Additional Arguments
- In the circumstances of the present case of failure to meet the initial burden of proving a single point of similarity to a protected expression of copyright (or even for a combination of ideas), there is no need to continue examining the rest of the claims in the opinion that were not detailed in the summaries, nor is there a need to examine circumstantial evidence that the plaintiffs called "a negative way of proof".
- Thus, for example, the plaintiffs claimed that it was "inconceivable" that in a period of two months and in a "groping" study, the authors of the article would reach research findings and conclusions, and even an inter-system model of global organizations that are identical to the findings reached by the plaintiff in decades of research. However, such a claim may be relevant, for example, if a number of similarities were found in relation to protected components, and it had to be decided whether they originated from independent research or copying. However, if the existence of any protected finding or conclusion (i.e., not mere idea) of the plaintiff contained in the defendants' article has not been proven, then the question of whether the findings of the defendants' article could have been reached by the research conducted by them or not, is meaningless. After all, even if the claim had been accepted (and for the avoidance of doubt, I do not believe that it has been proven even to some extent) - this would not prove copyright infringement on the part of the plaintiffs, since there is no example of such infringement.
- I also examined the transcript of the conversation between the plaintiff and defendant 2 of 29 November 2021 (P/31), in which the plaintiff first "slammed" the claim of copying. Contrary to the plaintiff's claim (for example, in paragraphs 15-16 of her summaries), there is nothing in it that indicates a "thanksgiving" or the beginning of a thanksgiving on the part of defendant 2 regarding copying. On the contrary, defendant 2 asks the plaintiff to open the article together, and to see that the article also relies on her findings while giving credit, and developing the matter based on additional sources and the interviews that were conducted (see, for example, lines 250-265, 320-331, 340, 384, 393-395, 416-421).
- The comment in defendant 1's research proposal from January 2021 in the list of sources after the reference to the plaintiff's book from 2014: "I will go down later and I will use the articles, only" does not indicate an attempt to disguise the sources. As we saw above (in paragraphs 30-32, and see also source 12 of the defendants' article referring to another article by the plaintiff together with A. Armon), the defendants referred in their article to the plaintiff's articles in English that were published in academic journals (a legitimate and logical academic choice) and no attempt was made to appropriate the plaintiff's findings (which are also an idea, and not a copyrighted way of expression) without proper reference.
- The fact that defendant 2 forwarded the defendants' article to the same technical editor, Ms. Shoshana Zucker, also does not indicate that a copy was made.
- Even the fact that the article was published on a well-known platform of Preprint, prior to its publication in a journal, is not flawed, and this is an accepted method of publication that the plaintiff herself used (P/17 of the defendants' affidavits).
- In their summaries, the plaintiffs claimed (in paragraph 29) an alleged contradiction between the testimony of Prof. Shoval at the hearing on April 13, 2022, who testified that he passed "leads" to the interviewees, and the testimony of Ms. Agmon at the second evidentiary hearing, in which "it emerged that defendant 3 was not a participant in the interviews at all." However, in the hearing on April 13, 2022, Prof. Shoval himself stated that he did not participate in the interviews and that only Ms. Agmon conducted them (see the transcript thereof, at p. 18, para. 24). Even with regard to Prof. Shoval's referral to the fact that a senior Mekorot official was interviewed, I did not find that this was a material contradiction, since Ms. Agmon explained in her testimony (in the transcript of the second hearing at p. 40, s. 38 - p. 41, s. 2) that in the framework of the main research that took place at the time of the hearing of the interim relief, Mekorot existed.
- I did not see the need to address all of the plaintiff's claims and the variety of "circumstantial evidence" that she pointed to, including the claims regarding the alleged incompatibility between the research proposal and the article and other claims, since, as stated above, no point of similarity to a protected way of expressing an idea has been proven.
- On the other hand, I will note that the defendants' claim that a draft of their article, in a version very close to the final version, was forwarded by defendant 1 to defendants 2 and 3 on May 21, 2021 (i.e., before the date of the transfer of articles 8 and 9 of the plaintiff) was not proven. The defendants did attach the draft of the article (Appendix 4 to their affidavit), but they did not attach evidence as to the date of the transfer of the document. This is in contrast, for example, to the evidence they attached on the date of the transfer of the slides of the results of the pilot study (Appendix 2 to their affidavit). However, here, too, in the absence of proof of similarities in protected elements between the defendants' article and the plaintiff's studies, this does not change the conclusion I have reached.
- Before concluding, I would like to address the parties' dispute regarding the 2017 edition of the plaintiff's book from 2014.
The statement of claim and the request for interim relief mentioned only the 2014 edition of the plaintiff's book "Globalization, Quality and Everything in Between" (as one of the sources from which the defendants allegedly copied) and did not mention that an updated edition was published in 2017. Moreover, in paragraph 56 of the statement of claim, the plaintiffs wrote that "the findings of the plaintiff's research are supposed to find expression in the book 'Quality Globalization and Everything in Between,' which has not yet been published in its updated edition..." (Emphasis in line added by A. L. C.). Similarly, in paragraphs 2, 8 and 9 of the plaintiff's affidavit for interim relief, only the 2014 edition of the book (defined as "the book") is mentioned, and it is written that the products of the plaintiff's ongoing research are given "innovative expression as an updated version of my book, which will be published in the coming months in the United States (hereinafter: the "updated book")" (emphasis in line - original).