Newsgroups: alt.religion.scientology
From: dennis.l.erlich@support.com
Subject: Federal court hearing 1/2
Message-ID: <9506240918.0D2J400@support.com>
References: <3s54th$iif@newsbf02.news.aol.com>
Organization: L.A. Valley College Public BBS (818)985-7150
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Distribution: world
Date: Sat, 24 Jun 95 09:18:13 -0700
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bpharmon@miavx1.acs.muohio.edu (Raskolnikov)

>My hack job of reviewing the court hearing, part two.....
>
>After Leipold said his peace, Cooley took the stand again.
>
>Cooley claimed that he had to deal with this "fantasy construction"
>set up by the defesne.   He said that "the case law is very clear,
>and that there is no room for 'I Don't Know'" and that "Loading
>of copyrighted materials into computer memory is a direct infringement
>of copyright."  [Nevermind that RTC and HK, et. al refused to prove
>copyright to netcom or klemesrud].
>
>He characterized the arguments of Rice and Leipold as "devil made
>me do it" arguments, where someone was helpless to stop a subscriber
>who was clearly abusing their system. [right, and nevermind that he
>twisted what they said a bit].  He also mentioned Grady Ward by name,
>and accused the anonymous and pseudonymous posters to ARS of trying
>to impose anarchy on the net by repeatedly reposting copyrighted
>"trade secrets" of the church and thereby make a mockery of the
>church's rights.  [Demonizing ARS critics seems to be a big
>schtick for him, could he be woody? ;)]
       
    He said Grady and I had public discussions that amounted to a
    conspiracy to flood Internet with their trade secrets.  It 
    was an serious accusation which I absolutely deny.

>He also accussed Klemesrud of stalling because he [klem] insisted that
>the original copyrighted materials be sent to him by US mail.
>That way, argued Cooley, the articles would have expired off of
>Klemesrud's NEWSfeed and he would no longer be able to compare
>them to the originals, and voila'! no infringement.
>
>[Cooley seems to imply that Klemesrud, Erlich, and Netcom are all in
> cahoots to rape the intellectual property and "trade secrets" of the
> church. Is that because they're all SPs?]
>
>Cooley also raised the issue that Erlich posted materials after the
>TRO was in place.
>
>[as an aside, it was often hard to tell which of their motions the
> plaintiffs were talking about at any given time, as they often
> floated bewteen going after Klemesrud, Netcom, and then Erlich
> all in one thought.  Cooley was particualrly fond of this.]

    That's because he had no clue about Internet and the
    operations of providers or participants.  He was constantly
    passed notes, which he would spout in his staccato, blustery
    "style" at the court as if there were cameras on him.

>Judge Whyte asked Cooley if netcom, Klemesrud, and Erlich are simply
>supposed to take the RTC's word for it that an infringement has
>occurred.  Cooley replied that they should trust the plaintiff's
>atornney's in that matter. [in essence,  yes.]
>
>Cooley also raised the issue of a "Non-Discolsure Agreement" signed
>[allegedly] by Elrich, promising not to reveal the secrets of
>scientology [the OT materials, i guess].  Cooley also stated that
>19-20 coyrighted and unpublished "trade secrets" of the church
>were found on Mr. Erlich's computers, that he posted parts of 19 of
>these 20 materials, and that 14 of these were posted verbatim. [true?]
>the text of the agreement was shown to the court, but i could not
>see it from where I was.
>
>Cooley was no arguing that Erlich had not only violated the copyrights
>of the church, but that he had also reneged on his non-disclosure
>agreement.
>
>Cooley claimed that Erlich violated the TRO three times, and therefore
>should be held in contempt.  One was a post made after the TRO was modified,
>the second was a signed declaration verfiying that a chruch document was
>genuine, and the third [i think] was an interview where he mentioned Xenu and
>H-bombs [incident II].  [note, Cooley didn't list these, i got them from the
>defense's rebuttal.]
>
>Cooley started repeating himself, again saying that removing users was
>not necessary, merely that the Church wanted netcom and Klemesrud to delete
>messages they say violated their copyright. [methinks they're trying to
>change their argument.]
>
>At this point, there was a ten minute recess.  Cooley and co. had used up so
>much of their time that they had about two minutes remaining to argue
>for holding Dennis in contempt.  The defense, OTOH, still had loads of time.
>
>-----after the recess----[ps, my notes go way downhill here, perhaps a more
>                          diligent person can fill in more.]
>
>Cooley sat down and let Carla Oakley [rep. Erlich] take the stand
>to argue against holding Dennis in contempt of court, and to rebut
>some of what Cooley and others had said.  to paraphrase again:

    No, Daniel.  Carla's argument was the copyright and trade
    secret matter were insufficient to justify the TRO
    (injunctive relief) sought by the plaintiffs.  That the Writ 
    of Seizure didn't comply with the conditions of law for that 
    serious remedy. That the balance of hardship weighed too heavily 
    on me.  That my research materials should be returned. That the
    scienos didn't have the likelihood of prevailing and that the trade
    secrets didn't meet the criteria.

>1) Freedom of speech arguments:
>
>     The TRO was preventing Dennis from exercising his first amendment
>     rights by telling what he could and could not talk about.
>
>     [Holding him in contempt for mentioning Xenu and volcanoes in an
>      interview would be a good example]
>
>2) Arguments against income loss for the church or irreperable
>   harm caused by Dennis.
>
>      RTC/COS made the argument that Dennis's publishing of
>      OT materials undercuts the church's business and casues
>      'irreperable harm to the church' [i don't quite get this argument.]
>
>      Not so, says Oakley.   Even when Dennis posts these
>      materials to the net, he is not removing the services the
>      church provides, nor is he passing the church's methods and
>      tech as his own.  This argument, that the defendant is
>      causing unnacceptable loss of income for the church is wrong,
>      as he is not competeing with the church per se.
>
>      The Church has won cases in the past against splinter group[s]
>      by using this type of 'unfair competition' argument. It does
>      not, however, apply here.
>
>3)  the Church's unpublished documents are not trade secrets.
>
>      Unlike a real trade secret, the church does not have any idea how
>      many people have access to their trade secrets.
>
>      Many of these "trade secrets" have been published and publicly
>      desseminated on the 'net. [not by dennis that is. Also, does
>      putting this stuff together for OT levels constitute 'publishing'
>      the material? Has the church unwittingly published their trade secrets?]
>
>      Also, these some of these 'trade secrets' are a matter of public
>      record, such as the Fishman declaration [has OT stuff in it.]
>
>      If these are trade secrets, why are so many people allowed to access
>      them?  -- they are not kept under strict lock and key --
>
>      If these are trade secrets, why do you _sell_ them to your church
>      members?  [does coke sell its formula to employees?]

    She made the point that the elaborate sham of security
    precautions the cult presented to the judge in their filings
    was only in place in 3 of the 10 locations where the courses 
    are available for sale by the cult.

>4) Copyright Claims:  What about forgery?
>
>      Some of the usenet postings placed before Erlich did not
>      look right. Dennis claims not to recognize them as his
>      [they're missing headers and the like, tag lines are weird.]
>      If some of these postings by Dennis were forged, how can he
>      be held liable for the infringements in those forged postings?
>
>
>Other arguments were made for fair use, that Dennis was not "scooping"
>scientology as a breakaway church would, but i couldn't hear too well
>and i was running out of steam.  Someone will have to cover this better than
>me but i did jot down some key issues:
>
>Dennis recieved many of these materials from the 'net, where they
>had already been published [anonymously].  Apparently, they
>were mailed to him by anonymous sources. [true/false?]
              
    The class 8 tape, NOTs 24.  It could have actually been the 
    cult that sent them to me, knowing I would make them public 
    and fall into their trap.

>The OT materials used by Erlich in his criticism of the church are
>largely "informative" in nature rather than "creative."  That is, the
>exact information in the "infromative" work is not copyrighted, but the
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