Since some of the materials which describe the $cientology cult could be
considered to be copywritten materials, I have censored myself and The
Skeptic Tank by deleting any and all possible text files which describes
the cult's hidden mythologies. I have elected to quote just a bit of the
questionable text according to the "Fair Use" legal findings afforded to
those who report. - Fredric L. Rice, The Skeptic Tank, 09/Sep/95
From news.interserv.net!news.sprintlink.net!tank.news.pipex.net!pipex!demon!not-for-mail Wed Jul 26 09:41:37 1995
Subject: Kobrin, Copyright & Unpublished Works [rm1]
Date: Mon, 24 Jul 1995 04:12:54 +0200
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Xref: news.interserv.net alt.religion.scientology:78590 misc.legal:63475 misc.legal.computing:10463 comp.org.eff.talk:57634 alt.censorship:36568
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In a letter quoted in full below, Helena Kobrin, counsel for
the Church of Scientology, states:
"No case in the United States has ever found fair
use to apply to copying unpublished materials, as
even Dennis Erlich's attorney had to admit in open
Ms. Kobrin's statement that, "[n]o case in the United States has
ever found fair use to apply to copying unpublished materials,"
is patently false. Ms. Kobrin's statement ignores the decisions
in Wright v. Warner Books, Inc., 953 F.2d 731 (2nd Cir. 1991),
Arica Inst., Inc. v. Palmer, 761 F.Supp. 1056 (S.D.N.Y. 1991),
later proceeding, 770 F.Supp. 188 (S.D.N.Y. 1991), aff'd, 970
F.2d 1067 (2nd Cir. 1992), and Association of American Medical
Colleges v. Cuomo, 928 F.2d 519 (2nd Cir. 1991). cert. denied,
502 U.S. 862, 112 S. Ct. 184, 116 L.Ed.2d 146 (1991). Further,
Ms. Kobrin's analysis ignores the recent legislative history of
17 U.S.C. 107.
By way of background, prior to 1992, 17 U.S.C. 107
"Notwithstanding the provisions of sections 106
and 106A, the fair use of a copyrighted work,
including such use by reproduction in copies or
phono records or by any other means specified by
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;
(4) the effect of the use upon the potential
market for or value of the copyrighted work."
17 U.S.C. 107 (1991).
This version of 17 U.S.C. 107 was applicable when the United
States Court of Appeals for the Second Circuit rendered its
decision in Wright v. Warner Books, Inc., 953 F.2d 731 (2nd Cir.
1991). That case arose from a dispute over the publication of
a biography of the author Richard Wright. The plaintiff,
Wright's widow, held the copyrights in the published and
unpublished works of her husband. The biography was written by
an acquaintance of Wright, defendant Dr. Margaret Walker.
The lawsuit challenged the biography's use of portions of
a wide range of Wright's works, including unpublished letters to
Dr. Walker written in the 1930s, unpublished letters to Wright's
translator Margrit de Sabloniere, and unpublished journal
entries. After discovery was completed, the plaintiff moved for
summary judgment on the copyright claims. The trial court
granted summary judgment in favor of the defendants, and the
On appeal, the Second Circuit Court of Appeals observed
that, as a matter of law, "[b]oth direct quotes and close
paraphrases count as being 'used,'" for the purpose of evaluating
whether the defendant had exceeded the bounds of "fair use." See
Wright, 953 F.2d at 738. The Court found that the defendant had
both copied and paraphrased portions of Wright's unpublished
letters and journal entries:
"The copyrighted works are ten journal entries --
eight from January 1945, one from February 1945, one
from September 1947 -- and six letters from Wright to
Dr. Walker. Dr. Walker paraphrases fourteen portions
of the ten journal entries. * * * The biography
copies ten brief passages from the letters and
paraphrases five equally short portions of them."
Wright, 953 F.2d at 736.
Given that the defendant had quoted from Wright's
unpublished letters and closely paraphrased journal entries, the
Court of Appeals criticized the trial court's opinion on the
second fair use factor (i.e., "the nature of the copyrighted
work") as follows:
"[T]there are three problems with the district court's
analysis. First and foremost, the court gave
insufficient weight to the unpublished status of the
letters and journal entries. Second, as we indicated
earlier, some of the appropriated passages conveyed
Wright's expressive language. Third, the court's
rationales are not relevant to factor two. To be
sure, whether the infringer paraphrased or copied,
whether he borrowed fact or expression, or whether his
use implicates the author's privacy interests or not,
all may enter into the infringement equation. They
just have no bearing on factor two. Factor two focuses
solely on the nature of the copyrighted work. The
court's explanations apply to other aspects of the
analysis and cannot be used in piggyback fashion to
hold together a weak link in the fair use calculation.
Thus, while these aforementioned three concerns may,
and do in this case, help to overcome the burden
placed on defendants who seek to justify use of
unpublished materials, they do not figure into the
factor two inquiry. See New Era I, 873 F.2d at 593
(Oakes, C.J., concurring). We believe that factor two
favors the plaintiff."
Wright, 953 F.2d at 737-38.
Although the Court of Appeals criticized the trial court's
opinion, the Court of Appeals affirmed the judgment in favor of
the defendants and against the plaintiff:
"The district court correctly held that
defendants were entitled to summary judgment. Three of
the four fair use factors clearly favor the
defendants. The one that does not -- the nature of the
copyrighted work -- raises an obstacle to this
conclusion, but not an insurmountable one. In
Salinger, we held that unpublished works "normally
enjoy complete protection against copying any
protected expression." 811 F.2d at 97 (emphasis
added); see Harper & Row, 471 U.S. at 555 ("Under
ordinary circumstances, the author's right to control
the first public appearance of his undisseminated
expression will outweigh a claim of fair use.")
(emphasis added). Neither Salinger, Harper & Row, nor
any other case, however, erected a per se rule
regarding unpublished works. The fair use test remains
a totality inquiry, tailored to the particular facts
of each case. Because this is not a mechanical
determination, a party need not "shut-out" her
opponent on the four factor tally to prevail."
Wright, 953 F.2d at 740.
Similarly, in Arica Inst., Inc. v. Palmer, 761 F.Supp. 1056
S.D.N.Y. 1991), later proceeding, 770 F.Supp. 188
(S.D.N.Y. 1991), aff'd, 970 F.2d 1067 (2nd Cir. 1992), the
plaintiff copyright holder sought a preliminary injunction
against alleged copyright infringement. In ruling on the defense
of fair use, the District Court observed that because "the great
majority of [plaintiff's] manuals and lectures . . . [were]
unpublished, they [were] entitled to greater copyright
protection." See Arica, 761 F.Supp. at 1066. However, the Court
denied plaintiff's request for a preliminary injunction because,
"[t]he remaining fair use factors, viewed in the factual context
of this case, [were] dispositive in favor of [defendant'." Id.
Finally, in Association of American Medical Colleges v.
Cuomo, 928 F.2d 519 (2nd Cir. 1991). cert. denied, 502 U.S. 862,
112 S. Ct. 184, 116 L.Ed.2d 146 (1991):
"The central question presented by [on] appeal
[was] whether the district court erred in holding that
the disclosure requirements of New York's Standardized
Testing Act, N.Y. Educ. L. 340 et seq. (McKinney 1988)
("STA"), [were] pre-empted by the federal Copyright
Act of 1976, 17 U.S.C. 101 et seq. (1988) ("Copyright
Act"). Defendants-appellants, cross-appellees Mario
Cuomo et al. (the "State") appeal[ed] from a judgment,
entered in the United States District Court for the
Northern District of New York (Neil P. McCurn, Chief
Judge), granting plaintiff-appellee, cross-appellant
American Association of Medical Colleges' ("AAMC")
motion for summary judgment and enjoining the State
from enforcing various provisions of the STA against
Association of American Medical Colleges, 928 F.2d at 520.
The Court of Appeals observed:
"Next, the district court held that "the second
[fair use] factor cuts in favor of" AAMC, since the
MCAT is an unpublished work. AAMC II, 728 F.Supp. at
885-86. See New Era Publications Int'l v. Henry Holt
and Co., 873 F.2d 576, 583 (2d Cir. 1989),
cert. denied, 493 U.S. 1094, 110 S.Ct. 1168, 107 L.
Ed. 2d 1071 (1990); Salinger v. Random House, Inc.,
811 F.2d 90, 97 (2d Cir.), cert. denied, 484 U.S. 890,
98 L. Ed. 2d 177, 108 S.Ct. 213 (1987). On appeal, the
State reiterates its contention that the MCAT does not
fall within the traditional published/unpublished
dichotomy because of the limited exposure to the test
regularly granted to test-takers. However, we are
inclined to agree with the district court that the
secure nature of the MCAT weighs in favor of AAMC."
Association of American Medical Colleges, 928 F.2d at 524.
Despite this observation, the Court of Appeals reversed the
judgment in favor of the copyright holder and remanded the action
for further proceedings:
"In the present case, however, the purported harm to
the MCAT stems from a non-commercial, non-competing
use. Moreover, the degree of potential harm to the
MCAT and the availability of means to minimize that
harm are sharply in dispute. Accordingly, there remain
factual issues which deserve further elucidation
before the district court.
In light of the foregoing, we reverse the
judgment of the district court, vacate the permanent
injunction, and remand for further proceedings."
Association of American Medical Colleges, 928 F.2d at 526.
In 1992, Congress endorsed the decision in Wright v. Warner
Books, Inc. by adding the following sentence to the end of 17
"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."
Act of Oct. 24, 1992, Pub. L. No. 102-492, 106 Stat. 3145. See
also 17 U.S.C. 107; 3 M. Nimmer & D. Nimmer, Nimmer on Copyright,
sec. 13.05[A] (1994). The leading treatise on copyright law
notes Congress not only endorsed the opinion in Wright, but
wished to go further in protecting the right to free expression
and limiting the protection of unpublished works:
"The motivation for this amendment arose out of
'concerns by some biographers, historians, and
publishers that their ability to use unpublished
primary source materials such as copyrighted letters
and diaries have been limited' by the Second Circuit
decisions [in cases prior to Wright]. The legislative
history asserts that 'the Wright opinion properly
balanced all of the fair use factors.'
But Congress wished to go further, and to
'disavow certain troublesome language in [an earlier]
opinion . . . that unpublished works 'normally enjoy
complete protection against copying any protected
3 M. Nimmer & D. Nimmer, Nimmer on Copyright, sec. 13.05[A]
(1994) (footnotes omitted, quoting H.R. Rep. No. 102-286,
102d Cong., 2d Sess. 8 (1992)). The House Committee on the
Judiciary made it clear that:
"'The purpose of [the amendment] is to clarify the
intent of Congress that there be no per se rule
barring claims of fair use of [un]published works."
Id. at n. 204 (quoting H.R. Rep. No. 102-286, 102d Cong.,
2d Sess. 1 (1992)). The Committee also noted, "'that the Wright
opinion did not reach the outer limits of what might be regarded
as fair use.'" Id. at n. 198 (quoting H.R. Rep. No. 102-286,
102d Cong., 2d Sess. 8 (1992)). The Committee concluded:
"'For example, in some circumstances, it would be a
fair use to copy an author's unpublished expression
where necessary to report fairly and accurately a fact
set forth in the author's writings. Additionally, as
Judge Leval has written: 'Often, it is the words used
by [a] public figure (or the particular manner of
expression) that are the facts calling for comment.''"
Id. at n. 199 (quoting H.R. Rep. No. 102-286, 102d Cong.,
2d Sess. 8 (1992)).
Finally, it is important to note that Ms. Kobrin assumes
the OT VII materials qualify as "unpublished." This may or may
not be true depending on limits placed on exposure to the
materials and the security precautions used. See Association of
American Medical Colleges v. Cuomo, 928 F.2d 519, (2nd Cir.
1991), cert. denied, 502 U.S. 862, 112 S.Ct. 184, 60, 116 L.Ed.2d
146 (1991) (medical college admission test qualifies as
unpublished work). See also National Conference of Bar Examiners
v. Multistate Legal Studies, Inc., 692 F.2d 478, 486 n. 8
(7th Cir. 1982), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78
L.Ed.2d 83 (1983) (multistate bar exam would probably be
classified as an unpublished work).
This is a very difficult area of the law. However, the
decisions in Wright v. Warner Books, Inc., Arica Inst., Inc.
v. Palmer, and Association of American Medical Colleges v. Cuomo,
as well as the recent amendment of 17 U.S.C. 107, indicate that,
even assuming the OT VII materials qualify as "unpublished," one
may be able to quote and/or paraphrase portions of the OT VII
materials in the context of "criticism, comment, news reporting,
teaching . . . , scholarship, or research" (see 17 U.S.C. 107)
within the limits of protected fair use without copyright (as
opposed to trade secret) liability. As demonstrated above,
Ms. Kobrin's statement that, "[n]o case in the United States has
ever found fair use to apply to copying unpublished materials,"
is simply false.
Obviously, the above discussion does not address
Ms. Kobrin's contention that no one can properly quote,
paraphrase, or discuss the OT VII materials because they are
trade secrets. That discussion is for another post [if I have
The standard disclaimers apply. I am not purporting to act
as legal counsel for anyone. The arguments made above are solely
for the purpose of discussion. My research has not been
exhaustive. I express no opinion on whether anyone could in fact
be held liable for quoting or paraphrasing the OT VII materials.
I welcome commentary and correction by others. Obviously, all
interested parties should confer with legal counsel before
taking any action, or deciding to refrain from taking any action.
*** Elvis Cole.
In message #87889 on July 12, 1995, William Barwell
(wbarwell@Starbase.NeoSoft.COM ) stated:
>Found in me mailbox.
>Message 21/148 From Helena Kobrin
>Jul 12, 95 02:32:50 pm -0700
>X-Provider: NeoSoft, Inc.: Internet Service Provider
>Date: Wed, 12 Jul 1995 14:32:50 -0700 (PDT)
>Dear Mr. Barwell:
> I represent Religious Technology Center ("RTC"), the
>owner of the confidential Advanced Technology of the religion
>of Scientology, and the holder of the exclusive rights under
>the copyrights applicable to the Advanced Technology
>materials. Among these copyrighted and confidential
>materials are the Advanced Technology materials of a level
>known as "OT VII." The copyright for OT VII is registered
>with the United States Copyright Office.
> I have been informed that you have posted on
>alt.religion.scientology a portion of the OT VII materials
>without the authorization of my client, who, of course, would
>not have given such authorization had it been requested.
>Your action violates my client's legal rights in that it is
>the unauthorized making of an electronic copy of the
>copyrighted material and the unauthorized disclosure of trade
> These actions constitute violations of applicable
>copyright laws and trade secret misappropriation entitling
>our client to damages and an injunction. It is essential
>that you take immediate and effective action to remove the
>unauthorized copy from the Internet, and that you refrain
>from any repetition of this or similar acts in the future.
>You are also to delete these and any other OT materials from
>your hard drive and any floppy disks and to destroy any hard
>copies you have made.
> In addition, your downloading of the copyrighted and
>trade secret OT VII materials also violates laws prohibiting
>copyright infringement and trade secret misappropriation.
>Your use and disclosure of these materials is *not* fair use.
>No case in the United States has ever found fair use to apply
>to copying unpublished materials, as even Dennis Erlich's
>attorney had to admit in open court. There is also no fair
>use defense to trade secret misappropriation.
> I will expect an immediate response from you with a
>statement of your willingness to comply with these demands.
>If you do not comply immediately, we will have no other
>recourse but to initiate legal action to compel compliance.
> Helena K. Kobrin
> [Remainder of post deleted.]
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