Some visitors to TPV have reported difficulties in seeing the embedded PDF documents in this post. PG first observed this problem this morning – Thursday, May 21 – (everything seemed to work as planned for PG yesterday) and managed to get the embedded PDFs to show up after refreshing the screen a couple of times. You may want to try holding down your Shift key when you refresh the screen.
As you can see below, PG has provided an alternate way for you to view the documents if the embeds don’t work/haven’t worked for you. PG apologizes for any aggravation this issue has caused.
Beginning Original Blog Post:
As observant visitors to The Passive Voice have noticed, PG included a post titled Plagiarism 2020 yesterday. Today, we’ll talk a bit more about plagiarism, focusing on filings in an interesting lawsuit pending in the US District Court in the Central District of California.
Here are the principal pleadings to date.
NOTE: If you have difficulty viewing any of these PDF documents in this post, following is a link to a shared Dropbox folder that contains all the documents, numbered in the order in which they were filed with the Court (You don’t need a Dropbox account to access this folder) https://www.dropbox.com/sh/562g9gujbnkapzc/AAAH0VLzlOXC8KS3znDq9kxya?dl=0First-Amended-Complaint Motion-to-Dismiss filed_Opposition_MTD Reply-Supporting-Defendants-Motion-to-Dismiss
PG will provide a bit of explanation and commentary. (You can page through each document by moving your cursor over any page, which will reveal up and down arrows plus a zoom feature.)
If you are easily bored and want to see the most interesting document PG found during his exploration of the Court’s files (which are public records), you can scroll way, way down to the end of this post to view Exhibit C to one of the documents you will read about if you don’t immediately jump to the end.
Exhibit C appears to be the result (perhaps only part of the results) of a computerized analysis comparing the entire text of each of the two books at issue in this case to determine the ways in which they are similar to one another – the core question in a copyright infringement case that does not involve actual copying of all or a substantial portion of a copyright-protected work.
If this type of analysis proves useful and is accepted by courts, the subjective opinions of various “experts” who compare each of the texts by reading them and creating conclusory lists or summaries of similarities or differences may be replaced by something that is more objective and can provide a basis for a more accurate and predictable standard for where the line is between “inspired by” and “copied from” lies.
The Complaint is filed on behalf of Pamela DuMond, an individual author.
The Complaint names four different defendants:
- Farrah Reilly a/k/a Emma Chase (for those visitors to TPV from outside of the United States, AKA stands for “Also Known As”. PG assumes Farrah Reilly is a pen name under which Ms. Chase writes.)
- Emma Chase LLC – It appears that Ms. Chase may operate a limited liability company which may or may not have rights to her book and/or receive proceeds from her book.
- Diversion Publishing Corporation d/b/a (Doing Business As) Everafter Romance
- Simon & Schuster, Inc. (a very large American publisher)
Per a later paragraph in the Complaint, Diversion Publishing published a print version of Ms. Reilly’s book and Simon & Schuster published an audio version of the book.
The Complaint is fairly self-explanatory and what PG would expect to see in a case like this.
Rule 8 of The Federal Rules of Civil Procedure describes what a complaint must contain
(a) Claim for Relief. A pleading that states a claim for relief must contain:
- (1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
- (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
- (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
PG also notes that the Summons (a court notice to Defendants that they have been sued) was issued in late October, 2019. In November, 2019, two attorneys entered an appearance on behalf of all the defendants except Simon & Schuster.
In January, 2020, these two attorneys withdrew and were replaced by the S&S attorneys, so all the defendants are currently represented by the same attorneys, originally hired by S&S.
The Motion to Dismiss
The second document is a Motion to Dismiss filed by the Defendants.
A few things caught PG’s immediate attention.
- The names of three attorneys appeared on the motion, all from the same firm
- One attorney was from the California office of the firm – the defendants needed an attorney admitted to practice in California to file the response and provide ongoing information about California civil procedure, etc.
- Two attorneys are from the New York office of the firm and were permitted to participate in a California court case pro haec vice – for this case only.
- The defendants’ law firm is one of the 100 largest in the United States, with offices in New York, Anchorage, Bellevue (suburban Seattle), Los Angeles, New York, Portland, San Francisco, Seattle (in addition to the office in Bellevue) and Washington DC.
- PG concludes that Simon & Schuster is completely running the case via the attorneys they originally hired and who, thereafter, in January, 2020, undertook to represent the rest of the defendants..
- A large firm like the one representing the defendants would almost certainly have competent IP litigation attorneys in California, likely in both the LA and San Francisco offices. However, they’re using two New York attorneys, Elizabeth A. McNamara, a full partner with more than 30 years of experience, with lots of litigation, in IP and media matters, and Kathleen Farley, an associate focusing on media in addition to an LA IP associate. PG suspects a 20-minute court hearing in California would generate a significant number of billable hours sitting on an airplane for the New York lawyers.
The Motion to Dismiss is a 28-page document. PG doesn’t know what the current large-firm New York City rule-of-thumb per-page cost for a serious litigation document is, but PG suspects we’re looking at a serious five-figure fee just for drafting this document. If the court sets oral arguments on the motion, PG suspects an additional five figures will be spent by Defendants if the New York lawyers show up.
The biggest question on PG’s mind is, “Why is Simon & Schuster spending so much money defending this case?”
PG doesn’t know how many audiobooks S&S sold before the Summons arrived, but the dollars it has received and would generate if the audiobook continued to be sold would seem to be much less than the costs of defense. PG has no inside knowledge about settlement discussions, if any, but PG bets that S&S could get a release from Pamela DuMond, the author/plaintiff for less than it’s spending on its New York and California lawyers.
However, the fact that S&S offered to have its lawyers represent the rest of the defendants as well is an indication for PG that S&S wanted to control the defense of the case and is likely in the battle for the long haul.
Back to the merits of the Motion to Dismiss.
As PG mentioned much earlier, under the Federal Rules of Civil Procedure, a Plaintiff need only provide a “a short and plain statement of the claim showing that the pleader is entitled to relief;“
After reading the Complaint, PG thinks it’s pretty clear what Ms. DuMond thinks the Defendants did wrong. If the Defendants are seriously confused, the process of discovery – depositions, interrogatories, etc., etc., – will offer plenty of opportunity for Defendants to clear up any questions they may have.
The Defendants argue that the Complaint only mentions a few examples of plagiarism/copyright violations. PG thinks these are clearly identified as just some of the similarities, not all of them.
One thing the Motion to Dismiss does demonstrate is that S&S is going to attempt to make litigation expensive for the Plaintiff.
Plaintiff’s Opposition to Defendants’ Motion to Dismiss
For PG, this is where things became more interesting.
The copying and copyright infringement of the Defendants was
most likely the result of digital text spinning followed by a re-write and polish. Text
spinning — also called automatic paraphrasing — is performed by computer software
containing a built-in thesaurus.
While digital text spinning results in the alteration of the original work, it also results in nonsensical phrases, awkwardly constructed sentences, patterns, repetitions, and other anomalies — all of which exist in the Defendants’ Copy. What else could explain why the very unique word “Rome” occurs at exactly 67% of the way through the digital version of the Work and at exactly 65% of the way through the digital version of the Copy; and the very unique word “Beyoncé” occurs at exactly 95% of the way through the digital version of the Work and at exactly 95% of the way through the digital version of the Copy. Defendants will argue that the exact same word placement is a remarkable coincidence or that the word is not a form of protected expression.
As detailed below, the digital versions of the Work and the Copy show similarities
that are so striking as to preclude the possibility that Ms. DuMond and Defendant
independently arrived at the same result. The Appendix is replete with similarities that
are similarly placed in the Work and the Copy. This Court should employ a digital
analysis of the Work and the Copy, rather than the antiquated paper analysis urged by the Defendants.
But the Work and the Copy share more than striking similarities in names, stock characters, or trope – they share hundreds of copyrighted elements including written dialogue, written plot points,written character traits, and written scenes, to name a few.
|Prince Nicholas Frederick Timmel
|Prince Nicholas Arthur Frederick
|Heroine / Villainess
|Heroine: Lucy “Lucille” Trabbicio
|Villainess: Lucy “Lucille” Deringer
|To Heroine, Lady Esmeralda
|To Hero, Lady Esmerelda
|Name of Bar
|The MadDog Bar
|The Horny Goat Pub
|Owner: David Billingsley
|Kardashian, Beyoncé, Brad Pitt, James Bond
|Kardashian, Beyoncé, Brad Pitt, James Bond
|Words on one page
|penthouse, hand-painted, crystal, marble floor
|penthouse, hand-painted, crystal, marble floors
|Chapter 3 Passage
|Pies, shop, open, chocolate, berries, counter
|Pies, shops, opens, chocolate, berry, counter
|Linda Blair Reference
|“swiveled his head toward me like Linda Blair”
|“Linda Blair Exorcist-head-spinning”
Computer Analysis of Similarities of the Two Works
If you’ve made it this far, PG congratulates you and suggests you may wish to apply to law school.
The following document is the one that interested PG the most. It is attached to the Plaintiff’s Opposition to the Defendant’s Motion to Dismiss as Exhibit C and appears to be one of the products of a computer analysis of the two works – Ms. DuMond’s original book and the one she claims violates her copyrights – to determine how similar the two works are.
As with earlier embedded PDF files, if you can’t see this one in your browser, you can access it at the shared Dropbox folder – https://www.dropbox.com/sh/562g9gujbnkapzc/AAAH0VLzlOXC8KS3znDq9kxya?dl=0Exhibit-C