Archive Message - 1995

Since some of the materials which describe the $cientology cult could be considered to be copywritten materials, I have censored myself and The Skeptic Tank by deleting any and all possible text files which describes the cult's hidden mythologies. I have elected to quote just a bit of the questionable text according to the "Fair Use" legal findings afforded to those who report. - Fredric L. Rice, The Skeptic Tank, 09/Sep/95 -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- From!!!pipex!demon!not-for-mail Wed Jul 26 09:41:37 1995 Path:!!!pipex!demon!not-for-mail From: Anonymous <> Newsgroups: alt.religion.scientology,,,,alt.censorship Subject: Kobrin, Copyright & Unpublished Works [rm1] Date: Mon, 24 Jul 1995 04:12:54 +0200 Organization: Hack-Tic International, Inc. Lines: 392 Message-ID: <> References: <3u23js$1ih@Starbase.NeoSoft.COM> X-NNTP-Posting-Host: Comments: Hack-Tic may or may not approve of the content of this posting Comments: Please report misuse of this automated remailing service to <> Xref: alt.religion.scientology:78590 alt.censorship:36568 -----BEGIN PGP SIGNED MESSAGE----- In a letter quoted in full below, Helena Kobrin, counsel for the Church of Scientology, states: "No case in the United States has ever found fair use to apply to copying unpublished materials, as even Dennis Erlich's attorney had to admit in open court." Ms. Kobrin's statement that, "[n]o case in the United States has ever found fair use to apply to copying unpublished materials," is patently false. Ms. Kobrin's statement ignores the decisions in Wright v. Warner Books, Inc., 953 F.2d 731 (2nd Cir. 1991), Arica Inst., Inc. v. Palmer, 761 F.Supp. 1056 (S.D.N.Y. 1991), later proceeding, 770 F.Supp. 188 (S.D.N.Y. 1991), aff'd, 970 F.2d 1067 (2nd Cir. 1992), and Association of American Medical Colleges v. Cuomo, 928 F.2d 519 (2nd Cir. 1991). cert. denied, 502 U.S. 862, 112 S. Ct. 184, 116 L.Ed.2d 146 (1991). Further, Ms. Kobrin's analysis ignores the recent legislative history of 17 U.S.C. 107. By way of background, prior to 1992, 17 U.S.C. 107 provided: "Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phono records or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work." 17 U.S.C. 107 (1991). This version of 17 U.S.C. 107 was applicable when the United States Court of Appeals for the Second Circuit rendered its decision in Wright v. Warner Books, Inc., 953 F.2d 731 (2nd Cir. 1991). That case arose from a dispute over the publication of a biography of the author Richard Wright. The plaintiff, Wright's widow, held the copyrights in the published and unpublished works of her husband. The biography was written by an acquaintance of Wright, defendant Dr. Margaret Walker. The lawsuit challenged the biography's use of portions of a wide range of Wright's works, including unpublished letters to Dr. Walker written in the 1930s, unpublished letters to Wright's translator Margrit de Sabloniere, and unpublished journal entries. After discovery was completed, the plaintiff moved for summary judgment on the copyright claims. The trial court granted summary judgment in favor of the defendants, and the plaintiff appealed. On appeal, the Second Circuit Court of Appeals observed that, as a matter of law, "[b]oth direct quotes and close paraphrases count as being 'used,'" for the purpose of evaluating whether the defendant had exceeded the bounds of "fair use." See Wright, 953 F.2d at 738. The Court found that the defendant had both copied and paraphrased portions of Wright's unpublished letters and journal entries: "The copyrighted works are ten journal entries -- eight from January 1945, one from February 1945, one from September 1947 -- and six letters from Wright to Dr. Walker. Dr. Walker paraphrases fourteen portions of the ten journal entries. * * * The biography copies ten brief passages from the letters and paraphrases five equally short portions of them." Wright, 953 F.2d at 736. Given that the defendant had quoted from Wright's unpublished letters and closely paraphrased journal entries, the Court of Appeals criticized the trial court's opinion on the second fair use factor (i.e., "the nature of the copyrighted work") as follows: "[T]there are three problems with the district court's analysis. First and foremost, the court gave insufficient weight to the unpublished status of the letters and journal entries. Second, as we indicated earlier, some of the appropriated passages conveyed Wright's expressive language. Third, the court's rationales are not relevant to factor two. To be sure, whether the infringer paraphrased or copied, whether he borrowed fact or expression, or whether his use implicates the author's privacy interests or not, all may enter into the infringement equation. They just have no bearing on factor two. Factor two focuses solely on the nature of the copyrighted work. The court's explanations apply to other aspects of the analysis and cannot be used in piggyback fashion to hold together a weak link in the fair use calculation. Thus, while these aforementioned three concerns may, and do in this case, help to overcome the burden placed on defendants who seek to justify use of unpublished materials, they do not figure into the factor two inquiry. See New Era I, 873 F.2d at 593 (Oakes, C.J., concurring). We believe that factor two favors the plaintiff." Wright, 953 F.2d at 737-38. Although the Court of Appeals criticized the trial court's opinion, the Court of Appeals affirmed the judgment in favor of the defendants and against the plaintiff: "The district court correctly held that defendants were entitled to summary judgment. Three of the four fair use factors clearly favor the defendants. The one that does not -- the nature of the copyrighted work -- raises an obstacle to this conclusion, but not an insurmountable one. In Salinger, we held that unpublished works "normally enjoy complete protection against copying any protected expression." 811 F.2d at 97 (emphasis added); see Harper & Row, 471 U.S. at 555 ("Under ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use.") (emphasis added). Neither Salinger, Harper & Row, nor any other case, however, erected a per se rule regarding unpublished works. The fair use test remains a totality inquiry, tailored to the particular facts of each case. Because this is not a mechanical determination, a party need not "shut-out" her opponent on the four factor tally to prevail." Wright, 953 F.2d at 740. Similarly, in Arica Inst., Inc. v. Palmer, 761 F.Supp. 1056 S.D.N.Y. 1991), later proceeding, 770 F.Supp. 188 (S.D.N.Y. 1991), aff'd, 970 F.2d 1067 (2nd Cir. 1992), the plaintiff copyright holder sought a preliminary injunction against alleged copyright infringement. In ruling on the defense of fair use, the District Court observed that because "the great majority of [plaintiff's] manuals and lectures . . . [were] unpublished, they [were] entitled to greater copyright protection." See Arica, 761 F.Supp. at 1066. However, the Court denied plaintiff's request for a preliminary injunction because, "[t]he remaining fair use factors, viewed in the factual context of this case, [were] dispositive in favor of [defendant'." Id. Finally, in Association of American Medical Colleges v. Cuomo, 928 F.2d 519 (2nd Cir. 1991). cert. denied, 502 U.S. 862, 112 S. Ct. 184, 116 L.Ed.2d 146 (1991): "The central question presented by [on] appeal [was] whether the district court erred in holding that the disclosure requirements of New York's Standardized Testing Act, N.Y. Educ. L. 340 et seq. (McKinney 1988) ("STA"), [were] pre-empted by the federal Copyright Act of 1976, 17 U.S.C. 101 et seq. (1988) ("Copyright Act"). Defendants-appellants, cross-appellees Mario Cuomo et al. (the "State") appeal[ed] from a judgment, entered in the United States District Court for the Northern District of New York (Neil P. McCurn, Chief Judge), granting plaintiff-appellee, cross-appellant American Association of Medical Colleges' ("AAMC") motion for summary judgment and enjoining the State from enforcing various provisions of the STA against AAMC." Association of American Medical Colleges, 928 F.2d at 520. The Court of Appeals observed: "Next, the district court held that "the second [fair use] factor cuts in favor of" AAMC, since the MCAT is an unpublished work. AAMC II, 728 F.Supp. at 885-86. See New Era Publications Int'l v. Henry Holt and Co., 873 F.2d 576, 583 (2d Cir. 1989), cert. denied, 493 U.S. 1094, 110 S.Ct. 1168, 107 L. Ed. 2d 1071 (1990); Salinger v. Random House, Inc., 811 F.2d 90, 97 (2d Cir.), cert. denied, 484 U.S. 890, 98 L. Ed. 2d 177, 108 S.Ct. 213 (1987). On appeal, the State reiterates its contention that the MCAT does not fall within the traditional published/unpublished dichotomy because of the limited exposure to the test regularly granted to test-takers. However, we are inclined to agree with the district court that the secure nature of the MCAT weighs in favor of AAMC." Association of American Medical Colleges, 928 F.2d at 524. Despite this observation, the Court of Appeals reversed the judgment in favor of the copyright holder and remanded the action for further proceedings: "In the present case, however, the purported harm to the MCAT stems from a non-commercial, non-competing use. Moreover, the degree of potential harm to the MCAT and the availability of means to minimize that harm are sharply in dispute. Accordingly, there remain factual issues which deserve further elucidation before the district court. CONCLUSION In light of the foregoing, we reverse the judgment of the district court, vacate the permanent injunction, and remand for further proceedings." Association of American Medical Colleges, 928 F.2d at 526. In 1992, Congress endorsed the decision in Wright v. Warner Books, Inc. by adding the following sentence to the end of 17 U.S.C. 107: "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors." Act of Oct. 24, 1992, Pub. L. No. 102-492, 106 Stat. 3145. See also 17 U.S.C. 107; 3 M. Nimmer & D. Nimmer, Nimmer on Copyright, sec. 13.05[A] (1994). The leading treatise on copyright law notes Congress not only endorsed the opinion in Wright, but wished to go further in protecting the right to free expression and limiting the protection of unpublished works: "The motivation for this amendment arose out of 'concerns by some biographers, historians, and publishers that their ability to use unpublished primary source materials such as copyrighted letters and diaries have been limited' by the Second Circuit decisions [in cases prior to Wright]. The legislative history asserts that 'the Wright opinion properly balanced all of the fair use factors.' But Congress wished to go further, and to 'disavow certain troublesome language in [an earlier] opinion . . . that unpublished works 'normally enjoy complete protection against copying any protected expression.'" 3 M. Nimmer & D. Nimmer, Nimmer on Copyright, sec. 13.05[A] (1994) (footnotes omitted, quoting H.R. Rep. No. 102-286, 102d Cong., 2d Sess. 8 (1992)). The House Committee on the Judiciary made it clear that: "'The purpose of [the amendment] is to clarify the intent of Congress that there be no per se rule barring claims of fair use of [un]published works." Id. at n. 204 (quoting H.R. Rep. No. 102-286, 102d Cong., 2d Sess. 1 (1992)). The Committee also noted, "'that the Wright opinion did not reach the outer limits of what might be regarded as fair use.'" Id. at n. 198 (quoting H.R. Rep. No. 102-286, 102d Cong., 2d Sess. 8 (1992)). The Committee concluded: "'For example, in some circumstances, it would be a fair use to copy an author's unpublished expression where necessary to report fairly and accurately a fact set forth in the author's writings. Additionally, as Judge Leval has written: 'Often, it is the words used by [a] public figure (or the particular manner of expression) that are the facts calling for comment.''" Id. at n. 199 (quoting H.R. Rep. No. 102-286, 102d Cong., 2d Sess. 8 (1992)). Finally, it is important to note that Ms. Kobrin assumes the OT VII materials qualify as "unpublished." This may or may not be true depending on limits placed on exposure to the materials and the security precautions used. See Association of American Medical Colleges v. Cuomo, 928 F.2d 519, (2nd Cir. 1991), cert. denied, 502 U.S. 862, 112 S.Ct. 184, 60, 116 L.Ed.2d 146 (1991) (medical college admission test qualifies as unpublished work). See also National Conference of Bar Examiners v. Multistate Legal Studies, Inc., 692 F.2d 478, 486 n. 8 (7th Cir. 1982), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983) (multistate bar exam would probably be classified as an unpublished work). This is a very difficult area of the law. However, the decisions in Wright v. Warner Books, Inc., Arica Inst., Inc. v. Palmer, and Association of American Medical Colleges v. Cuomo, as well as the recent amendment of 17 U.S.C. 107, indicate that, even assuming the OT VII materials qualify as "unpublished," one may be able to quote and/or paraphrase portions of the OT VII materials in the context of "criticism, comment, news reporting, teaching . . . , scholarship, or research" (see 17 U.S.C. 107) within the limits of protected fair use without copyright (as opposed to trade secret) liability. As demonstrated above, Ms. Kobrin's statement that, "[n]o case in the United States has ever found fair use to apply to copying unpublished materials," is simply false. Obviously, the above discussion does not address Ms. Kobrin's contention that no one can properly quote, paraphrase, or discuss the OT VII materials because they are trade secrets. That discussion is for another post [if I have time :)]. The standard disclaimers apply. I am not purporting to act as legal counsel for anyone. The arguments made above are solely for the purpose of discussion. My research has not been exhaustive. I express no opinion on whether anyone could in fact be held liable for quoting or paraphrasing the OT VII materials. I welcome commentary and correction by others. Obviously, all interested parties should confer with legal counsel before taking any action, or deciding to refrain from taking any action. *** Elvis Cole. ************************************************************** In message #87889 on July 12, 1995, William Barwell (wbarwell@Starbase.NeoSoft.COM ) stated: >Found in me mailbox. >Display message >Message 21/148 From Helena Kobrin >Jul 12, 95 02:32:50 pm -0700 > >X-Provider: NeoSoft, Inc.: Internet Service Provider >(713) 968-5800 >Date: Wed, 12 Jul 1995 14:32:50 -0700 (PDT) >Subject: >To: wbarwell@Starbase.Neosoft.COM > > >Dear Mr. Barwell: > > I represent Religious Technology Center ("RTC"), the >owner of the confidential Advanced Technology of the religion >of Scientology, and the holder of the exclusive rights under >the copyrights applicable to the Advanced Technology >materials. Among these copyrighted and confidential >materials are the Advanced Technology materials of a level >known as "OT VII." The copyright for OT VII is registered >with the United States Copyright Office. > I have been informed that you have posted on >alt.religion.scientology a portion of the OT VII materials >without the authorization of my client, who, of course, would >not have given such authorization had it been requested. >Your action violates my client's legal rights in that it is >the unauthorized making of an electronic copy of the >copyrighted material and the unauthorized disclosure of trade >secrets materials. > > These actions constitute violations of applicable >copyright laws and trade secret misappropriation entitling >our client to damages and an injunction. It is essential >that you take immediate and effective action to remove the >unauthorized copy from the Internet, and that you refrain >from any repetition of this or similar acts in the future. >You are also to delete these and any other OT materials from >your hard drive and any floppy disks and to destroy any hard >copies you have made. > > In addition, your downloading of the copyrighted and >trade secret OT VII materials also violates laws prohibiting >copyright infringement and trade secret misappropriation. >Your use and disclosure of these materials is *not* fair use. >No case in the United States has ever found fair use to apply >to copying unpublished materials, as even Dennis Erlich's >attorney had to admit in open court. There is also no fair >use defense to trade secret misappropriation. > > I will expect an immediate response from you with a >statement of your willingness to comply with these demands. >If you do not comply immediately, we will have no other >recourse but to initiate legal action to compel compliance. > > Sincerely, > Helena K. Kobrin > > [Remainder of post deleted.] -----BEGIN PGP SIGNATURE----- Version: 2.6.2 Comment: Elvis.Cole@alt.anonymous.messages iQCVAwUBMBGb9DU+2OZrHxKBAQFnBAP+Kr/h/6pRTctLnJI4mOG7FNINe9naVtZ3 Ue3rXfxLcvgdrDOLFuTQcfEl359qHxkY4BCXLRPNVgT1IVp1DXb2pIOYqv6JD3CE cNVvwMVakBEX/LSuWQGJQSwmO4bt7pnTKO/4NgBbDEuXfHWuGpIjHOqN7J8NAjSp xrHorEEGhtM= =QuTL -----END PGP SIGNATURE-----


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