Newsgroups: alt.religion.scientology From: dennis.l.erlich@support.com Subject: Rtc vs netcom hearing (er Message-ID: <9506282145.0UK9P03@support.com> References: <3ssg9n$qcn@ixnews5.ix.netcom.com> Organization: L.A. Valley College Public BBS (818)985-7150 X-Mailer: TBBS/PIMP v3.35/PRIMP 1.56p Distribution: world Date: Wed, 28 Jun 95 21:45:20 -0700 Lines: 150 ckaun@deimos.ads.com (Carl Kaun) >I was at Erlich's hearing on June 23. Had an opportunity to meet some >of the 'names' on a.r.s, like Diane Richardson, and Shelley Thomson, >in person. Should have tried to meet more, but I wasn't feeling 100%. >I am sure that there will be many fine accounts coming out about the >hearing, and that we can get hold of the transcript, the briefs, the >depositions and affidavits, and the other documents concerning the >case (how does one do that, BTW?). Go to the courthouse and ask for them. Pay for the copying. [snip] >CoS did seem to take a more flexible >position concerning certain kinds of infringement than it has >previously, perhaps bowing to reality. It indicated that it did not >generally intend to prosecute technical infringement, for example. Cooley also alluded to the fact that the assessment for violation could be anything from $0 to $100000. Perhaps he'd like to invite a wrist slapping ... a symbolic victory. That was the impression I got. He was definately working hard to repair a mess caused by the other scieno lawyers who got them into this war with the Internet. >(If Netcom is severed >from the case, could there be a change of venue, since Netcom was the >sole link to filing in Northern California?) Perhaps. But if Netcom is dismissed, Judge Whyte will have probably adjusted his view of this whole fiasco. >McElhinny was also good, putting >Cooley in the uncomfortable position of trying to limit inclusion of >publicly available material in the court record, while weaseling on >whether it was or was not trade secrets, and leading the judge to say >he couldn't understand what Cooley was objecting to. Neat >maneuvering. The final part of McElhinny's statements emphasized the >First Amendment rights underpinning to what was being contested. It >was apparently enthusiastically received by all of the defendant's >supporters, except maybe me. I thought it was perhaps a bit theatrical. >Dennis, maybe you can give us (me?) a little more insight into what McElhinny >was trying to accomplish with his closing comments. I believe that the record will speak for itself, when posted. >On the balance, it seemed to me that the defense made compelling >arguments for their motions. How the judge will rule, however, I >would hesitate to predict. Federal judges are to my mind somewhat >like the gods of Mount Olympus - they have great power in the lives of >men, and they exercise that power in accordance with apparently >Olympian - rather than human - precepts, making their actions appear >sometimes capricious to men. Still, we'll hope for the best for Dennis, >Netcom, and Klemesrud. I did observe that the Judge seemed to make quite >a large number of notes during various defense presentations. He seemed to have a good grasp of the ramifications of potential rulings in the motions before him. >Back to my 'nagging concern'. I am troubled by both Netcom's and >support.com's response to how postings of copyrighted or trade secret >material should be handled on a BBS. Their reaction is essentially >'can't do anything until we confirm it'. Which reaction I understand >- it protects them from liability, at least in some ways. But is this >the best balancing of the rights of all parties, including those with 1st >Amendment and intellectual properties rights? A copyright holder can produce the documentation to prove ownership and the original to compare with. The provider can check percent of work posted, context and use of the posting. An adjudication can then be made as to whether to contact the person who did the post and request it's cancellation. If refused, the provider can adjudicate his own liability and either remove the post or allow the court to rule on the fair use issue. Trade secret claims should only be adjudicated by a court. >How would we feel about this response if the plaintiff wasn't big, bad >CoS, but was instead some poor guy who invests a years of his life >developing a manuscript or product idea, and sees his potential >rewards disappear because someone, somehow illegally accesses his work >and puts it on internet, and the poor guy is powerless to stop it >because everyone takes the position 'can't do anything until we >confirm it'. If it's copyrighted, he'll have registration and an original to verify it. If it's a claimed trade secret, he should file for protection from a court. No provider should be expected to censor because of some claim with no proof. > Upon sufficiently believable notification that a particular posting > violates copyright or contains trade secret material, if the sysop > cannot make an on-the-spot determination of the status of the > material, the sysop will cancel the posting, and distribute > cancellation notices to all feeds. You are lumping copyright and trade secrets together. They cannot be handled the same way. One can be verified easily. The other cannot. >Would such a policy be any more onerous to enforce than policies >currently employed by BBS's? Why? What policies? If they know what to do, they do it. If they don't, they have to wait for a judge to tell them. >Does it infringe 1st Amendment rights? >How? By placing the ability to restrain your communication in the hands of anyone who wants to make a claim, without them having to provide proof first. >I wonder if a couple of the questions Judge Whyte asked weren't going >in a similar direction. At one point, for example, he asked Liepold >whether a BBS operator would accept a court order as sufficient >evidence of copyright violation. He had to push to get Liepold to agree >that he would honor a court order. At another point, he asked about >the handling of illegally obtained trade secrets. I don't think he >found the response (something along the lines of "no particular duty") >very satisfying, since in fact receivers of illegally obtained trade secrets >DO have specific responsibilities, by law. Oh, is that right? And what are the responsibilities? Please quote the law here. This would be for *knowingly* receiving illegally obtained trade secrets? What about unknowingly receiving *allegedly* illegally obtained *alleged* trade secrets? The ISP's supposed to figure this all out? Get real. They'll need a full-time, off-duty judge on the payroll to supervise the Censorship Section of the provider. >Anyway, that's this observer's impression. Glad you could attend. +--------------------------------------+ Rev. Dennis L Erlich * * the inFormer * * dennis.l.erlich@support.com + inForm@primenet.com "tar baby"