This is just astounding. They are insisting that I was asking in a
post for one of their documents, NOTs 56.
The real NOTs series only goes to 54, as can be seen in the documentation *they* supplied with the motion.
Madness!
Keith Henson
PS, the hearing date has been set back to Aug 16.
*****************
Helena K. Kobrin .SBA _ 52546 MOXON & KOBRIN 3055 Wilshire Bled.; Suite 900 Los Angeles. CA 90()1 t (213) 487-4468
Samuel D. Rosen PAUL, HASTINGS, JANOFSKY & WALKER 75 East 55th Street New York, NY 10022-') 2;)5 (212) 318-6000
Attorneys for Plaintiff RELIGIOUS TECHNOLOGY CENTER
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
CASE NO. C96-20271
REPLY DECLARATION OF WARREN MCSHANE IN SUPPORT OF MOTION FOR ISSUANCE OF AN ORDER TO SHOW CAUSE RE CIVIL CONTEMPT AND REQUEST TO STRIKE IRRELEVANT AND SCURRILOUS EXHIBITS
DATE: August 2. 2002 TIME: 9:0 a. m. CORM: Hon. Ronald M. Whyte
RELIGIOUS[sic] TECHNOLOGY[sic] CENTER, a California non-profit corporation, Plaintiff,
v.
H. KEITH HENSON, an individual,
1, Warren McShane hereby declare:
1. I am the President of plaintiff Religious[sic] Technology[sic] Center ("RTC"). T have personal knowledge of the-facts set forth below, and if called upon to do so, could and would testify competently thereto.
2. RTC's Motion for an Order to Show Cause re Civil Contempt addresses defendant Henson's solicitation of a work called "Nods 56." NOT s 56 is a copyrighted, unpublished work to which RTC holds the exclusive rights.
I declare under penalty of perjury that the foregoing is true and correct. Executed in the State of California. this 18th day of July, 2002.
Warren McShane
Helena K. Kobrin, SBN 152546 MOXON & KOBRIN 3055 Wilshire Blvd., Suite 900 Los Angeles, CA 90010 (213) 487-4468
Samuel D. Rosen PAUL, HASTINGS, JANOFSKY & WALKER 75 East 55th Street New York, NY 10022-3206 (212) 318-6000
Attorneys for Plaintiff RELIGIOUS TECHNOLOGY CENTER
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
CASE NO. C96-20271 RMW(EAI)
PLAINTIFF RELIGIOUS TECHNOLOGY CENTER'S REPLY IN SUPPORT OF ITS MOTION FOR ISSUANCE OF AN ORDER TO SHOW CAUSE RE CIVIL CONTEMPT AND REQUEST TO STRIKE IRRELEVANT AND SCURRILOUS EXHIBITS
DATE: August 2, 2002 T 11VIE: 9:0V a.m. CTRM: Hon. Ronald M. Whyte
RELIGIOUS TECHNOLOGY CENTER, a California non-profit corporation,
Plaintiff,
v.
H. KEITH HENSON, an individual,
defendant
Defendant H. Keith Henson's "Reply" to Motion for Issuance of an Order to Show Cause defenses to RTC's Contempt Motion. Each one two exhibits (B and C) which are entirely irrelevant hearsay.
I. Henson's Defenses Are Specious
A. Henson's "Fair Use" Defense
Henson claims that his May 9, 2002 posting is fair use based on the length of the quoted excerpt and the fact that it is on someone else's web site. First, the fact that Henson copied the material in his posting from a web site by someone else is no defense to
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Henson's infringement.
Second, Henson's limitation of his fair use analysis to the length of what he posted is far too simplistic. Henson did not simply post three lines of NOTs 34. He posted them in connection with his statement that he was free to violate the Permanent Injunction against him because he is a fugitive in Canada: "Here is my original letter to Judge Whyte less most of NOTs 34 (which I could stick in since I have been made a political refugee and am no longer under the authority of the US courts.)." (Ex. 14 to McShane Declaration filed with Motion.) He then also pointed his readers to where they could find the entirety of NOTs 34. (Id.) These actions violated paragraphs 1 (a) and (d) of the Permanent Injunction.
Courts have long recognized that an important consideration in the application of the fait use defense is the "good faith" (or lack of it) in the alleged infringer's use. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 540, 562-63, 105 S.Ct. 2218, 2220, 2231-32 (1985)(good faith or bad faith of infringer relevant to evaluating first factor of purpose or character of infringing use). Henson's copying was undertaken for the express purpose of making an unpublished, copyrighted work more broadly available through the excerpt he posted and through his reference to a site where he recommended that his readers could find the entirety of the work. Further, it is hard to imagine clearer evidence of Henson's lack of good faith than his statement that he can make such postings because he is "no longer under the authority of the US courts."
This Court has previously recognized that commentary like that supplied by Henson in his letter does not satisfy the requirements of the first fair use factor that the use be transformative. RTC v. Henson, Slip Op., at 8 ("Henson's limited commentary is only minimally transformative ''; "Despite Henson's noncommercial use, the court finds that this first factor weighs in RTC's favor since Henson's use is only minimally transformative.")'
FN 1
1 "In Campbell v. Acuff-Rose, the Supreme Court held that the central purpose of the first inquiry is to determine whether the new work is transformative (also described as `productive'), that is, whether it `adds something new, with a further purpose or different
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Similarly, the commentary in the site whose URL he posted does not create a transformative use.
With respect to the URL that Henson included in his posting, it copies the entirety of the work, and therefore, a fair use finding for both that URL and Henson's posting is not appropriate under factor three. See Walt Disney Productions v. Air Pirates, 581 F.2d 751, 758 (9th Cir. 1978) (although defendant's parody targeted different market than plaintiff's, court affirmed summary judgement for plaintiff and rejected fair use defense "[b]ecause the amount of defendant's copying exceeded permissible levels"), cert denied, 439 U.S. 1132 (1979). Moreover, given that "[l]ess copying will be acceptable when the original is unpublished," RTC v. Netcom, 923 F.Supp. at 1246, citing 3 M.B. Nimmer & D. Nimmer, Nimmer on Copyright § 13.05[A][2], at pp. 13-185 n. 200 (1995) ("Nimmer"), the third factor weighs in RTC's favor as well. Indeed, "whatever the use, generally, it may not constitute a fair use if the entire work is reproduced." 3 Nimmer § 13.05[A][3], at pp. 13-186 - 13-187; see also Craft v. Kobler, 667 F.Supp. 120, 126-30 (S.D.N.Y. 1987) (enjoining publication of biography that copied "extensive and important" sections of prior copyrighted book).
With respect to the second fair use factor, in decisions in this case and RTC v. Netcom, this Court has previously found that the unpublished nature of the works weighs heavily in favor of a finding for RTC. Order Granting in Part and Denying in Part Plaintiff's Motion for Partial Summary Judgment as to Copyright Claims for Relief, April 15, 1997, at 9; RTC v. Netcom, 923 F.Supp. at 1246; RTC v. Ward, Corrected Order Denying Plaintiff's Motion for Summary Judgment and Granting Plaintiff's Motion for Summary Adjudication, November 25, 1997, at 13.
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B. Henson's "Not Responsible for the Web Site Whose URL He Posted" Defense
RTC's motion is not premised on Henson being responsible for the web site to which he is directing people by including its URL. Paragraph 1(d) of the Permanent Injunction prohibits Henson from "[c]ausing or inducing any other person to engage in any of the foregoing acts." Henson's posting tells his readers:
You can find the rest of NOTs dozens of places on the net, for example:
http://home.online.no/-heldal/CoS/archive/events/9805henson
case/nots34 anal2.html, and implicitly, if not explicitly, that they can download RTC's work from that site. (McShane Dec. Ex. 14.) Because the site to which he directs these people contains the entirety of NOTs 34, and because this Court has previously determined Henson's earlier postings of NOTs 34 to be infringement against which Henson is permanently enjoined, Henson is most definitely "causing or inducing" others to engage in infringement by accessing NOTs 34 on the "online.no" site, making a copy of it on their computers, and downloading it. See A&MRecords, Inc. v. Napster, Inc., 239 F.3d 1004, 1019 (9`'' Cir. 2001); see M,4I Systems Corp. v. Peak Computer, Inc., 991 F. 2d 511, 518 (9' Cir. 1993).
C. Henson's "NOTs 56 Is Not an RTC Work" Defense
Henson's claim that NOTs 56 is not an RTC work is false. As explained in the accompanying Reply Declaration of Warren McShane, contrary to Henson's representation, NOTs 56 is an unpublished, copyrighted work in which RTC holds the rights.
Thus, while Henson may wish to refer to something he allegedly created as NOTs 56,2 the paragraph in Exhibit 13 to which he refers does not convey the meaning he is ascribing to it. Furthermore, his request for people to send him "NOTs 56" if they can find it on the Internet is a solicitation of an RTC Advanced Technology work, as prohibited by
FN 2
2 The mendacity of this claim is evidenced by the fact that he was soliciting others to send it to him.
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paragraph 1(b) of the Permanent Injunction. 11. Exhibits B and C to Henson's Opposition Should Be Stricken
Exhibit B is a letter that purports to be an "Amicus Brief" that Henson has submitted to a court in Pinellas County Florida in a totally unrelated case. The defendant in that case has opposed the acceptance of the "brief' because it is as irrelevant, prejudicial, hearsay, and lacking in personal knowledge in that case, as it is here. The Exhibit violates Rules 401, 402, 403, 602, 801, 802, and 902 of the Federal Rules of Evidence and should be stricken.
Exhibit C is also unauthenticated, irrelevant and hearsay, as lacking in any personal knowledge on the part of Henson, and should be stricken for those reasons.
III. Conclusion
There is no reason in Henson's opposition to deny RTC's motion for an Order to Show Cause. Henson obviously believes that his absence from the United States enables him to violate this Court's injunction with impunity. Action needs to be taken now so that he is disabused of that notion.
DATED: July 18 , 2002
Respectfully submitted,
MOXON & KOBRIN
[signed by Tom Hogan for Helena]
Helena K. Kobrin
Attorneys for Plaintiff
RELIGIOUS[sic] TECHNOLOGY[sic] CENTER