Article 57848 of alt.religion.scientology: Path: news.cybercom.net!usenet.eel.ufl.edu!newsfeed.internetmci.com!EU.net!peer-news.britain.eu.net!demon!mail2news.demon.co.uk!frigate.doc.ic.ac.uk From: tom.klemesrud@support.com Newsgroups: alt.religion.scientology Subject: Correcting Chicago Law Bulletin Date: Sun, 17 Dec 95 21:27:23 -0800 Organization: L.A. Valley College Public BBS (818)985-7150 Lines: 526 Message-ID: <9512172127.0U54M02@support.com> X-NNTP-Posting-Host: frigate.doc.ic.ac.uk Original-Received: by support.com id 0U54M02R Sun, 17 Dec 95 21:27:23 -0800 PP-warning: Illegal Received field on preceding line X-Mailer: TBBS/PIMP v3.35 _/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/ _/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/ _/ Tom Klemesrud, Sysop _/ _/ L.A. Valley College BBS _/ _/ tom.klemesrud@support.com _/ _/ FidoNet 1:102/837 KoX _/ _/ root@support.com _/ _/ North Hollywood, CA USA _/ _/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/ _/_/_/_/_/_/_/_/_/_/_/_/_/_/_/_/ To: alt.religion.scientology@news.demon.co.uk jjh@3do.com wrote: > [Technology Law Column] > > Published in the Chicago Daily Law Bulletin, December 13, 1995, at page 6. > > Reproduced by permission. It seems to me, a lot of people are going to be trying to put a spin on this case to advance their own agenda. This seems to be the case here--though I may agree with what they are trying to do, they got the facts wrong again. It seems that Netcom was complained to before I was (Klemesrud). The Scientologists tried to get the 3,000+ users of my BBS disconnected from the Internet because of Erlich's critical posts. Netcom was contacted on December 29, 1995, and I was contacted on December 30, 1995. > > ---------------------------------------------------------------------------- > > Internet Case Shows Copyright Act Needs Revision. > > Copyright 1995 by David Loundy > > ---------------------------------------------------------------------------- > As Congress contemplates proposed legislation to update the Copyright Act to > better account for electronic publishing, courts are hearing cases which > illustrate why such reform is necessary. (Unfortunately, as pointed out in > my Oct. 12, 1995 Law Bulletin column, the reform needed is not the reform > Congress is currently considering). > > One federal case at issue is Religious Technology Center v. Netcom On-Line > Communications Services, Inc., No. C-95-20091 RMW, which is currently being > heard in the Northern District of California by Judge Ronald M. Whyte. The > case involves copyright liability for "conduit providers" who provide > communication channels to connect users to the Internet. > Plaintiffs Religious Technology Center ("RTC") and Bridge Publications, Inc. > own the copyrights on the works of L. Ron Hubbard, science-fiction author > and founder of the Church of Scientology. Dennis Erlich is a former minister > of the Church of Scientology, who has become a critic of the Church. He's > been posting Scientology's secret religious texts to newsgroups available on > the Internet. Because these materials are copyrighted by RTC, Erlich is now > a defendant in the case. > > Erlich gets his access to the Internet newsgroups by way of Tom Klemesrud's > bulletin board system. Through this BBS, Erlich posts his messages to Usenet > News, and can read others' messages, all of which are stored temporarily on > the BBS. > > RTC asked Klemesrud to disconnect Erlich in order to stop Erlich's > infringements. Klemesrud asked RTC for proof that they owned a copyright in > the materials being posted by Erlich. RTC deemed this request unreasonable, > and added Klemesrud as a defendant as well. > > Finally, RTC moved one link higher in the chain, and approached Netcom > On-Line Communications Services, Inc., one of the nation's largest internet > service providers, the organization that connects Klemesrud's BBS to the > Internet. Netcom responded to RTC saying that it would be impossible to > pre-screen Erlich's posts for copyright violations, and in order to kick > Erlich off the Internet, it would be necessary to disconnect Klemesrud's BBS > (and thus disconnect 500 or so other BBS users as well). Netcom's response > also earned it a spot as a defendant. Netcom was contacted first. Netcom only serves as my BBS's telecom link to the Internet backbone. Erlich is to Netcom as Erlich is to ATT.COM. Netcom was contacted by RTC December 29th. This is from Judge Whyte's November 21, 1995 ruling known as the "Netcom decision." "Netcom points out that the alleged instances of infringement occurring on Netcom's system all happened prior to December 29, 1994, the date on which Netcom first received notice of plaintiffs' infringement claim against Erlich. See Pisani Feb. 8, 1995 Decl., Paragraph 6 & Exs. (showing latest posting made on December 29, 1994); McShane Feb. 8, 1995 Decl.; FAC Paragraphs 36-38 & Ex. I. Thus, there is no question as to whether Netcom knew or should have known of Erlich's infringing activities that occurred more than 11 days before receipt of the December 28, 1994 letter." I posted the following after a hysterical-sounding woman claiming to be Helena Kobrin, called me on the phone: #! rnews 1344 Newsgroups: alt.religion.scientology Path: lavc!tom.klemesrud From: tom.klemesrud@support.com Subject: HELENA KOBRIN CONTACT Message-ID: <9412301341.0J82U01@support.com> References: <052635Z30121994@anon.penet.fi> Organization: L.A. Valley College Public BBS (818)985-7150 X-Mailer: TBBS/PIMP v3.23 Distribution: world Date: Fri, 30 Dec 94 13:41:04 -0800 Hello All, I am the System Administrator for Support.COM. A few minutes ago I was contacted by someone identifying herself as "Helena Kobrin," complaining about Dennis Erlich's access to the Internet. I replied, "Do not call me on the phone. I consider it harassment." I hung up on her. A note to anyone concerned: I may be a witness in a Federal Criminal Case. Any such harassment, or "dirty tricks" played on me, may be considered Federal Witness Tampering. Tom Klemesrud, Sysop Later that day I received email from an Internet account that claimed to be that of a Scientology lawyer. Here is the message and my reply: >Date: Fri, 30 Dec 1994 21:43:23 -0800 (PST) >From: helana Kobrin >Subject: Infringements Through SUPPORT.COM >To: tom.klemesrud@support.com > December 30, 1994 > Mr. Tom Klemesrud > Clearwood Data Services > Re: Infringements Through SUPPORT.COM > Dear Mr. Klemesrud: > Since you hung up the telephone on me when I just > attempted to speak to you by telephone, I am putting in > writing what I was attempting to communicate. > I am contacting you because your board service is being > used for unlawful posting of copyrighted and trade secret > materials. Your assistance is needed to prevent these > postings from continuing. This letter also puts you on > notice of the situation, and your refusal to take action will > be deemed contributory infringement. > I represent Religious Technology Center ("RTC") which is > the owner of certain advanced level Scientology materials > whose confidentiality is maintained by RTC and its licensees. > The {only} copies of such materials which are in anyone > else's possession were obtained by theft or misappropriation. > In the case of the NED for OTs, or NOTs, materials, one such > theft occurred from an Advanced Church of Scientology in > Denmark, and one of the thieves was arrested, convicted, and > served time in jail for the theft. > These confidential materials have been judicially > recognized as trade secrets in {Bridge Publications, Inc. v. > Vien}, 827 F.Supp. 629 (S.D.Cal. 1993). These materials > are also copyrighted, and the registration numbers can be > furnished to you if you need those. Civil and criminal > penalties are available for unlawful copying of these > copyrighted materials under 17 U.S.C. \S 504 et seq., and > damages are also available for misappropriation of the trade > secrets under California Civil Code \S 3426.1, {et seq}. > An individual named Dennis Erlich has been posting > copies of these materials to the INTERNET through the BBS > maintained by Clearwood Data Services. The headers on his > postings show that they are going through your system, which > accesses the INTERNET through NETCOM. The postings are made > to the alt.religion. scientology newsgroup. Copies of the > headers to his postings can be furnished upon request, but > from your response to my call, I assume you are well familiar > with them. > Please be assured that Mr. Erlich's postings are > absolutely willful and that he is also well aware of the > confidential nature of these materials. Mr. Erlich was > formerly a member of the Church of Scientology and had access > to certain of these materials under supervised conditions, > only upon entering into agreements to maintain their > confidentiality. His postings are not inadvertent. He has > also been sent cease and desist letters by one of my > co-counsel, but has only responded by additional postings. > Mr. Erlich has undoubtedly told you that he has free > speech rights which permit his access or that the doctrine of > fair use in copyright law permits his postings. This is > false. His postings constitute wholesale copying, and the > doctrine of fair use is inapplicable. Furthermore, there is > legal precedent establishing that free speech rights to not > take precedence over intellectual property rights, and there > are recent cases establishing liability for contributory > infringement even for operators of systems which facilitate > unlawful postings by others. {E.g.}, {Sega} {Enterprises, > Ltd. v. Maphia}, 30 U.S.P.Q. 1921 (N.D.Cal. 1994); > {Playboy Enterprises v. Frena}, 839 F.Supp. 1152 (M.D.Fla. > 1993). > I hereby request that you inform Mr. Erlich that he > must cease and desist from any future postings which violate > my client's intellectual property rights, and if he refuses > to acquiesce, that you cut off his access to your BBS and to > NETCOM. While my client is not looking to become involved in > litigation, and would rather work this out on a cooperative > basis, it will not hesitate to do so to protect its rights. > If we are forced to litigate over this matter, continued > facilitation by you of Mr. Erlich's offenses will force us > to include you in any such legal action. > Please advise what actions you will take on this matter. > If you refuse to put a stop to Mr. Erlich's illegal > postings, please advise of the reasons for your decision. > Very truly yours, > Helena K. Kobrin > cc Dennis Erlich > cc John Hoffman Here is what I can do for you. Anytime you see a posting on The Support.com BBS, please mail me the original copyrighted work to compare. If I agree, and I will be fair, I will delete the material from the BBS. Public postings average around 3 days life span on the BBS. You can understand that I don't accept phone calls telling me to deny public network access to someone, effectively curtailing their right to free speech. I support and respect the First Amendment of the Constitution. Be sure to mail your documentation for comparison with your stationery, so I know it is really you, and I will be happy to comply. No phone calls please. This BBS is a distributor of information. It is much like a magazine rack, or bookstore. Other than that, I believe your argument is with Dennis Erlich. Cordially, Tom Klemesrud, Sysop At the first of the year, I was told to delete Erlich's account without any proof of Erlich's wrong doing: H> Date: Mon, 2 Jan 1995 00:51:13 -0800 (PST) > From: helana Kobrin > Subject: Re: Infringements Through SUPPORT.COM > To: tom.klemesrud@support.com H> January 1, 1995 H> Mr. Tom Klemesrud > Clearwood Data Services H> Re: Infringements Through SUPPORT.COM H> Dear Mr. Klemesrud: H> Thank you for your response. H> Your offer of deleting copyright matter from your own > BBS upon receipt of a copy of the original copyrighted work > is insufficient for several reasons: H> 1. It is my understanding that Mr. Erlich is accessing > the INTERNET through NETCOM and that he accesses NETCOM > through your BBS. The request is not simply that you remove > such materials from your BBS, but that you not permit the > infringement to occur through your BBS which is being used as > a conduit for such materials to be posted on the INTERNET. > We are requesting that you block access for such > postings. H> 2. There is no reason to send you the copyrighted > materials for comparison. As I have already explained to > you, these materials are confidential trade secrets and our > essential purpose is to prevent their infringement. H> 3. In light of the fact that you state postings only > remain on your BBS for three days, your suggestion that this > be handled by mail is obviously intended to avoid being able > even to eliminate those postings, as the added time required > for mailing would effectively take up the time period that > the postings are on your BBS. H> We will deal with Mr. Erlich's infringements directly > with him. Your further response to our request that you > delete his access to the INTERNET will determine whether you > are included in our lawsuit or not. H> Very truly yours, H> Helena K. Kobrin > Attorney for Religious > Technology Center H> cc John Hoffman I have a heart condition, and don't want to keep going around and around on this with you; but, here is how I can help you additionally: In the late 1980's Federal Judge Manuel Real instructed the Church of Scientology to bring such complaints as these to his Court only. I believe it was a harassment suit against one of your defecting members, Laurel Sullivan. It was a memorable day in court, because Judge Real ordered a Church Attorney jailed on the spot for court room mis-conduct. Take this complaint to Judge Real's Court, as he has instructed. If you get a Court Order, or even a letter from the Judge instructing me to Delete Dennis Erlich's access to the BBS and the Public Internet Common Carrier; I will again be happy to comply. And, give my best to Judge Real. Tom Klemesrud, Sysop cc: ARS, John Hoffman, Dennis David, FBI The Kobrin e-mail are exhibits in the case. On January 14th, 1995 I meet a woman claiming to be an IRS agent, re-examining the IRS's granting to Scientology 501(c)(3) tax-exempt status. The woman asked to see my BBS at my apartment. At the apartment, after seeing the BBS and asking questions about two BBS users, the woman excused herself to the bathroom. After a few long minutes, I went to check on her, and found the bathroom smeared with a blood-like substance, on the floor walls, and in the shower. I went to call the authorities. She came out of the bathroom and said: "I am a representative of Scientology, and I think you should do as Attorney Thomas Small has instructed you to do--disconnect Dennis Erlich from the Internet." On February 8th Penet.fi was raided because trade secret declaration from this blood-spreading woman was posted to alt.religion.scientology. On February 13th, 1995, 25 people appeared outside Dennis Erlich's Glendale house. Scientology lawyers assisted by paid, armed off-duty Englewood, California local police search through Dennis Erlich's house with impunity for 7 hours. When they left, they did not give a proper inventory of what was taken. Later Judge Whyte ruled this search and Seizure to be unconstitutional. > Judge Whyte's ruling (available on the Internet at > http://www.cybercom.net/~rnewman/scientology/home.html) addresses the issues > of direct, contributory, and vicarious liability on the part of the conduit > providers-- Klemesrud and Netcom. > > To have a direct infringement of a copyrighted work, there must be an > infringement of one of the copyright holder's exclusive rights (17 U.S.C. > Section 501). At issue here is the exclusive right "to reproduce the > copyrighted work in copies or phonorecords" (17 U.S.C. Section 106(1)). For > a copy of a work to be made, the work must be "fixed" in a "tangible means > of expression" from which it can be "perceived, reproduced, or otherwise > communicated for a period of more than a transitory duration" (17 U.S.C. > Section 101). The parties apparently do not contest that such copies exist > on both Klemesrud's computer (which archives Usenet News posts for three > days) or Netcom's computers (which archive Usenet News posts for eleven > days). > > Copyright liability is a strict liability offense. There is no intent or > knowledge requirement. Even innocent or accidental infringements may produce > liability. See, e.g. DeAcosta v. Brown, 146 F.2d 408 (1944), cert. denied, > 325 U.S. 862 (1945). > > Reproductions of RTC's works were made on both Klemesrud's and Netcom's > systems in the course of administering the Usenet News service. In fact, the > works were distributed world-wide in a matter of hours. This is a result of > the automatic functioning of Netcom's and Klemesrud's computers, as well as > all of the other computers that work to distribute Usenet News posts over > the Internet. An earlier decision in this case held that Erlich's posting of > the copyright material was not likely to be a fair use of the the > copyrighted works. > > Sounds like a slam-dunk win for the Scientologists on the direct > infringement claim, right? Not according to Judge Whyte. > > Although the Judge recognized the strict-liability nature of copyright > infringements, and that copies are being made by the defendants, he still > refused to apply strict liability to find a direct infringement. As he put > it: > > "Plaintiffs' theory would create many separate acts of > infringement and, carried to its natural extreme, would lead to > unreasonable liability. It is not difficult to conclude that > Erlich infringes by copying a protected work onto his computer and > by posting a message to a newsgroup. However, plaintiffs' theory > further implicates a Usenet server that carries Erlich's message > to other servers regardless of whether that server acts without > any human intervention beyond the initial setting up of the > system. It would also result in liability for every single Usenet > server in the worldwide link of computers transmitting Erlich's > message to every other computer." Slip Op. at 9. > > Even though direct liability without action on the part of the defendants' > is repugnant to Judge Whyte, it is an interpretation the law currently > allows. Furthermore, as the Judge even points out, it is what the Commerce > Department's Information Infrastructure Task Force has decided is the proper > result in exactly such cases, according to its final report on Intellectual > Property Rights on the Information Superhighway. > > The issue revolves around who is responsible for the copies that are made > automatically-- the system operator, who set up the system to make the > copies, or the user who started the chain of events that produced the > copies. One viewpoint says the system operator is making the copies on its > machine, and should be liable. > > The other viewpoint says the situation is no different than an unattended > photocopier-- the owner of the machine should not be held liable for > infringing copies made on the machine. > > The potential direct liability under the first viewpoint is so wide-reaching > that some people suggest that, with the rise of computer based > communication, our whole intellectual property system is destined to > collapse. See, John Perry Barlow, The Economy of Ideas: A Framework for > Patents and Copyrights in the Digital Age. Wired, 2.03, Mar. 1994 at 89. > Clearly a solution is needed, but none of the solutions proposed by Whyte, > Barlow or the Commerce Department are satisfactory. > > Judge Whyte also examined whether either of the conduit providers may be > held liable as contributory infringers. The standard for contributory > copyright infringement is met when the defendant "with knowledge of the > infringing activity, induces, causes or materially contributes to the > infringing conduct of another." Gershwin Publishing Corp. v. Columbia > Artists Management, Inc., 443 F.2d 1159, 1162 (2d Cir., 1971). > > The judge found no question that the defendants aided the distribution of > the copyrighted material posted by Erlich. However, Whyte held that there > was a question of fact as to whether the defendants had the requisite > knowledge of the infringement. While noting that just a claim of > infringement is not automatically enough to put a defendant on notice, the > defendants did not even look at Erlich's messages when RTC informed the > defendants of the post's infringing nature. Importantly, the court held > that: > > "[w]here a BBS operator cannot reasonably verify a claim of > infringement, either because of a possible fair use defense, the > lack of copyright notices on the copies, or the copyright holder's > failure to provide the necessary documentation to show that there > is a likely infringement, the operator's lack of knowledge will be > found reasonable and there will be no liability for contributory > infringement for allowing the continued distribution of works on > its system." Slip Op. at 17. > > If a fact-finder agrees that there is no liability in such a situation, many > system operators will live much happier lives as a result. > > Even without knowledge, a conduit provider may still be vicariously liable > for copyright infringements. Here the analysis really gets ugly and too long > to be handled in this article (due to conflicting case holdings on similar > facts, among other things). > > In short, a vicarious infringer is one who has (1) the right and ability to > control the infringer's acts, and (2) receives a direct financial benefit > from the infringement. Shapiro, Bernstein & Co. v. H. L. Green Co., 316 F.2d > 304, 306 (2d Cir. 1963). > > The vicarious liability claim failed against Klemesrud, due to a lack of > proof of Klemesrud's ability to control Erlich's actions. Judge Whyte held > that there was a question over Netcom's ability to control Erlich's > infringing, due to Netcom's terms of service contract between Netcom and its > subscribers (Klemesrud) which allowed Netcom the right to take remedial > action against subscribers. > > The sticking point was the second issue-- did Netcom receive a direct > financial benefit from the infringement? Here, rather than looking at the > theory underlying vicarious liability (that the innocent author should not > loose out when someone else is either more liable or is otherwise in a > better position to insure against infringement), the Court simply picked its > favorite of the conflicting cases to justify its result, and found no > financial benefit. > > This case raises some important issues-- issues that are of grave concern to > a growing number of individuals and businesses. It shows up some of the > weaknesses in the current Copyright Act. Judge Whyte's opinion addresses one > weakness, but leaves open questions of interpretation. Hopefully congress > will take the hints it offers, and will send the Commerce Department back to > the drawing-board in order to come up with some more appropriate proposals > to amend the Copyright Act. > > > >--- >Joel Hanes