Re: [asa] Expelled Explained

From: David Opderbeck <>
Date: Sun Apr 13 2008 - 12:23:06 EDT

There's no such thing as "malignant infringement." But "intentional"
infringement can result in enhanced (basically, punitive) damages.

On Sat, Apr 12, 2008 at 10:48 PM, Rich Blinne <> wrote:

> On Apr 12, 2008, at 6:52 PM, David Opderbeck wrote:
> In response to Rich's questions: I don't want to talk about the specifics
> > of any allegations against any real person which may or may not be true, and
> > I want to be clear that I'm not endorsing any allegations made against
> > anyone. So, I'll offer some personal opinions on genercized questions.
> >
> >
> Thanks, these are extremely helpful. And, your point is well taken. The
> allegations are of a class I call Internet allegations. So, the allegations
> qua allegations are not even reliable. For example, my quote of the XVIVO
> medical illustrator came off of So, I don't even know
> if the allegation is made by the person alleged to have made it. Add to this
> that it is not from a "friendly" witness and you get the idea. I found this
> page from a link from our good friend, Denyse O'Leary. She crowed about the
> link because of this phrase "So go ahead and release your movie. Just keep
> track of how many tickets you sell." She took that as they were giving up.
> Here's the quote in context. (It doesn't sound like they're backing down to
> my layman's ears.)
> It makes me happy, though, that you decided to implicate your friends in
> > print, on your blog (
> >,
> > in what is legally, malignant infringement, since you no had doubt discussed
> > with EXPELLED's producers, Harvard's previous legal infringement action
> > against you, the Discovery Institute, where you are a fellow and
> > Southwestern Baptist Theological Seminary, where you teach. Once we uncover
> > the EXPELLED animation dollar trail, and bring it to light, we will have
> > even more fun. The sublimely ridiculous claim that EXPELLED uses completely
> > original animation, in light of copying our work so closely that a budget
> > was reserved to pay for an infringement suit by Harvard, is delicious! Why
> > should I try to take you guys down when you are doing such a splendid job
> > yourselves? For free! So go ahead and release your movie. Just keep track of
> > how many tickets you sell. We may just find that data valuable, too.
> >
> David, what is malignant infringement and what does that mean? I do think
> I know the equivalent in patent law. (I am going to change some details
> because there is pending litigation here.) We had a patent where we have
> solid evidence that the infringing company knew that we had a pending
> patent. When we brought this to the attention of our attorney his eyes lit
> up and said, "Oo, willful!"
> It is SO ironic that Denyse is involved again. Time for the wayback
> machine. Denyse also crowed about how the Smithsonian was endorsing The
> Privileged Planet because the Discovery Institute made a donation and the
> Smithsonian allowed them to play whatever they wanted in their auditorium. (
> Up until that time
> Gonzalez had been yet-another low-profile junior astronomer who believed in
> the strong anthropic principle. In the end, she may have destroyed his
> career. Now this.
> On a different note, I ran down one of Schermer's allegations. The
> following is from a blog of a religion prof at Pepperdine:
> On a personal note, I appreciated Shermer's attention to the fact that the
> > parts of Expelled that were shot at Pepperdine were shot under the same
> > conditions as any other commercial filming that happens here: the production
> > company rented the auditorium, brought in extras, and shot their footage,
> > just like the folks from Zoey 101 used to do. However, I think Shermer
> > overstates the case when he writes, "The biology professors at Pepperdine
> > assure me that their mostly Christian students fully accept the theory of
> > evolution." I think that's probably true of most biology majors, but the
> > student body as a whole is split (I can state this with some degree of
> > confidence based on firsthand experience but also on articles from the
> > student newspaper).
> >
> Rich Blinne
> Member ASA

David W. Opderbeck
Associate Professor of Law
Seton Hall University Law School
Gibbons Institute of Law, Science & Technology
To unsubscribe, send a message to with
"unsubscribe asa" (no quotes) as the body of the message.
Received on Sun Apr 13 12:24:23 2008

This archive was generated by hypermail 2.1.8 : Sun Apr 13 2008 - 12:24:23 EDT