Look What I found in Another Newsgroup Page 1 ======== References and posting party deleted. But since a fester of clams has been violating federal law again to keep Judicial Opinions secret (what's next-- secret laws? Oh, I forgot. The IRS already implements that part of cult policy), I thought it worth sharing here. And one other newsfroup, wotthehell. Followups are ill-advised. shelley thomson wrote: = **Biased Journalism** : a net magazine designed to compensate for the shortcomings of the professional news media. We cover issues of interest to the citizens of cyberspace. This is a community newspaper of the net. = Copyright 1996 Shelley Thomson; all rights reserved. = Mail, articles and comment may be directed to .= Netiquette will be observed with all communication, except for the following: harassing or threatening mail will be posted to the net immediately. = **Biased Journalism** Volume 2, issue 19 October 8, 1996. = = Contents: Lerma Decision: $2500 award humiliates RTC Lawyers. The Order; the Memorandum; the Order to Seal = Read at your own risk. This is **Biased Journalism**! = LERMA DECISION: = Goodbye, Suckers, and thanks for all the clams! --netizen = [Judge Leonie Brinkema produced a written decision in the Lerma case on October 4. Lerma was fined $500 apiece for each of five copyright violations. In consideration of his status as pro se, he was not required to pay attorneys' fees. The church, which probably spent upwards of $1,000,000 to produce this result, was unhappy. Attorneys for RTC immediately sought an order to seal the decision. The order was granted, but by then the decision had been distributed in cyberspace and posted to Usenet. Lerma attempted to call the copies back, but to no avail. The information was *loose*. A netizen helpfully provided us with a copy. We apologize for the scanning errors.] = 1. The Order = IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division Look What I found in Another Newsgroup Page 2 = RELIGIOUS TECHNOLOGY CENTER } Plaintiff v. Civil Action No 95-1107-A ARNALDO PAGLIARINI LERMA Defendant) = ORDER = On January 19, 1996 this Court granted summary judgment to the plaintiff on its copyright infringement claim. That ruling was made orally, in open Court, the Court advising the parties that it would explain its reasons in a written opinion and thereafter give the parties an opportunity to address remedies. = The time in which to appeal the summary judgment ruling was stayed until the written opinion and damage decisions were issued. The written opinion has now been issued, thus the remaining matter to be addressed is remedies. = The Court is hereby advising the parties, consistent with what it has previously stated, that it does not intend to impose heavy financial damages on the defendant. Unless RTC convinces the Court to the contrary, it will not make a finding of willful infringement in this case. Moreover, unless convinced to the contrary for purposes of the damage calculation the Court intends to find five instances of violation, specifically one violation for the illegal copying of each of the five works discussed in the memorandum Opinion. Because RTC had previously indicated it seeks only the statutory minimum damages provided its copyrights are respected, these conclusions would lead to total monetary damages of $2,500. = Defendant is apparently suffering financial hardship and is no longer represented by counsel. Therefore, unless convinced to the contrary, the Court does not plan to award attorneys fees or the costs of litigation against the defendant. = Lastly, RTC seeks injunctive relief in this action, to which the Court believes defendant does not object. The parties should try to agree to the language of such injunction. = In order to resolve these final issues, it is hereby ORDERED that RTC file by October 21, 1996, any position on the damages and injunction issues. Defendant will have fifteen (15) days to respond to RTC. = The Clerk is directed to forward copies of this Order to counsel of record and to defendant, pro se. Entered this 4th day of October, 1996. (signature) = Leonie M. Brinkema United States District Judge Look What I found in Another Newsgroup Page 3 Alexandria, Virginia = [This decision is not a "done deal," and RTC will have an opportunity to argue that they should be awarded legal fees. They can also attempt to multiply the number of infringements, but it sounds to us as though Judge Brinkema has made up her mind.] = 2. Memorandum Opinion supporting the Order = [The Memorandum Opinion contains some interesting material about copyrights. It also refers at one point to a statement, apparently made by Lerma, that Internet posts are "ephemeral." Lerma wanted to show that he needed to keep copies of material for scholarly purposes. The same theory--that net posts are "ephemeral"--was used by noted trade secret authority Roger Milgrim to argue that merely because something was published on the Internet, does not mean that it is not still a secret. Netizens in the audience laughed when he said this.] = IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division = RELIGIOUS TECHNOLOGY CENTER : Plaintiff, vs. Civil Action No. 95-1107-A ARNALDO PAGLIARINI LERMA Defendant. = MEMORANDUM OPINION ON RELIGIOUS TECHNOLOGY CENTER'S AND ARNALDO P. LERMA MOTIONS FOR SUMMARY JUDGEMENT = This matter comes before the court on plaintiff Religious Technology Center's ("RTC") Motion for Summary Judgment for Copyright Infringement Against Defendant Lerma ("Lerma"), also under consideration is defendant Arnaldo P. Lerma's (Cross-) Motion for Summary Judgment and/or to Dismiss. Both parties seek final resolution of the allegation that Lerma infringed RTC's copyright when he copied to his computer and/or posted to the Internet sections of sacred properly copyrighted documents belonging to the Church of Scientology. = Summary judgment is appropriate when the record shows that there is no genuine issue as to any material fact and that the movement is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c), Anderson v. Liberty Lobby, Inc., 477 O.S. 242 (1986). In ruling on such motions, the court must construe the facts and all inferences drawn from those facts in favor of the non-moving party. Charbonnages de France v. Smith, 597 F.2d 406` 414 (4th Cir. 1979). = Based upon the arguments tendered in the briefs and at the hearing, as well as the mass of evidence in this substantial = Look What I found in Another Newsgroup Page 4 (1) = record, the Court finds that Lerma infringed RTC=92s copyright and that summary judgment be entered in favor of RTC and against Lerma. = History of the Case = The dispute in this case surrounds Lerma's acquisition and publication on the Internet of texts that the Church of Scientology considers sacred and protects heavily from unauthorized disclosure. Founded by L. Ron Hubbard, the Scientology religion attempts to explain the origin of negative spiritual forces in the world and advances techniques for improving one's own spiritual well-being. Scientologists believe that most human problems can be traced to lingering spirits of an extraterrestrial people massacres by their ruler, Xenu, over 75 million years ago. These spirits attach themselves by "clusters" to individuals in the contemporary world, causing spiritual harm and negatively influencing the lives of their hosts. = The texts at issue, the "Advanced Technology" or the "Operating Thetan" Documents ("OT Documents"), were written by founder Hubbard and allegedly provide a detailed program for warding off these evil influences through creation of "free zones." The OT Documents outline a process that must be executed precisely according to the procedures laid out by Hubbard and under the guidance of an assisting church official in order to be efficacious. = Church doctrine teaches that improper disclosure of the OT documents, both to non-Scientologists and even to church members if done prematurely prevents achievement of the desired effect. Unauthorized disclosure also. risks further harm of global proportions: - See Religious Technology Center .v.. .Lerma, 908 F.Supp 1353, 1358 (S.D. va. 1995. Hubbard explicitly directed that the OT Documents be released only in strict accordance with his guidelines, and that they remain otherwise secret and secure. = Consequently the church has charged RTC, the plaintiff in this case, with securing the sacred texts and aggressively policing any breaches in security or unauthorized disclosures that may occur. RTC has enacted a comprehensive protection plan that includes locked vaults, numerous guards, key cards, and signed nondisclosure statements by all church members. RTC has also been " relentless" tracking down suspected offenders and vigorously pursuing legal remedies against them. = This litigation initially consisted-of both trade secret and copyright infringement counts against multiple defendants, including Lerma, Digital Gateway Systems (Lerma's access provider to the Internet); The Washington Post, which published a story about the case which quoted fractions of the OT Documents), Marc Fisher (a Washington Post reporter), and Richard Leiby (a Washington Post reporter). However, The Court earlier dismissed the trade secrets Look What I found in Another Newsgroup Page 5 count as to all defendants and the copyright infringement count as to the Washington Post and its reporters. RTC voluntarily dismissed its claims against Digital Gateway systems, Therefore, the only issue remaining in the case is RTC's: .. (3) = copyright infringement claim against defendant Lerma. Even that issue has been progressively honed, with RTC moving for summary judgment on only a subset of the copyrighted works originally contented in RTC's complaint. 1. = Bases for Copyright Infringement = To establish copyright infringements two elements must be proven: (1) ownership of a valid copyright, and (2) unauthorized copying of constituent elements of the copyrighted work. Feist Publications, Inc. v. Rural Telephone Service Company, Inc., 499 U.S. 340, 361 (1991). Copyright infringement occurs when there is "substantial unauthorized copying of protected materials from a copyrighted work." Harry G. Henn, Henn on Copyright Law, =A727.6 (1991) The first element is effectively uncontested by Lerma. Filed in conjunction with RTC's motion for Summary judgment was a set of exhibits (the "G-series Exhibits") containing 33 comparisons of RTC's copyrighted works and the "copies" allegedly in Lerma's possession and/or posted by him to the Internet. Each of these exhibits includes the written segment allegedly copied by Lerma, the corresponding Hubbard original, a certificate of copyright = ---------------------- 1 RTC initially alleged that Lerma infringed the copyright of multiple works from several different series or collections of the OT Documents. With its summary judgment motion, RTC now seeks ruling only on materials excerpted from "OT II", "OTIII", "Power", "NOTs", and "the Sunshine Rundown`" referred to in this motion as the "Works." The Second Amended Complaint contained additional allegations regarding infringement of other materials from "OT I", "OT IV", and "OT VIII", however these allegations are not included in RTC's instant Motion for Summary Judgment. = (4) = registration, a certified photocopy of the masked work on file at the Copyright Office of the United States, and a full (i.e. unmasked) "translation" of that photocopy. Lerma does not dispute that Hubbard followed the appropriate procedures in obtaining the maximum copyright protection of his original works and that these same Works have now been produced in the G-Series Exhibits with the appropriate validating documentation, nor does he dispute that RTC properly owns the copyright interest in these Works . = The Idea/Expression Dichotomy Lerma launches collateral attack on the appropriateness of the copyright. Distinguishing between idea and expression, Lerma argues Look What I found in Another Newsgroup Page 6 that material contained in the Works is "uncopyrightable". Copyright law promotes the advancement; of human knowledge and thought by providing limited legal (and therefore economic) protection to an author's original expression. The author's temporary monopoly, however, does not include the ideas contained within his work. As stated by the Third Circuit, "the purpose of copyright law is to create the most efficient and productive balance between protection (incentive) and dissemination of information, to promote learning, culture, and development." Whelan Associates v. Jaslow Dental Laboratory, 797 F.2d 1222, 1235 (3rd Cir. 1986). These intentions have spawned the idea/expression dichotomy in copyright law, protecting the latter while still permitting access to the former. "The [Copyright] Act is thus able to protect authors without impeding the public's access to that (5) = information which gives meaning to our society's highly valued freedom of expression." Harper vs. Row Publishers, Inc. v. Nation, 723 F.2d 195, 202 (2nd Cir. 1983). = This idea/expression distinction is codified under 17 U.S.C. 102(b) which states: = In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle or discovery, Regardless of the form in which it is described, explained, illustrated, or embodied in such work, = Courts have therefore held that wherever an authored expression of on idea is closely intertwined with the idea itself, the expression has ''merged" with the idea and is therefore uncopyrightable. Under this Merger doctrine, where the author's ideas and procedures can be properly expressed in so few ways that protection of the expression would effectively accord protection to the idea itself, " Kreqos v. Associated Press, 937 F.2d 700, 705 (2nd Cir l991), courts have found the expression not copyrightable. Copyrighting the expression in these instances would effectively prohibit discussion and analysis of the idea itself And grant the owner a monopoly on all uses of the very concept. = Lerma argues that this merger doctrine applies and that RTC's claim of copyright protection is therefore invalid. He also argues that Hubbard describes the OT Documents as primarily factual, and he insists that their contents must be follower exactly as written. Under the merger doctrine, even if Hubbard had followed all = (6) = procedural requirements, the Works would still be uncopyrightable if protecting the expression would effectively grant a monopoly on the idea itself. = Despite this argument, the Court finds that merger of idea and expression has not occurred in this case. The ideas and concepts Look What I found in Another Newsgroup Page 7 of the Scientology religion can be discussed independently of the OT documents. This has been amply demonstrated in the voluminous record accompanying the case and in all parties' numerous briefs. Indeed, theological musings on the sources of (and remedies for) spiritual harm have dominated discussions about religion for centuries. Whether achieved through animal spirits, witches, demons, curses, Satan, angels, or "body thetans, " spiritual healing is clearly not a concept inherently tied to the OT Documents. = To the extent that the OT Documents supply a technique or "process'' for achieving spiritual well-being, their copyright arguably violates a strictly literal reading of =A7102 (b) . However, as RTC has argued, virtually all works convey to some extent ideas and processes that are uncopyrightable. See Hr'g, January 19 , 1996' at 23 et seq. While such creations may contain "procedure[s], process[es], [or] system[s]=94, 17 U.S.C.A. =A7102 {b), they are not thereby rendered de facto uncopyrightable. As an example, RTC cites programs which essentially describe a ''process but are nonetheless copyrightable. Other examples include cookbooks and automobile mechanics repair manuals. Each of these documents purports to describe a precise method for achieving a desired end, whether it be the creation of a spinach souffle or the = (7) = rebuilding of a defective carburetor. Hubbard's instructional directions for spiritual healing are no less-deserving of protection than the admittedly copyrightable "recipe" in a cookbook or copyrightable "repair steps" in a maintenance manual. = Lerma attempts to distinguish the Works from these examples because the Works require specific, precise repetition of the exact text. While a recipe, repair instructions, or a computer program may permit some variation, Hubbard claims that the Works provide the only correct method for reaching complete spiritual health. If not followed exactly, the process will fail. However, literary works; such as: a poem or haiku and musical works such as a symphonic score possess the same quality -- -the desired effect cannot be achieved without precise repetition. This does not make poems, haikus, and musical scores uncopyrightable, and it should likewise not preclude copyrightability of the Works. Denying copyright protection to RTC on this basis would rapidly destroy the protection and incentive for the likes of Wagner and Brahms -- an outcome that is most certainly contrary to the goals of copyright law. = The Court, therefore, finds the merger clause inapplicable to the Works. = Fair Use Defense = Lerma freely admits that he copied portions of the Works by downloading or scanning them into his computer and by posting segments of this material to the Internet. He argues that even if the works are copyrightable and copyrighted, this copying was Look What I found in Another Newsgroup Page 8 = 8 = lawful because it was "fair use." = In determining whether the use of a copyrighted work constitutes fair use, the Court must consider four factors: = 1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; = 2. the nature of the copyrighted work; = 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and = 4. the effect of the use upon the potential market for or value of the copyrighted work = 17 U.S.C.. =A7107. These four statutory factors may not be "treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright." Campbell v. Acuff-Rose Music, Inc., 510 U.S.. 569, 578 (1994). = Lerma urges us, when conducting the fair use analysis, to evaluate his actions in the special context of modern communication on the Internet. He describes the unique characteristics of computer interaction and argues for special treatment under copyright law. While the Internet does present a truly revolutionary advance, neither Congress nor the courts have afforded it unique status under the fair use standard of =A7107. The law of copyright has evolved with technological change, with each new technological advancement creating complicated questions of copyright interpretation and application. Nevertheless, the new technologies -- from television, to video cassette recorders, to digitized transmissions -- have been made to fit within the overall scheme of copyright law and to serve the ends which copyright was = (9) = intended to promote. See Sony Corp.. v. Universal City Studios Inc., 464 U.S. 417 (1984). The Internet is no exception, and postings on it must be judged in reference to the already flexible considerations which fair use affords. = Purpose and Character of the use: The first fair use factor is the purpose and character of the use made by the alleged infringer. 17 U.S.C =A7107 (1). Lerma posits that his use of the Works falls within several of the classic fair use categories listed in the first Look What I found in Another Newsgroup Page 9 paragraph of =A7107, namely, that his copying and posting of the Works constitutes "criticism, "comment, "news reporting", and "scholarship." 3 here is a strong presumption that factor one favors the defendant if an allegedly infringing work fits the description of uses described in section 107." Wright v. Warner Books, Inc J 953 F.2d 731, 736 land Cir. 1991). Lerma argues that his Internet posting of the Fishman Declaration originated from publication of information in a California court record that was open to the public and which the court refused to seal. Lerma asserts that he merely gathered that information like a news reporter and then published it on the Internet to unveil for the Internet community the "foibles" of Scientology In the same spirit of the modern news expose. This analogy fails. The full record clearly shows that Lerma's motives, unlike those of news reporters, were not neutral and that his postings were not done primarily for public benefit. , 677 F.2d 180, 182 (2nd Cir. l98l)+ When = 10 = judged in light of the degree of copying and the use to which the infringing material was ultimately put, Lerma stands in a position significantly different from the Washington Post and its employees earlier dismissed from this suit. Even if Lerma were a newspaper reporter, the mere fact that a copyrighted Document was in a public court file in no respect destroys its copyright protection. Lerma also describes himself as a dedicated researcher delving into the theory and scholarship of Scientology. He claims to be performing academic work of a "trwasformative" nature, providing materials which "add new value to public knowledge and understanding, thereby advancing the goals of copyright as set forth in the Constitution." Opp' Br. at 24. That argument does not justify the wholesale copying and republication of copyrighted material. The degree of copying by Lerma, combined with the absence of commentary in most of his Internet postings, is inconsistent with the scholarship exception. Even assuming, arguendo, that Lerma's copying to his hard drive was done solely in the name of academic research, this does not end the fair use analysis. Such uses are only "presmptively" permissible; there is a limit to the extent of reproduction that can be undertaken even by the bonafide researcher. See American Geophysical Union v Texaco, Inc., 802 F,Supp. I, 17 (S.D N Y" 1992), aff'd ., 60 F.3d 913 (2nd Cir 1994)(archival photocopying of scientific journals for internal use by for-profit research laboratory and is not fair use) See also Marcus v. Rowley, 695 F.2d 1171, il76 (9th Cir. 1983 ) ("[W]holesale copying of copyrighted material precludes = 11 = application of the fair use doctrine,), 3 dimmer =A7 1305[A] [3] (1996) ("[Generally] it May not consttute a fair use if the entire work is reproduced") = Lerma argues that his "research" conducted via downloads from newsgroups on the Interet provides a particularly strong argument for fair use. Because newsgroup output is by its nature ephemeral, Lerma asserts that saving such postings for later review is indistinguishable from the temporary storage on a VCR tape that was upheld by the Supreme Court in Sony Corp. of America v Universal Look What I found in Another Newsgroup Page 10 Studios, Inc., 464 U*. 417 (1984) Lerma's analogy fails because the " -time- shifting" approved in Sony concerned the reproduction of television programs that were implicitly licensed at no charge to the viewer who then copied them for purposes of convenience. These critical factors are absent in the instant case. Lerma is not licensed to view or copy the Works, and his reproduction of the Works on his disc served purposes beyond convenience. The proper analogy of Lerma to Sony would be if the Sony defendant obtained unauthorized copy of television movie from a premium cable channel and then re-broadcast that movie on public access channel'something that would be clearly prohibited. It may be true that Lerma's intent in posting the Works was not "commercial" in the traditional sense. He was not in direct competition with the church, and he did not place a surcharge on, or receive any other "private commercial gain" from, the information: contained within the Works [under the fair use doctrine, conmercial use of an allegedly infringing works = 12 = disfavored whereas noncommercial use is not. See Sony Corp, 464 US at 449. Nonetheless, while there is no evidence that Lerma has profited directly from the postings, this factor alone is not [determinitive of fair use, even though it is a significant factor] Whether the profit element of the fair use calculus affects the ultimate determination of whether there is fair use depends on the totality of the factors considered, it is not itself controlling. n Ropers fir, Koons, 96O F 2d 301, 309 (2nd Cir. 1992) In viewing the totality of factors discussed above, the Court finds that the noncommercial character of Lerma's copying and posting does not outweigh Lerma's nonneutral and non-scholarly motives in publishing the Works. Nature of the Copyrighted Work: The second factor for consideration under the fair use analysis is the nature of the copyrighted work. 17 O.S.C.A =A7107 (a), "This factor calls for recognition that some works are closer to the core of intended protection than others, with the consequence that fair use is more difficult to establish when the former works are copied" Campbell v. Acuff-ose Mumbo' Inc., 510 O.S. 569, SSS (1994* In opposing RTC's Motion for Summary Judgment, Lerma relies upon two aspects of the Works which favor his position: 1) the factual. vs. the creative nature of the Works, and 2) Shed r puL:Licato;a status. The fair use defense is broader with respect to factual works than to creative or literary works. "The law generally recognizes a greater need to disseminate factual works than works of fiction = 13 = or fantasy " Harper &; flow Publishers, Inc . v. Nation 13 ntep:ci::es, 471 U.S. 539, 563 (ADDS). Hubbard's works are difficult to classify in this respects and courts dealing with this issue have differed in their conclusion. As the Second Circuit stated in New Era publications Into 1 V- Carol Publishing GROUP' 904 F. 2d 152, 158 .... (field cur I9S9), cert. denied, 493 S ;094 (1990), "reasonable people can disagree over how to classify Hubbard's works. In the case Tic bat:, however, RTC has characterizeci the Works as training materials, stressing their use, li by over their creativity. The Court has previously resolved this question by holding that the Works are intended to be informational rather than creative'' and that a broader fair use Look What I found in Another Newsgroup Page 11 approach is therefore appropriate in th:Ls regard. Religious Technology Center Lerma, 908 F Supp. 1362, 1367 (D Va. lS9S). Lerma's second argument regarding the nature of the copyrighted Works pertains to their publication status. Courts have consistently found that "the scope of fair use is narrower with respect to unpublished works," New Era Publications v. Carol Publishing Group, 904 F.2d 152, 157 (and Cir.l9gO)(quoting Harper & Row, Publishers Inc . v. Nation Enterprises' 471 O.S. S39, 564 (1985). The Works in question clearly have not been "published." RTC has not released these materials to the public and does not plan to release them. Nevertheless, Lerma insists that for purposes of a fair use analysis the berm "publication" means "whether the work has been widely disseminated or is widely available, regardless of technical publication." Oppose Brat 41 14 = (citing Harper Row, 471 O.S at S55)(ephasis in original) Because much of the materials which he copied and posted to the Internet were already available in an open court file or on the Internet, Lerma asserts that they are deserving of less protection because he has not usurped RTC's right to first publication. Lerma's reliance upon the argument is not convincing. Although Harper & Row weighs the de facto publication . or dissemination" of a work in determining whether another's utilization of the material constitutes fair use, this only applies where the author has given ''implied consents through such action as performance or dissemination. 471 u.S. at 551 in those circumstances, the author has made the work publicly available and has im [and this version oddly stops here] -- anima@io.com When making public policy decisions about new technologies for the Government, I think one should ask oneself which technologies would best strengthen the hand of a police state. Then, do not allow the Government to deploy those technologies. --Philip Zimmermann