Jocelyn's Other Desk

The writings of Jocelyn Smith, aspiring author, soon-to-be lawyer, once and future politician, all-around opinionated twentysomething.

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Location: Orlando, Florida, United States

I'm a lawyer in Florida, working on three novels, a screenplay, and half a dozen pieces of fanfiction at any given moment.

Sunday, August 07, 2005

Sunday, Sunday...

Interesting to hear that summary judgment was granted to Random House in the Perdue/Brown-Da Vinci case.

I'd be interested in a couple of things that weren't apparent from the Order that the Judge handed down.

1) Why wasn't there more focus on The Da Vinci Legacy, which sounds like it would have been the one with substantial similarities to The Da Vinci Code?

2) Why did Random House & Brown & Co stipulate to having had access to the Perdue books? (Seems a pretty big chunk of ground to give.)

3) Did Judge Daniels actually read all the books (would probably have taken a long time) or simply rely on assorted briefs, analyses by other parties? What would the Copyright Law standard have required of him? (And was the synopsis of each book in his Order his own writing or someone else's?)

My thoughts on the reactions of others...[STANDARD DISCLAMER: This ain't legal advice, I'm not a lawyer for another year, you know the drill, and I don't necessarily know what I'm talkin' about so don't rely on anything I say and don't try to sue me if you do and I turned out to be wrong.]

1) Whether or not Judge Daniels is an idiot...'tis not for me to say. I have not read any of the books in question.

2) Whether or not Brown and Random House have been "cleared" of plagiarism/copyright a manner of speaking, yes.
  • Summary Judgment is a little tricky, because there is an appeal available that could still lead to trial. However, the Judge HAS found that there is no genuine issue of material fact--which is a pretty hefty ruling. What Summary Judgment means is that there is absolutely no way any sane jury or bench trial could find in favor of Perdue, so the ruling saves the courts and the parties the cost of holding the trial since we know there's only one outcome. But of course, you can appeal it and argue that the Judge erred.
  • To appeal a grant of Summary Judgment, the party who lost has to only convince the Appeals Court that there WAS an issue of material fact. (Often, the mistake trial judges make is ruling on the merits of the evidence the parties have presented when they're only supposed to determine whether the parties have presented evidence to support all elements of their claims. However, in a federal Copyright case, this is not necessarily the standard.) The Appeals Court doesn't have to decide whether that issue will go in the losing party's favor or not, just that the issue existed and is properly for the jury to decide.
  • Intellectual property cases such as patents or copyrights often are different from your average trials because the early parts of the case necessarily require that the Judge look at the weight of the evidence (which is normally reserved for a jury alone.)
  • In layman's terms: it's damn complicated and chancy as hell.
  • On the other hand, although the standard for reversing a summary judgment seems easier, most Appeals Courts will not overturn the trial judge's decision absent "abuse of discretion" or at best, "clear error." Appeals courts generally defer heavily to a trial judge's findings.

3) Will the Perdue crew prevail on appeal?

  • Danged if I know. But I'll be looking forward to seeing what comes next. I shall dissect Judge Daniels's opinion in more detail at another time, and if I'm bored enough (which, one week into my vacation, I may well be soon) see what the Appeal standard is for that jurisdiction.

In other news, Claire has disappeared again. Oy! Claire! Email me and tell me where I might find you now and continue our sparring sessions!


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