Silencing Scientology's critics on the Internet: a mission impossible?
Brill, Ann; Packard, Ashley. Communications and the Law 12/97
19:n4. 1-23

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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