Newsgroups: alt.religion.scientology
From: dennis.l.erlich@support.com
Subject: Fair use and trade secret
Message-ID: <9507301145.0GIF301@support.com>
References: <1995Jul30.105855.7220@schbbs.mot.com>
Organization: L.A. Valley College Public BBS (818)985-7150
X-Mailer: TBBS/PIMP v3.35
Distribution: world
Date: Sun, 30 Jul 95 11:45:12 -0700
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mgarde@ix.netcom.com (Maureen Garde)

>By the way, if Dennis Erlich paid for OT services and was exposed to
>the allegedly trade secret material as part of his training, then he
>did not obtain the *information* about OT illegally.  Whatever
>knowledge concerning it would appear to be quite legally obtained.

    Correct.  I was given the material as part of my Ministerial
    training in the cult.  I am still using it in my ministry.

>It
>is a separate issue altogether whether he may have illegally obtained
>*copies* of the material. So at least as to him, the issue of knowledge
>of the information in the OT materials, and obtaining copies of the OT
>materials, are quite separate.

    Any material sent to me was done so anonymously by by people
    who knew I would make use of it in my ministry.

>Second, has any court squarely considered the issue of whether the use
>of "illegally obtained," unpublished but copyrighted material was fair
>use?  If there are courts that have decided this issue and found
>against fair use, it might be permissible to say that "In every
>reported decision that I have found that has considered the issue, the
>court concluded that the fact that the unpublished materials were
>illegally obtained precluded a finding of fair use."

    Correct.  Inapplicable in my case.

>There are also some statements made in the quoted correspondence
>concerning the status of OT materials as trade secrets that I find
>subject to question.
>
>The discussion of the ninth circuit cases as the Vien case skips over
>some important points.  It appears that the ninth circuit (the
>appellate court) said that OT materials *could* (that is *might*)
>qualify as trade secrets if there was a showing of independent economic
>value, as required under the California Trade Secrets Act.  The Vien
>case was brought against someone who was charging a fee for the
>dissemination of the material.  Thus, the court in Vien said, by virtue
>of the fact that the defendant is charging for the dissemination of the
>material, there is independent economic value.

    Correct.  Whereas I simply used them for comment, criticism,
    satire and education.

>Several facts concerning the Vien case must be kept in mind.  First, it
>was brought against someone who was competing with scientology by
>selling services.  Thus, the defendant in that case was virtually
>precluded from arging that the materials were not trade secrets because
>they had no independent economic value.

    Right.  Everyone knows my objection to making money selling
    rub-on enlightenment.

>Second, the current facts, as
>I understand them, are quite different. To the extent that Mr. Erlich
>is disseminating material alleged to be trade secrets, he is not doing
>so for payment.

    Not a penny.

>The dissemination in his cases raises different
>factual and legal question that those presented in the Vien case, and
>thus that case would not appear to be determinative of the issue.
>Given that whether particular information constitutes trade secrets is
>a mixed question of law and fact, it would appear that a judicial
>determination is necessary on this issue.

    I believe Judge Whyte is correctly taking his time to make
    just such a determination.

>As to the question of whether there can be "fair use" of a trade
>secret, I'm not sure I agree, although the issue becomes an intersting
>(to a law nerd like me) question of federal preemption.  Federal
>copyright law protects against copying, etc., and preempts equivalent
>state law.  It does not preempt trade secret law to the extent that
>state trade secret law is protecting a different interest than is
>protected under copyright law.  The "different interest" protected
>under trade secret law is protection against the dissemination of the
>information itself, aside from whether the information has been
>committed to paper, as it were.  Thus, the fact that someone has made a
>copy of a trade secret that has been committed to paper, and has not
>disclosed it, may not be misappropriation of a trade secret.  The
>*copying* of a trade secret without disclosure may be subject to a fair
>use defense, it would seem.

    Huh?

>I think what the Erlich/Netcom case presents is not an issue of the
>"fair use" of a trade secret (because that's mixing apples and oranges
>from the legal perspective) but rather broader issues of free speech
>and public policy.  I could see a court finding that some of the
>practices of the COS with respect to nondisclosure agreements are void
>as against public policy, including the agreement not to disclose
>information about the OT materials.  Is this an unconscionable contract
>because those who sign give up important first amendment rights without
>full knowlege of the potential consequences?  Is it overreaching on the
>part of the COS to bind its adherents in this way?  Does the COS have a
>fiduciary duty to its adherents that is breached by an unconscionable
>contract that forces adherents to waive first amendment rights in order
>to obtain religious services?

    Totally correct questions.  I say "yes" to all three.

>It is when you look at the situation this way that you can see how this
>situation differs from the typical trade secret misappropriation case
>which involves commercial relationships.
>
>Also, there are important public policy issues concerning Erlich's
>allegations of fraud and harm, and whether there is a defense to trade
>secret misappropriation where illegality is concerned.  The last
>sentence of the California Uniform Trade Secrets Act would seem to
>suggest that there is such a defense.  The Vien case doesn't address
>these issues.
>
>Well, that's all for now, folks.

    Thanks for the detailed examination of these issues.

            +--------------------------------------+
           Rev. Dennis L Erlich  * * the inFormer * *
      dennis.l.erlich@support.com  +  inForm@primenet.com
                           "tar baby"