07 April 2006

The Partial Plaintext Attack

One of the problems in dealing with UK law is that judgments are given orally, in open court. For immediate reaction, we must rely upon the perspicacity and honesty of media representatives—almost none of whom are lawyers, as was betrayed by the news reports in this instance. Thus, this attempt to decode the judgment in the Da Vinci Code plagiarism trial (P. Smith, J.) assumes that the partial plaintext quoted between the Guardian (slightly better analysis and selection) and BBC (slightly more comprehensive and complete) websites accurately represents the substance of the judgment. I will no doubt be disappointed when a complete plaintext become available… but the tenor of the judgment seems pretty clear; the disappointment will be in the details.

Mr Justice Smith appears to have made three main points regarding the lawsuit.

  1. The respective parties were lousy witnesses, and the most critical witness was not even present ("I do not accept that there are reasons of a credible nature put forward as to why [Blair Brown, Da Vinci Code author Dan Brown's wife and research assistant] has not appeared to give evidence"). His most entertaining comment concerned one of the plaintiffs:

    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. His evidence was comprehensively destroyed by the thorough and searching cross examination of Mr Baldwin QC for the defendant. I can place no reliance on any part of his evidence.

    That is not to say that Mr Justice Smith was too impressed with Dan Brown himself, though.

    [Mr Brown] has presented himself as being a deep and thorough researcher for all of the books he produced. The evidence in this case demonstrates that as regards The Da Vinci Code that is simply not correct with respect to historical lectures. The major part of the writings of the lectures at a later stage have substantially come from The Holy Blood and The Holy Grail.

  2. Mere overarching ideas drawn from nonfiction into fictional contexts do not constitute copyright infringement under the 1988 Act.

    Even if the central themes were copied, they are too general or of too low a level of abstraction to be capable of protection by copyright law… Accordingly there is no copyright infringement either by textual copying or non textual copying of a substantial part of The Holy Blood And The Holy Grail by means of copying the central themes.

    In the US, this would have been a dead claim after Feist (which is one reason that the claim was filed in the UK!). Hopefully, the full judgment will be both forceful and clear enough to essentially adopt the Feist rationale in the UK. That would be an advance, because (as I noted last year regarding the Hyperion Records litigation) "sweat of the brow" has not been explicitly rejected as a basis for copyright in the UK. Although Mr Justice Smith tries to soften the complaint,

    There is nothing for example in this case, which if decided in the claimants' favour, would stultify creative endeavour, obtain a monopoly on ideas or historical information or create a precedent which extends the boundaries of copyright protection in sphere of literary works. I believe that their work was genuinely and clearly acknowledged. It is important to appreciate that the claimants do not claim a monopoly in respect of facts or ideas as expressed in The Holy Blood and the Holy Grail.

    the effect of a victory for the plaintiffs would have been to do exactly that in the eyes of the publishing world, despite the disclaimer of broad effect he offered.

    As [Mr Brown] has taken matters at a general and low level of abstraction and he has only taken ideas and facts without any of the architecture, he has done nothing wrong. It would be quite wrong if fictional writers were to have their writings pored over in the way The Da Vinci Code has been pored over in this case by authors of pretend historical books to make an allegation of infringement of copyright. I accept that if that was allowed to happen it would have a serious impact on writing.

    (emphasis added). I suppose that might give James Frey a little comfort.

  3. He didn't much like either book—but "quality" is irrelevant to infringement.

    Somewhat surprisingly in my view both sets of authors were apparently surprised at the storm of controversy that their books created. This can only be naïveté if true. I cannot believe that if books are going to be written which challenge vital tenets of the established church that they are not going to attract attention.…

    As is usual with books that attract a lot of publicity they have attracted the wrath of the literary experts of the world. Fortunately it is not part of my judgement to assess the literary worth of the books or even the truth behind them.… I suppose in the world of publication 40 million [sic] buyers cannot be wrong.

    And there I must part company with the Hon. Mr Justice Smith. Forty million buyers can be wrong, even in the publishing world. It's not hard to think of at least two books that have sold many more than forty million copies each that have hardly been runaway financial successes.1

In any event, perhaps it would have been better for all involved if this opinion had appeared last Saturday—on All Fools' Day.

  1. And they're related to this mess, at least peripherally: the King James and Vulgate versions of the Bible.