Friday, April 21, 2006

Draft Criminal Bill; DaVinci Code

The House of Representatives' IP subcommittee has circulated a draft bill, initiated, I believe with the DOJ to increase, yet again, the penalties for criminal infringement. Here is a link I have created to the bill. Those interested in the matter have the opportunity to get your two cents in early in the game.

The New York Post, getting momentarily over its obsession with Angelina Jolie (those lips!), reports that the Second Circuit has affirmed Judge Daniels' finding that Dan Brown's book did not infringe Lewis Perdue's. Here's a link to the earlier posting on it. Here is the opinion:

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be and it hereby is AFFIRMED.This appeal involves a copyright infringement action between Appellant Lewis Perdue (hereinafter “Appellant” or “Perdue”), author of two novels, The Da Vinci Legacy (1983) and Daughter of God (2000), and Appellees Dan Brown, Random House, Inc., and several associated entertainment companies (collectively “Appellees”), who respectively wrote, published, and made into a movie, the best-selling fiction novel The Da Vinci Code (2003).FN1 After Appellant publicly alleged that Appellee Brown had, without permission, appropriated content from his two novels in creating The Da Vinci Code, Appellees filed suit against Perdue in federal court, seeking a declaratory judgment that they had not engaged in copyright infringement. Appellant promptly counterclaimed against Brown, his publisher, and the movie studios, seeking injunctive relief and $150 million in damages. In response to motions for judgment on the pleadings and summary judgment, the District Court for the Southern District of New York (Daniels, J.) ruled in Appellees' favor, granting declaratory relief to Appellees and dismissing all of Appellant's claims. We assume the parties' familiarity with the facts, procedural history, and scope of issues on appeal, which we reference only as necessary to explain our decision.FN2
FN1. On appeal to us, Appellant claims that The Da Vinci Code “plagiarized primarily” from Daughter of God, and, “to a lesser extent,” from The Da Vinci Legacy. Appellant's brief does not, however, develop his allegation of copyright infringement on the basis of The Da Vinci Legacy, and both parties treat this claim as essentially abandoned. We therefore only consider Appellant's copyright infringement claim on the basis of Daughter of God.
FN2. For a thorough summary of Daughter of God and The Da Vinci Code (which are the principal subjects of this litigation), see Brown v. Perdue, 2005 WL 1863673, No. 04 Civ. 7417(GBD) (S.D.N.Y. Aug. 4, 2005).
We review de novo the district court's grant of summary judgment in favor of Appellees. Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1071 (2d Cir.1992). Summary judgment is appropriate only when “there is no genuine issue as to any material fact and ··· the moving party is entitled to a judgment as a matter of law.”Fed.R.Civ.P. 56(c). A court must decide if “the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).To establish copyright infringement, “two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ'n, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991). In the case before us, the parties do not dispute that Appellant obtained valid copyrights for his books. Appellant therefore needs only to demonstrate that Appellees copied original, constituent elements of his books. In the absence of direct evidence, copying may be established by showing “(a) that the defendant had access to the copyrighted work and (b) the substantial similarity of protectible material in the two works.” Kregos v. Associated Press, 3 F.3d 656, 662 (2d Cir.1993); see also Laureyssens v. Idea Group, Inc., 964 F.2d 131, 139 (2d Cir.1992) (stating that a plaintiff must prove both “access and substantial similarity between the works” (internal quotation marks omitted)). For purposes of the summary judgment motion, Appellees have conceded that they had access to Perdue's books. This case therefore turns on the second part of the test: “whether, in the eyes of the average lay observer, [ The Da Vinci Code is] substantially similar to the protectible expression in [ Daughter of God ].” Williams v. Crichton, 84 F.3d 501, 581, 587 (2d Cir.1996).*2 In the case before us, the district court first distinguished between noncopyrightable and copyrightable work, following “a principle fundamental to copyright law,” that “a copyright does not protect an idea, but only the expression of an idea.” Kregos, 3 F.3d at 663 (internal citation omitted); see also Warner Bros. Inc. v. Am. Broad. Cos., 720 F.2d 231, 239-40 (2d Cir.1983) (holding that “[t]he similarity to be assessed must concern the expression of ideas, not the ideas themselves”). As to the copyrightable material in Appellant's books, the court concluded, on the basis of a comparison of “the similarities in such aspects as the total concept and feel, theme, characters, plot, sequence, pace, and setting of the [two sets of books],” that “no reasonable trier of fact could find the works substantially similar.” Williams, 84 F.3d at 587-88 (internal quotation marks omitted). On that basis, the court granted summary judgment in favor of Appellees. Having considered the matter de novo, we now affirm the decision below for substantially the reasons given by the district court.FN3
FN3. The district court also decided that Appellant's unjust enrichment claims were preempted by federal copyright law, and therefore dismissed those state law claims. Appellant did not appeal that decision to us. As a result, the question of whether all state law claims of unjust enrichment are preempted by federal copyright law is not before us. See Perez v. Hoblock, 368 F.3d 166, 171 (2d Cir.2004) (issues not raised on appeal are deemed abandoned); see generally Arthur R. Miller, Common Law Protection for Products of the Mind: An “Idea” Whose Time Has Come, 119 Harv. L.Rev. 703 (2006) (discussing the scope of federal preemption of state law claims under the 1976 Copyright Act).
We have considered all of Appellant's arguments and find them to be without merit. The judgment of the district court is hereby AFFIRMED.


Anonymous said...

When I find myself in disagreement with someone about the scope and reach of copyright protection, I'm generally on the side of strong copyright protection. But I just don't get the logic behind putting someone in prison for copyright infringement, much less for 20 years. Add to that the creation of a special FBI office with a $10 million budget to investigate IP crimes.

It strikes me as a wholly unnecessary tax payer subsidization of the music and film industries. They're perfectly capable of taking care of themselves and their protectible interests, and more than adequately subsidized by the availability of civil courts that provide civil remedies, including injunctive relief, punitive damages, and attorneys fees.

I'm puzzled by the express confinement of the copyright registration condition to the availability of civil remedies. Maybe I misunderstand, and maybe it only clarifies the status quo, but it looks as though you can be thrown in prison even when you can't be sued. Maybe this is a loony notion, but I have to wonder who wants the government to have authority to prosecute infringement of unregistered works? Could it be some big software company that is threatened by "shareware"?

Anonymous said...

While I can see the logic of some of the proposed amendments (making attempt and conspiracy clearly a violation, removing registration as an element, etc.), frankly I see it as more political window dressing than anything.

Notwithstanding the "special FBI office," the feds just don't prosecute this stuff, as local US attorneys' offices won't spend resources on copyright cases, even if they're silver-plattered to them.

A recent example from my practice: I was in court last week in a civil case where the defendants had committed blatant, unquestionable acts of willful post-lawsuit infringement, thereby pocketing over $400K in profits -- not to mention leaving their buyer of the infringing copy subject to being added to the action and, per the Palmetto Builders decision, probably left with a $1 million house that cannot be lawfully resold. Very ugly situation with very real victims besides the copyright owner.

In the context of a motion for sanctions (in order to hide the pending sale and complete their apparent fraud on the buyer, defendants deliberately delayed responding to initial disclosures and paper discovery and, by their attorney's own admission, lied to the court as to the reasons for the delay), I noted that the sale was a clear 506(a) violation. However, as the court agreed with me, there was no way that the US Attorney's office (SD Tx) would ever have the slightest interest in prosecuting it.

Congress can pass all the enhanced criminal copyright laws it wants to . . . but unless your local US Attorney is interested in spending some of their limited resources to prosecute this sort of crime -- and they are not, given all the bigger fish they have to fry -- it's largely a meaningless gesture.

Except for really big, really blatant infringement cases (think: industrial quantities of pirate copies), as a practical matter civil enforcement is pretty much all the copyright owner can rely on.

LKB in Houston

Lewis Perdue said...

First of all, a few facts to help correct the omissions and distortions in the Random House PR spin machine's hand-outs.

- Random House sued ME; not the other way around.

- Random House filed suit to silence the facts I was posting on the web.

- There has been NO trial on the facts, only the Random House effort to prevent a trial.

- The only sworn statements made under penalty of perjury are affidavits from me and my experts, nothing from RH.

- The judge refused to consider any expert analysis proving plagiarism.

- Despite suing me first, Random House & Sony are trying to make me pay the legal fees they spent to sue me.

- Contrary to the Random House spin, I am not alleging plagiarism of general issues, but of ( several hundred very specific ones.

- This is not about money. Anything I win goes to charity.

- My law firm is preparing the certiorari petition now to appeal to the U.S. Supreme Court

I am also expanding the team to include experts with constitutional/scholarly experience.

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.'

In the present case, the Second Circuit also failed to address any of the ( five main grounds included in our appeals brief, opting to rubber stamp the District Court and even referring in its opinion to the factually flawed description of the books as described by the District Court (said inaccurate descriptions, ironically, lifted mostly word-for-word from the Random House brief).

The Second Circuit's decision is at the bottom of (

The Second Circuit also mistakenly repeated the Random House assertion that we had abandoned our infringement claims for my 1983 best-seller, The Da Vinci Legacy and failed to follow its own precedent that works be considered "as a whole."

As for the District Court judge's opinion that no jury “could find the works substantially similar," it should be noted that I first became aware of the similarities in DVCode when I began receiving large numbers of emails from readers, strangers who were emphatic in their conviction that I had been plagiarized. A number of those emails were submitted in the court papers.

Indeed, there are indications that the judge may never have even read my books.

There is more detail and comment at:

Lewis Perdue said...

I goofed:

One of the paragraphs in my previous comment should have read:

"The 9th consistently denies summary judgment (allowing a trial on the facts) even in cases where there are far fewer [NOT, 'far more'] significant issues and less of them than we have shown so far in our case.

My apologies.