Declaration OF DAVID H. ELROD I, David H. Elrod, hereby declare: 1. I am providing this de

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Declaration OF DAVID H. ELROD I, David H. Elrod, hereby declare: 1. I am providing this declaration on behalf of the plaintiffs in Religious Technology Center, et al. v. Netcom On-Line Communication Services, Inc., et al., No. C95-20091 RMW, United States District Court for the Northern District of California. I have personal knowledge of the facts set forth below or have formulated the opinions set forth below based on experience, information and research, and if called upon to do so, could and would testify thereto. 2. I received a Bachelor of Arts in mathematics from Berea College in 1979. I also attended graduate school in electrical engineering at Ohio State University from 1980-1981. 3. I am the Founder and President of Rivendell Technologies, Inc. which operates an Internet Access Service that is smaller, but similar to Netcom's. I am the systems administrator of the computers which provide the access service. All of Rivendell's computers are running versions of UNIX software. Netcom also runs versions of UNIX software on its computers. 4. UNIX is the most common software used by Internet access providers. It runs on many different types of computers. The computers run by Netcom are Sun workstations. I have worked with earlier versions of these computers, as I worked for Sun Micro Systems as both an employee and a consultant from June 1986 to July 1989, with programming and systems administration duties. 5. As the systems administrator for Rivendell, an important part of my function is to ensure that those using my system do not engage in violations of law or make otherwise objectionable postings. To this point, I have been fortunate in having users who have not abused the privilege of using my system, but I would not hesitate to warn any user who did and then cut him or her off if the unacceptable postings did not cease, as I have done in the past when I was a systems administrator for other systems, as discussed below. It would not matter if the abuser were a direct subscriber to my system or someone coming through a direct subscriber. In the latter case, I would notify my direct subscriber of the offending postings, and would expect the subscriber to deal with his or her user. If that did not occur, the subscriber's access would be blocked, and the users coming through that system would be deprived of that avenue of access. 6. The types of programs existing within the UNIX system for sending and receipt of email and postings to newsgroups can be modified with additional programming to identify a particular user coming through the system, including a sub-user under a direct subscriber. Based upon my experience, a company like Netcom should be willing to take such measures in order not to be facilitating violations of the law by one who is accessing Usenet through its system. 7. The responsibility of access providers such as Netcom is increased by the fact that they are not merely passing through the messages going to newsgroups. For one thing, Netcom is capturing the messages coming from its subscribers on disk until their transmission to Usenet. Also, in order to provide its subscribers access to read what is on the newsgroups, it actually stores the content of the newsgroups in its system, and provides software through which its subscribers and those accessing through those subscribers can get at the contents of the newsgroup to read or download the newsgroup messages. So if Netcom passes through a message which contains copyright infringements or other illegal postings, it is then recapturing that message and holding it available for some time in this fashion. I understand that Netcom advertises that it keeps newsgroup postings available to its subscribers for several weeks. 8. An important function of systems administrators generally is to take responsibility for the postings that go through their systems. One way in which systems administrators implement this responsibility is by acting on complaints which they receive regarding postings. If a complaint is received, the systems administrator will get in touch with the subscriber whose account is responsible for the posting and will warn the person that the particular type of posting is unacceptable. Examples of such postings are threats, hate messages, obscenity or copyright infringements. 9. Over the last 15 years, I have also been a systems manager for several other computer sites. I have acted as an independent contractor to Digital Equipment Corporation, Athenix Corporation and Kubota Graphics Corporation in the formulation and installation of systems, design and implementation of software, system management support, and related functions. In each such function, I required ethical use of the particular system by any users accessing it. 10. From 1983 to 1985, I managed most of the computers for the College of Engineering at University of California, Santa Barbara ("UCSB"). This site exchanged news via UUCP (Unix to Unix Copy Program) with the University of California, Berkeley. Berkeley was the source through which we were able to provide newsgroup access, and we were like a subscriber to their system. Berkeley held my system accountable for what we and our users were doing. On one occasion, someone from Berkeley called me and stated that one of our users was posting inappropriate material to some newsgroup and that if I did not handle the problem, our newsfeed would be cut off. In that instance, I was able to resolve the situation through a warning which put a stop to the improper postings. In another situation, a user would not comply with warnings and we denied him computer access, with the serious consequence that he could no longer major in Computer Science. I was responsible for everything posted on my system. If someone broke the rules and they did not correct the problem, then I would be forced to cut off their connection. 11. Even early in my career, I held positions which included responsibilities for ethical and appropriate computer use by users who were under my supervision. From 1982-1983, I was the manager and coordinator of all computer functions for Crown Zellerbach, Inc. in its central research division. From 1980 to 1982, I ran a computer site at Ohio State University, where I worked at the campus computer center and also managed a computer lab for the Engineering Graphics Department. I was responsible for the conduct of the users of the computer system, and took actions on an almost weekly basis to stop some misuse of our system through warnings which were then heeded by the offender. I never had to remove a user but if the offense continued then I would have done SO. 12. It is not possible to be aware of all data that is originated or passes through a site. However, I have always known that as a system administrator I was responsible to those upstream from me for whatever occurred on my site and those sites downstream from me. I have also passed on this responsibility to those downstream from me and the people who work for me, and have enforced their maintaining their responsibility. 13. I understand, from information published in the media, that Netcom has taken action to remove individuals from accessing the Internet, such as the much-publicized Canter and Siegel case where two attorneys advertised on the Internet and generated a flood of return mail, overloading the systems through which it came. In another case, the media reported that Netcom disconnected the Christy Knife Co. of Fremont, Ohio for engaging in prohibited commercial use of the Internet by advertising its merchandise, thereby cutting off access of the company and its employees. They are not taking such action here to prevent the flow of infringing postings coming through their subscriber's (Tom Klemesrud's) BBS in the form of defendant Dennis Erlich's postings, even though their failure to do so means that they are not only accepting copies of those postings onto their disk for transmission to Usenet, but they are also making copies of the postings to their disks when they download the newsgroups to hold them for subscriber access. 14. Based on my knowledge of the actions taken by systems administrators to deal with unlawful activities occurring through their sites, it is my opinion that that Netcom's proper course of action is to cancel Tom Klemesrud's account, since he has refused to deal with his infringing subscriber. However, should Netcom decide not to do so, it has other options for dealing with the problem. 15. The declaration filed by defendant Tom Klemesrud states that he uses UUCP (Unix to Unix Copy Protocol) to transfer Usenet postings to and from Netcom. This is a protocol which permits communications between machines using Unix software. This protocol is only one choice of how the transfers between a Netcom subscriber and Netcom can be set up. Per "NETCOM Info," found on Netcom's system, the UUCP transfer is only one of several types of accounts available to business subscribers, and the subscriber may have either UUCP or TCP/IP (Transmission Control Protocol/internet Protocol) software for these different types of accounts. The TCP/IP software is a basic protocol which generally enables the different computers to talk to each other, and it can be the foundation for other types of protocols. Because these different protocols are available to be used with Netcom's system, and there are numerous programming options which can be worked out, many different methods are available for filtering postings to deal with Erlich's infringements. These methods could include such methods as screening Erlich's postings and blocking them from being posted to Usenet or blocking access to alt.religion.scientology for Klemesrud's account generally, without blocking access to other newsgroups. Netcom could work out a solution bv either cutting of Klemesrud if he refuses to handle Erlich's Infringements or by dealing with Erlich directly. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this /7/ day of March, 1995 at Palo Alto, California. /s/


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