Copyright 1995 Shelley Thomson; all rights reserved.
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Table of Contents for Biased Journalism.
The courtroom is on the fourth floor. It is small, quiet and immaculately clean. The padded benches are surprisingly comfortable. The notorious Dennis Erlich bears a startling resemblance to a familar Star Trek character.
Erlich & friends occupy the left side of the room. A party of white males in gray suits and one female lawyer in a magenta suit occupy the right side of the courtroom. [This is the observer's first sighting of the famous Helena Kobrin.] Last-minute papers are handed out by Erlich & Netcom. The lawyers and Erlich move to tables in front of the judge's bench; by custom, apparently, the plaintiffs cluster on the right side in front of their supporters, and the defendants cluster on the left. The plaintiff's side is sparsely settled and consists largely of their lawyers. The defendant's side consists of lawyers, friends and supporters of Dennis Erlich and some net citizens who have come to see how freedom of speech will fare in the case.
Judge Whyte is surprisingly youthful and bookish-looking. He speaks softly, which fact enforces almost total silence in the courtroom.
All parties state their names and affiliations. "Dennis Erlich, in pro per," Erlich says firmly.
Netcom's lawyer addresses the court. The document he gave to the judge earlier has been improperly xeroxed: only the odd numbered pages are present. He wishes to repair the deficit by presenting all parties with a 2-sided copy.
This is done. Everyone reads in silence.
The judge begins the proceedings by stating that with reference to Dennis Erlich and the preliminary injunction regarding the seized documents and software, he was concerned to make sure that the evidence was seized and retained such that it was protected from the standpoint of being publicly disseminated. However [there was no wish to interfere with] the right to do satire and criticism. This may include some articles that Erlich wrote. The point of the injunction is to make sure that Erlich's right to comment is protected. It concerns "what appeared to be wholesale publishing of some material that appears to be copyrighted material."
Regarding Tom Klemesrud and Netcom, the judge remarks on the "practical impossibility" for these entities to do tracking, removing or checking of what is put through their services. There is some question in his mind as to whether these are appropriate defendants in this case.
The Religious Technology Center (e.g. Church of Scientology) lawyer Thomas M. Small was recognized.
Small is a white-haired white male in a gray suit. He proceeds to declare that the seizure conformed to the order and the results confirm "wholesale copying of copyrighted documents." He states that 160 of the documents seized from Dennis Erlich were downloaded from the net; 30 posted and stored; there was an entire floppy disk and 30 files on the hard drive.
Small told the court that at first Erlich cooperated in helping the seizure team make copies. "Later the circumstances of the seizure became difficult," Small recounted with visible satisfaction. "With the assistance of the local police the officers who had been appointed to do that (succeeded in removing the material).
[BJ is puzzled. Weren't these police officers off-duty cops hired for the occasion? As Small describes the incident, it somehow sounds much more, well, official.]
Small moves on to Netcom. He comments on a paper filed on Friday and served on Tuesday morning in which Netcom says that it cannot control the content of information passing through the system. Small disputes the claim but says that he hasn't looked at the papers in detail.
The judge nips the controversy in the bud. "How would they control it?" he asks Small directly.
Small replies that each message has a digital id. Given advance notice of a particular message from a particular origin, he believes that Netcom has the ability to examine and police its messages.
He doesn't leave it there. While the court is visibly chewing on the implications of this suggestion, he explains that his software engineers just wrote a computer program to know when Mr. Erlich "and others" were logging in.
[Do they mean us, BJ wondered? Exactly who are these "others" and who is going to keep track of all this? What will be done when a targeted individual logs in?]
Discussion quickly moves on, leaving the computer program to submerge like a dangerous reef at high tide.
The next issue concerns what had been taken from Mr. Erlich. Dennis Erlich had been handed a copy of the inventory in the hall just before the hearing. For the C of S, Small tells the judge that the property seized "hasn't been compared side by side" with the original works, but has been evaluated judging from the titles.
Dennis Erlich gives the court a written statement.
[A brief lull ensues while it is read. BJ's attention is drawn to a few new spectators in the back row on plaintiff's side. These are younger people who resemble apprentice scientologists. "Aha, the entheta brigade," we said to ourselves.]
Judge Whyte now wants to make a statement referring to the seizure order. He remarks that it was prompted by (allegations of) wholesale copying and publication of trade secret material and copyrighted material.
However, he goes on. He is very concerned that the seizure not restrict Erlich's ability with reference to communication and satires. This is a strongly worded statement. The judge is a dignified and low-key man; it is obvious that he means what he says.
For the C of S, Small rises to answer: with reference to the fair use question, he remarks that his statements have been made "without detailed examination." Nevertheless, he states that among the seized works are copyrighted works of L. Ron Hubbard; bulletins such as HCOPL, and soforth; the lists (of what was seized) "do not identify separately the unpublished works." A "confidential tape" of class 8 materials was taken and other confidential and unpublished works; and "OT" materials ("Operating Thetan," Small translates for the judge. He does not translate "Operating Thetan").
The judge is succinct. "Are all these things verbatim?"
Small has no way out. "Not necessarily," he admits. He tries to regroup by explaining that the documents "have not been examined." Further, he explains, "close paraphrasing is copyright infringement as well."
The topic of fair use is quickly raised and a discussion ensues between the judge and Small. Small concedes that fair use is mentioned in Netcom's brief as a possible issue. He goes on to say that copyright laws don't permit "wholesale copying of entire works by the same author." He mentions HCOPL and HCOB's, and states that he "has been informed that they are all verbatim copies."
This sounds flaky to the judge.
He asks Small how quickly he can provide a listing of the various materials taken, with regard to what is unpublished and trade secret information and what is copyrighted, publicly available information.
Small counters that some information is copyrighted and is not publicly available.
The judge elaborates on his request. He wishes an explanation of which (of the seized items) is a trade secret and which is copyrighted; whether the items are verbatim or copies included in some sort of article about scientology or a satire about it or criticism of it. He wants an explanation of "anything you contend is a trade secret."
Judge Whyte continues, "...because I do have a real concern" that if the seized material consists of satires, articles and cricitism, "it should be made free." He wants Small to distinguish between verbatim copies and copies used in articles and criticism.
The judge offers an example. He cites an item (in Small's inventory) that consists of one paragraph. Was this in the context of an article or a comment?
Small replies "I don't have that answer at hand now."
There is a minor pause while everyone digests this. Dennis Erlich asks permission to offer a statement to the court. The judge gets it first. While he is reading his copy, a lawyer shuffle reminiscent of musical chairs takes place at the plaintiff's table. It's not clear what they accomplish but perhaps everyone needs a stretch.
Erlich distributes his letter to the other parties. Everyone reads in silence.
BJ's attention is suddenly drawn to the entheta brigade. Dennis Erlich has his back to them because he is at the lectern facing the judge. They are staring directly at his back with rapt unfriendly concentration. Visible waves of entheta surge over the lawyers like a surf of vile smog. We had heard about this practice, but considered it an urban legend until we actually witnessed it.
Erlich seems quite unaffected. Nevertheless in the spirit of public participation and creating a level playing field BJ mentally constructs a thick plexiglass shield between Dennis Erlich and the entheta brigade. With a bit more effort, it can be made to bounce the entheta back to the plaintiffs.
The judge is a fast reader. We had barely finished the plexiglass shield when he looked up and instructed the plaintiffs to prepare the list (of seized items, referenced re. copyrights and soforth as he said earlier) and do it forthwith. They are to provide it to Dennis Erlich for his comments; he can also add his remarks about anything else he thinks was taken.
Erlich asks if it is appropriate for him to make a comment. The judge consents.
Erlich gives a long, carefully reasoned statement in which he explains that some of the seized items were works that were obtained in a legal manner for the purpose of studying and writing about scientology, criticizing and satirizing it, and eventually bringing suit against the Church. These items were publicly available. Regarding other seized items, Erlich states, this is material exerpted for purposes of commentary from material that was part of his ministerial training. He acquired this material before he broke away and devoted his attention "to reforming an organization that I thought had gone corrupt."
He states that his speech is protected under the First Amendment.
The judge asks, what about causing to be published or put on the internet pages of copyrighted material?
Erlich replies that the most he would ever post was (for example) two pages in a 400 page book. He explains that he acquired much of this material as a former insider.
The judge asks, "When you got these, did you sign any agreement?"
Erlich replies, "No. And I wouldn't."
The judge asks whether Erlich has a copy of everything he posted.
Erlich explains that during the raid on his house the plaintiffs deleted files and never furnished proof that the material he had on file was copyrighted. He intends to sue. "I am the aggrieved party."
He shows the judge a sheet of paper. "This unsigned piece of paper is my only copy" of the materials taken during the raid. The judge wants a copy; Erlich worries about the safety of the document, and the judge offers to have the staff make the copy immediately.
Now another defendant gets his turn.
Richard Horning rises for Tom Klemesrud. He states that his client cannot police anyone's posts. He explains that the plaintiffs seek an order compelling his client "to keep Dennis Erlich off the air entirely" no matter what he posts. There is a restive mutter from the Church lawyers. Horning counters by producing a letter Helena Kobrin sent to his client demanding that Erlich's account be terminated. This is evidence that their intentions are to suppress Erlich's freedom of speech, and Horning does not believe that the courts should be used this way.
[By now he has really hit his stride. He is enjoying himself immensely, lawyer-wise.] Horning objects to the Church attempting to impose strict liability on his client. This is not really a case about copyrights, he says, but "some form of religious war in which my client is a middleman."
His client, he reiterates, has no effective means of policing subscribers' posts.
Rice, acting for Netcom, gets up to support Horning. He carries right on: "There is no precedent for the kind of order that plaintiffs are asking for." It's like finding a polluted river and suing the river. If the restraining order is given, Netcom will have to disconnect Mr. Klemesrud and his 500 subscribers. "We are simply a passive transmitter like a regional phone company."
He refers to the Sega case and the Playboy case, also mentioned by plaintiffs, and offers to discuss these at length.
The judge tells him it is unnecessary.
No preliminary injunction should be applied, Rice urges.
A new lawyer for the Church of Scientology rises to inform the judge that a vast quantity of infringing material was seized. He wants to have infringing material not appear on the net. He states that Netcom was notified and asked to stop it; he wants the order continued. He sounds nervous.
Rice counters that the plaintiffs are unable to identify to the court exactly what articles are copyrighted and which aren't; yet they want Netcom to determine this on a case by case basis. It's impossible. They can't do it.
Now it is Erlich's turn again. "I requested that they give me some sort of documentation of his rights to these materials. I never received it. If I had gotten it I would have deleted [the material] and apologized for posting it."
Small, for the Church, replies that Mr. Erlich was given a copy of the order at the time of the seizure. [Erlich was talking about the months preceding the raid, in which he had made the offer to delete any material that the Church could prove was copyrighted. Small is talking about the court order permitting the seizure of Erlich's files. As a non-lawyer it appears to BJ that the court order itself provides no proof that the seized material were actually protected. The judge has also asked Small for this proof.]
Small apparently feels he is behind on points, and suddenly switches the topic to the raid. He tells the court that at first Mr. Erlich cooperated with the seizure, but drank some beer and when members of the press showed up he "became unruly." [This provoked smothered giggles and a discreet boo from Erlich's supporters. To the delight of BJ, the fabled "Dead Agent" tactic had been applied in open court.]
Was the judge amused by this flimsy effort to divert his attention? BJ would have bet on it. In any case he made up his mind very quickly.
Judge Whyte announced his decision as follows:
Regarding Netcom and Tom Klemesrud, to deny the preliminary injunction without prejudice;
Regarding the seized materials, the Church attorneys are to prepare a list to be given to Dennis Erlich and the court of each item that was seized, whether it constitutes a trade secret of the plaintiff and the basis for that (claim); the list is to identify any material seized that is copyrighted and the basis for that; and to identify any of the seized materials that were published and if published, in what way; whether the items are verbatim and if not, in what way each item differed from verbatim. This list is to be prepared by February 24.
As he talks, gloom envelops the right side of the room. The entheta brigade visibly sags. Then the judge asks the Scientology lawyers whether they can prepare this list by this date. Small and Kobrin lie manfully. Yes, Your Honor. [Our observer wondered what these Scientology lawyers will be like after three days without sleep. Will they bite each other? Throw food? Even without telepathy it was apparent to BJ that the judge's order was seen as yet another dastardly deed perpetrated by the fiendish Dennis Erlich. It didn't help that the Erlich supporters were grinning.]
Dennis Erlich is directed to file his comments in response to the list by March 3. The judge remarks that some of this can be handled over the telephone; apparently he is thinking both of court time and of Erlich's travel expenses.
Regarding the continuation of a temporary restraining order, Judge Whyte explains that he wants to work on the language, to prohibit any publication of confidential matter or copyrighted matter that was not fair use for criticism or comment. He will then decide on the preliminary injunction. Meanwhile, the temporary restraining order is continued with regard to Dennis Erlich only.
Small, looking smaller, jumps up to ask whether the file is sealed. The judge replies that it is not; Small indicates that he plans to make the request. He doesn't want confidential information filed under seal. His body language says, These Dissidents Are Capable of Anything. Not looking at Erlich's supporters, the judge says dryly that the file is not sealed, but he can't think of any reason for anyone to file confidential materials and he doesn't expect that to happen. [Somehow, no slightest doubt is left that if anything like this occurred, Judge Whyte would be very displeased.]
Dennis Erlich asks for clarification of an important point. He would like to know what he is permitted to do under the temporary restraining order. Is he prohibited from publishing, making comment, or giving sermons? Does he have the right to quote materials under fair use? What if he downloads files from alt.religion.scientology that may be questionable but not proven to be protected material; is he restricted from commenting on it?
The judge replies that the language of the order will allow fair use; it will prohibit "publishing verbatim of large portions of copyrighted material."
Erlich raises the topic of "questionable activities." He reminds the judge that he may be engaged in activities which will be objectionable to the plaintiff. "Am I likely to get raided again?" he worries.
The judge replies, "I am not sure that I would recommend that you publish large portions of copyrighted material; [fair use is permissible] but I would be careful."
Small hears his cue. He jumps up to point out that "the order has never prohibited Dennis Erlich from commenting," but only from publishing protected material.
The judge and Small do a quick do-si-do around this point. The judge apparently believes that it is permissible to quote portions of copyrighted material for purposes of criticism and comment; this comes under fair use. He has explicitly said that this is so as long as this is not "large portions." Earlier discussion has raised the possibility that two pages might be "fair use" of a 400 page book, but a "large portion" of a two-page document. Further, the judge wants the size of the commentary considered. Two pages of commentary with one paragraph of quoted material sounds like fair use to him.
By contrast, Small's position is that no portion of any protected material may be quoted, or even possessed. On this very significant difference of viewpoint, the hearing ends.
Dennis Erlich is immediately surrounded by supporters, some of whom are net citizens who have made the journey to San Jose for reasons having nothing to do with Scientology. The observer sneaks a glance at the plaintiff's section: the entheta brigade is gone, vanished silently into the hot afternoon. Scientology lawyers are bunched together over their table, muttering together. They do not look happy.
Members of the press were waiting to interview Dennis Erlich. The Church lawyers remained in the courthouse for some time. When they finally emerged, led by the formidable Helena Kobrin, Kobrin paused and deliberately applied the Scientology Death Stare to the members of Erlich's party. She made a special effort to make eye contact with Dennis Erlich. Erlich and the ex-scientologists in the group were unimpressed. The observer, however, was awed. The theatrical malevolence of this gesture would have done credit to a grade B horror film. BJ was witness to yet another legendary cult behavior and longed for a camera to preserve the moment. The day was complete.
Updates will follow.