Copyright 1996 Shelley Thomson; all rights reserved.
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Table of Contents for Biased Journalism.
Grady Ward filed the following document this week:
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA RELIGIOUS TECHNOLOGY CENTER, a California non-profit corporation, Plaintiff, vs. GRADY WARD, an individual, Defendant No. C-96 20207 RMW (EAI) REPLY TO OPPOSITION TO DEFENDANT'S MOTION TO DISSOLVE PRELIMINARY INJUNCTION August 2, 1996 9:00 A.M. Honorable Ronald M. Whyte
This fact contradicts the more general statement in the plaintiff's Opposition page 1, lines 4-8 and the falsehood that "...Ward had heretofore infringed..." The defendant has unwaveringly denied that he has ever infringed plaintiff's copyright or wrongfully misappropriated the plaintiff's alleged trade secrets. The defendant acquiesced to the limited form of the resulting preliminary injunction even though based solely upon unauthenticated postings because he felt that preserving the status quo was at the time a reasonable limitation on his right to solicit non-trade-secret materials and to publish and comment upon those materials under the fair use doctrine. However since the plaintiff continues to claim that all silence on the part of a pro se defendant not possessing legal experience is to be deemed an admission or stipulation and because of the extent of the alterations, redactions, and admitted tampering of those alleged posts by the plaintiff, I have moved and do move to strike all usenet postings allegedly made by me as unauthenticated, hearsay and without proper foundation. The defendant notes that the plaintiff, recognizing the fundamental unreliability of print-outs gleaned from the internet, has also made several identical motions to strike. (RTC Motion for Further Expedited Discovery May 20, 1996 p. 7 l. 17-28 et. Seq.) I also explicitly have moved to strike all such exhibits marked by the plaintiff during the three days of my accelerated deposition. The defendant notes that his motions to strike and objections made in amendments to the original deposition were wrongfully omitted by the plaintiff's cite of my deposition testimony in his Opposition.
Of course if a person were interested in acquiring information about scientology exorcism supposedly described in the NOTs and scientology Advanced Technology materials it is trivial to automatically capture all postings for permanent storage even if they appeared but for milliseconds on a public world-wide newsgroup. The secrecy of this material has surely been lost: In the United States Court of Appeals For the Seventh Circuit No. 95-1661 MANGREN RESEARCH AND DEVELOPMENT CORPORATION, Plaintiff-Appellee, v. NATIONAL CHEMICAL COMPANY, INCORPORATED, and NATIONAL MOLD RELEASE COMPANY, Defendants-Appellants. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 C 2948--Patrick J. Duggan, Judge.* ARGUED NOVEMBER 28, 1995--DECIDED JULY 3, 1996
'Under the first statutory requirement, the information at issue "must be sufficiently secret to impart economic value to both its owner and its competitors because of its relative secrecy." George S. May, 628 N.E.2d at 653. This requirement precludes trade secret protection for information generally known within an industry even if not to the public at large. Id.; see also ILG Indus., Inc. v. Scott, 273 N.E.2d 393, 396 (Ill. 1971); Minogue, 535 N.E.2d at 1136.'
The inescapable fact is that these NOTs materials have been sown and are generally known world-wide.
The defendant categorically denies that he or anyone working in concert or participation with him had anything to do with any of the acquisition or dissemination of the NOTs materials.
If the plaintiffs have even a scintilla of authenticated or physical evidence, circumstantial or not, demonstrating a connection between him and the NOTs postings or any unlawful acquisition or dissemination of the plaintiff's Advanced Technology works, the defendant asks to have it presented in open court. The plain fact is that after three days of accelerated deposition, service of six third party subpoenas for production of documents and things, seizure and careful search of my computer archives by three computer experts for almost a full month, along with a thorough extra-legal investigation of the defendant by scientology agent Eugene Martin Ingram, the plaintiff has not a shred of evidence other than his own pleadings to back up his allegations of wrong-doing on the defendant's part. This directly contradicts the plaintiff's Opposition p. 5, l. 7-9 "...the facts leave little to conjecture that Ward is Scamizdat, the facts also unerringly point to Ward as the anonymous culprit behind the NOTs posting." I categorically deny these allegations. Where are the facts that the plaintiff asserts exists to demonstrate such an inference?
Further, the basic standard upon which a preliminary injunction need to be based have still not been met even after that plaintiff has spent hundreds of thousands of dollars using several law firms, several rounds of accelerated deposition, thorough investigation of Internet Service Providers and others under accelerated subpoena, and the seizure of the defendant's computer archives for detailed examination even after the defendant had sworn under oath that they did not contain materials responsive to the plaintiff discovery demands.
Since the plaintiff has not a shred of evidence to support its allegations other than its own pleadings, it is not clear that the plaintiff's claim would survive a defendant's motion to dismiss much less a "likelihood" of prevailing on the merits.
"That it will suffer irreparable harm absent injunctive relief."
If the NOTs postings by parties unknown -- not in any way affiliated with the defendant -- has caused such irreparable harm then certainly this test fails as the harm has already been done. Since even for scientology materials not covered by the injunction the defendant has not in any way published, acquired, or disseminated at any time during the first three months of the preliminary injunction, nothing contradicts the belief that the defendant will voluntarily respect both copyright limitations and trade secret laws during the pendancy of this litigation. The balance of hardships has now sharply tipped the other way toward the defendant.
"Should the movant satisfy these requirements, the district court must then weigh the portended irreparable harm to the movant against the potential injury to the enjoined party and must consider the effect of the injunction upon nonparties."
The injury to the defendant has been high because although the Exhibit C materials are themselves fairly limited in scope in number, they are now so pervasive now in fair use quotes over the Internet that it prevents the defendant from acquiring exculpatory material and materials implicating the plaintiff in wide-spread wire and mail fraud schemes. The job of an inexperienced, pauper, pro se defendant facing an organization of four extremely well-funded law firms is difficult enough without the additional handicap of being prevented from incidentally acquiring materials listed in the Exhibit C while attempting to document his innocence and the racketeering of the plaintiff. Note that this has proven not to be an idle fear with the May 17, 1996 ex parte motion of Madame Kobrin for the plaintiff to seal the titles of the NOTs in the Exhibit A of the defendant's motion to dissolve and assuring the defendant by letter that he had committed contempt of court by this filing these titles. The plaintiff seeks judicial relief not to protect their religious beliefs and intellectual property but to bludgeon their critics into silence.
Dated: July 18, 1996
Grady Ward, In pro per
-------On August 2 Grady Ward will be in Judge Whyte's courtroom in San Jose to carry on the fight.
2. RTC on the Defensive
Late last week net citizen Keith Henson received a large
solid mail packet from his adversary, the Religious Technology
Corporation. Henson posted it to the net with a request for
comments. To save bandwidth, we have not reproduced it here, but
will offer a brief sketch of the contents.
The document is titled, "MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S MOTIONS FOR SUMMARY OR DECLARATORY JUDGMENT ON "CRIMJNALITY" AND VIOLATION OF COURT ORDER RE NOTS 34, MOTIONS TO MODIFY PRELIMINARY INJUNCTION, MOTION FOR EXPEDITED DISCOVERY;" it includes declarations by Warren McShane and Helena Kobrin.
So far, Henson has argued that NOTS 34 is a manual for an unlawful activity, to wit, practicing medicine without a license; he has asked to have the preliminary injunction modified to allow him to present NOTS 34 to the FDA and/or other interested government agencies; he has asked Judge Whyte to address the question of the content of NOTS 34; and he has asked for expedited discovery.
The Memorandum is the RTC reply. It is heavily biased toward trade secrets, recapping Roger Milgrim's arguments in court word for word. (This includes the immortal "the internet is a hit and run medium".)
They begin by catching Henson in an apparent procedural error. Henson, who is acting pro per, had suggested modifying the preliminary injunction to allow him to bring prospective posts to Judge Whyte for an opinion on whether he could post them upon the grounds of fair use. RTC lawyers assert that a Federal Judge cannot give advisory opinions; the request is improper, and must be denied.
In support of the preliminary injunction, RTC asserts that Henson has failed to show that "significant inequity" would result from maintaining the injunction. [Insofar as a non-lawyer can make sense of this, we think the plaintiff refers to the cost-benefit analysis Judge Whyte must do on both parties. The Judge must balance First Amendment rights against trade secrets, which are essentially a property right. Much of the Constitution concerns the right to own and control property; the Judge's decision is complex, and the outcome is far from certain.]
The flag of Trade Secrets is raised again by RTC, who disputes Henson's proposed "fair use" modification of the Preliminary Injunction. RTC suggests that the modification would amount to misappropriation of its trade secrets. They argue that the purpose of the Preliminary Injunction is to preserve the status quo. Presumably this means preventing any further disclosure by Henson of the NOTS. [They attached an exerpt from Henson's deposition in which he said that he would not post any NOTS as long as he is under a court order. It is a reasonable statement, but infelicitous in this context.]
Readers will remember that after the Henson suit was well under way, and before the second deposition of Grady Ward, the remaining NOTS were posted anonymously to the net. Logically, this should impact the trade secret discussion. It is unclear [to us, anyway] whether the new disclosure has a material effect on Henson's position.
As we understand the RTC argument, Henson can ask for a modification of the Injunction if he can claim that new events have occurred which call for a re-examination of the issues. Does posting of the remaining NOTS bring up any new issues? To a non-lawyer, the status quo certainly appears to have changed; the difference is between having only a small portion of RTC material publicly available, and RTC having virtually no secrets left.
Hence, RTC resorts to the improbable claim that publication on the net does not constitute "real" publication.
An attached declaration by Warren McShane flatly claims that scientology churches do not treat or purport to treat medical conditions. The court order referenced earlier by Henson is an old one, and was handed down before NOTS or RTC were in existence, the plaintiff maintains. Henson has forced the Plaintiff to address the subject matter of NOTS 34, a minor victory.
McShane also states that the church encourages parishioners to seek standard medical treatment.
RTC argues that all major religions believe in faith cures and miracles, and that the substance of its religious belief is protected by the First Amendment.
The last item addressed is Henson's request for expedited discovery, which is opposed by RTC. [We noticed that RTC describes itself as "a church of scientology."]
Here the Plaintiff shows a darker side, describimg Henson's motions as frivolous and hinting that he is amusing himself at the Court's expense. An exerpt from Henson's deposition is attached in support: in the deposition, Henson remarks that he finds the situation "amusing" and he thinks it is "a great game." We wonder what the Judge will make of this.
Two larger issues loom over the proceedings: the decision on trade secrets, which has yet to be rendered, and the, in our view, remarkable action of the Plaintiff in affirming that it perpetrated the forged cancellations of usenet posts.
The hearing will take place in Judge Whyte's San Jose courtroom on August 2, 1996. Biased Journalism will be there to report the event, which promises to be full of surprises.
3. Nefarious Doings at the WorldCon
In a mind-bending meld of strangeness and high tech,
the World Science Fiction Convention will be held August 29-
September 2 in Anaheim, California. Disneyland meets the Gamma
Quadrant. Klingons, Vorlons, Marcabs, Borgs, angels in diaphanous
robes and, er, attention-getting uses of spandex are anticipated.
We hope to see some vegetable people, in spite of the annoying
tendency of ivy to wilt at close quarters that left some plants
uncovered at previous conventions. Best-loved science fiction
writers, fans, and exotic extraterrestrials frequent the WorldCon.
If you only go to one convention in your whole life, you owe it to
yourself to make it this one.
"10k geeks in one place," a net.citizen mused. He likes wierdness. Wouldn't miss it for anything. The WorldCon is a major event in cyberspace due to the natural overlap between geek/high tech/cyberpunk and science fiction fans. Writers of the caliber of Greg Bear ("Queen of Angels" and other books) and William Gibson ("Virtual Light" and other books) and Neal Stephenson, (whose book "Snow Crash" defined cyberspace for the reading public) have made cyberpunk literature illuminating, funny, shocking and insightful. This literature is the repository of our ideas and dreams. Like it or not, it is the picture of our future.
We have been advised that as one of the unofficial entertainments at WorldCon, pranksters will be giving away floppy disks loaded with NOTS and OT levels, the copyrighted and trade secret protected scripture of the church of scientology. It appears that the material has acquired status value in the geek underworld due to the relentless efforts by the church to eradicate the files in cyberspace. Geeks trade these files back and forth and will pass them out freely at WorldCon. What will happen after that, only the Great Geek knows.
Here is the signup information: