Silencing Scientology's critics on the Internet: a mission impossible?
In January of this year, 34 Hollywood celebrities, including Goldie
Hawn, Dustin Hoffman, and Oliver Stone, signed an open letter to German
Chancellor Helmet Kohl, likening his government's persecution of the
Church of Scientology to Nazi persecution of the Jews in the 1930s. The
letter ran in a full-page ad in several newspapers, including the
International Herald Tribune. It was conceived by Bertram Fields, Tom
Cruise's lawyer, after the youth wing of Kohl's Christian Democratic
Union party called for a boycott of Mission Impossible, because Cruise,
the movie's star, is a Scientologist.
Hostility toward Scientology is not new. The German government makes no
secret of its opinion that the Church of Scientology is a dangerous
organization. And, while the federal government of Germany has not taken
any legislative action against the church, the State of Bavaria requires
that all individuals seeking public service jobs declare whether they
are Scientologists. For the fourth year in a row, the U.S. State
Department has rebuked Germany for its treatment of Scientologists in
its annual human fights report.
Boycotts and threats of censure are not foreign to the Church of
Scientology. History shows, however, that it is often the church
restricting access to its materials, rather than being on the receiving
end of attempts to censor materials. In the United States, the church
has recently asked courts for help in that sphere of battle--halting
what they claim is illegal dissemination of their doctrines via the
Internet.
There is an irony to the church's request for help. While every religion
lays claims to a system of beliefs and the fight to put those beliefs
into practice, most religions distinguish their belief systems through
instruction and evangelization--and the courts have upheld their fight
to do so. However, most religions have not put a price tag on their
belief systems or tried to hold others liable for sharing ideas with
non-believers. The Church of Scientology, however, has brought numerous
lawsuits, most recently for dissemination of its texts via the Internet,
for just those reasons and, in many instances, the courts have upheld
their fights to classify their beliefs as proprietary material. Yet,
serious questions remain on several issues: the separation of church and
state, the idea that religious beliefs can be copyrighted and, the
latest furor, the legality of dissemination of such materials through
the technology of the Internet.
The Church of Scientology traditionally has attempted to silence its
critics through defamation suits, but recently it has adopted a new
tactic. Instead of using defamation, which is difficult for the
church--an admitted public figure--to prove, it has learned to wage its
battles using copyright law.(1) Copyright, unlike defamation, is a
strict liability law. It requires no proof of actual malice or even
knowledge of the infringement. For a claim of copyright infringement to
be successful, the copyright holder is required to prove only ownership
of copyright to the material in question and copying of the copyrighted
work.(2) Defamation, on the other hand, requires the plaintiff to prove
that the defendant knew a statement made about the plaintiff was false
and published it anyway, either with actual malice or with reckless
disregard for the truth. Defamation's stricter standard is based on the
principle that debate on issues of public importance should be
uninhibited.(3) Copyright has not been thought to need a strict standard
of review to prevent it from interfering with the First Amendment's
guarantee of free speech and press. This is because copyright is only
intended to protect the way in which an idea is expressed, not the idea
itself. The church's recent cyberspace battles, however, indicate its
intention to guard the ideas themselves.
Since 1995, Religious Technology Center, the church's publishing arm,
has filed four lawsuits alleging copyright infringement and trade secret
misappropriation against Internet users and service providers. The first
suit was filed in San Jose, California, against Dennis Erlich, a former
Scientology minister who posted the church's secret texts on a bulletin
board service. The church also sued the bulletin board service operator
and the operator's Internet service provider. The second suit was filed
in Arlington, Virginia, against Arnaldo Lerma, also a former
Scientologist turned critic. In this case, the church not only sued
Lerma's Internet service provider, but the Washington Post, who quoted
him and some of the Scientology texts he posted in an article about the
church. The third suit was filed in Colorado against F.A.C.T.Net, a
nonprofit archive and bulletin board service devoted to publishing
information about Scientology and other organizations it deems coercive.
F.A.C.T.Net earned the church's ire when it issued a statement in
support of Lerma, urging others to post Scientology documents en mass.
The latest suit was filed in San Jose, California, against
self-proclaimed free speech zealot Grady Ward. Ward was slapped with a
temporary restraining order when he requested copies of Scientology
texts that had triggered the other three lawsuits from an anonymously
published electronic magazine called "Scamizdat."
In each of these cases, the church not only sued for copyright
infringement but for trade secret misappropriation. Copyright
infringement occurs when someone violates the exclusive rights of a
copyright owner to reproduce, distribute, perform, display, or make
derivative works based on a copyrighted work.(4) A trade secret is
information that has economic value from not being generally known. A
trade secret is misappropriated when it is disclosed or used by another
without the consent of the trade secret rights holder.
The church also obtained writs of seizure entitling its representatives,
accompanied by law enforcement authorities, to seize all Scientology
documents in the defendants' possession and, in some cases, their
personal computer equipment. Seizures are rare in copyright cases
involving no allegation of infringement for economic gain. Usually, they
are reserved for counterfeiting cases, involving the manufacture of
videotapes or software. In none of these cases were the defendants
motivated by profit; they had made no attempt to charge for access to
the Scientology documents. They simply wanted the church's doctrine to
be known publicly. But the writings they disseminated constituted the
spiritual and economic backbone of the church, and the courts were
persuaded that immediate action was necessary.
I. THE CHURCH OF SCIENTOLOGY
The texts disseminated by the defendants were the writings of church
founder L. Ron Hubbard, an ex-science fiction writer who claimed that
human beings are material manifestations of immortal spirits called
Thetans. According to Hubbard, approximately 95 million years ago Xenu,
the evil head of the 76-planet Galactic Confederation, solved
overpopulation by killing people, freezing their spirits (Thetans), and
sending them to Teegeeack (Earth). During the transfer, Thetans were
implanted with false memories to render them servile. Humans can clear
away the Thetan implants and restore their original power through a
process called auditing, which is done by the church. During the
auditing procedure, Scientologists are attached to a type of lie
detector called an Electropsychometer, or E-meter, while they unburden
themselves of past experiences. By auditing themselves and studying
Hubbard's texts, Scientologists believe they can become "Operating
Thetans"--superhuman beings who can act independently of their physical
bodies and cause physical events to occur through sheer force of will.
Hubbard wrote eight levels of Operating Thetan (OT) (sometimes called
Advanced Technology) materials, which reveal the entire story and
provide step-by-step instructions for achieving superhuman status.
Church members deemed spiritually ready to study the materials move
through them, level by level, after paying "fixed donations" that total
tens of thousands of dollars. Because the OT materials are kept under
tight security at all times, church members and non-members have no
other way to access the documents.
The Church of Scientology maintains that its texts are trade secrets. In
Religious Technology Center v. Wollersheim, the church argued that its
adherents would suffer irreparable spiritual injury if a rival church,
called the Church of the New Civilization, were allowed to disseminate
them.(5) The Church of Scientology was granted a preliminary injunction,
but the Ninth Circuit Court of Appeals vacated the injunction. The court
of appeals held that, under California law, trade secrets were only
protected because of their economic value. So, five years later, when
the church sued Enid Vien, a former Scientologist who was using OT
materials in a scientology-like course, for copyright and trade secret
violations, it based its case on a theory of economic harm--and won.(6)
Religious Technology Center director Warren McShane testified that the
church derives significant revenue from the fixed donations its members
pay to study the texts.
In those cases, the court did not consider the religious nature of the
work to bar claims for copyright or trade secret protection. The court
cited Religious Technology Center, Church of Scientology International,
Inc. v. Scott, for example, which held that religious material can
qualify as a trade secret under California law if it confers on its
owner an actual economic advantage over competitors.(7) Nor did the
Ninth Circuit consider the enforcement of the plaintiffs rights to
violate the establishment or free exercise clause. On this matter, the
court referred to dicta in United Christian Scientists v. Christian
Science Board of Directors, First Church of Christ Scientist, stating
that "normally, a grant of copyright on a religious work poses no
constitutional difficulty. Religious works are eligible for protection
under general copyright laws."(8) The Ninth Circuit's reliance upon this
quote, however, is somewhat misleading because it was taken out of
context. United Christian Scientists v. Christian Science Board of
Directors, First Church of Christ Scientist involved a constitutional
challenge to a private law granting First Church copyrights to works
written by its founder, Mary Baker Eddy, after they had fallen into the
public domain. In the quote above, the court was making the point that
although normally copyright protection on religious works does not
create a constitutional problem, it did in this case.
United Christian Scientists v. Christian Science Board of Directors,
First Church of Christ Scientist involved the first attempt by a church
to use copyright law to restrict the dissemination of ideas. The
plaintiffs in the case, United Christian Scientists, a dissident group
of Christian Scientists, challenged a private law passed by Congress,
giving all rights to Eddy's works to First Church of Christ Scientist.
The law prevented United Christian Scientists from publishing the 1910
edition of Eddy's famous work, Science and Health with Key to the
Scriptures, which they considered to be her final word on the Christian
Science faith. First Church disseminates an earlier version written in
1906 that is substantially different on several points. United Christian
Scientists feared that First Church would sue them for copyright
infringement if they were to publish the later editions.(9) They argued
that the law curtailed their freedoms of speech and religion. The court
found it unnecessary to pursue the freedom of speech challenge, because
it determined that Congress' enactment of a private law to benefit First
Church violated the establishment clause and the free exercise clause.
While both United Christian Scientists v. First Church and the
Scientology cases discussed in this article represent attempts by
churches to use copyright law to control the dissemination of ideas, the
cases are readily distinguishable. Unlike United Christian Scientists v.
First Church, the Scientology cases discussed here do not involve the
enactment of a private law. Nor have L. Ron Hubbard's works fallen into
the public domain. In fact, the Advanced Technology documents are
available only to those members who have paid the required donation, in
contrast to other faiths that seek to make their religious doctrine
accessible to members and nonmembers alike.(10) Unlike First Church of
Christ Scientist, the Church of Scientology can argue that it is simply
exercising its fights under traditional copyright law to protect its
copyrighted works. In doing so, however, it effectively has eliminated
public scrutiny of its doctrine and has attempted to frustrate attempts
at fair use that arguably would be valid under the Copyright Act and the
First Amendment.
II. WHY THE SECRECY?
McShane has stated that Hubbard's writings "may seem weird" to
individuals who do not have the requisite training in Scientology. But a
religion's believability has no bearing on whether it is considered
valid under U.S. law. In United States v. Ballard, for example, the
leaders of the "I Am" religion were indicted for mail fraud.(11) The
religion's founder, Guy Ballard, claimed to have met a Master Saint
Germain who endowed him with the power to cure diseases. Ballard's widow
and son were charged with making claims about curing diseases they knew
were false. The Supreme Court held that the jury could not rule on
whether the Ballards' claims were true or false, only whether they
sincerely believed the claims they made. "Men may believe what they
cannot prove," Justice Douglas wrote. "[Religious] experiences which are
as real as life to some may be incomprehensible to others. [If] one
could be sent to jail because a jury in a hostile environment found
[his] teachings false, little indeed would be left of religious
freedom."(12)
The Supreme Court has also recognized a great variety of belief systems
in the United States without judging their followers. In United States
v. Seeger, a case involving a conscientious objector's right to be
exempt from military service, the Court pointed out that there "are
those who think of God as the depth of our being; others, such as the
Buddhists, strive for a state of lasting rest through self-denial and
inner purification; [while] in Hindu philosophy the Supreme Being is the
transcendental reality which is truth, knowledge and bliss."(13) The
Court's test for religion traditionally has been "whether a given belief
that is sincere and meaningful occupies a place in the life of its
possessor parallel to that filled by the orthodox belief in God."(14)
The United States Court of Appeals for the District of Columbia found
that Scientology was prima facie a religion in 1969.(15) The court held
that "the fact that [Scientology] postulates no deity in the
conventional sense does not preclude its status as a religion."(16)
Scientology was officially recognized as a religion by the Internal
Revenue Service in 1993, when the IRS granted the church tax-exempt
status after almost 40 years.(17) The Church of Scientology has also
gained tax-exempt status in Australia.
What makes the Church of Scientology controversial is not so much
Hubbard's teachings, but the church's tenacious secrecy and the extremes
to which it is willing to go to protect itself. In 1978, L. Ron
Hubbard's wife, Mary Sue Hubbard, and ten other Scientologists were
indicted on charges of electronically intercepting oral IRS
communications, forging government passes, illegally entering government
buildings, recruiting Scientologists to infiltrate the government,
stealing records belonging to the IRS, Justice Department, and the U.S.
Attorney's office, conspiring to illegally obtain documents in the
possession of the United States, and to obstruct justice.(18) All eleven
were convicted. The illegal activities were the result of an off-hand
remark made by a district court judge in 1976, which convinced church
officials that the government knew something incriminating about
Hubbard. Scientologists claim to have purged such radical elements from
the church in the 1980s, but they still fight tooth and nail to protect
their image. In fact, lawyers opposing the church often cite one of
Hubbard's quotes in which he said that "[t]he law can be used very
easily to harass, and ... will generally be sufficient to cause [an
opponent's] professional decease. If possible, of course, ruin him
utterly."(19)
III. THE CHURCH AND THE INTERNET
The seeds for the church's Internet litigation actually were planted in
May 1991, when Time magazine published a cover story about the church
called "Scientology: The Cult of Greed." The article's author, Richard
Behar, quoted former Scientologist Steven Fishman, who accused the
church of attempting to coerce him to commit fraud, murder, and suicide.
The church sued Fishman in 1991 for defamation in the U.S. District
Court for the Central District of California.(20) In 1992, a week before
the statute of limitations expired, the church also filed a $415 million
libel suit against Time.(21) The last claim in the suit was dismissed by
a federal judge in New York in July 1996.(22)
In the course of that trial, Fishman submitted 69 pages of secret
Operating Thetan materials to the court in his defense. Copies of the
documents were placed in a Los Angeles court file that was available
publicly for two years. During that period, eight church members
attempted to protect the documents' secrecy by alternately checking out
the files each day and retaining them until the clerk's office closed.
Despite their efforts, a few copies were made. The files finally were
sealed in August 1995.
On December 24, 1994, using an anonymous remailer in the Netherlands,
someone posted several of the Operating Thetan documents to an Internet
news group called alt.religion.scientology. The articles caught the
attention of Dennis Erlich, a former Scientology minister, who left the
church in 1982 after completing seven levels of OT training. Erlich
posted articles commenting on the texts and pronounced them genuine.
A week later, Erlich's commentary, the Fishman documents, and several
other messages posted by Scientology critics to alt.religion.scientology
were deleted. The unknown person responsible for the cancellations was
dubbed the "Canclepoodle," a derivation of "Canclemoose." The
Canclemoose--an anonymous person who cancels indiscriminate mass
postings of articles known as "spam"--is generally accepted by the
Usenet community because the cancellations are not content specific. But
in the case of the so-called Canclepoodle, messages critical of
Scientology were targeted and, in many instances, replaced with the
posting: "Canceled because of copyright infringement." Newsgroup users
complained that many of the postings canceled had contained no
copyrighted material, or were well within the bounds of fair use. One of
the documents canceled, for example, was a December 1994 court document
describing criminal proceedings initiated in Spain against Church
president Heber Jentzsch and leading Spanish Scientologists. Regular
participants on the alt.religion.scientology newsgroup, countered the
Canclepoodle by reposting documents on alt.religion.scientology and a
variety of other newsgroups, widening the circle of dissemination. Some
of the hackers even wrote "hot potato" programs, which automatically
posted deleted messages to other sites. Thus, each attempt to delete a
message only triggered its move to another location.(23)
In January 1995, Helena Kobrin, an attorney for the Religious Technology
Center, attempted to have alt.religion.scientology removed from the
Internet. She sent a message to servers providing access to the
newsgroup, arguing that alt.religion.scientology was started with a
forged message, its name was a trademark violation, it was used mainly
to attack the Scientology religion, and it was used for copyright and
trade secret violations. Kobrin's action attracted the attention of
other site administrators who interpreted her action as censorship and
rose to alt.religion.scientology's defense. The attempt to delete the
newsgroup not only failed, but drew other Internet users committed to
free speech rights to the alt.religion.scientology site.
In February 1995, Religious Technology Center filed a lawsuit against
Dennis Erlich for violating its copyrights on the Internet. The suit
also named Tom Klemesrud, the operator of the bulletin board service
Erlich used to post the documents, and Netcom On-line Communications,
Klemesrud's Internet service provider.(24) A San Jose, California, court
issued a temporary restraining order enjoining them from further
dissemination of Hubbard's copyrighted works. It also ordered the
seizure of any of the church's copyrighted documents in Erlich's
possession. During a seven-hour period on February 13, 1995, more than
360 computer disks, two 120 MB backup tapes and 29 books were taken from
Erlich's residence. Erlich complains that the materials taken from his
home and deleted from his hard drive included much more than what was
described on the writ of seizure. He also says he was refused the right
to look at what was copied from his computer.
The raid on Erlich's home and the suit against his Internet service
providers galvanized many Internet users against the Church of
Scientology. New Web pages were created to keep track of documents and
people involved in the litigation in the Erlich/Netcom case. Affidavits,
pleadings, and declarations from other Scientology cases also began to
show up on the Internet. As one commentator pointed out, "The church ...
made enemies of a host of people who had previously not even registered
its existence."(25)
The rest of the summer, Scamizdat, an electronic magazine that publishes
any Scientology texts its anonymous editors can put their hands on, and
other Internet content providers posted OT documents to sites throughout
the Internet. Pieces of the Fishman affidavit appeared on servers in
Finland, Germany, even China.(26) Then, on July 31, 1995, the Fishman
affidavit reappeared on alt.religion.scientology.
The Fishman affidavit was posted by Arnaldo Lerma, another former
Scientologist. Lerma was a board member of F.A.C.T.Net, a nonprofit
archive with an electronic bulletin board service devoted to fighting
groups that rely on mind control. Its acronym stands for "Fight Against
Coercive Tactics." F.A.C.T.Net's executive director, Larry Wollersheim,
also is a former Scientologist. He was sued in the 1980s by the church
when he obtained some of the OT documents.(27) Wollersheim, who won his
fight against the church, had amassed an extensive library on
Scientology, including the Fishman affidavit. When Lerma was asked where
he got the Fishman affidavit, he first said he believed it came from
F.A.C.T.Net's archives. Then he changed his story, saying he wasn't sure
where he had gotten it.
Lerma also sent a copy of the document to a Washington Post reporter. An
attorney for the Religious Technology Center discovered the exchange and
told the Washington Post the document might have been stolen. The Post
was asked to return it, and the newspaper did so, but not before sending
a stringer to obtain another copy from the U.S. District Court in
California's Central District, where it was publicly available.
Then, on August 11, 1995, Religious Technology Center filed suit for
copyright infringement against Lerma and his Internet service provider,
Digital Gateway Systems. An Arlington, Virginia, court ordered the
seizure of Lerma's personal computer, floppy disks, and any copies of
Scientology's copyrighted works found in his home. Accompanied by
federal marshals, Religious Technology Center representatives searched
his home and made copies of 139 disks documenting e-mail, which Lerma
says have never been returned. Leonie Brinkema, the judge in the case,
was not aware that Lerma's postings were based on a publicly available
document.
On August 15, F.A.C.T.Net issued a statement in support of Lerma, saying
that Lerma made the postings as a F.A.C.T.Net director. The statement
said that although, F.A.C.T.Net normally did not advocate copyright
infringement, dissemination of the Fishman affidavit would result in the
sort of public debate that the organization encouraged. It said:
The response of those trying to protect public dialog and the
libraries and archives that preserve the information for this debate
must be OVERWHELMING! ... F.A.C.T.Net and a corps of
emergency volunteers needs to immediately begin putting up 100-1,000
times more Fishman affidavit-type public records on
Scientology into worldwide distribution on the Internet. Scientology
needs to learn that attacking critics, illegal and immoral raids, do not
work anymore.(28)
Three days later, church lawyers responded to F.A.C.T.Net's call for
more copyright infringement by filing suit against it in Virginia, in
conjunction with the Lerma case, and separately in Colorado where
F.A.C.T.Net is based.(29) The suit included the president of
F.A.C.T.Net's board, Robert Penny, and Larry Wollersheim. Judge Lewis
Babcock of the District of Colorado issued a temporary restraining order
enjoining F.A.C.T.Net from using or reproducing copyrighted Scientology
documents. He also issued a writ ordering the seizure of the infringing
documents in F.A.C.T.Net's possession, including computer equipment and
hundreds of computer disks.
The following day, the Washington Post published an article entitled
"Church in Cyberspace: Its Secret Writ is on the Net. Its Lawyers Are on
the Case." The article discussed RTC's suit against Lerma and the
seizure of his computer equipment, the history of Scientology litigation
against its critics, and the growing use of the Internet by its critics.
It also included three brief quotes, amounting to 46 words from the
Operating Thetan texts. Even that minimal use, normally falling under
the sphere of fair use, was considered an infringement by the church.
Three days later, Religious Technology Center responded by adding the
Washington Post and two of its reporters to the lawsuit already filed
against Lerma and Digital Gateway Systems.
On September 15, Judge John Kane Jr. (U.S. District Court Judge for the
Colorado District) decided that the church was unlikely to win its
copyright and trade secret suits against F.A.C.T.Net and denied its
request for a preliminary injunction. The judge reasoned that
F.A.C.T.Net had made fair use of the documents, many of which already
appeared to be in the public domain. Judge Kane said:
The alleged copying by the defendants was not of a commercial
nature. Rather, it was made for nonprofit purposes to advance
understanding of issues concerning the church, which are the
subject of ongoing public controversy.... The postings may well be
considered as having been made for the purposes of criticism,
comment, or research falling within the fair use doctrine.(30)
Judge Kane also concluded that the Fishman materials posted by Lerma
were not trade secrets because they "were widely known outside of the
church through multiple sources."(31) He ordered F.A.C.T.Net's seized
computer equipment and disks be returned.(32) F.A.C.T.Net later
complained that much of the material on the disks had been deleted. The
same day, Judge Brinkema in Virginia denied Religious Technology
Center's motion for a preliminary injunction against Lerma and Digital
Gateway Systems on the trade secret claim, vacated the writ of seizure
against Lerma, and ordered the return of his possessions.(33) Like Judge
Kane, she concluded that the Fishman materials were not trade secrets.
The following week, in San Jose, California, U.S. District Judge Ronald
Whyte also denied the church an injunction against Erlich and Netcom for
misappropriation of trade secrets, concluding that they were already
"generally available to the public."(34) He also vacated his writ of
seizure, ordering Erlich's possessions to be returned. But he granted
the church a preliminary injunction against Erlich, because he thought
it was likely to prevail on its suit against him for copyright
infringement.
A month later, Judge Whyte granted Klemesrud, the bulletin board service
operator, and Netcom, the Internet service provider, summary judgment on
RTC's claims against them for direct and vicarious infringement.(35) He
held that neither Klemesrud nor Netcom could be directly liable for
copyright infringement because neither had actively participated in
Erlich's dissemination of Scientology materials.(36) He also refused to
hold them vicariously liable because neither had profited from the
infringement.(37) Judge Whyte, however, said that he could not exonerate
them from contributory liability because there was "a genuine issue as
to whether Netcom knew of any infringement by Erlich before it was too
late to do anything about it."(38) The church had informed Klemesrud and
Netcom of Erlich's violation before his last posting and neither had
moved to disconnect him.(39)
When the church informed Klemesrud and Netcom of Erlich's infringing
activities, they said they needed proof that the church held copyrights
to the materials in question before taking action against Erlich, but
the church refused to supply it. Judge Whyte pointed out in his opinion
that the church's failure to provide documentation of its copyright to
Klemesrud and Netcom might constitute a fair use defense.(40) However,
both Netcom(41) and Klemesrud(42) eventually settled the case out of
court.
Meanwhile, back in Virginia, Judge Brinkema granted the Washington
Post's motion for summary judgment on the copyright claim filed against
it by Religious Technology Center.(43) She called the suit
"reprehensible," adding that "[a]lthough the RTC brought the complaint
under traditional secular concepts of copyright and trade secret law, it
has become clear that a much broader motivation prevailed--the stifling
of criticism and dissent of the religious practices of Scientology and
the destruction of its opponents."(44)
Curiously however, Judge Brinkema did not extend the same consideration
to Lerma or his Internet service provider. On December 1, 1995, no
longer able to afford the cost of a protracted legal battle over its
liability for Lerma's infringement, Vienna, Virginia-based Digital
Gateway Systems settled with the church out of court. The details of the
settlement remain confidential, but in an interview before the
settlement, the company's president, Robert Carter, said that the
eighteen-month-old company's legal bills were crushing, with $ 100,000
expended since the suit was filed in August.(45)
In January, Judge Brinkema granted Religious Technology Center's motion
for summary judgment against Lerma for copyright infringement.(46) His
attorneys had argued that although Lerma did not attach comments to the
Fishman affidavit, his ongoing contributions to the debate on
alt.religion.scientology should indicate that his posting of the
materials was for the purpose of criticism and comment. They argued that
the postings should be considered together like a series of newspaper
articles.(47) But Judge Brinkema was not convinced, saying that the
Internet was a "floating medium" in which materials appear and
disappear. Lerma was fined $2,500. His court costs amounted to almost
$20,000.
In March 1996, Religious Technology Center filed its latest suit for
copyright infringement and trade secret misappropriation. The church
filed suit against Grady Ward of Arcata, California, when he submitted
an online request for a copy of the Fishman affidavit from
Scamizdat.(48) Unlike many of Scientology's other critics, Ward has
never been a church member. He said he became interested in the church
when he read of its efforts to suppress Internet postings and decided to
jump into the fray.(49) Ward has admitted to posting about 1,000 words
of the secret Scientology scriptures to the Internet over the past year
and a half, but believes his postings fall within copyright's fair use
exemption.(50) He was quoted as saying, "I never served in Vietnam. I
feel I owe a couple years of service to my country. This is my service
to my country--I'm defending the Constitution."(51) His trial is
scheduled for Jan. 18, 1998.
IV. Other Tactics to Block Access
In June 1996, alt.religion.scientology was overwhelmed by a "vertical
spam." To spam a newsgroup is to flood it with off-topic postings
rendering it unusable. More than 1,000 posts a day flooded the news
group, carrying fake e-mail addresses and a note that "much false
information" was being distributed about Scientology on the
newsgroup.(52) The church has denied any involvement in the postings.
The church's efforts to stop its texts from being posted to
alt.religion.scientology also have led to litigation outside the United
States. On February 2, 1995, the church contacted Johan Helsingius, a
resident of Finland and the operator of the most-used anonymous remailer
on the Internet--anon.penet.fi--informing him that his remailer had been
used to post documents violating the church's copyright to
alt.religion.scientology and requesting the identity of the poster.
Helsingius explained that he could not reveal that information. The next
week, Finnish police arrived at his home with a warrant entitling them
to seize information about all of the system's users. Helsingius went to
court to protect his users' privacy.
On September 16, 1996, Helsingius announced his decision to discontinue
the remailer he had run as a hobby for the purpose of providing free
speech since November 1993. In late August, the District Court of
Helsinki ruled that he had to divulge the true E-mail address of a
penet.fi user who posted Scientology's copyrighted secrets to an
Internet news group.(53) Helsingius appealed the decision and September
20, 1996, the Helsinki Court of Appeal issued a temporary injunction on
the enforcement of the district court order.
V. Regarding Fair Use
Church officials vehemently insist that their purpose is not to silence
critics of Scientology, but to protect the integrity of the church's
copyrighted documents. On its Web site, the church maintains that the
purpose for copyrighting its doctrine is to provide:
a legal mechanism for ensuring that the Scientology religious
technologies were orthodox and ministered according to the
scriptures. They also provide a legal mechanism to prevent anyone
from practicing in a non-orthodox manner or engaging in some
distorted use of Mr. Hubbard's writings, while then claiming it is
standard Dianetics or Scientology.(54)
Church secrecy, however, prevents the public from having any access to
these documents. That violates the purpose of the law. Copyright is
intended to protect the expression of ideas, not the ideas themselves.
Its purpose is to encourage scholarly and creative contribution to the
pool of knowledge. The Supreme Court has made this point numerous times,
saying, for example, "The economic philosophy behind the clause ... is
the conviction that encouragement of individual effort by personal gain
is the best way to advance the public welfare through the talents of
authors and inventors."(55) And in Sony, the Court stated that
[t]he monopoly privileges that Congress may authorize are neither
unlimited nor primarily designed to provide a special private benefit.
Rather, the limited grant is a means by which an important public
purpose may be achieved. It is intended to motivate the creative
activity of authors ... by the provision of a special reward, and to
allow the public access to the products of their genius after the
limited period of exclusive control has expired.(56)
And in Harper & Row, Publishers, Inc. v. Nation Enterprises, stating
that "it should not be forgotten that the Framers intended copyright
itself to be the engine of free expression. By establishing a marketable
right to the use of one's expression, copyright supplies the economic
incentive to create and disseminate ideas."(57)
The primary objective of copyright is not to reward the labor of
authors, but "[t]o promote the Progress of Science and useful Arts." To
this end, copyright assures authors the right in their original
expression, but encourages others to build freely upon the ideas and
information conveyed by a work.(58)
To enable individuals to learn from and build on the information
provided in copyrighted works, the doctrine of fair use creates a
limited exemption from copyright infringement liability. Traditionally a
judge-made doctrine, fair use was incorporated into the 1976 Copyright
Act specifically for the purpose of encouraging "criticism, comment,
news reporting, teaching, scholarship or research."(59)
Four factors are considered in determining whether a use of a work is
fair: (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 copyrightable 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.(60)
Regarding the first factor, in each of the four claims above, the
copyrighted work was used for purposes of criticism, comment, reporting,
teaching, research, and scholarship. Moreover, all of the uses were
non-profit, which generally weighs in favor of the defendant. The
importance of the second factor--the nature of the work--to a fair use
claim depends on how the court views the material in question. In Bridge
Publications v. Vein, the court considered the church's copyrighted work
to be "creative, as opposed to informational," which weighed against the
defendant's argument for fair use.(61) But that determination is purely
subjective. Surely members of the church consider the material to be
based on information, not just creative fiction. Otherwise, how could
they support the church? And, as the Supreme Court pointed out in United
States v. Ballard, it is not up to courts to consider the truth or
falsity of a religious belief.(62) Whether the work is fact likely will
not be proved in the immediate future, but it is clearly based on ideas,
which cannot be copyrighted, as well as expression, which can be
protected. As for the third factor, the largest amount of material
disseminated was by Dennis Erlich--154 pages of copyrighted material, 69
pages of which came from the Fishman affidavit. Religious Technology
Center has written that it has more than "40 million words in dozens of
books, thousands of articles and thousands more recorded lectures" under
copyright.(63) Clearly, 154 pages, while a substantial sum, is only a
fraction of the total. Of course, courts have found that the
unauthorized use of even very small amounts of a copyrighted work may be
infringing if the heart of the work is taken. But, in the case of a
religious doctrine, isn't the heart of the work the most worthy of
public discussion? Finally, regarding the fourth factor--the effect of
the use on the potential market for the work-it cannot be said that the
defendants were in competition with the church for a particular market.
They charged nothing for the information. It is uncontested that the
church derives substantial revenue from its fixed donations, but how
necessary is that to its survival? Other religions have survived for
centuries by offering their doctrines to the public without charge. They
subsist on voluntary donations because members derive spiritual value
from their teachings and wish to support them.
In reference to its copyrighted texts, the church states on its Web site
that "[i]t is highly probable that this is the most extensive body of
knowledge ever assembled on the subject of man, his mind, his
capabilities and potentials and the different aspects of his
existence."(64) However, a significant chunk of that information-the
heart of Scientology's doctrine--is not available to the public or
former members of the church. Individuals outside the church cannot
study Scientology texts or engage in constructive debate about the ideas
Scientology espouses without having access to those ideas.
By keeping their ideas under lock and key, the church is forcing
non-Scientologists; who want to read about its doctrine to make a
choice: either join the church or look for information outside the
church, an activity which inevitably involves copyright infringement at
some level. Copyright, after all, prohibits the exercise of exclusive
rights belonging to the copyright holder, including the rights of
reproduction, distribution, and public display. The materials are not
available in libraries or bookstores; only on the Internet. But it is
impossible to exchange copyrighted information on the Internet without
violating these rights--particularly the reproduction right. Before a
document on the Internet can be read, it must be downloaded to a
computer, which involves the making of a copy. Likewise, to place a
document on a bulletin board or Web site for others to read also
implicates the copyright holder's reproduction right as well as rights
to distribution and display.
Even church members are prohibited from reading the OT documents before
they have undergone hours of auditing to attain an adequate level of
spiritual preparation. And, because during the auditing process
Scientologists are hooked up to a lie detector, their beliefs must be
sincere. That means to legally access these documents one must (1)
become a member of the church; (2) pay the required donations; and (3)
accept church doctrine. In other words, one must buy into the church
doctrine literally and figuratively before being allowed to actually
read it. That is profoundly in violation of the spirit of the fair use
doctrine and the purpose of Copyright law.
It also is a violation of the spirit of the Internet. As the Church of
Scientology discovered, trying to plug an information leak in the
Internet is a losing battle. Internet users would prefer there were no
regulations governing their conduct, other than those self-imposed or
understood as "netiquette." Their opposition to the Communications
Decency Act, and its subsequent defeat in the Supreme Court, is
testimony to their tenacity in fighting for what they see as freedom of
speech.(65) It is highly unlikely that the church could ever bring
enough lawsuits to silence that spirit. Not that all lawsuits involving
the Internet have or will become "causes," but the church's conduct in
trying to silence its critics has alerted Internet users to the
possibilities that others may attempt similar measures. And that is
something they will fight with their best weapon--the ease and speed at
which the Internet can be used to multiply and disseminate information
to literally millions of people.
The church's attempts to use copyright to protect the secrecy and
profitability of its texts, raise interesting theoretical questions
about the application of copyright law to religious doctrine. For
example, the purpose of copyright is to secure the rights of authors to
profit from their creative efforts in the hope that a financial
incentive will promote the dissemination of knowledge. But should any
one person or church be entitled to copyright and profit from divine
revelation? If so, what constitutes fair use? Where do the distinctions
lie between ideas and expression? Finally, if scripture can be owned and
sold like any other commodity, what is the value of offering churches
tax-exempt status? These are questions that society as a whole will have
to debate. At this point they are beyond the bounds of our legal system.
VI. Conclusion
Meanwhile, Mission Impossible not only survived its boycott but
benefited from the extra publicity, grossing $23 million in Germany.(66)
Hollywood's missive was less successful. While the letter attracted a
great deal of attention stateside, it has not made a difference in
German policy toward the church. If anything, it only managed to anger
groups like the Anti-Defamation League who considered it an affront to
the memory of the holocaust victims. Nor has the U.S. State Department's
human rights report made any difference to the German government, who
consider it naive.
(1.) 17 U.S.C. [sections] 101 et seq.
(2.) Baxter v. MCA, Inc. 812 F.2d 421,423 (9th Cir.), cert. denied, 484
U.S. 954 (1987).
(3.) New York Times Co. v. Sullivan, 376 U.S. 254,270 (1964).
(4.) 17 U.S.C. [sections] 106, [sections] 501.
(5.) 796 F.2d 1076 (9th Cir. 1986), cert. denied, 479 U.S. 1103 (1987).
(6.) Bridge Publications, Inc. v. Vien, 827 F. Supp. 629 (S.D. Cal
1993).
(7.) 869 F.2d 1306, 1309-10 (9th Cir. 1989).
(8.) 829 F.2d 1152, 1159 (D.C. Cir. 1987).
(9.) United Christian Scientists had reason to suspect that publication
of the 1910 edition would prompt First Church to sue for copyright
infringement, because First Church had sued the group before for
publishing excerpts of the 1906 edition, which was the only one of
Eddy's works that had not fallen into the public domain.
(10.) Mary Baker Eddy's book, upon which the Christian Science faith is
based, is sold to the general public for $18.
(11.) 322 U.S. 78 (1944).
(12.) Id.
(13.) 380 U.S. 163 (1965).
(14.) Id.
(15.) Founding Church of Scientology of Washington, D.C. v. United
States, 409 F.2d 1146 (D.C. Cir. 1969).
(16.) Id at 1160.
(17.) When the IRS granted a tax exemption to the church in 1993, the
church's assets became a matter of public record. Several papers
reported that church assets amounted to $400 million, including a cruise
ship used as a "seagoing religious retreat," two publishing houses, a
2,845-acre California ranch used as a school for the children of church
staffers and more than 45 buildings on 500 acres in Riverside County,
California. See, e.g., Scientology Assets Put at $400 Million, ST. Louis
Post Dispatch, Dec. 26, 1993, at 4G.
(18.) United States v. Hubbard, Crim. No. 78-0401 (D.D.C., findings of
guilt entered Oct. 26, 1979). See also James B. Stewart Jr.,
Scientology's War Against Judges. Am. Law., Dec. 1980, at 35.
(19.) As cited in Alison Frankel, Making Law, Making Enemies;
Scientology's Lawyers Are Pushing the IP Envelope to Keep the Church's
Secret, Sacred Scriptures Off the Internet. But Will Their Heavy-Handed
Tactics Undermine Courtroom Victories? Am. Law., mar. 1996, at 68. See
also Steven Pressman, Litigation Noir. Ford Greene Thought He Knew All
About Hardball Litigation. Then He Sued the Church of Scientology, Cal.
Law., Dec. 1994, at 38.
(20.) Church of Scientology Int'l v. Fishman, No. CV. 91-6426. (C.D.
Cal. 1994).
(21.) Church of Scientology Int'l v. Time Warner, Inc., 806 F. Supp.
1157 (S.D.N.Y. 1992).
(22.) Church of Scientology Int'l v. Time Warner, Inc, 92 Civ. 3024,
(S.D.N.Y. 1996).
(23.) Elizabeth Weise, Scientologists, Foes Wage War on the Internet,
L.A. Times, Aug., 4, 1996, at B4.
(24.) Religious Tech. Ctr. v. Netcom On-Line Communication Servs., Inc.,
No. C-95-20091 (N.D. Cal. 1995).
(25.) Frankel, supra note 19.
(26.) Id.
(27.) In 1986, Wollersheim won a $30 million suit against the church on
his claim of intentional infliction of emotional distress, alleging that
the church had ruined him financially and mentally. It was appealed up
to the U.S. Supreme Court. Eventually the settlement was reduced to $2.5
million.
(28.) Id.
(29.) Religious Tech. Ctr. et al. v. Arnaldo Lerma et al., No. 95 1107A
(E.D. Va. 1995); Religious Tech. Ctr. v. F.A.C.T.Net et al. No.
95-K-2143 (D. Colo. 1995).
(30.) Religious Tech. Cit. v. F.A.C.T.Net, Inc., 901 F. Supp. 1519, 1528
(D. Colo. 1995).
(31.) Id.
(32.) Id.
(33.) Religious Tech. Ctr. v. Lerma, 908 F. Supp. 1353 (E.D. Va. 1995).
(34.) Religious Tech. Ctr. v. Netcom, No. C-95-20091 (N.D. Cal. filed
Sept. 22,1995) at 32.
(35.) Summary judgment is granted when "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(c). There is a "genuine" issue of
material fact only when there is sufficient evidence such that a
reasonable juror could find for the party opposing the motion. See
Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 251-52 (1986).
(36.) Direct infringement occurs when a defendant exercises one or more
of the exclusive rights reserved for the copyright holder in section 106
of the Copyright Act without the copyright holder's permission. Direct
infringement does not require knowledge or intent by the infringer,
although willfulness is relevant to the award of statutory damages. In
Playboy v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993), a bulletin board
system operator was held directly liable for the copyright infringements
of his users, despite his claim that he had no knowledge of the
infringements.
(37.) To be vicariously liable for copyright infringement, a defendant
must have (1) the right and ability to control the infringer's actions
and (2) a direct financial benefit from the infringement. See Shapiro,
Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 306 (2d Cir. 1963).
Liability for vicarious infringement does not require knowledge of the
infringement.
(38.) Religious Tech. Ctr. v. Netcom, 907 F. Supp. 1361, 1374 (1995).
(39.) A defendant may be held contributorily liable for copyright
infringement if the defendant "with knowledge of the infringing
activity, induces, causes, or materially contributes to the infringing
conduct of another." See Gershwin Publishing Corp. v. Columbia Artists
Management, Inc., 443 F.2d 1159, 1162 (2d Cir. 1971). Judge Whyte had
essentially defined Erlich's actions as infringing in an earlier court
order, when he upheld a preliminary injunction against Erlich,
concluding that RTC was likely to prevail on its copyright infringement
claim and that Erlich's actions did not constitute fair use.
Bulletin board system operators have been held liable for contributory
infringement. See Sega Enters. Ltd. v. Maphia, 857 F. Supp. 679, (N.D.
Cal. 1994), in which a bulletin board operator was held contributorily
liable for the copyright infringements of his users when he encouraged
them to upload and download Sega software to and from his system.
(40.) Religious Tech. Ctr. v. Netcom, 907 F. Supp. 1361, 1374 (1995).
(41.) Netcom agreed to settle the copyright suit against it out of
court, when a case decided in January by the Ninth Circuit U.S. Court of
Appeals changed the law of the circuit regarding vicarious liability for
copyright infringement. The case was Fonovisa Inc. v. Cherry Auction,
Inc., No. 94-15717 (Jan. 25, 1996). The Church of Scientology claimed
that the new precedent raised factual issues that precluded Judge
Whyte's summary judgment ruling in favor of Netcom and Klemesrud. The
church filed a February 16 motion for reconsideration, arguing that
Netcom and Klemesrud did not have to derive financial benefit from
Erlich's infringing activities if the presence of the church documents
resulted in increased interest in their services and made them more
attractive to potential customers. See Church Asks ND CA to Reconsider
Summary Judgment Decision, Intell. Prop. Litig. Rep., Mar. 13, 1996, at
17.
(42.) Klemesrud also agreed to settle out of court, or rather his
insurance company did, for $50,000. Klemesrud sent a letter to the Los
Angeles Times in reference to the settlement, saying, "I did not agree
to this. I was forced by the threat of possibly losing my insurance
coverage to go along with my insurance company's wish to pay this token
amount and end the case." See Settlement Doesn't Mean Agreement, L.A.
Times, Aug. 24, 1996, at D2.
(43.) Religious Tech. Ctr. v. Lerma, 908 F. Supp. 1362, 1368 (E.D. Va.
1995).
(44.) Id.
(45.) Mark Walsh, Netcom Ruling No Threat to the 'Net; Companies Say San
Jose Judge Struck Reasonable Balance on Question of Online Infringement,
Recorder, Dec. 13, 1995, at 1.
(46.) Religious Tech. Ctr. v. Lerma et al., No. 95-1107-A (E.D. Va.
1996).
(47.) In Niva Elkin-Koren, Copyright Law and Social Dialogue on the
Information Superhighway: The Case Against Copyright Liability of
Bulletin Board Operators, 13 Cardozo Arts. & ENT. L.J. 345 (1995), the
author elaborates on this argument. Elkin-Koren suggests that bulletin
board users engage in a type of social dialogue when they post
information to a bulletin board or add comments to postings that are
already there. The interactivity that takes place on a bulletin board
and the linking that occurs among messages transforms the bulletin board
content into a cultural product with a meaning of its own that is
separate from and perhaps more valuable than individual postings.
(48.) Religious Tech. Ctr. v. Ward, 96-20207 (N.D. Cal. filed Mar. 21,
1996).
(49.) Deborah Yaffe, Scientologists Get TRO in Internet Copyright
Battle, RECORDER, Mar. 25, 1996, at 4.
(50.) Id.
(51.) Frankel, supra note 19.
(52.) Elizabeth Weise, Foes Wage War on the Internet, L.A. Times, Aug.
4, 1996, at B4 53.
(53.) Joshua Quittner, Requiem for a Go-Between, Time Sept. 16, 1996, at
74.
(54.) Church of Scientology at
(55.) Mazer v. Stein, 347 U.S. 201, 219 (1954).
(56.) Sony Corp. v. Universal City Studios, 464 U.S. 417, 429 (1984).
(57.) 471 U.S. 539, 558 (1985).
(58.) Feist Publication, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340,
349-50 (1991).
(59.) 17 U.S.C. [sections] 107.
(60.) Id.
(61.) Bridge Publications, Inc. v. Vien, 827 F. Supp. 629, 635-36 (S.D.
Cal. 1993).
(62.) 322 U.S. 78 (1944).
(63.)
(64.) Id.
(65.) Reno v. American Civil Liberties Union, No. 96-511, 1997 U.S.
LEXIS 4037 (June 26, 1997).
(66.) Frank Rich, Scientology, Hollywood and the Power of Money, Int'l
Herald Tribune, Jan. 28, 1997, at 9.
Ann Brill is an assistant professor at the University of
Missouri-Columbia School of Journalism, and is research director of
"Digital Missourian," the online newspaper project.
Ashley Packard is an assistant professor of media studies and the
manager of student publications at the University of Houston-Clear Lake.
COPYRIGHT 1997 Fred B. Rothman and Company
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