my reply to Milgrim Page 1
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Newsgroups: alt.religion.scientology,comp.org.eff.talk,misc.int-property
Subject: my reply to Milgrim
From: dst+@cs.cmu.edu (Dave Touretzky)
Date: 19 Sep 1996 08:09:06 GMT
Last month, Scientology cult attorney Roger Milgrim wrote me a letter
concerning the NOTs Scholars Home Page (http://www.cs.cmu.edu/~dst/NOTs),
which I posted without comment. Now it's time to comment.
Below is my analysis of Milgrim's letter, followed by the reply I sent him
this week.
----------------------------------------------------------------
> Law Offices of
> PAUL, HASTINGS, JANOFSKY, & WALKER LLP
> A Limited Liability Partnership Including Professional Corporations
>
> 399 PARK AVENUE
> NEW YORK, NEW YORK 10022
> Telephone (212) 318-6000
> Facsimile (212) 319-4090
> Internet www.phjw.com
>
> Writer's Direct Access Our File No.
> (212) 318-6016 24437.01100
>
> August 22, 1996
I'm an expensive Park Avenue, New York lawyer...
> VIA FEDERAL EXPRESS
and this is an urgent matter (or maybe I own stock in FedEx.)
> David S. Touretzky, Ph.D
> Computer Science Department
> Center for the Neural Basis of Cognition
> Carnegie Mellon University
> 5000 Forbes Avenue
> Pittsburgh, PA 15213
>
> Re: The NOTs Scholars Home Page
> Dear Mr. Touretzky:
Even though you're a PhD, I'm going to call you "Mr.". Why? I don't know.
> I write to you on behalf of Religious Technology Center
> ("RTC"). This firm is representing RTC in its actions against Dennis
> Erlich, Keith Henson, Arnaldo Lerma and Grady Ward, cases pending in
> U.S. federal courts before either Judges Whyte (N.D. Cal.) or Brinkema
> (Lerma, E.D. Va.). I believe you are familiar with these cases.
I believe you are familiar with my client's predilection for suing people.
my reply to Milgrim Page 2
> RTC is the licensee of the copyrights and owner of other
> intellectual property of L. Ron Hubbard, the founder of the
> Scientology religion, in the confidential, unpublished Scientology
> scriptures known as the "Advanced Technology."
As you can see, I am well versed in RTC's legal boilerplate.
> RTC's copyright claims
> have led Judges Brinkema and Whyte to rule that each of the
> above-listed defendant's Internet postings violated RTC's copyrights.
> Such conduct has been enjoined.
Some people we sued have been told by Judge Whyte not to break the law.
Contrary to what I told you, Whyte has not actually ruled yet in any of the
listed cases, but I'm hoping you won't notice that.
> Judge Whyte also denied Netcom's
> request to have RTC's copyright claims against it, as an Internet
> access "provider," dismissed.
You're supposed to think this means we won something. Of course, all the
judge said was that the matter would have to go trial. It's hardly a
victory for Scientology, but my mad dog client has to take what they can
get.
> Subsequently, RTC and Netcom settled
> their dispute; Netcom has considerably tightened its rules to avoid
> lending provider auspices to infringers and misappropriators.
My client wasn't willing to risk a trial, so they settled with NETCOM, in
return for which NETCOM adopted a new and improved policy that is hardly
different from its old policy; it still wouldn't apply in the Erlich case.
But my client declared victory and went home.
> Although Judge Brinkema denied RTC's motion for a
> preliminary injunction on trade secret grounds, reasoning that
> Internet posting of certain, defined issues had ended their trade
> secret status, that ruling did not involve any of the NOTs issues
> which you are now threatening to acquire or post.
Yes, we're still trying to play out the doomed "trade secrets" gambit. And
notice how I casually slip in the false claim at the end about your
"threatening" to post the NOTs? I know it's bullshit, and you know it's
bullshit, but if I decide to show this letter to a judge, he won't know
it's
bullshit. Maybe he'll give me an injunction against you, if you're dumb
enough to reply to my letter in a combative tone. It's worth a shot.
> Moreover, Judge
> Whyte (in Erlich) has, as of now, declined to rule that the trade
> secrets in various NOTs issues were impaired as a result of Internet
> postings and has undertaken further hearings on this very point. Even
> more recently, Judge Whyte declined to modify the trade secret
> injunctions against Ward and Henson, based on the latters' claim that
> the Internet posting of these issues vitiated their trade secret
> status. Judge Whyte indicated that he would soon be ruling on the
my reply to Milgrim Page 3
> impact of Internet postings on the trade secret status of these works.
> That ruling has not yet been issued.
So our trade secret claims have not yet been officially dismissed. Not
that
this has anything to do with you, Dave; we just thought you'd like to know.
We're hoping you won't notice that you live in Pennsylvania, not
California,
and trade secret law is entirely different in your state. It is impossible
for you to "misappropriate" a trade secret by reading a Usenet posting. We
have no trade secrets case against you, unfortunately. And that's why I'm
forced to write such a lame letter.
> We write to you because of your recent opening of a Web-site
> at Carnegie Mellon soliciting RTC's NOTs materials and expressing the
> seeming intention to post them.
More bullshit about your "seeming intent" to post NOTs. If this ever
gets to court, we want the judge to think we had a legitimate reason for
hassling you. So we made one up and hassled you in self defense. Okay?
> Your past history, as the first
> person to post the so-called Fishman declaration to a Web-site (like
> conduct has been unequivocally determined to be a copyright violation,
> as to which the poster and a provider on notice would have liability),
> gave impetus to others to make echo postings that, at the very least,
> infringe RTC's copyrights.
You've been a bad boy, Dave. And you've set a bad example for all the
other
kids. Whatever they do now, it's on your head.
> RTC is confident that you are aware that RTC objects to any
> infringement of its copyright in this material and that the genesis of
> unpublished materials outside any Church of Scientology is notorious
> thefts in Denmark and England, to which an article on your Web page
> refers.
Yes: I, noted intellectual property attorney Roger M. Milgrim, really did
read your web page. I get paid by the hour, so why not? Notice I haven't
said you've infringed anything. I'm just saying my clients object to
infringement in general. Also, they're really mad at those English guys
who
made fools of them in Denmark. We just wanted you to know that.
> RTC does not desire to engage in litigation with you.
We put this in so we can't be accused of harassing you. But just the word
"litigation" is enough to make some people wet their pants. Still dry?
We're not done with you yet.
> Nor does it wish to impinge on your legitimate First Amendment rights.
Once again, I, Roger M. Milgrim, am covering my learned ass. I don't want
to be charged with harassment of critics like those other loser CoS
attorneys. I have a reputation to uphold. So let me first pay homage to
free speech and the First Amendment before attempting to scare you out of
my reply to Milgrim Page 4
exercising those rights.
> It does, however, insist that you respect its intellectual property
> rights.
"Respect" their rights, got it? No snickering. We mean it.
> Toward that end, on its behalf we request that you now:
Notice how I used the word "request", where Helena Kobrin would have said
"demand"? I don't want any trouble with the bar association. If you
comply
with these ridiculous "requests", you do so voluntarily. You can't argue
that I intimidated you into compliance. You could have declined our
"requests". But hopefully you'll be too scared to say no.
> 1. Cease soliciting copies of the NOTs materials and
> retract your solicitations (as to which there are two judicial
> actions, both of which enjoined individuals from soliciting or
> acquiring NOTs materials).
Of course these judicial actions I'm citing don't apply to you, but we're
hoping you feel intimidated just the same. And if we're lucky, we'll be
able to con some judge into issuing a similar restraining order against
you.
The first step is to paint you as a dangerous bad guy, which is what this
letter attempts to do.
> 2. Turn over to this firm for safekeeping any and all
> copies of NOTs or portions of it that you have or control.
Yeah, hand over all your stuff. We want your car keys too.
> 3. Make no disclosure, in whole or in part, of the NOTs
> materials in any media.
Stop talking about our trade secret sacred scripture. You're hurting
sales.
> 4. Remove the summaries of the NOTs works from your Web
> page and turn over to this firm for safekeeping all copies of those
> summaries that you have or control.
We really don't like those summaries, so why don't you let us hold them for
you? Remember, this is just a request, so don't go crying about your
rights
being violated.
> 5. Cease posting, or accepting for posting on your Web
> page, any further materials that reproduce, in whole or in part, any
> of the contents of the NOTs materials.
"Fair use" quotation? We've never heard of it. We don't want anyone
talking about our secret scripture. Not one word. Got it?
> This letter is not intended as a complete statement of facts
> or RTC's claims of rights.
my reply to Milgrim Page 5
Maybe we have some more legal tricks up our sleeve. Keep sweating.
> It is intended to assure that in
> exercising your legitimate First Amendment rights you do not further
> infringe upon RTC's intellectual property.
We haven't shown any infringement in the first place, so how can you
"further" infringe? Watch this trick... You put the Fishman Declaration up
on a web page a year ago, and that was an infringement, right? So by
citing
that incident in an earlier paragraph of this letter, we can now
legitimately talk about "further" infringement without having to falsely
claim to have found infringements on the NOTs Scholars Page. A careless
reader will still interpret this as implying the NOTs Scholars page
infringes RTC's rights. That's what we're hoping you'll think, without our
having to make the claim in writing. Clever, huh? This is why I make the
big bucks.
> Very truly yours,
Bite me.
> [signed]
> Roger M. Milgrim
> RMM/ia
> cc: General Counsel,
> Carnegie Mellon University
We're going to try to get you in trouble with your employer while we're at
it. And I get to bill CoS for a second letter. We're bad guys. Are you
scared yet?
[ Sorry, Roger. Not yet. -- DST]
================================================================
Computer Science Department
Carnegie Mellon University
5000 Forbes Avenue
Pittsburgh, PA 15213
September 16, 1996
Mr. Roger M. Milgrim
Paul, Hastings, Janofsky, & Walker, LLP
399 Park Avenue
New York, NY 10022
Dear Mr. Milgrim:
Thank you for your letter of August 22 concerning the web site I maintain
at http://www.cs.cmu.edu/~dst/NOTs, called The NOTs Scholars Home Page.
my reply to Milgrim Page 6
I appreciate your assurance that RTC does not desire to engage in
litigation with me over this web site or impinge on my legitimate First
Amendment rights. In return, let me assure you that I have no desire to
become involved in litigation either, or to violate RTC's legal rights to
its intellectual property.
From its inception, my web site has been devoted to the scholarly analysis
and criticism of the NOTs documents to the extent permitted by law, but no
further. I have always tried to obey the law as it pertains to these
documents, and I find it significant that your letter does not allege any
illegalities in either the present version of The NOTs Scholars Home Page
or any previous version. Your concern, as expressed in the concluding
paragraph of your letter, appears to be about illegal actions your clients
imagine might occur at some time in the future. Their fears stem from
misunderstandings that I am happy to resolve here.
Let me begin by affirming that I understand the NOTs documents to be
copyrighted works, and I have no desire to violate the rights of the
copyright holder. I have given your clients no reason to think I would
post these documents. No public statement by me has ever implied this, and
there is nothing on my web site that could be construed as suggesting it.
Furthermore, my web site has always included the warning that while anyone
may submit commentaries on the NOTs documents, "materials that clearly
violate US copyright law will not be accepted."
Limited "fair use" quotation for purposes of commentary or criticism is
permitted by the US Copyright code. As you are no doubt aware, your
client's suit against the Washington Post last year for publishing brief
quotations from OT III was dismissed by Judge Brinkema as "reprehensible."
The Post's quotes were clearly fair use. She found that RTC's real
motivation was "stifling of criticism and dissent of the religious
practices of Scientology and the destruction of its opponents," and ordered
RTC to pay the Post's legal costs. Even Messrs. Henson, Ward, and Erlich,
who are currently under injunctions in California with regard to RTC's
copyrighted material, have been explicitly told by Judge Whyte that he is
not curtailing their First Amendment rights to discuss this material,
including their rights to make fair use quotations from it. I do not
believe any of the materials on my web page contain quotations that exceed
fair use.
I understand that RTC also believes some of the NOTs documents to still be
trade secrets, despite their having been posted to the Internet on several
occasions. By my count they have been posted six times now, the most
recent postings occurring last month from Sweden and the Netherlands. They
are also presently available to the public in an unsealed court file in
Sweden. My knowledge of Pennsylvania's trade secret law is admittedly
limited, but I am unable to see how anything on the NOTs Scholars Home Page
could constitute a violation of that law, and I note that your letter to me
does not allege any violations at the present time. I assure you that I
have no intention of violating Pennsylvania law in the future.
Third, you write that my web page "appears" to contain a solicitation to
receive the NOTs documents themselves. I do not believe that solicitation
of access to someone's legally-obtained NOTs pack for purposes of scholarly
research would violate Pennsylvania law, but in any case, my web page
contains no such request. The "Call for Contributions" section asks for
my reply to Milgrim Page 7
"information, commentary, and criticism of any aspect of NOTs." I never
intended this to be construed as a solicitation of the documents
themselves, and I don't believe most readers would make this mistake.
Nonetheless, because I do not wish to be misunderstood on this point, I am
considering clarifications to the wording of that section.
In conclusion: we appear to be in agreement that I an not at present
violating your client's intellectual property rights with respect to NOTs.
At any future time, if RTC feels it has a legallly valid objection to some
of the material appearing on my web site, I request that you notify me of
this and specify the URL for the document in question, the specific passage
to which RTC objects, and the legal grounds for that objection.
Sincerely,
Dr. David S. Touretzky
Senior Research Scientist
cc: Walter DeForest, CMU General Counsel
Provost Paul Christiano