony, Mr. Patry is correct that I am fortunate to have escaped the legal fee issue.

I assume that regular readers of this blog are probably believers in 2dCir precedent, but as my cert petition points out, the circuits are split about 50-50 about the appropriateness of expert testimony.

The cert petition argues that expert testimony, if it had been admitted, would have raised the sorts of genuine and substantial issues to overcome the motion for summary judgment.

The cert petition is HERE.

Lewis Perdue said...

Not to belabor the point, but the court found nothing approaching "...horrible and libelous things...."

Quite the contrary, 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.

William Patry said...

I am happy to take the facts as both courts decided them: no infringement and no attorney's fees. I tried a case before Judge Daniels on fair use and lost both before him and before the Second Circuit, but in all such cases, Mr. Perdue's and mine, I am quite reluctant to espouse truth.

Mark said...

So for a lawyer, and I have a paralegal certificate as a baseline in that field, whatever one can get away with is the factual truth no mtter what it is as decreed? Au contraire

Lewis Perdue said...
This comment has been removed by a blog administrator.
Fred von Lohmann said...

Dan's and Random House's image was, as we all witnessed, severely damaged through Perdue's publicity efforts, despite the fact, that was clear to anyone who'd been following it closely, that Perdue had no intention of suing...

In light of the above statement should the district court have entertained a declaratory judgment action here? If it is clear to "anyone" that Mr. Perdue was not going to sue, how do we get to DJ standing?

Let me echo the concern of the previous poster that RH appears to be using a copyright cause of action to remedy a defamation issue (and perhaps thus avoid the First Amendment defenses that would apply with respect to a public figure like Mr. Brown?).

Donald David said...

Remember, if you will, that Random House gamed the system. In the Ninth Circuit, where Mr. Perdue lives, the expert testimony establishing his claims would have been admissible on the motion. Random House chose to go to the 2nd Circuit, where such testimony was not admissible. Could it be that that is the real reason they chose to commence the action themselves -- nothing like a little forum shopping. Also, through the miracle of the Internet, we actually do know that more than a few "lay readers" saw the substantial similarity at issue.

As to the claim that Random House may upset the determination on attorneys' fees on appeal, there is no such option. The MJ order became final and non-appealable.

Disclaimer: I am Lew'sattorney

Lewis Perdue said...

I'm correcting an earlier comment here because I realize it could have been misread.

My comment should have read as follows:

"I am quite reluctant to espouse truth."

My comment should read:

Ironically, that is so true -- [of any search for "the truth" in the court system.]