Helena Kobrin spills the beans on _The Net_

This information was presented to a Federal judge. A Federal Judge will not just lightly sign a writ every time someone asks to go and seize materials from someone. You have to make a specific showing to the judge and you have to convince him that there's some likelihood that the person will hide the materials or destroy them or something along those lines. And when a person is making the statements that Erlich was making, the judge thinks about it and says it looks to me like a good case for a seizure because of his attitude.

Not necessarily. The CoS put a case to the judge; the judge decided that there were grounds for allowing the CoS to seize the materials in order to verify its claims. This is a long way from saying that Dennis is guilty (as Helena effectively does, below). Tom comments:

TOM: They got a restraining order on me. They managed to convince a federal judge in San Hose [sic!], Judge Ronald Whyte, that this was somehow wholesale infringement of copyright. I think they also had to somehow prove to the judge that he [Dennis Erlich] was making a profit doing it, because as I understand it, you can't conduct raids unless there's a profit motive involved in it.

HELENA: Yes, it's called a preliminary injunction, we've asked for that against them ...

THE NET: And what does that mean?

HELENA: Of course, as to Mr Erlich, there is a restraining order in place. It's actually been extended by the judge through time. So, last time was last Friday. As for the others, it would be the same thing: that they cannot allow his postings through which have infringing materials in them.

But as Klemesrud points out, the CoS has never actually said what these "infringing materials" *are*. Helena is effectively saying "if Netcom doesn't want to be sued, they shouldn't allow Dennis to post at all". Note that she doesn't say anything on this, despite the fact that it's *the* central issue in the whole affair.

THE NET: Do you think it's reasonable for them to be able to monitor everything?

HELENA: Well, what's reasonable for them ... Netcom has very specific terms and conditions so that subscribers are required to acknowledge and abide by. One of these is copyright restrictions. I mean, it's very clear in their terms and conditions that you do not post copyrighted material without the permission of the author or the owner, and they also have a point in the terms and conditions that says if they get a complaint that you're violating terms and conditions, they can suspend your account, investigate, and you may be suspended permanently. Now in this instance, our position was that a warrant should have been issued to Mr Klemesrud to make him take action against his subscriber, Mr Erlich. If it continued, then it would have been proper for Mr Klemesrud's bulletin board service to be disconnected from Netcom. There are laws. If you attend a school and you violate the school's rules you can be expelled. If you belong to a group and you don't want to abide by the rules, you can go and join another group. That's one of the points here; the injunction request is essentially asking them to enforce their own rules.

Again, though, she ignores the central issue of what the copyright material actually is. To use her analogy of school rules, can you imagine the fuss if a school punished its pupils *without telling anyone why?*

THE NET: I suppose Klemesrud will claim that to do it he would have to shut down?

HELENA: No, he wouldn't have to shut down. He has to warn Dennis Erlich not to do what he is doing. He has stated in a declaration he filed onthe case that he's told other people with postings not appropriate for his bulletin board service to stop posting or go elsewhere you know. He could do the same thing with Erlich, he could enforce his own conditions of usage and he could say look, if you're going to post copyrighted material you can't do it on my service, so either stop or I have to take you off.

But as Tom points out:

TOM: In the blink of an eye a message can come in or go out of this system. I think in my court declaration I showed that 44,000 pages of text come through this system within a twenty-hour period. There is no way for me to know what is coming in or going out of this system. In the blink of an eye a message can come in or go out of this system. I think in my court declaration I showed that 44,000 pages of text come through this system within a twenty-hour period. There is no way for me to know what is coming in or going out of this system.

HELENA: You mean in this case? I think we had some idea that this was going to raise some issues that would affect the Net generally. As a matter of fact, I'm certain there are other copyright owners out there that have been affected and will continue to be affected by the Net and I'm sure they're watching this case, because, honestly, if we were to lose this case it would be very damaging for copyright owners, for people who earn their living by their intellectual efforts. This case represents the right of copyright owners to protect their efforts and their properties on the Internet. For example, why would an organisation like MGM or Disney or Paramount spend millions of dollars and many thousands of hours of effort to create a work that could just be taken and used by anybody without their permission? Why would somebody spend years writing a book if the book could just be slapped all over the Net in any way that anybody sees fit without the author's permission?

I think this could be a slip by Helena. Notice the line: "...earn their living by their intellectual efforts"? Two points immediately come to mind. First, Hubbard certainly *did* earn his living that way but as he's been dead for nine years, his royalties aren't doing much for him now. Second, Helena is implicitly acknowledging that the Church of Scientology is "earning a living" from the works of LRH. In effect, she is stating that the goal of the CoS is to make money from LRH's writings. Ooops! I thought this was an altruistic organisation? In addition to this, Helena is being a little disingenuous (IMHO) about the CoS' "foresight". I don't think they *did* realise the sheer amount of publicity that the case would raise and are heartily sick of it all now - the readership of a.r.s. has shot up to unprecedented levels as a result. I agree with Dennis's statement:

DENNIS: I don't think they understood. Like I said I don't think they understand the culture of the Net at all. I don't think they understand the implications of the Net at all, they don't understand that people value their right to speak out against oppression. They don't see the Net as a tool in that great human endeavour which is the establishment of peace really.

HELENA: I don't know that that's true. I mean, that is one part of it but in copyright law you don't have to be making money for it to be an infringement. It is an infringement regardless of any money passing hands. The fact is you can't just go and show movies or put books on electronic medium or that sort of thing without the permission of the copyright owner.

THE NET: Is the use of the copyright legislation in this way an attack on the freedom of speech, as both Erlich and Klemesrud claim?

HELENA: Well, the use of copyright legislation when you're dealing with hard copies is not an attack on freedom of speech. It's no different here, it's just a protection of property rights, that's all it is.

Dennis, Tom and Sheri all disagree strongly with this statement - and having studied English court records and articles on the CoS' various litigations in this country, I can state emphatically that freedom of speech is *not* a concern of the CoS. No less a personage than Lord Denning, one of the most distinguished English lawyers of the 20th century, declared in 1971 that the CoS' practices were so dangerous (by their own admission!) that they should be made public; his colleague Lord Megaw described them as "protecting their secrets by deplorable means". Regardless of the motive in this particular case, the facts, undisputed by all except the CoS, are that the past history of the Church has contained attempt after attempt to prevent "lustration" (letting the light in - a Czech term) of its affairs.

As a matter of fact, you bring up an interesting point because frankly Mr Erlich and others, I don't know about him specifically, but he was on the Internet prior to making these postings and the newsgroup that's in question here was around for about three years, and nobody ever complained, it didn't matter if people liked or didn't like what was being said, it didn't matter how my clients felt aboutwhat was being said. There was a lot of fierce and vicious things that were being said; they didn't take any action, they only took action to protect the property rights, the intellectual properties.

Helena does have a sort-of-point here. Until the Erlich thing blew up, a.r.s. was much like any other newsgroup on the net (though maybe a bit fierier than most). However, it's probably more accurate to say that the CoS did not take any action at that time because it didn't recognise that a.r.s. posed a threat. More on this in a moment. THE NET: Is there a danger that by their actions they may damage people's freedom of speech, by increasing legislation on the Net?

HELENA: I believe very strongly that if people are irresponsible on the Net and post materials, as Mr Erlich did, and if the access providersr efuse to deal with the issue and they refuse to ask their subscribers to file their own terms and conditions and behave responsibly and be accountable for what they do, I think that they will damage the Net. You know, you can regulate yourself, you can behave responsibly, or you can invite government to come in and tell you have to do this and that and you can't do this and that. I think that's the sort of thing that we risk...

THE NET: How do you feel about the Internet yourself?

HELENA: The Internet is a wonderful medium. It has amazing potential and even its current use for people who want to research, who just want to learn about more things, even just for people to talk to each other...I mean when I was a kid there was the concept of pen pals. Now, I guess, you have e-mail pals, you can get on and you can talk to people in places that some ofthese people would never have a chance to go to. I think it's wonderful... It's just again the point of responsibility; there has to be responsibility by the users. You can co-exist peacefully and you know you can use it for legitimate purposes and I think things will be fine. But if people don't, then unfortunately there will be government regulation.

She's been reading Stephen Boursey... :-) I wonder. Is this a hint of the representations to Congress which, according to our resident clams, the CoS is about to make/is making?

THE NET: Is litigation the only means to deal with this? What are the alternatives?

HELENA: Well, that partly depends on how the access providers react. The first alternative should be you notify an access provider and they follow their rules and so forth. In fact, at a hearing that we had in this Erlich case last week, Netcom's attorney mentioned that they had warned another person who is a direct subscriber and who is posting some of this copyright material that he had to stop or he could lose his access. That's good and that kind of thing would certainly help, but right now, in a situation where the access provider is not willing to do something, the only alternative is litigation. I think other alternatives can be developed. In the United States, there are alternate dispute resolution methods that are being used a lot now; it's possible that some of those could be developed for handling such situations like this. But because we're at the beginning of this kind of situation, any situations I know of have ended up in litigation. There's a case against Compuserve by some music publishers where a bunch of Psalms were put on the Internet. It probably will be a very good idea for some alternative to that to be worked out and I know my clients will certainly be happy to work toward that happening.

In other words, if Dennis agrees to shut up the Church will pay him a pile of cash to buy his silence. Paulette Cooper and LRH Jr. again? THE NET: Is the Church's purpose then, as Erlich and Klemesrud claim, to silence all criticism of the Church on the Net?

HELENA: Their claim is really absurd because I think, as I explained earlier, the newsgroup that they're posting on has been around for three years. Nobody's ever tried to silence anybody. They have been saying things on this newsgroup. It's just a handful of people and they've been, you know, running off at the mouth and saying some rather obnoxious things about my clients. My clients didn't take any action against any of those things and they aren't taking any action against any of those things. It's simply the copyrighted materials, the intellectual property issues that created the litigation, the violation of those rights... The copyright terrorism is what triggered the lawsuit.

Ooo! Ooo! Ooo! It's that phrase! Dennis Erlich is officially the Timothy McVeigh of Usenet, it seems. It's interesting to see that Helena has apparently tried and condemned Dennis even before the trial; it looks like her Scientology ethics are rather stronger than her Bar ethics.

I've made this point in another posting, but I'll make it again. It *cannot* be a coincidence that a.r.s' regular clams have taken to using the term "copyright terrorism" the weekend before an interview with Helena Kobrin is shown on BBC2. (This phrase made it into the programme itself, btw). Three possibilities are suggested by this:

1. The CoS itself has come up with the phrase and Helena and the a.r.s. clams have latched onto it. (I heard somewhere that it also crops up in _Freedom_ magazine; is this the source?)

2. One of the a.r.s. clams came up with it and Helena (lurking?) made use of it.

3. Helena herself came up with it and somehow communicated it to the other a.r.s. clams - maybe on an internal mailing list, maybe on a.r.s. itself. According to my records, Vera Wallace was the first person on a.r.s. to start using the phrase "copyright terrorism", on May 10th (last Wednesday!). She said:

"It has everything to do with ars. It is the point of ars. It is a forum where deadbeat dads, child molesters, copyright terrorists have the rights and can spew their venomous falsehoods and be protected by people like you."

HELENA: Well, there are the means I mentioned in terms of getting in communication with the people who are trying to destroy those kinds of rights and saying, okay you know, these materials are proprietary, you can't do what you're doing, please stop, we don't want to have to litigate against you and my clients do not at all like to be involved in litigation, they would much rather be carrying on their normal affairs... And there's no choice left when the responses made were go ahead and sue me, I'm not going to stop, no government accord is going to stop me. What else do you do?

According to Dennis, this was *not* his response. The first he knew of any direct legal action was when the raiders showed up at his house at 7.30am on February 13.

As for Tom, he says:

TOM: ...that would be prior restraint of his freedom of speech. Although a SYSOP does not have to follow the United States constitution, the United States Constitution is my constitution and I'm not going to try and restrain anybody's freedom of speech.

THE NET: And has the Church harassed Erlich or Klemesrud, as they might claim, in any other way?

HELENA: Well, the Church has filed a law suit against them. The Church sent a couple of people to go and see Mr Erlich and see what he would say. I think it took about 30 seconds before he said I won't speak to you and left. I wasn't there but, as maximum, it was a few minutes. I haven't heard of anything I'm seeing here that seems like harassment.

Dennis doesn't say anything in his interview about this. Dennis, could you comment?

Incidentally, why do Scientologists always seem to work in pairs?

Wasn't the same sort of thing done with Grady Ward?

HELENA: I called Mr Klemesrud, he hung up the phone on me after about a minute, you know, I think he harassed me, to be honest.

Over to Tom again:

TOM: I was sitting here one afternoon and got a telephone call from a woman claiming to be Helena Kobrin, and she said "Dennis Erlich is posting copyright this and that". I said "Excuse me, I don't take telephone calls on this, I don't know who you are" and hung up on her.

HELENA: It's just absurd, it's quite absurd, I mean we're protecting my rights

*MY* rights? I didn't know Helena owned the copyrights...

and if IBM or some other corporation would make allegations like that it's, it's just, it's nonsense.

Interesting! By bracketing the CoS with IBM and "some other corporation" Helena implicitly says that the Church of Scientology is itself a corporation. When will the IRS realise that, I wonder?

THE NET: And there's been no attempt to smear their reputations by the Church?

HELENA: No.

No? vera@earthlink.com wrote (May 8?):

"Deadbeat dad Dennis Please tell us the story again about your bank account being frozen because your ex-wife is going after you for unpaid, court ordered child support and how you have since lost your job and how the ex is now looking to up the payments. This was much more entertaining."

HELENA: That's real easy to answer, because if you're going around violating people's rights you would want the attention on anything but what you were doing, so you would make preposterous claims against them...

BWAHAHAHAHAHAHAHAHA!
Helena, you are *so* right! Thank you very much indeed for an insight into your Church's tactics!

(end of interview)

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