This is Brian Harman's account of the June 23, 1995 hearing before Judge Whyte in San Jose

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This is Brian Harman's account of the June 23, 1995 hearing before Judge Whyte in San Jose Federal Court. Dennis Erlich sent a series of followup replies to this message, annotating some of Brian's text. Rather than file those replies separately, I have intercut them into Brian's text below in this manner: --- Reply by Dennis Erlich: text text text... --- End of Erlich Reply Newsgroups: alt.religion.scientology Subject: Federal Court Hearing Synopsis, 6/24/95 Message-ID: <1995Jun24.025121.46911@miavx1> From: bpharmon@miavx1.acs.muohio.edu (Raskolnikov) Date: 24 Jun 95 02:51:21 -0500 Organization: Miami University Lines: 285 I just came back from the Federal Court Hearing in San Jose today, so I'll try to give a synopsis. This is just a hack job for those who were not there, so please feel free to post your own accounts and correct any errors I make. First, the game players, as near as I can remember from my scribbly notes: For the Prosecution (CSC/RTC) there were the usual suspects: Helena Kobrin, Janet Kobrin, Tom Small, and at least two other lawyers I did not recognize (Ableson and Moxon?). Kobrin, et. al had a few aides to pass notes. Big Surprise: the (in)famous Earl Cooley was the main attorney for the Church today. He was quite dramatic, and often strayed into emotionally charged language, referring to the defense's positions as "a fantasy construction." More on this later. Several Scientologists were present in the courtroom, including Jeff Quiros, Warren McShane, and at a few others. As a side note, I sat in the same row as Jeff, and there were at least four other scientologists hanging around him at any given time (all were women -- odd?). I'm pretty sure that they were scientologhists as Jeff kept whispering things in their ears, and they all ung out with Jeff, et. al after the hearing. All five of these Sci's (including Jeff) wore very nice suits that were black and white (some gray, but generally no color). Is that some kind of OSA uniform? For the Defense: Dennis was there, as were representatives for Netcom (Randy Rice and ?), Kelmesrud (Dan Leipold and ?), and Dennis Erlich (Carla Oakley and Harold McElhinny). There were several of the SP crew there, but I'll let everyone pipe up on their own (i'm a bit leery of posting people's names w/o asking first.) The Plaintiffs had some trouble making their case today. they had a lot of ground to cover, and the Judge set time limits on both the plaintiffs and the defense to present their arguments (1 1/2 hours apeice?) Cooley basically ran himself out of time with his dramatic arguing and somewhat exagerrated characterizations. They spent so much time insisting that netcom and Klemesrud had knowingly assisted in copyright infringement (and in violating trade secrets, depending on their shifting argument) That they had a mere 1 1/2 minutes left to argue for holding Dennis Erlich in contempt of court (on three counts). There was some confusion, as their simultaneous claims of violation of trade secrets and copyright infringement were muddled several times (primarily by Cooley). Cooley also raised an objection towards the end, to which Judge Whyte responded with "I don't follow your reasoning." Cooley piped down after that. (more later, see part two.) The plaintiffs did raise some interesting points, which I'll try to paraphrase below. The Defense, in my opinion, did a much better job. They did not run out of time, and the arguments were clear and concise. They also had a splendid closing argument, which I'll do my best to present in part two. They also seemed more prepared to answer Judge Whyte's directed questions. But hey, I'm biased. There were a number of motions submitted today, here's a list taken from Dennis's post, msg id <9506201120.0FXDJ01@support.com>: -----typos mine---- [from the sceinos] 1) Motion for Preliminary Injunction against me and resinstatement of TRO (PI?) against tom and Netcom. 2) Motion for sanctions against Carla Oakley of MoFo for including LA Times, St. Pete Times, Forbes Mag, et. al., articles describing the OT3 Wall-o-fire, in one of her unsealed filings. 3) Several motions for finding me in contempt for postings, etc., since the raid. [From MoFo] 1) Motion to vacate Writ of Seizure and return all materials confiscated to me. Would include personal items such as bank statement, demo tape of my songs and 2 rolls of film taken of every nook and cranny of my house during the raid. (the pictures used in the KSW issue). 2) Motion to lift Temporary Restraining Order and restore my Constitutionally guaranteed rights to comment and criticize the church for which I was ordained a minister, using the materials I was trained on. 3) Raise the bond that the sceinos had to submit to carry of[f] the raid from $25000 to $100000. [From Klemesrud] 1) Motion to dismiss? [From Netcom] 1) Motion to dismiss. -------end excerpt----- Randy Rice for Netcom was supposed to go first but he stepped aside to let the plaintiffs fs speak first. He felt his argument was clear enough, and he'd rather rebut the sceinos instead. (paraphrased) Earl Cooley stepped up to the plate and made his argument that Netcom and Klemesrud should not be dismissed from the case because: (paraphrased) 1) Netcom was notified of copyright violations and they did nothing in this case, while in any other cases involvng software they were very quick to delete those materials. He accused netcom of being inconsistent. 2) Netcom and Klemesrud store these copyrighted materials on their "hard drives" while they are on Support.com's and netcom.com's news system. Netcom even extends their storage time to eleven days, longer than the usual three [??] on the usenet system. Copying these materials onto their hard drives is in itself a copyright infringement commited by netcom and support.com, just as if someone photocopied a whole book. 3) the plaintiffs no longer want 'pre-screening' of materials for copyrighted writings, instead they want support.com and netcom to delete and messages the church claims violates their copyright. They consider this a reasonable solution to protect their copyright from unathorized publishing. 4) Also referred to defendent's complaints of censorship and eliminating their ability to do business as a "parade of imaginary horrbiles" [to quote]. At this point, Janet Kobrin stepping in to 'flesh out' Cooley's arguments with technical definitions of infringemnet and to argue court precedents that support [?] the Church's position. Much of her argument was a restating of Cooley's rather dramatic introduction, but included more detail. One new point she did make was that copyright infringement does not require knowledge of what you are doing, nor is it an excuse [is this true?]. The argument was made that Erlich reproduced entire copyrighted works from larger compilations, so he cannot claim that he only excerpted 'part' of copyrighted book. Rather, it is the coprights on the individual works and not the compliations that were violated. After her, Tom Small [plaintiff atty] argued against Fair Use as a defense for netcom, Klemesrud, and Erlich. He changed the argument from one of copyright issues to one of trade secrets, and then tried to mix the two. He said that the materials posted by Mr. Erlich were both copyrighted and unpublished trade secrets of the church. There is such thing as fair use of trade secrets, he argued, and that any infringement of trade secrets is unacceptable. Mr. Small also claimed that Dennis published 'bootlegged' or unauthorized copies of this material, rather than simply excerpting from a legitimate copy of said material. There is no such thing as fair use of a bootlegged copy of copyrighted works, according to Mr. Small. [do they know how Erlich got this stuff?] ---------now netcom jumps in--------- Randy Rice, attorney for netcom then presented arguments to rebut the plantiffs and in favor of dismissal. To paraphrase: 1) Netcom cannot be expected to deal with copyright infringement without some way of verifying that these materials are ideed copyrighted. For example, if i am a sysop and someone posts "A Tale of Two Cities" on my system, a publisher can easily provide me with an original copy to prove that they own copyright to this material, and that this is a clear case of copyright infringement. RTC/COS did no such thing, and flatly refused to supply Klemesrud and Netcom with originals so that they could determine if such infingement occured. In the software case, it is very easy to see who owns the copyrights to a pirated copy placed on someone's system, as one can easily compare a pirated copy of "windows' with a legitmate copy and see that both say (c) Microsoft 198_, and that the priated copy is the same one law abiding citizens buy in stores. Netcom had no such way to verify that RTC/COS held the copyrights, and that Dennis was infringing them. Therefore, they cannot be expected to run about deleting posts just because RTC says so. 2) The plaintiffs have repeatedly changed their position. Before the case, they wanted netcom to yank support.com, effectively eliminating service to 500 users who had nothing to do with the case. Now they claim that all they want is Netcom to delete all posts that the RTC claims infringes on their copyrights and publishes their trade secrets. 3) Every single site, and every single user is as "guilty" as Netcom. If netcom is guilty of copyright infringement simply for storing a Newsfeed on a disk for a short time, then every USENET site in the world is equally guilty of that crime. 4) Free speech issues: Dennis is clearly involved in controversy with the church, and Netcom feels an obligation to defend Erlich's free speech rights to criticize the church. Why should they pull the plug on a user, and a system, simply because the Church claims that he has raided their intellecutal property , particularly since the Church refused to demostrate to netcom that they indeed held the copyrights? Netcom feels that such a controversial issue is clearly a free speech matter, and is not as straightforward as situation with pirated software. --- Reply by Dennis Erlich: Also Rice pointed out that Netcom would be placed in a position of liability if it yanked someone's account just because that person's enemies *claimed* a violation occurred where none could be proven to their satisfaction. They could get sued by Tom or me. --- End of Erlich Reply -------and now, Klemesrud---- Next Dan Leipold took the reins, and argued in favor of dismissal. His arguments were (paraphrased): 1) Klemesrud's system is automated: he does not have control over what gets put on his hard drive. He is merely leasing the use of his machine/software to other users who are responsibile for it's use. For example, If i photocopy all of dianetics on a xerox machine at copy shop (that is _I_ do it, not the shop staff) then I am guilty for any infringement. The copy shop merely leased the machine to me, for about $0.10 a page. (just like some ISPs charge by the KB or the bandwidth.) [this same argument works for netcom] 2) The RTC/COS is engaging in a weird argument: How can you have a trade secret and a copyright violation? Which is it? Judge Whyte tried to get a solid answer form Leipold as to what the legal obligation of an ISP was. Leipold compared ISPs to a video tape manufacturer, where CBS can't sue sony for making a video tape used to pirate tv shows, rather they sue person who pirated the shows. 3) Quotes from the plaintiffs initial complaint which states that netcom and klemesrud did nothing: That is, they did not engage in copyright infringement, they simply failed to do anything about it when the church complained. But now the lawyers for RTC claim that netcom and klemesrud _are_ guilty of intringement, as they "copied the materials onto their hardrive and made them available to other users for a fee" In english, their newsfeed is stored on a disk drive rather than simply 'storing it in ram.' According to Leipold, the CHurch is changing it's argument in the middle of the hearings. [i agree] Next, Cooley showed up again to give a dose of amusing metaphors and hyperbole, but I'll continue that in Part Two..... Brian Harmon Sf, CA KoX. --------- Article 80450 of alt.religion.scientology: Newsgroups: alt.religion.scientology Subject: Federal Court hearing, part twp Message-ID: <1995Jun24.050022.46913@miavx1> From: bpharmon@miavx1.acs.muohio.edu (Raskolnikov) Date: 24 Jun 95 05:00:22 -0500 Organization: Miami University Lines: 263 My hack job of reviewing the court hearing, part two..... After Leipold said his peace, Cooley took the stand again. Cooley claimed that he had to deal with this "fantasy construction" set up by the defesne. He said that "the case law is very clear, and that there is no room for 'I Don't Know'" and that "Loading of copyrighted materials into computer memory is a direct infringement of copyright." [Nevermind that RTC and HK, et. al refused to prove copyright to netcom or klemesrud]. He characterized the arguments of Rice and Leipold as "devil made me do it" arguments, where someone was helpless to stop a subscriber who was clearly abusing their system. [right, and nevermind that he twisted what they said a bit]. He also mentioned Grady Ward by name, and accused the anonymous and pseudonymous posters to ARS of trying to impose anarchy on the net by repeatedly reposting copyrighted "trade secrets" of the church and thereby make a mockery of the church's rights. [Demonizing ARS critics seems to be a big schtick for him, could he be woody? ;)] --- Reply by Dennis Erlich: He said Grady and I had public discussions that amounted to a conspiracy to flood Internet with their trade secrets. It was an serious accusation which I absolutely deny. --- End of Erlich reply He also accussed Klemesrud of stalling because he [klem] insisted that the original copyrighted materials be sent to him by US mail. That way, argued Cooley, the articles would have expired off of Klemesrud's NEWSfeed and he would no longer be able to compare them to the originals, and voila'! no infringement. [Cooley seems to imply that Klemesrud, Erlich, and Netcom are all in cahoots to rape the intellectual property and "trade secrets" of the church. Is that because they're all SPs?] Cooley also raised the issue that Erlich posted materials after the TRO was in place. [as an aside, it was often hard to tell which of their motions the plaintiffs were talking about at any given time, as they often floated bewteen going after Klemesrud, Netcom, and then Erlich all in one thought. Cooley was particualrly fond of this.] --- Reply by Dennis Erlich: That's because he had no clue about Internet and the operations of providers or participants. He was constantly passed notes, which he would spout in his staccato, blustery "style" at the court as if there were cameras on him. --- End of Erlich Reply Judge Whyte asked Cooley if netcom, Klemesrud, and Erlich are simply supposed to take the RTC's word for it that an infringement has occurred. Cooley replied that they should trust the plaintiff's atornney's in that matter. [in essence, yes.] Cooley also raised the issue of a "Non-Discolsure Agreement" signed [allegedly] by Elrich, promising not to reveal the secrets of scientology [the OT materials, i guess]. Cooley also stated that 19-20 coyrighted and unpublished "trade secrets" of the church were found on Mr. Erlich's computers, that he posted parts of 19 of these 20 materials, and that 14 of these were posted verbatim. [true?] the text of the agreement was shown to the court, but i could not see it from where I was. Cooley was no arguing that Erlich had not only violated the copyrights of the church, but that he had also reneged on his non-disclosure agreement. Cooley claimed that Erlich violated the TRO three times, and therefore should be held in contempt. One was a post made after the TRO was modified, the second was a signed declaration verfiying that a chruch document was genuine, and the third [i think] was an interview where he mentioned Xenu and H-bombs [incident II]. [note, Cooley didn't list these, i got them from the defense's rebuttal.] Cooley started repeating himself, again saying that removing users was not necessary, merely that the Church wanted netcom and Klemesrud to delete messages they say violated their copyright. [methinks they're trying to change their argument.] At this point, there was a ten minute recess. Cooley and co. had used up so much of their time that they had about two minutes remaining to argue for holding Dennis in contempt. The defense, OTOH, still had loads of time. -----after the recess----[ps, my notes go way downhill here, perhaps a more diligent person can fill in more.] Cooley sat down and let Carla Oakley [rep. Erlich] take the stand to argue against holding Dennis in contempt of court, and to rebut some of what Cooley and others had said. to paraphrase again: --- Reply by Dennis Erlich: No, Daniel. Carla's argument was the copyright and trade secret matter were insufficient to justify the TRO (injunctive relief) sought by the plaintiffs. That the Writ of Seizure didn't comply with the conditions of law for that serious remedy. That the balance of hardship weighed too heavily on me. That my research materials should be returned. That the scienos didn't have the likelihood of prevailing and that the trade secrets didn't meet the criteria. --- End of Erlich Reply 1) Freedom of speech arguments: The TRO was preventing Dennis from exercising his first amendment rights by telling what he could and could not talk about. [Holding him in contempt for mentioning Xenu and volcanoes in an interview would be a good example] 2) Arguments against income loss for the church or irreperable harm caused by Dennis. RTC/COS made the argument that Dennis's publishing of OT materials undercuts the church's business and casues 'irreperable harm to the church' [i don't quite get this argument.] Not so, says Oakley. Even when Dennis posts these materials to the net, he is not removing the services the church provides, nor is he passing the church's methods and tech as his own. This argument, that the defendant is causing unnacceptable loss of income for the church is wrong, as he is not competeing with the church per se. The Church has won cases in the past against splinter group[s] by using this type of 'unfair competition' argument. It does not, however, apply here. 3) the Church's unpublished documents are not trade secrets. Unlike a real trade secret, the church does not have any idea how many people have access to their trade secrets. Many of these "trade secrets" have been published and publicly desseminated on the 'net. [not by dennis that is. Also, does putting this stuff together for OT levels constitute 'publishing' the material? Has the church unwittingly published their trade secrets?] Also, these some of these 'trade secrets' are a matter of public record, such as the Fishman declaration [has OT stuff in it.] If these are trade secrets, why are so many people allowed to access them? -- they are not kept under strict lock and key -- If these are trade secrets, why do you _sell_ them to your church members? [does coke sell its formula to employees?] --- Reply by Dennis Erlich: She made the point that the elaborate sham of security precautions the cult presented to the judge in their filings was only in place in 3 of the 10 locations where the courses are available for sale by the cult. --- End of Erlich Reply 4) Copyright Claims: What about forgery? Some of the usenet postings placed before Erlich did not look right. Dennis claims not to recognize them as his [they're missing headers and the like, tag lines are weird.] If some of these postings by Dennis were forged, how can he be held liable for the infringements in those forged postings? Other arguments were made for fair use, that Dennis was not "scooping" scientology as a breakaway church would, but i couldn't hear too well and i was running out of steam. Someone will have to cover this better than me but i did jot down some key issues: Dennis recieved many of these materials from the 'net, where they had already been published [anonymously]. Apparently, they were mailed to him by anonymous sources. [true/false?] --- Reply by Dennis Erlich: The class 8 tape, NOTs 24. It could have actually been the cult that sent them to me, knowing I would make them public and fall into their trap. --- End of Erlich Reply The OT materials used by Erlich in his criticism of the church are largely "informative" in nature rather than "creative." That is, the exact information in the "infromative" work is not copyrighted, but the actual work is. [you can quote all the definitions you like w/o violating copyrights, but if you photocopy whole pages and use that, you are.] On the other hand, 'creative' refers to things like poetry where the precise wording is protected [that is, you cannot quote all of _Leaves of Grass_, even if you do not photocopy them. I may have misunderstood this concept.] Therefore, Dennis use of copyrighted materials is not an infringement because these materials are largely 'infromative.' It was more like he was quoting from the dictionary than plagarizing Walt Whitman. The US TV network CBS was allowed to air an expose of the meat packing industry "even though trade secrets *might* be revealed" on this show. [i think someone else made this point. also, does anyone know the case number and year of this?] ----after Oakley, Cooley wanted to try again....--- Earl Cooley wasted another 30 secs making a fairly scattered argument about the dictionary. I didn't take notes on it. Oakley made some more points [some listed above] and then Cooley used up the rest of the time briefly reiterating his points. ---after that, Harold McElhinny stepped in to finish up.--- McElhinny's arguments were about the motion to hold Dennis Erlich in contempt of court for three violations of his TRO. he dealt with them in reverse order, but I'll go thru them in order instead. To sum up the incidents and the arguments: 1) Posting after the TRO was in effect This occured before Erlich had counsel, and he [apparently] misunderstood what was meant when he was told that the TRO had been 'modified.' Assuming that things were all right, he posted another message to ARS. He was informed of his error, and that he was in violation [i presume] of the TRO. He promptly canceled that message and had Homer Wilson Smith cancel as best as possible to stop propagation. In short, Dennis was not certain of what his rights were, he goofed, and then cleaned up after himself in good faith. [hardly an action worhty of contempt, we hope.] 2) Erlich signed a declaration that a church document was indeed genuine. [i have no context, can anyone help me out?] He did _publish_ anything, he just signed a peice of paper saying, "yes, that's the real McCoy." --- Reply by Dennis Erlich: I verified some documents that Gerry Armstrong wanted to file in his bankruptcy case with a declaration. Gerry Armstrong is the bravest soul I know. He's the one who opened the histor of the Phatguy to scrutiny in the first place. And he did it frtom the depths of C-orgdom. It was a HUGE risk. His life has been in peril since. If anyone ever deserved support, it was/is Gerry. --- End of Erlich Reply 3) In an interview, Dennis referred to Xenu, 75 million years ago, and something baout thetans being blown up in large volcanoes on teegeeack [earth] by that nasty Xenu. [beliefs of church, these are otiii tidbits referring to incident ii.] --- Reply by Dennis Erlich: This was The Net interview, aired on BBC in May. --- End of Erlich Reply McElhinny started to quote from a published St.. Petersburg times article that said the very same things Dennis did, when suddenly Cooley lept up and objected. It was hard to tell what Cooley's argument was, as he floated between accusing McElhinny of trying a publicity stunt to smear scientologists to objecting that they were trade secrets. When asked by the Judge if this article contained trade secrets, Cooley hemmed and hawed [started to say yes?] but eventually said that that was not his objection, rather that it was a stunt so that other nasty newspaper artiles could be published to offend the religious sensibilities of scientologists. [??? in short, he weaseled out of that once he realized he stepped in goo.] When he was all done, Judge Whyte responded that he did not understand what Cooley was all upset about [my words, not his]. Cooley got rather quiet after that, and let McElhinny continue. After quoting the St. Petersburg times article, he then went on and quoted the same information in a Time magazine expose of the cult from 1991. --- Reply by Dennis Erlich: Did you notice all the scienos turning blue, squirming and farting during Harold's surprise? --- End of Erlich Reply The argument was, if these articles are not a violation of trade secrets and/or copyright, then how can the court hold Dennis in contempt for saying the same thing they did??? [heck, he could have read the article to them!] -----------------Closing statements by McElhinny------------ These were amazing. I'll try and properly reconstruct what he said.. When he [McElhinny] reads Scientoloy scritpures, it's complete gibberish to him. However, his religion was taught to him in latin, which would be complete gibberish to a scientologist or any non-Catholic. That doesn't matter, however. What matters in religion is _belief_. That is what transforms 'gibberish' into sacred scripture. The plaintiffs are arguing about words, and about trade secrets, and about copyrights, but it is belief that really brings value to religion. Dennis Erlich believes very strongly that fraud is occuring in the church. So much so that he would characterize it not as a church, but as a cult. It is this deeply-held belief that compels him to educate the world about COS, and to prevent people from falling prey to this cult. it may be a battle of words for the church, but for Dennis it is a battle of belief. ------------ How was that? --- Reply by Dennis Erlich: Damn good, Brian! --- End of Erlich Reply Well, this is the end of my little hack, hope you liked it. Brian Harmon SF, CA Kox.

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