Federal Court hearing, part twp

My hack job of reviewing the court hearing, part two.....

After Leipold said his peace, Cooley took the stand again.

Cooley claimed that he had to deal with this "fantasy construction" set up by the defesne. He said that "the case law is very clear, and that there is no room for 'I Don't Know'" and that "Loading of copyrighted materials into computer memory is a direct infringement of copyright." [Nevermind that RTC and HK, et. al refused to prove copyright to netcom or klemesrud].

He characterized the arguments of Rice and Leipold as "devil made me do it" arguments, where someone was helpless to stop a subscriber who was clearly abusing their system. [right, and nevermind that he twisted what they said a bit]. He also mentioned Grady Ward by name, and accused the anonymous and pseudonymous posters to ARS of trying to impose anarchy on the net by repeatedly reposting copyrighted "trade secrets" of the church and thereby make a mockery of the church's rights. [Demonizing ARS critics seems to be a big schtick for him, could he be woody? ;)]

He also accussed Klemesrud of stalling because he [klem] insisted that the original copyrighted materials be sent to him by US mail. That way, argued Cooley, the articles would have expired off of Klemesrud's NEWSfeed and he would no longer be able to compare them to the originals, and voila'! no infringement.

[Cooley seems to imply that Klemesrud, Erlich, and Netcom are all in cahoots to rape the intellectual property and "trade secrets" of the church. Is that because they're all SPs?]

Cooley also raised the issue that Erlich posted materials after the TRO was in place.

[as an aside, it was often hard to tell which of their motions the plaintiffs were talking about at any given time, as they often floated bewteen going after Klemesrud, Netcom, and then Erlich all in one thought. Cooley was particualrly fond of this.]

Judge Whyte asked Cooley if netcom, Klemesrud, and Erlich are simply supposed to take the RTC's word for it that an infringement has occurred. Cooley replied that they should trust the plaintiff's atornney's in that matter. [in essence, yes.]

Cooley also raised the issue of a "Non-Discolsure Agreement" signed [allegedly] by Elrich, promising not to reveal the secrets of scientology [the OT materials, i guess]. Cooley also stated that 19-20 coyrighted and unpublished "trade secrets" of the church were found on Mr. Erlich's computers, that he posted parts of 19 of these 20 materials, and that 14 of these were posted verbatim. [true?] the text of the agreement was shown to the court, but i could not see it from where I was.

Cooley was no arguing that Erlich had not only violated the copyrights of the church, but that he had also reneged on his non-disclosure agreement.

Cooley claimed that Erlich violated the TRO three times, and therefore should be held in contempt. One was a post made after the TRO was modified, the second was a signed declaration verfiying that a chruch document was genuine, and the third [i think] was an interview where he mentioned Xenu and H-bombs [incident II]. [note, Cooley didn't list these, i got them from the defense's rebuttal.]

Cooley started repeating himself, again saying that removing users was not necessary, merely that the Church wanted netcom and Klemesrud to delete messages they say violated their copyright. [methinks they're trying to change their argument.]

At this point, there was a ten minute recess. Cooley and co. had used up so much of their time that they had about two minutes remaining to argue for holding Dennis in contempt. The defense, OTOH, still had loads of time.

-----after the recess----[ps, my notes go way downhill here, perhaps a more

                          diligent person can fill in more.]      


Cooley sat down and let Carla Oakley [rep. Erlich] take the stand
to argue against holding Dennis in contempt of court, and to rebut
some of what Cooley and others had said.  to paraphrase again:


1) Freedom of speech arguments:


     The TRO was preventing Dennis from exercising his first amendment
     rights by telling what he could and could not talk about.


     [Holding him in contempt for mentioning Xenu and volcanoes in an
      interview would be a good example]


2) Arguments against income loss for the church or irreperable 
   harm caused by Dennis.
      
      RTC/COS made the argument that Dennis's publishing of
      OT materials undercuts the church's business and casues
      'irreperable harm to the church' [i don't quite get this argument.]


      Not so, says Oakley.   Even when Dennis posts these 
      materials to the net, he is not removing the services the
      church provides, nor is he passing the church's methods and
      tech as his own.  This argument, that the defendant is 
      causing unnacceptable loss of income for the church is wrong,
      as he is not competeing with the church per se.


      The Church has won cases in the past against splinter group[s]
      by using this type of 'unfair competition' argument. It does 
      not, however, apply here.


3)  the Church's unpublished documents are not trade secrets.


      Unlike a real trade secret, the church does not have any idea how 
      many people have access to their trade secrets.


      Many of these "trade secrets" have been published and publicly
      desseminated on the 'net. [not by dennis that is. Also, does 
      putting this stuff together for OT levels constitute 'publishing'
      the material? Has the church unwittingly published their trade secrets?] 
                   
      Also, these some of these 'trade secrets' are a matter of public
      record, such as the Fishman declaration [has OT stuff in it.]


      If these are trade secrets, why are so many people allowed to access
      them?  -- they are not kept under strict lock and key --


      If these are trade secrets, why do you _sell_ them to your church 
      members?  [does coke sell its formula to employees?]


4) Copyright Claims:  What about forgery?


      Some of the usenet postings placed before Erlich did not 
      look right. Dennis claims not to recognize them as his
      [they're missing headers and the like, tag lines are weird.]
      If some of these postings by Dennis were forged, how can he 
      be held liable for the infringements in those forged postings?




Other arguments were made for fair use, that Dennis was not "scooping"
scientology as a breakaway church would, but i couldn't hear too well
and i was running out of steam.  Someone will have to cover this better than
me but i did jot down some key issues:

 
Dennis recieved many of these materials from the 'net, where they
had already been published [anonymously].  Apparently, they
were mailed to him by anonymous sources. [true/false?]


The OT materials used by Erlich in his criticism of the church are
largely "informative" in nature rather than "creative."  That is, the 
exact information in the "infromative" work is not copyrighted, but the
actual work is.  [you can quote all the definitions you like w/o violating 
copyrights, but if you photocopy whole pages and use that, you are.]  On the 
other hand, 'creative' refers to things like poetry where the precise
wording is protected [that is, you cannot quote all of _Leaves of Grass_, even
if you do not photocopy them.  I may have misunderstood this concept.]


Therefore, Dennis use of copyrighted materials is not an infringement
because these materials are largely 'infromative.'  It was more like he 
was quoting from the dictionary than plagarizing Walt Whitman.


The US TV network CBS was allowed to air an expose of the meat packing 
industry "even though trade secrets *might* be revealed" on this show.
[i think someone else made this point.  also, does anyone know the 
case number and year of this?]




----after Oakley, Cooley wanted to try again....---

Earl Cooley wasted another 30 secs making a fairly scattered argument about the dictionary. I didn't take notes on it.

Oakley made some more points [some listed above] and then Cooley used up the rest of the time briefly reiterating his points.

---after that,  Harold McElhinny stepped in to finish up.---



McElhinny's arguments were about the motion to hold Dennis Erlich in 
contempt of court for three violations of his TRO.  he dealt with them 
in reverse order, but I'll go thru them in order instead. 
To sum up the incidents and the arguments:


1) Posting after the TRO was in effect 


    This occured before Erlich had counsel, and he [apparently]
    misunderstood what was meant when he was told that the 
    TRO had been 'modified.' Assuming that things were all right,
    he posted another message to ARS.  He was informed of his error,
    and that he was in violation [i presume] of the TRO.  He promptly
    canceled that message and had Homer Wilson Smith cancel as best as
    possible to stop propagation.  


    In short, Dennis was not certain of what his rights were, he goofed, 
    and then cleaned up after himself in good faith.  [hardly an action 
    worhty of contempt, we hope.]


2)  Erlich signed a declaration that a church document was indeed genuine.
    [i have no context, can anyone help me out?]


    He did _publish_ anything, he just signed a peice of paper saying,
    "yes, that's the real McCoy."


3)  In an interview, Dennis referred to Xenu, 75 million years ago, and 
    something baout thetans being blown up in large volcanoes on teegeeack
    [earth] by that nasty Xenu. [beliefs of church, these are otiii tidbits 
    referring to incident ii.]

 
      McElhinny started to quote from a published St.. Petersburg times article
      that said the very same things Dennis did, when suddenly Cooley lept up
      and objected.  It was hard to tell what Cooley's argument was, as he 
      floated between accusing McElhinny of trying a publicity stunt to smear
      scientologists to objecting that they were trade secrets.   When asked by 
      the Judge if this article contained trade secrets, Cooley hemmed and hawed
      [started to say yes?] but eventually said that that was not his objection,
      rather that it was a stunt so that other nasty newspaper artiles could be 
      published to offend the religious sensibilities of scientologists. [??? in short,
      he weaseled out of that once he realized he stepped in goo.]       


      When he was all done, Judge Whyte responded that he did not understand 
      what Cooley was all upset about [my words, not his].  Cooley got rather 
      quiet after that, and let McElhinny continue.


      After quoting the St. Petersburg times article, he then went on and quoted
      the same information in a Time magazine expose of the cult from 1991. 
      
      The argument was, if these articles are not a violation of trade secrets
      and/or copyright, then how can the court hold Dennis in contempt for saying 
      the same thing they did??? [heck, he could have read the article to them!]
     


-----------------Closing statements by McElhinny------------

These were amazing. I'll try and properly reconstruct what he said..

When he [McElhinny] reads Scientoloy scritpures, it's complete gibberish to him. However, his religion was taught to him in latin, which would be complete gibberish to a scientologist or any non-Catholic.

That doesn't matter, however. What matters in religion is _belief_. That is what transforms 'gibberish' into sacred scripture. The plaintiffs are arguing about words, and about trade secrets, and about copyrights, but it is belief that really brings value to religion.

Dennis Erlich believes very strongly that fraud is occuring in the church. So much so that he would characterize it not as a church, but as a cult. It is this deeply-held belief that compels him to educate the world about COS, and to prevent people from falling prey to this cult.

it may be a battle of words for the church, but for Dennis it is a battle of belief.

------------



How was that?




Well, this is the end of my little hack, hope you liked it.


Brian Harmon
SF, CA
Kox.