From braintree!news.sprintlink.net!howland.reston.ans.net!newsjunkie.ans.net!news-m01.ny.us.ibm.net!usenet Fri Sep 29 09:34:31 1995
From: firstname.lastname@example.org (Diane Richardson)
Subject: RTC v. Netcom /14
Date: Thu, 28 Sep 1995 17:04:36 GMT
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VI. PLAINTIFFS' REQUEST FOR SANCTIONS AGAINST CARLA OAKLEY
The court is disturbed by the parties' seemingly endless
applications to the court, consolidated oppositions, sur-replies,
objections to sur-replies, and other such inappropriate
pleadings. In their objections to Erlich's "Consolidated
Opposition to Plaintiffs' Ex Parte Applications," plaintiffs
request that Erlich's counsel, Ms. Carla Oakley, be sanctioned
under Rule 11 of the Federal Rules of Civil Procedure and 28
U.S.C. sec. 1927 for filing "frivolous" pleadings which multiply
the proceedings "unreasonably and vexatiously."
To the extent that the Consolidated Opposition contains new
arguments, the court finds that these arguments are necessary to
address plaintiffs' multiple ex parte applications alleging three
different instances of contempt. Erlich's sur-reply to the
motion to expand the TRO was arguably justified by plaintiffs'
mention of a new instance of alleged contempt for the first time
in their Reply . The court therefore denies plaintiffs'
requests for sanctions. Plaintiffs' request that the court
strike the arguments in the Consolidated Opposition because they
are merely repetitive arguments that were "cut and past[ed]" from
previous briefs is unnecessary to the extent that the briefs add
nothing new. However, the court orders that the parties not file
any further post-Reply briefing, which only wastes the court's
and parties' resources, without first seeking leave of the court.
See Civil L.R. 7-3[e]. The court further rejects plaintiffs'
claim that Erlich's "Consolidated Opposition" reveals alleged
trade secrets from plaintiffs' Advanced Technology works, and
should have been filed under seal. Nothing in the "Consolidated
Opposition" reveals information not already publicized in the
popular press. See supra part IV.C.
For the reasons set forth above, the court orders as follows:
1. Defendant Dennis Erlich and his agents, servants, and
employees, all persons acting or purporting to act under his
authority, direction or control, and all persons acting in
concert or in participation with any of them who receive notice
of this Order, shall be and are restrained and enjoined pending
further court order:
a. From all unauthorized reproduction, transmission,
and publication of any of the works of L. Ron Hubbard
that are protected under the Copyright Act of 1976, as
codified in its amended form at 17 U.S.C. sec. 101 et
seq. Such works are found, for the purposes of this order
only, to be those works identified in Exhibits A and B to
the complaint, except for item 4 of Exhibit A. A copy of said
exhibits are attached hereto with item 4 of Exhibit A redacted.
i. Unauthorized reproduction, transmission, or
publication includes placement of a copyrighted
work into a computer's hard drive or other storage
device; "browsing" the text of a copyrighted work
resident on another computer through on-screen
examination; scanning a copyrighted work into a
digital file; "uploading" a digital file containing a
copyrighted work from the computer to a bulletin
board system or other server; "downloading" a digital
file containing a copyrighted work from a bulletin board
system or other server on the computer; and "quoting"
a copyrighted work that is cited in an on-line message
in sending, responding to or forwarding that message.
ii. Nothing in this section of the order shall be construed
to prohibit fair use of such works, as set forth in 17 U.S.C.
sec. 107 and interpreted by applicable case law. Fair use
of the copyrighted material for the purposes of this order
includes use of the copyrighted work for the purpose of
criticism, news reporting, teaching, scholarship, and research
but does not include: (1) use of the material for a commercial
purpose where the user stands to profit from exploitation of
the copyrighted material without paying the customary price or
giving the usual consideration or use that would have a
significant effect on the potential market value of the
copyrighted work; or (3) use of the heart of the work -- no
more of a work may be taken than is necessary to make any
accompanying comment understandable. With respect to
unpublished materials, the amount of copied material must
comprise only a very small percentage of the copyrighted
works both from a quantitative and a qualitative standpoint.
iii. The prior postings by defendant Erlich that form the
basis of this order do not qualify as fair use primarily
because of the quantity of the material posted and the very
limited transformative use made of those materials.
Identical or similar postings are therefore enjoined.
b. From destroying, altering, concealing or removing from the
district in which defendant Erlich resides, any reproduction,
copy, facsimile, excerpt or derivative or any work of L. Ron
Hubbard that is described in Exhibit A or B including all such
works returned pursuant to this order. Defendant Erlich or his
counsel shall safely retain possession of any such items.
c. A condition of this preliminary injunction is that a $25,000
bond shall be posted (or continued in place) pursuant to Federal
Rule of Civil Procedure 65(c).
2. Plaintiffs' application to expand the TRO is denied without
3. Plaintiffs' motion for a finding of contempt against
defendant Erlich is denied.
4. Plaintiffs are ordered to return within ten (10) days of the
date of this order to defendant Erlich through his counsel all
items seized pursuant to the writ or seizure issued February 10,
5. Plaintiffs' request for sanctions against defendant Erlich's
counsel, Ms. Carla Oakley, is denied.
RONALD M. WHYTE
United States District Judge
41. The court notes that plaintiffs are not alone in placing new
arguments in their [missing text] Reply -- Erlich's Reply in
support of his motion to dissolve the TRO contained several new
arguments. The proper response to such new arguments, however,
would be to object to the new arguments, not to endlessly
continue the arguments back and forth.