The Church of Scientology (“CoS”) was founded by science fiction author L. Ron Hubbard in 1954 and has manifested itself into “a complex hierarchy of related churches and organizations, each with its’ own specific purpose in the whole scheme.” Church of Spiritual Technology v. US, 26 Cl.Ct. 713, 714 (Cl.Ct.1992). Scientology is based on “a belief that man is an immortal spirit who has lived through previous lifetimes”, and has at its goal, “a civilization without insanity, criminals & war, and where the able can prosper and honest beings can have rights, and Man is free to rise to greater heights.” Id. Religious Technology Center (“RTC”) and Bridge Publications, Inc. (“BPI”) are two branches within the CoS and represent the “CoS” in their copyright infringement
According to Scientologists, the goal is achieved via a process called “auditing” where a person (called a “pre-clear”) is “cleared” of their problems and behaviors caused by a “reactive mind”. The “reactive mind” refers to “a force that causes a person to act irrationally or against ones own best interest”. Church of Spiritual Technology v. US, 26 Cl.Ct. 713, 714-5 (Cl.Ct.1992) Once “cleared”, one finally “achieves freedom from unwanted burdens and becomes certain of immortality. Id. The auditing process consists of paying the requisite monetary donation and studying church documents referred to as “Advanced Technology” (“AT”) and “Operating Thetan” (“OT”) documents.
In its complaint, RTC and BPI claim copyrights on behalf of CoS for all published and unpublished “OT” documents pursuant to a conveyance by L. Ron Hubbard before his death and reinforced by another assignment following his death by his estate. (Complaint of Religious Technology Ctr., Religious Technology Ctr. v. NetCom, et al., No. C-95-20091-RMW, Feb. 8, 1995) CoS alleges Dennis Erlich (an ex-Church official), Tom Klemesrud (Owner of a computer bulletin board system (“BBS”) through which Mr. Erlich gained access to an InterNet Service Provider “ISP”) and NetCom online Communication Services, Inc. (the ISP subscribed to by Klemesrud) directly or contributorily infringed RTC’s and BPI’s exclusive copyright. Id. They argue that Erlich sent computerized text versions of documents the CoS claims are copyrighted and highly confidential to the USENET newsgroup system. Id.
USENET is an automated network system where groups of users with common interests can create a topical newsgroup.[FN1]Within this newsgroup, users can write a message and ‘post’ it to the newsgroup. The USENET system automatically takes that message and begins to distribute it throughout the tens of thousands of machines in the USENET system until every system has it via a web-like domino effect. As the message is received by the local computer or network, it becomes available for viewing to any user of that local machine who chose to become a member of that newsgroup. These members may then respond and have their responses distributed through the system to the entire group. Older messages are subsequently purged from the system to allow room for newer replies and messages, thus cycling the messages periodically.
To become a member of a newsgroup, a user must add the newsgroup to his or her menu and regularly check to see if there are new messages or replies. The reply aspect of the newsgroup is the truly unique implication of the InterNet’s direct impact on society. A newsgroup allows users from all over the world to carry on public discussions, debates, and even more importantly, to exchange information directly. The mass dissemination of information and ideas at virtually instantaneous speeds and through direct conduits will serve to catapult the progress of our society into the next millennia. To strangle the free flow of information through these conduits at any level would seriously curtail the advancement of society and thus must not be ignored nor overlooked. Indeed, the outcome of these cases will have a long standing effect on the future of online services and resources.
Dennis Erlich subscribed to Tom Klemesrud’s Bulletin Board System (“BBS”), a remote computer system set up to automatically receive calls from outside callers and allow them to utilize that systems resources. One of these resources included a link from Klemesrud’s system to NetCom’s system. NetCom is an InterNet Service Provider (“ISP”) and links many computer systems and networks directly into the backbone of the InterNet. Although it was Erlich who actually created the computerized text message, he sent it to Klemesrud’s BBS who sent it to it’s ISP, NetCom, who then, in turn, sent it out to the other ISP’s in the USENET system. In each of these transmissions, the message is first copied temporarily to Random Access Memory (“RAM”) and then appended to a larger file containing other users messages to be distributed to other systems.
The Ninth Circuit, affirming the District Court’s ruling, held that “a ‘copying’ for purposes of copyright law occurs when a computer program is transferred from a permanent storage device to a computer’s RAM.” MAI Systems Corp. v. Peak Computers, Inc., 991 F.2d 511, 518 (9th Cir.1993) Additionally, the Court held, “the loading of copyrighted computer software from a storage medium (hard disk, floppy disk, orread only memory) into the memory of a central processing unit (“CPU”) causes a copy to be made.” Id.
This is an extremely dangerous rule to rely upon. The very nature of a computer requires it to maintain a large storage section (ie. hard drive, CD-ROM drive, etc.) from which it can call its files into the temporary RAM location for processing by the CPU. To be sure, the average computer today consists of 8 Megabytes (8,000,000 “bytes” or alpha-numeric characters) of RAM compared to over 1 Gigabyte (one billion bytes) of permanent storage (hard drive). Moreover, contents in RAM are lost when the power is turned off, while information stored on a hard drive remains until it is deleted. It would be impossible for a computer user to rely solely on RAM to run programs on their computer. Therefore, because the copying of a file from a hard drive to RAM is an essential element and without that copying a computer becomes a mere paperweight, the rights of a copyright owner fall short of the needs of the computer user and the public as a whole.
Following this rule would also impose liability on virtually everyone who turns on a computer and utilizes the InterNet. The very nature of the InterNet, and USENET in particular, requires each machine to create many temporary files to efficiently process the enormous amount of data that flows through it. Indeed, with filenames such as FILE00001.DAT, FILE25744.DAT, FILE79355.DAT, etc., one must realize the automatic and uncontrollable nature of such a system.
The largest facet of the InterNet today is the World Wide Web. The Web incorporates a complete multimedia environment and provides enormous amounts of information and resources. Online services utilize a technology called “browsing” to facilitate their users searches and exploration of the InterNet. A person loads a software program called a “browser” into their computer, connects via an ISP to the InterNet, searches (or “browses”) different “Web Sites” for the information they are looking for and then transfers that information, whether they realize it or not. Each time a person’s browser connects to someone’s web site, the information is read from the web site’s hard drive and sent via telephone wire to the hard drive on the browser’s computer and is then copied to the RAM of the users computer and the information is then displayed on the screen by the browser. This information can take the form of text, pictures, sound and even full motion video. Once in RAM, the material can be viewed, heard or stored for later use.
The holding in MAI would impose liability on more than 30 million users of the World Wide Web and would devastate the InterNet and severely set society back in terms of progress. In fact, if the current browsing system invokes liability, then the recent release of JAVA, an advanced browsing system will have even stronger implications. JAVA sends little programs, called ‘Applets’ from a web site to a user’s computers and these Applets actually run on the user’s computer and could conceivably utilize other programs residing on that user’s computer. To impose liability on an ISP if that applet runs a program is had no right to run should seem ridiculous to any rational person, but following the rules set forth in MAI, it could happen.
NetCom and Klemesrud argue their systems run automatically as a result of their users inputted commands and that they have no control, and in most instances never even have the opportunity to even view the information sent through its system. Indeed, each day, trillions upon trillions of bytes (one computer byte equals one alpha-numeric character) are sent racing around the world. Therefore, they assert they lacked sufficient knowledge and control of Erlich’s action’s and intent to be held liable for direct or contributory infringement.
On November 21, 1995, the District Court found “that NetCom cannot be held liable for direct infringement.” (Order Denying NetCom’s Motion for Summary Judgement, Religious Technology Ctr. v. NetCom, et al., No. C-95-20091, Nov. 21, 1995 at 14) The Court explained, “where the infringing subscriber [Erlich] is clearly directly liable for the same act, it does not make sense to adopt a rule that could lead to the liability of countless parties whose role in the infringement is nothing more than setting up and operating a system that is necessary for the functioning of the InterNet.” Id. However, the court still expressed a concern that they may be liable for contributory infringement.
A contributory infringer is “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.” Gershwin Publishing Corp. v. Columbia Artists Mgmt., 443 F.2d 1159, 1162 (2nd Cir.1971); Sega Enterprises Ltd. v. MAPHIA BBS, et al., 857 F.Supp. 679, 686 (N.D.Cal.1994). CoS has used the Sega case as a foundation for their argument. However, in Sega, the BBS operator’s advertised their systems as being a location where copyrighted software could be obtained and even placed copyrighted materials on their systems themselves. Similarly, in a case cited to by Sega, Playboy Enterprises, Inc. v. Frena, 839 F.Supp. 1552 (M.D.Fl.1993), the operator of a BBS (Frena) placed adult graphical images on his system that had been scanned [FN2] directly from issues of Playboy magazine into his computer. His liability was based on the advertising he used to solicit subscribers. In the file descriptions on his BBS, he specifically stated these pictures were copied from Playboy.
These cases are fundamentally distinguishable from the issues surrounding NetCom and Klemesrud. The operators in both the Sega and Playboy cases solicited paying subscribers by advertising their library of known copyrighted items. In essence, they were using copyrighted material to compete with the actual owners of the materials and seduce more customers. Klemesrud and NetCom, on the other hand, operate their systems to facilitate their subscriber’s access to the wealth of information and knowledge that lies out there on the InterNet. Klemesrud and NetCom derived absolutely no intentional or unintentional financial benefit from usage fees or new subscriber fees as a result of Erlich’s posting. Thus, any attempt to impose liability on NetCom or Klemesrud in reliance of these cases would be misplaced and harmful to the future of technology. Indeed, if the courts allowed an ISP or a BBS to bear liability for the actions of one of its users then the number of ISP and BBS systems would plummet and the InterNet’s intellectual discourse will stagnate and die.
Nevertheless, imposing liability on an “ISP” for the actions of one of its users is not a new theory. Two recent cases have addressed an ISP’s liability in defamation cases. In Cubby Inc. v. CompuServe Inc., 776 F.Supp. 135 (S.D.N.Y.1991), the District Court granted CompuServe’s motion for summary judgement and held CompuServe (the “ISP”) was not liable for defamatory statements made by one of its users. CompuServe was considered a distributor rather than a publisher and was not expected to monitor its users.
In contrast, in Stratton Oakmont, Inc. v. Prodigy Services Corp., 1995 WL 323710 (N.Y.Sup. May 24, 1995), the Court denied Prodigy’s motion for summary judgement reasoning that Prodigy held itself out to be a ‘family oriented’ system and a monitored environment in an effort to solicit customers by heralding its ability to filter out profanity or obscenity. As a result, the Court stated that Prodigy cannot escape liability on the grounds it could not be responsible for a defamatory statement made online because if it could monitor and control profanity and obscenity, it could monitor and control its users from defaming other users.
The court failed, however, to differentiate the two situations. A computer file can be created with a list of unacceptable words or phrases and the computer can be programmed to automatically check each word of a user’s message against that list and if it finds a match, divert the offending message back to the user with a note explaining the word is prohibited. That is a technologically simple task that would take any of Prodigy’s computer technicians less than a day to implement. However, to have a computer verify the truth or accuracy of a message (or, for that matter, the check and certify that the contents of the message are copyrighted and if it is, whether it constitutes fair use) is not only a completely insurmountable and unreasonable task for any ISP, but is also a virtually impossible task for even the most sophisticated computer system. Computer’s are indeed, incredibly powerful devices, but they are not magic. ISP’s are not designed to be the police of the InterNet nor should they be. Such measures would force most ISP’s to shut down their services and bring the InterNet to a grinding halt. Thus it is essential that ISP’s be protected from any liability stemming from the actions of their users.
Randolf Rice, NetCom’s counsel, argued “it’s a fair analogy to say that if you looked at this as a pollution case, what the [CoS is] doing is pointing to a polluted river and suing the river along with the polluter.” (Tr. at 24, Religious Technology Ctr. v. NetCom, et al., No. C-95-20091-RMW, Feb. 21, 1995) Although what Mr. Rice means is correct, his metaphor’s are incorrect. NetCom is not the river, but rather, the InterNet is the river. NetCom merely owns a slab of property between the originating point of pollution and the public place where the pollution finally reaches. Consider a situation where a neighbor shoots a rifle through your backyard and kills a pedestrian on the street and you become liable because the bullet happened to pass through your yard. By these analogies, it is easier to see how unreasonable it would be to require people to monitor for problems that may flow through their property and correct or prevent them, even though they did not create the problem.
Because NetCom and Klemesrud systems are automatic, it is the computers and networks they own that are contributing to the infringement. To sustain a claim of contributory infringement as a result of an infringing device, it must be demonstrated that the products in question have “no substantial non-infringing uses.” See generally, Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984) In the Sony case, Sony was sued because it was claimed their Betamax video recorders would allow its’ purchasers and users to directly infringe on copyrights and therefore, Sony should be liable for contributory infringement. An analogy could be drawn to Sony’s Betamax machines and Klemesrud’s and NetCom’s computer systems. Both devices could potentially be used by a customer to infringe on another’s copyright. Surely if a video tape recorder could be seen as having non-infringing uses, then Erlich’s subscription through Klemesrud and NetCom to the InterNet can be seen by all rational people to be capable of non-infringing uses.
Erlich, a former member and auditor of the “CoS” for 14 years, has been “a vocal critic of the Church”, and has “expressed his views about the Church by contributing to the InterNet USENET newsgroup alt.religion.scientology (“a.r.s.”).” Religious Technology Ctr. v. NetCom, et al., No. 95-20091 (Sept. 22, 1995) Erlich contends the copyrights on the “OT” material are invalid and further argues that even if the court finds there was indeed a valid copyright, his utilization of the documents constituted fair use because he used the works for nothing more than to comment, criticize and discuss the documents themselves, the concepts contained within and the Church as a whole.
“The fair use doctrine allows the reasonable use of copyrighted materials and is designed to balance the exclusive rights of the copyright holder with the public’s interest in dissemination of information regarding areas of universal concern.” Dallas Cowboys Cheerleaders v. Pussycat Cinema, Ltd., 604 F.2d 200, 205-206 (2d Cir.1979) The statute reads:
Notwithstanding the provisions of sections 106 and 106a,the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified in that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
17 U.S.C. '107 (1988 ed. and Supp. IV) It is well established that the elements of fair use require “case by case analysis” rather than “bright line rules” and “provide only general guidance about the sorts of copying that courts and Congress most commonly had found to be fair use”. Campbell v. Acuff-Rose Music, Inc., 114 S.Ct 1164, 1170-1 (1994); See also, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 560 (1985); Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 448 (1984)
Moreover, “the fair use doctrine permits and requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Campbell, 114 S.Ct. 1170. In addition, “[t]he four statutory factors may not be treated in isolation, one from another. All are to be explored, and the results weighed together in light of purposes of copyright.” Id. at 1171. Finally, “to invoke the fair use exception, an individual must possess an authorized copy of a literary work.” Sega Enterprises, Ltd. v. MAPHIA, et al., 857 F.Supp. 679, 687 (N.D.Cal.1994) (citing Atari Games Corp. v. Nintendo of America, Inc., 975 F.2d 832, 843 (Fed.Cir.1992))
There has been considerable disagreement that the documents Erlich used were not obtained through authorized means. Although the documents were available for a short time via the public record at the California District Court Clerk’s office, CoS contends their members were the first one’s in the door when the office opened to check out the file and the last one’s to leave when they closed and thus no one could have seen or copied those files. Perhaps they were late one day or perhaps Erlich ordered his copy via mail.
Regardless, CoS has no foundation upon which to refute Erlich’s claim that he received his copy lawfully. In fact, in Religious Technology Ctr. v. Lerma, et al., 897 F.Supp. 260, 266 (E.D.Va.1995), the Court specifically stated that “the record in this case indicates that [Lerma] is not the only source of [Advanced Technology] documents on the InterNet [and] it would seem that [CoS] cannot establish that the [Advanced Technology]
documents are ‘not generally known’.” Additionally,
By placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served. Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media.
Id. at 266. (quoting Cox Broadcasting Corp., et al. v. Cohn, 420 U.S. 469, 495 (1975)) Given the history of massive litigation for CoS, one must wonder why CoS overlooked naming the court clerk who supplied interested parties with the file or copies of the documents as a defendant.
The purpose of copyright is to create incentives for creative effort . . . [and] a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited. Although every commercial use of copyrighted material is presumptively an [infringement on the copyright], noncommercial uses are a different matter. A challenge to a noncommercial use of a copyrighted work requires proof either that the particular use is harmful, or that if it should become widespread, it would adversely affect the potential market for the copyrighted work.
Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 451 (1984).
Erlich’s use of the documents was non-commercial. He derived no monetary benefit from his posting on the newsgroup. He contends his purpose was to educate and create an intellectual forum from which mature discussion could evolve. Had Erlich posted the messages with a single comment such as, “Here are the OT documents. Send me money if you copy them” or “I hate the Church of Scientology, so I am posting their documents to get even with them or spite them”, then perhaps this factor of the fair use exception would weigh against Erlich. However, Erlich did not do this. His comments, at the end of the “OT” documents were designed to elicit ideas and create a conversation despite the small number of words. In fact, Erlich responded quite frequently to the questions and comments made by the group.
The notion that Erlich’s postings adversely affected the potential marketability of the documents is ridiculous. Many of the documents would be considered gibberish by members of CoS. For example, “[t]his Bank occurs at several dates after (closer to PT) than the R6 Bank and is the next bank after R6.” (Decl. of Steven Fishman at 64, Church of Scientology Int’l v. Fishman (No. 91-6426- HLH) (April 9, 1993) and “[t]his opens another way to ‘blow off’ BT’s - run R3R on a BT to the first picture the BT ever made of another Thetan. . . . A very SP BT can be run on grades and Power and should then respond to Incident II and Incident I.” Id. at 82. The only people who could possibly be interested in the information contained in these Advanced Technology documents would be members of the CoS or people interested in joining or learning more about it.
CoS fears members of its congregation might choose to get the documents via the InterNet and not contribute the requisite monetary donation to the organization. Yet, since advancement includes the process of auditing, the documents alone would not be enough to advance. Besides, Erlich is not setting up an auditing service and using the documents to compete with CoS, but rather, he is making available information to people who have asked him for it so they may discuss it in a public forum. Furthermore, the court in Lerma stated, “[CoS]’s status as a religious organization undermines any theory of loss that would depend on its’ followers desire to cheat the Church by obtaining these teachings through unauthorized means.” Religious Technology Ctr. v. Lerma, 897 F.Supp. 260, 263 (E.D.Va.1995)
“The fact that a work is unpublished is a critical element of its nature.” Harper & Row v. Nation Enterprises, 471 US 539, 564 (1985) However, the Harper & Row case involved a situation where a magazine published large excerpts from President Ford’s memoirs before the official publication by Harper & Row in an effort to ‘scoop’ the right of first publication. Again, the major theme in this case was money. The Nation magazine attempted to sell a larger number of magazines by infringing on a copyright and this was clearly not ‘fair use’. The distinction can once again be determined by the profit motive behind the Nation’s use and absence of a financial motive as to Erlich’s use.
The nature of works was not considered very important to the fair use determination by Judge Whyte in the NetCom case, “because NetCom’s use of the works was merely to facilitate their posting to USENET, which is an entirely different purpose than [CoS]’s (or, for that matter, Erlich’s use).” Religious Technology Ctr. v. NetCom, et al., No. C-95-20091 RMW, 1995 WL 707167 at 13 (N.D.Cal. Nov. 21, 1995) Additionally, Judge Brinkema sitting on the Lerma case found that Hubbard’s works were more factual or informative rather than creative and “[adopted] the Second Circuit’s view and [found] that because the [Advanced Technology] documents appear to be factual or informational the broader view of fair use is appropriate in this case.” Religious Technology Ctr. v. Lerma, 897 F.Supp. 260, 264 (E.D.Va.1995)
The final factor is the amount and substantiality of the portion used by Erlich in his messages. CoS stresses that Erlich posted verbatim, each “OT” document in its entirety with merely a one or two line comment at the end. This is not contested by Erlich
whose one or two line comment, such as “Here is the OT Document VII. Let’s discuss.” elicited multitudes of replies, discussions, and inevitably, intellectual debating and arguing. By analogy, if Erlich passed around his copy of the “OT” documents to a quantity of people and they all sat down and discussed it, then Erlich would reasonably be seen in the role of teacher, moderator or at very least, critic.
In this case, however, the participants in the discussion may have been physically located large distances from each other, but their presence on InterNet newsgroups brings them just as close as sitting together in a room. Moreover, Erlich’s messages constituted an extremely insignificant percentage of the total messages in the newsgroup and the USENET system as a whole. If a quantity of people were interested in discussing the issue, then an intellectual forum has been created and if no one was interested in the “OT”
documents, then they would have faded into oblivion as the message was cycled along with the millions of other dead topics.
These cases have far reaching consequences. The CoS has filed actions in other jurisdictions for similar situations. For example, CoS is currently suing Arnaldo Lerma, a director of FACT Net [FN3], in Virgina District Court and two other directors, Larry Wollersheim and Robert Penny, along with FACT Net itself in Colorado. Lerma allegedly posted similar materials as Erlich on the same newsgroup at a different time. Lerma asserts his copy originated from the California District Court’s public record before it was sealed and FACT Net stands behind him and contends Lerma acted on their behalf.
The Lerma case took an odd detour when CoS added the Washington Post to the suit after the Post printed a news article on the Lerma case and reprinted approximately 5 lines of text from the “OT” documents at issue. Even though the Post’s original copy was provided by Lerma, the Post returned that copy to CoS after CoS contacted the Post and claimed the copy was stolen. The Post then obtained a new copy from the California District Court the day before the file was sealed by the District Court. [FN4] The case against the Post was summarily dismissed and CoS was sanctioned for instituting a frivolous and blatantly harassing lawsuit against the Post. In fact, the Court found “that the motivation of [the CoS] in filing this lawsuit against the Post is reprehensible.” Religious Technology Ctr. v. Lerma, et al., No. 95-1107-A, 1995 WL 710244 (E.D.Va. Nov. 28, 1995) It should be noted, however, that CoS suit against Lerma also includes Digital Gateway Service (“DGS”), Lerma’s “ISP”. “DGS” has been very quiet in the proceedings and seems to be relying on Lerma’s success with a fair use defense.
Nevertheless, the InterNet is a critically important aspect of the world’s future advancement. Any and all attempts at chipping away at the freedom of a group of people convening to discuss a matter they feel is worthy of intellectual communication must be met with full resistance. As evidence of the powerful nature of information dissemination on the InterNet, this paper was researched exclusively on the InterNet. All the court papers were available from various sites, including the “OT” materials which continue to be available on sites in other countries because ISP’s in the United States are fearful of a lawsuit by the CoS. The one document that could not be found, the November 29,1995 opinion in the Lerma case (because it was only 2 days old and had not yet been entered into WestLaw or Lexis), was received via e-mail from Mr. Lerma himself within hours after seeing a request on another newsgroup for that document.
The power of the InterNet made the information for this paper available immediately and as you read this paper, it is currently being distributed on the InterNet. During its travel throughout ‘CyberSpace’, people across the planet will comment on it, critique its arguments and eventually, use it in intellectual discussions. Such is the power of the InterNet. However, should the CoS succeed in its current lawsuits, this paper will fall under their definition of infringement and a lawsuit will indubitably be filed. Today’s InterNet will not kill copyrights, but copyrights could very well kill today’s InterNet. Society should fear the day that intellectual discussion is outlawed under the guise of protecting a copyright, for that is the day that criticism, commentary and truth will die and with that death, freedom shall wither away.
1.The author of this paper has operated a computer Bulletin Board System (BBS) for over 14 years and has taught thousands of users how to use various online systems. Moreover, he has written articles and tutorials that have been used on dozens of other systems and has participated in many computer conferences. Over the past 10 years, his computer consulting business has expanded to multimedia animations and presentations. His descriptions and explanations of technical procedures used by computers cannot be cited directly because they are a product of his 15 years of experience in the online community.
2.A scanner is similar to a photocopy machine where a picture or document is placed on the scanner and copied. However, with a scanner, the copy resides in the computer’s RAM and may be manipulated, modified and eventually stored for later use. In Frena, the SysOp (System Operator) scanned adult pictures from Playboy magazine and added an advertisement for his computer system listing the name and phone number of his system so people would be able to call his system to get more pictures. Although the Sega case did not relate to pictures, but rather copyrighted computer programs, the SysOp’s in that case also advertised their system in opening messages when someone loaded in the copyrighted software they were providing.
3.F.A.C.T. Net (Fight Against Coercive Tactics) is an anti-cult group founded by several former Scientologists, including Lerma, among others. Although the case is based on Lerma’s posting of the documents as an agent of F.A.C.T. Net and is virtually identical to Lerma, they are two separate actions because Judge Babcock in Colorado refused to include Lerma (who resides in Virginia) in the seizure order and Temporary Restraining Order.
4.CoS requested the District Court seal the documents contained in the Fishman affidavit claiming they were only included to make the documents available via public disclosure of court records and the District Court refused. On appeal, the 9th Circuit Court of Appeals, sitting en banc, remanded the case back the District Court and ordered them to make the decision whether the documents were indeed relevant to the case or contained trade secrets, upon which the District Court temporarily sealed the documents pending their findings. Church of Scientology v. Fishman, No. CV-91-6426-HLH (August 15, 1995) However, during the time between the case and the District Court’s order, the documents were readily available to the public as part of the court’s public record.
TABLE OF AUTHORITIES
17 U.S.C. '107 ................................................................................................................. 14
Atari Games Corp. v. Nintendo of America, Inc.,975 F.2d 832 (Fed.Cir.1992) ........... 15
Campbell v. Acuff-Rose Music, Inc., 114 S.Ct 1164 (1994) .................................... 14, 15
Church of Scientology Int’l v. Fishman, No. 94-55443 (August 15, 1995)
(Decl. of Steven Fishman) ......................................................................................... 17, 25
Church of Spiritual Technology v. US, 26 Cl.Ct. 713(Cl.Ct.1992) ................................ 1
Cox Broadcasting Corp., et al. v. Cohn, 420 U.S. 469(1975) ....................................... 16
Cubby Inc. v. CompuServe Inc., 776 F.Supp. 135(S.D.N.Y.1991) .............................. 10
Dallas Cowboys Cheerleaders v. Pussycat Cinema, Ltd., 604 F.2d 200
(2nd Cir.1979) ................................................................................................................... 13
Gershwin Publishing Corp. v. Columbia Artists Mgmt.,443 F.2d 1159
(2nd Cir.1971) ..................................................................................................................... 8
Harper & Row, Publishers, Inc. v. Nation Enterprises,471 U.S. 539 (1985) .......... 14, 19
MAI Systems Corp. v. Peak Computers, Inc., 991 F.2d 511 (9th Cir.1993) ...................... 4
Playboy Enterprises, Inc. v. Frena, 839 F.Supp. 1552 (M.D.Fl.1993) .............................. 8
Religious Technology Ctr. v. Lerma, et al., 897 F.Supp. 260 (E.D.Va.1995) ..... 15, 18, 19
Religious Technology Ctr. v. Lerma, et al., No. 95-1107-A, 1995 WL 710244
(E.D.Va. Nov. 28, 1995) .................................................................................................. 22
Religious Technology Ctr. v. NetCom, et al.,No. C-95-20091-RMW
(Feb. 8, 1995) (Complaint) ............................................................................................... 2
Religious Technology Ctr. v. NetCom, et al.,No. C-95-20091-RMW
(Feb. 21, 1995) (Transcript) ............................................................................................ 11
Religious Technology Ctr. v. NetCom, et al.,No. C-95-20091-RMW
(Sept. 22, 1995) ............................................................................................................... 13
Religious Technology Ctr. v. NetCom, et al.,No. C-95-20091-RMW
1995 WL 707167 (N.D.Cal. Nov. 21, 1995) ............................................................... 8, 19
Sega Enterprises Ltd. v. MAPHIA BBS, et al., 857 F.Supp. 679 (N.D.Cal.1994) ...... 8, 15
Sony Corp. of America v. Universal City Studios, Inc.,464 U.S. 417 (1984) ... 12, 14, 16
Stratton Oakmont, Inc. v. Prodigy Services Corp., 1995 WL 323710 (N.Y.Sup.
May 24, 1995) .................................................................................................................. 10