PublishAmerica author sues Stephen King for plagiarism

MysticWolf12001

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I do feel bad for him, but as I said above, you reap what you sow. In other words: you plant crap, you'll get crap in return. I just hope that SK and S&S seek defamation, and all court and attorneys' fees.

Should he win, this will set a precedent that could be detrimental to this industry, since many works are similar in nature.
 

MysticWolf12001

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A motion for leave is a motion filed with the court seeking permission to deviate from an established rule or procedure of the court. The most common use of a motion for leave is to seek an extension to an already-passed timeframe. To Amend a Court Pleading, which is allowed once under the FRCP, to make changes of error made in title or body.
From Wikipedia.

This really could be anything for this case, but is probably a timeframe issue since the plaintiff is now pro se, which means he's doing all the pleadings, filing, etc....

As they say, a person who represents himself in court has fool for a client!!!
 

victoriastrauss

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On 10 June there was a Motion for Leave to File, and on 13 June there was an Order on Motion for Leave to File. Could someone with access look and tell us what those are? Thanks!
The motion is by S&S's attorneys. They requested that the court either strike Marquardt's response, which he apparently filed without first seeking the court's approval and which is much longer than allowed, or permit them additional time to file a response.

The judge denied the motion to strike (he seems to be arguing that since Marquardt is pro se, he should be given some latitude; he also says that to avoid "questions on appeal" the court finds it "prudent" to consider Marquardt's additional allegations of similarities), but granted the motion for extra time.

- Victoria
 

Unimportant

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Are you kidding? Bread rising is fascinating stuff ;-)
 

pangalactic

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Are you kidding? Bread rising is fascinating stuff ;-)

It really, truly is. And I say that without a hint of sarcasm.

I realise that adding the second sentence makes me sound more sarcastic. I'm being sincere. Making bread, start to finish, is really interesting. And now you can have your thread back :)
 

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I'm with you, pang. I find breadmaking to be utterly fascinating.
 

Bartholomew

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Is the bread done rising? Because my paint sure as hell ain't dry.
 

JanDarby

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Time in the legal system has a lot more in common with eons than with hours or even days.

Figure AT LEAST a month, possibly as many as six months, from the time the last permitted document is filed with respect to the motion before the court rules on the motion. Although I'm a little surprised how much back and forth there's been; at least in the state courts I'm more familiar with, there's the defendant's motion, the plaintiff's response, and -- only with court approval, if the plaintiff raised issues not anticipated in the original motion -- the defendant's response to the plaintiff's response. Nothing more than that. Parties are really supposed to anticipate their opponents' arguments, so there isn't interminable back-and-forthing.

In this case, if I remember correctly, we've had the original motion, the plaintiff's response, the plaintiff's new response by a new attorney, the defendant's response to the plaintiff's response, and now the pro-se plaintiff's response to that, and soon another response by the defendant. I wouldn't be surprised if the pro-se plaintiff then at least tried to file yet another response, and as has been seen by the judge's waiver of the page-count rule, the courts usually give pro-se parties leeway, especially on purely technical rules (as opposed to legal issues).

JD, not giving individual legal advice, just general information
 
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BenPanced

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Okay, from my PACER account:

DEFENDANTS STEPHEN KING AND SIMON & SCHUSTER, INC.’S RESPONSE TO PLAINTIFF’S SURREPLY BRIEF
the protectable expression of Keller’s Den is not remotely similar, let alone substantially similar, to Duma Key. Nor is the claim advanced by increasing the items identified on Plaintiff’s laundry list of abstract and supposed similarities, as his surreply attempts.
In short, Plaintiff’s surreply is nothing more than an extension of the laundry list of coincidental and random similarities found in his Complaint.
Marquardt's claim falters because:
A. Ideas Are Not Protectable and the Two Works’ Expression of Allegedly Similar Ideas Is Entirely Dissimilar
Plaintiff’s claim rests on a fundamental misunderstanding of the idea/expression dichotomy.
B. Many of Marquardt’s Alleged “Similarities” Are Not Similarities at All
As noted in Defendants’ reply, a significant number of the supposed similarities do not even share a common idea, but are instead not similar at all.

(later)

Still other examples are nothing more than random coincidences that are not copyrightable and cannot be termed “similarities” for purposes of the substantial similarity analysis.
C. Marquardt’s Reliance on “Similarities” Common to the Horror Genre is Misplaced
In sum, Marquardt’s surreply cannot change the fact that his claim rests on the same abstract similarity he pressed in his Complaint and opposition brief: the fact that Keller’s Den and Duma Key are both “horror novels” in which an evil, supernatural force influences the protagonist’s art – an idea which is neither novel nor copyrightable, particularly in the context of entirely different plots, with entirely different characters serving totally different purposes.

(later)

The striking dissimilarity in the copyrightable expression contained in the two works in issue, when viewed as a whole – as evident from a mere reading of the books – compels dismissal of Plaintiff’s claim.
CONCLUSION
For the reasons stated herein and in Defendants’ prior memoranda, Defendants respectfully submit that the Court should grant Defendants’ motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and award Defendants their costs, attorneys’ fees and such other and further relief as this Court deems just and proper.
 

DreamWeaver

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Bolding mine.
The striking dissimilarity in the copyrightable expression contained in the two works in issue, when viewed as a whole – as evident from a mere reading of the books – compels dismissal of Plaintiff’s claim.
Looks like the judge gets to read the books. Well, a sale is a sale. Or, in PA-ese, a sell is a sell.
 

DreamWeaver

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There's a new document filed with the court: Response in Opposition to Motion, dated 7 July. Could someone with access let us know what it says? Thanks!
 

pangalactic

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I haven't seen circlexranch on the boards for a while, which would explain the lack of updates.. I'm assuming (s)he's left quietly, but I could be wrong.
 

darkprincealain

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She might just be racing a deadline. Things come up in ReaLife (TM), much as we wish they sometimes wouldn't.

This case is beginning to be heartbreaking.
 

JanDarby

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It's an attempt by Marquardt to have the last word. He basically argues, "There are, too, similarities between the two books."

At one point, he seems to discount the whole concept of legal precedents, asking why prior cases should have anything to do with the decision of this one.

It is interesting that his proof that SK saw Marquardt's book is "common sense." He argues that there couldn't be so many similarities between the two books unless a) SK read his book, or b) ghost writers or assistants had read his book and incorporated the similarities into King's book without King's knowledge.

I didn't read the previous document by the pro se Marquardt, so I don't know if he's argued this before. It was interesting, though, that he didn't mention (at least not in this document) anything about having personally mailed a copy to King.

It is sad, though. You can feel the plaintiff's passion in the writing of his arguments. He clearly believes that his work was stolen, and is outraged. He sounds like he's on a crusade, to prevent this sort of thing from happening to other people. Except, of course, there's nothing to prevent.

That kind of passion leads, not just to frivolous complaints, but frivolous appeals.

JD, not giving individual legal advice, just general information
 

victoriastrauss

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There's a new document filed with the court: Response in Opposition to Motion, dated 7 July. Could someone with access let us know what it says? Thanks!
It's a response from Marquardt. It reiterates his allegation that there are similarities between the two books, and requests that the court to allow him "to correct some of the defense's mistakes from the most recent motion to dismiss" (basically, a few things the defense said weren't similar and that he says are).

He then cites precedent for copyright protection of a strung-together series of generic elements, using legal documents he found on Scribd, and puts forward a logical fallacy to refute the defense's claim that King never saw his book:
Finally, for Mr. King to deny that he has ever seen "Keller's Den," especially with the significant amount of similarities between the two novels (over 250) both substantial and generic simply defies common sense. The amount of "coincidences," that appear in both novels simply is not possible. The only way for this to have occurred is if Mr. King allowed staff members or ghost writers who were familiar with "Keller's Den" to comprise these similarities without Mr. King's knowledge.
So proof that King saw the book is that there are too many similarities for him not to have seen it.

He finishes by asking the court to render a guilty verdict, "or at the least, allow this case to proceed to trial."

- Victoria