Federal Court Hearing Synopsis, 6/24/95

I just came back from the Federal Court Hearing in San Jose today, so I'll try to give a synopsis. This is just a hack job for those who were not there, so please feel free to post your own accounts and correct any errors I make.

First, the game players, as near as I can remember from my scribbly notes:

For the Prosecution (CSC/RTC) there were the usual suspects: Helena Kobrin, Janet Kobrin, Tom Small, and at least two other lawyers I did not recognize (Ableson and Moxon?). Kobrin, et. al had a few aides to pass notes.

Big Surprise: the (in)famous Earl Cooley was the main attorney for the Church today. He was quite dramatic, and often strayed into emotionally charged language, referring to the defense's positions as "a fantasy construction." More on this later.

Several Scientologists were present in the courtroom, including Jeff Quiros, Warren McShane, and at a few others. As a side note, I sat in the same row as Jeff, and there were at least four other scientologists hanging around him at any given time (all were women -- odd?). I'm pretty sure that they were scientologhists as Jeff kept whispering things in their ears, and they all ung out with Jeff, et. al after the hearing.

All five of these Sci's (including Jeff) wore very nice suits that were black and white (some gray, but generally no color). Is that some kind of OSA uniform?

For the Defense: Dennis was there, as were representatives for Netcom (Randy Rice and ?), Kelmesrud (Dan Leipold and ?), and Dennis Erlich (Carla Oakley and Harold McElhinny). There were several of the SP crew there, but I'll let everyone pipe up on their own (i'm a bit leery of posting people's names w/o asking first.)

The Plaintiffs had some trouble making their case today. they had a lot of ground to cover, and the Judge set time limits on both the plaintiffs and the defense to present their arguments (1 1/2 hours apeice?) Cooley basically ran himself out of time with his dramatic arguing and somewhat exagerrated characterizations. They spent so much time insisting that netcom and Klemesrud had knowingly assisted in copyright infringement (and in violating trade secrets, depending on their shifting argument) That they had a mere 1 1/2 minutes left to argue for holding Dennis Erlich in contempt of court (on three counts). There was some confusion, as their simultaneous claims of violation of trade secrets and copyright infringement were muddled several times (primarily by Cooley).

Cooley also raised an objection towards the end, to which Judge Whyte responded with "I don't follow your reasoning." Cooley piped down after that. (more later, see part two.)

The plaintiffs did raise some interesting points, which I'll try to paraphrase below.

The Defense, in my opinion, did a much better job. They did not run out of time, and the arguments were clear and concise. They also had a splendid closing argument, which I'll do my best to present in part two. They also seemed more prepared to answer Judge Whyte's directed questions.

But hey, I'm biased.

There were a number of motions submitted today, here's a list taken from Dennis's post, msg id <9506201120.0FXDJ01@support.com>:

-----typos mine----



[from the sceinos]


        1)  Motion for Preliminary Injunction against me and 
            resinstatement of TRO (PI?) against tom and Netcom.
        
        2)  Motion for sanctions against Carla Oakley of MoFo for
            including LA Times, St. Pete Times, Forbes Mag, et. al.,
            articles describing the OT3 Wall-o-fire, in one of her
            unsealed filings.

 
        3)  Several motions for finding me in contempt for postings, 
            etc., since the raid.


[From MoFo]


        1)  Motion to vacate Writ of Seizure and return all materials
            confiscated to me.  Would include personal items such as 
            bank statement, demo tape of my songs and 2 rolls of film
            taken of every nook and cranny of my house during the 
            raid.  (the pictures used in the KSW issue).


        2)  Motion to lift Temporary Restraining Order and restore my
            Constitutionally guaranteed rights to comment and 
            criticize the church <spit> for which I was ordained a 
            minister, using the materials I was trained on.


        3)  Raise the bond that the sceinos had to submit to carry of[f]
            the raid from $25000 to $100000.




[From Klemesrud]


        1)  Motion to dismiss?


[From Netcom]


        1)  Motion to dismiss.


-------end excerpt-----

Randy Rice for Netcom was supposed to go first but he stepped aside to let the plaintiffs fs speak first. He felt his argument was clear enough, and he'd rather rebut the sceinos instead. (paraphrased)

Earl Cooley stepped up to the plate and made his argument that Netcom and Klemesrud should not be dismissed from the case because: (paraphrased)

1) Netcom was notified of copyright violations and they did nothing in this case, while in any other cases involvng software they were very quick to delete those materials. He accused netcom of being inconsistent.

2) Netcom and Klemesrud store these copyrighted materials on their "hard drives" while they are on Support.com's and netcom.com's news system. Netcom even extends their storage time to eleven days, longer than the usual three [??] on the usenet system. Copying these materials onto their hard drives is in itself a copyright infringement commited by netcom and support.com, just as if someone photocopied a whole book.

3) the plaintiffs no longer want 'pre-screening' of materials for copyrighted writings, instead they want support.com and netcom to delete and messages the church claims violates their copyright. They consider this a reasonable solution to protect their copyright from unathorized publishing.

4) Also referred to defendent's complaints of censorship and eliminating their ability to do business as a "parade of imaginary horrbiles" [to quote].

At this point, Janet Kobrin stepping in to 'flesh out' Cooley's arguments with technical definitions of infringemnet and to argue court precedents that support [?] the Church's position. Much of her argument was a restating of Cooley's rather dramatic introduction, but included more detail. One new point she did make was that copyright infringement does not require knowledge of what you are doing, nor is it an excuse [is this true?]. The argument was made that Erlich reproduced entire copyrighted works from larger compilations, so he cannot claim that he only excerpted 'part' of copyrighted book. Rather, it is the coprights on the individual works and not the compliations that were violated.

After her, Tom Small [plaintiff atty] argued against Fair Use as a defense for netcom, Klemesrud, and Erlich. He changed the argument from one of copyright issues to one of trade secrets, and then tried to mix the two. He said that the materials posted by Mr. Erlich were both copyrighted and unpublished trade secrets of the church. There is such thing as fair use of trade secrets, he argued, and that any infringement of trade secrets is unacceptable. Mr. Small also claimed that Dennis published 'bootlegged' or unauthorized copies of this material, rather than simply excerpting from a legitimate copy of said material. There is no such thing as fair use of a bootlegged copy of copyrighted works, according to Mr. Small. [do they know how Erlich got this stuff?]

---------now netcom jumps in---------



Randy Rice, attorney for netcom then presented arguments to
rebut the plantiffs and in favor of dismissal.  To paraphrase:


1) Netcom cannot be expected to deal with copyright infringement
without some way of verifying that these materials are ideed copyrighted.


    For example, if i am a sysop and someone posts "A Tale of Two Cities"
    on my system, a publisher can easily provide me with an original copy
    to prove that they own copyright to this material, and that this is a  
    clear case of copyright infringement.  RTC/COS did no such thing, and 
    flatly refused to supply Klemesrud and Netcom with originals so that they
    could determine if such infingement occured.


    In the software case, it is very easy to see who owns the copyrights to a
    pirated copy placed on someone's system, as one can easily compare a 
    pirated copy of "windows' with a legitmate copy and see that both say 
    (c) Microsoft 198_, and that the priated copy is the same one law abiding
    citizens buy in stores.  


    Netcom had no such way to verify that RTC/COS held the copyrights, and 
    that Dennis was infringing them.  Therefore, they cannot be expected to 
    run about deleting posts just because RTC says so.


2)  The plaintiffs have repeatedly changed their position.


     Before the case, they wanted netcom to yank support.com,
     effectively eliminating service to 500 users who had nothing
     to do with the case. 


     Now they claim that all they want is Netcom to delete all posts
     that the RTC claims infringes on their copyrights and publishes
     their trade secrets.


3)  Every single site, and every single user is as "guilty" as Netcom.


     If netcom is guilty of copyright infringement simply for storing a
     Newsfeed on a disk for a short time, then every USENET site in the 
     world is equally guilty of that crime.   


4)  Free speech issues:  Dennis is clearly involved in controversy with 
    the church, and Netcom feels an obligation to defend Erlich's free
    speech rights to criticize the church.  Why should they pull the plug
    on a user, and a system, simply because the Church claims that he has
    raided their intellecutal property , particularly since the Church refused to 
    demostrate to netcom that they indeed held the copyrights?  Netcom feels 
    that such a controversial issue is clearly a free speech matter, and is not 
    as straightforward as situation with pirated software.


-------and now, Klemesrud----

Next Dan Leipold took the reins, and argued in favor of dismissal. His arguments were (paraphrased):

1) Klemesrud's system is automated: he does not have control over what gets put on his hard drive. He is merely leasing the use of his machine/software to other users who are responsibile for it's use.

For example, If i photocopy all of dianetics on a xerox machine at copy shop (that is _I_ do it, not the shop staff) then I am guilty for any infringement. The copy shop merely leased the machine to me, for about $0.10 a page. (just like some ISPs charge by the KB or the bandwidth.)

[this same argument works for netcom]

2) The RTC/COS is engaging in a weird argument:

How can you have a trade secret and a copyright violation?

Which is it?

Judge Whyte tried to get a solid answer form Leipold as to what the legal obligation of an ISP was. Leipold compared ISPs to a video tape manufacturer, where CBS can't sue sony for making a video tape used to pirate tv shows, rather they sue person who pirated the shows.

3) Quotes from the plaintiffs initial complaint which states that netcom and klemesrud did nothing:

That is, they did not engage in copyright infringement, they simply failed to do anything about it when the church complained.

But now the lawyers for RTC claim that netcom and klemesrud _are_ guilty of intringement, as they "copied the materials onto their hardrive and made them available to other users for a fee"

In english, their newsfeed is stored on a disk drive rather than simply 'storing it in ram.'

According to Leipold, the CHurch is changing it's argument in the middle of the hearings. [i agree]

Next, Cooley showed up again to give a dose of amusing metaphors and hyperbole, but I'll continue that in Part Two.....

Brian Harmon Sf, CA KoX.

He further characterized the defense's fears of censorship and