NOTE: IANAL, nor am I trained in any way to report on court-room events. I cannot claim to be without bias, and I don't report on the state of the dresses of (fe)male attendents for personal reasons.

I'm also not that great at taking notes, so I may have missed a lot.

Heck, this hearing took two-and-a-half hours... So YMMV.

Last thursday there was a (supposedly final, I think, though the judges may decide differently) hearing in court in The Hague, in the appeal of the case between various Co$ 'orgs' versus several Dutch ISPs and Karin Spaink.

Much to my surprise Warren McShane was allowed to make a short presentation to the judges early on, about the 'security arrangements' that are supposedly in place in the Co$ to keep those precious OT-levels from becoming 'published'.

Mr. Hermans (Lawyer for Co$) had argued that at no time copies of the OT-material were spread amongst $cientologists and that $cientologists were even never allowed to take notes while they studied the materials.

For the purpose of his little presentation about that point, Warren had brought a bulky suitcase with two large locks on it, from which he produced a number of photo-books and some other papers that he showed at the bench. Of course we couldn't actually see the pictures themselves, but fortunately Warren gave an audible explanation along with almost every picture he showed to the judges.

It seems that at first he wanted to convince everyone that ever since the sixties, Co$ members would have to obtain a 'special card' that would allow them access to a specially secured room (of which lawyer Mr. Hermans stated that there are only seven in the world) through doors that are electronically operated by that card, in order to even look at the materials. A very sophisticated security system, from what I could gather.

According to Warren, the OT's are all printed on special 'paper' (I believe he called the material 'mylar' or something similar) that is impossible to tear and contains a device that would set off an alarm when someone would try to remove it from the room.

Warren even brought "his own copy" (his words) of some of the documents to show the court!!!!

When the lead judge (sorry, I have no names) asked Warren about the fact that these security arrangements obviously had not been in use ever since the sixties, when the OT-material was written, Warren hastened to explain that these arrangements obviously 'evolved' over time, but that the secrecy had been in place at all times.

And he waved a piece of paper in front of the bench that was supposed to 'prove' that. Alas for him, it was by then far too late to enter new evidence into this case. And of course, waving pieces of paper in front of a judge at such a late stage in a court case makes the one doing it look quite ridiculous.

Fortunately for him, Warren's little show seemed of limited importance in the case anyway.

Of course Mr. Hermans argued -as he was obviously instructed to do- that the OT material was never 'rightfully' published, and that the material at issue was 'stolen' (and that the thieves had been punished). Hermans stated that it could not be said that the works were 'published' if they were only made available to a limited public.

Hermans reminded us that the owner of copyrighted works has the right of 'first publication'. And he insisted on the liability of the ISPs for the alleged 'damage' in cases like this.

When it was Mr. Van Maanen's turn (the lawyer for both the ISPs and Karin Spaink), he quickly reminded the court that by now this case had become limited to only the OT-2 and OT-3 documents. The 'Ability' material apparently appeared in printed form already and all the other material seems to have never been contested by the Co$.

He continued by reminding the court that by $cientology's own admissions in 1998 some 25000 people had already been given access to the documents in question, adding that that number probably has only grown since then.

Van Maanen also raised doubt about the security of the materials, not only because the 'presentation' by Warren McShane obviously could not have had to do much with the original arrangements that were in place since the materials were written, but also because the defense had only been furnished with contracts about this issue between RTC and TWO different organizations, dating 1982, 1988, 1992 and 1995.

Obviously if there are SEVEN organizations wich are licensed by RTC, only one of them lacking such security measures would constitute an obvious flaw in the arguments of Mr Hermans.

And of course, if Warren McShane would have 'personal copies' of such documents, how could anyone be sure how many of such copies there were at all??

And then Van Maanen continued to argue that even when the 'security arrangements' would be deemed appropriate, the materials had been 'made available' to the public anyway. He argued that both the Berne convention and Dutch law regard making materials available, even under certain conditions as 'publication'.

In Dutch law, it was argued that only if the audience was direct family, and that no money had changed hands, there was an exception.

In any other case where information is being shared, Dutch law seems to consider it 'publication'.

And this argument is by no means limited to the actual copying of material, Mr. Van Maanen argued. Consider the cinema, where these same laws apply. There is a limited audience there too, and they pay money for the experience too. That audience is not allowed to 'take notes' in the form of photos or video. But all of that does not mean that a movie is not considered to be 'published' under Dutch law. And all of this should lead to the conclusion that it would be completely legal to cite from those published works, which is all that had happened.

Van Maanen continued to explain to the judges that it would be not a very good idea to make case law that pushes ISPs into the seat of the judge, even though he knew how busy the judges are. And by allowing possibly frivolous complaints to automatically lead to action by an ISP, the ISP would become liable for almost any action or lack thereof.

Van Maanen argued that the Dutch ISPs already have a common policy on issues like this one, that was put in place since this case had been filed. That policy states that the ISP will take action if either 1) there is a court order, or 2) there is an 'unmistakeable injustice' (this is a very bad translation of mine, sorry, BvI.).

As one of his final points, Mr van Maanen reminded the court of the fact that $cientology has a policy that appears to make them NOT contact any user of an ISP when they have a complaint against them, but in stead $cientology chooses to ignore the real issue by complaining against the ISP directly.

After a short break, it was Mr. Hermans' turn again. He reiterated that there had been 'confidentiality' and that the material had been 'stolen'.

When he asked the judges if Warren McShane would be allowed to make some more comments, the judges quickly reacted by saying that that would not be allowed now, and if it would happen, it had to be done when Warren could be sworn in as a witness.

Then Mr. Hermans made some pointless argument about 'trade secrets' (completely inappropriate here). And he tried to explain that not just anybody could become a member of $cientology.

Mr. Van Maanen then summed it all up nicely by asking where the evidence was that showed that the material was indeed 'stolen'. (He said more, but my notes fail me there, I guess most was repetitions of previous arguments.)

The judges concluded the hearing by announcing that there will be a judgement on June 13.

So basically, there wasn't much news to report from The Hague... ;-)

HTH

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