COURT REPORT--3/1 Avatar Hearing--Palmer & Star's Edge vs. Braun

Mar 2002

eldonb123@aol.com (EldonB123)

A Federal Appeals Court hearing on Harry Palmer's copyright infringement suit against me was held before a three-judge panel from the 11th Circuit Court of Appeals. They swung by Jacksonville on a from their home base in Atlanta. This court deals with the tricky, disputed issues of a 3-state area. Florida, Georgia and Alabama, believe.

At issue in this hearing was whether the Central Florida District Court had erred or acted like an unschooled idiot by refusing to grant a preliminary injunction to prevent me from publishing "The Source Course." As you may or may not know, it is a workbook containing (among others), the same mental procedures as Hari Palmer's "confidential" Avatar Course materials. We're having a sort of test case here, and I won the first round pretty bigtime. Hari, on the other hand, has more money and Scientology black PR training.

In the previous decision, Judge Gregory Presnell of the Middle District of Florida Fed Court had largely relied on Section 102(b) of the copyright act, which states that copyright does not apply to any "idea, procedure, process, system, method of operation, concept, principle, or discovery regardless of the form in which it is described, explained, illustrated, or embodied." That mouthfull means that only the "original expression" of any work is protected. In the case of instructional materials that tell someone how to do something, "originality" basically boils down to turns of phrase. In other words, "Bring to a boil and stir frequently for 8-10 minutes" is not very copyrightable, and may appear on several different spaghetti lablels. Thus, even identical or nearly identical phrasing may be employed where there are few or only one way to communicate something.

The hearing was pretty cut and dried, with only 15 minutes of oral argument per side. Specifically, 10 minutes for the plaintiff, 15 minutes for the defendant, and five minutes rebuttal for the plaintiff.

Hari Palmer did not attend, which surprised me. Gosh, I came all the way from San Francisco, and it's only a two-hour drive from Alamonte Springs.

What surprised me almost as much was that he imported Patrick Keel from Texas to deliver the 15 minutes of argument, rather than relying on the elocutional skills of Guardian Heart Penny Phillips, the Star's Edge in-house Wizard attorney. Mr. Corbett, the third party filing attorney from Orlando, also remained there near Hari. Maybe he's on the current Avatar Course, who knows?

As far as I know, Patrick Keel has never done Avatar; he is just a hired gun who has worked for Hari for some years. Penny passed the Florida Bar in April of last year, so as far as I know she is now qualified to argue in federal courts in florida. Yet all she did was sit at the table.

Oh, I just got it. Silly me. She was running Universe Handle and the Serious Drill on the three federal judges while Keel delivered the Word Lessons. One judge did, during the hearing of another case, mention that Federal Court judges could do just about whatever they wanted. Something like that. So I guess at least that one got the message about creating whatever reality might be desired.

The arguments presented by Mr. Keel were basically the same as those outlined in their rambline 41-page appeal brief:

* Hari has a valid copyright presentation (never contested).

* That therefore, the burden of proof is on me to prove that his work was copied or is unoriginal. (This conveniently skirts the issue of "original elements.")

* That I copied the "structure and sequence" of the Avatar Course.

* That therefore, the justices should order the Federal District Court to issue

a preliminary injunction, prohibiting me from publishing The Source Course.

John Merrett, my attorney, countered with the arguments:

* That Judge Presnell had thoroughly studied the issues, read hundreds of pages of evidence, and made side-by-side comparisons of both works before reaching his decision.

* That copyright protection of instructional works, because they describe procedures and methods of operation, is limited to "original expression," meaning creative ways of stating things.

* That "paraphrasing" and exact duplication of phrases is permissible under the doctine of merger, where there is only one logical way to state the same idea.

The analogy used by Mr. Merrett was that if a poor law student buys a junk car and overhauls the engine, any manual will tell him to tighten the head bolts from the center on alternate sides, in a given order, using a given amount of torque on each head bolt. Chilton's Motor Manuals where the first books to give these instructions, yet there are many others on the market that don't infringe their copyright. (I thought the "tightening of head bolts" was a great metaphor in the case of Hari, who did extensively study and experiment with mind control at a certain time.

* That Hari's suit is really an attempt to apply the principles of patent law to public domain "processes, procedures and methods of operation." (Of course, patent law does not cover mental processes anyway.)

* That the Circuit Court could not possibly be ordered to grant a preliminary injunction anyway, because it had only considered the first of four criteria -- the likelihood of Hari & Company to prevail on grounds of copyright infringement. There are three more hurdles that haven't even been decided.

Mr. Keel came back with some brief rebuttals stating that:

* Hari has a copyright registration on the Avatar Materials. (Meaningless in my opinion, since anything anyone writes is automatically copyrighted; registration confers no special protection, but does enable you to sue for damages in case of infringement. I guess I should register The Source Course--nothing stopping me.)

* Judge Prescott screwed up by not considering the organizational/sequential similarity in conjunction with 15 brief duplicative phrases. In this discourse, Mr. Keel mentioned the "fair use" of brief quotations in reviews. Perhaps his statement means people are at liberty to briefly quote the Avatar Course in reviews if they wish.

At any rate, that is the gist of the arguments that were presented. We can expect a decision in the near future, because the appeal is on an expedited basis. As soon as the decision comes down, I will web it along with many relevant documents.

Assuming my prediction algorithms are correct (even though I'm not a Wizard), I will also resume selling the Source Course as soon as the decision comes down. With all this free publicity, I think I should get some translations underway and think about producing it as a CD with videos and audio CDs and such. Sound like a plan?

Best, Eldon


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