H. Keith Henson
2237 Munns Ave.
Oakville, ON L6H 3M9 Canada
905-844-6216 (Fax by prearrangement)
416-529-2789 (Cell)
hkhenson@cogeco.com
In Pro Per
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
RELIGIOUS TECHNOLOGY CENTER
Plaintiff,
vs
H. KEITH HENSON,
Defendant ))))))))))
Case No. D 96-20271 RMW
DECLARATION OF H. KEITH HENSON PER ORDER OF THE COURT DATED AUGUST
30,2002
Date: Sept. 13, 2002
Time: 9:00 am
Courtroom: Hon. Ronald M. Whyte
I H. Keith Henson hereby declare:
I am the defendant in this case. I have personal knowledge of the facts set forth below. I could and would testify competently thereto but only outside of the US or by video since I have been publicly threatened with being injured or killed in jail by the agents of cult of Scientology and would be arrested should I return to the United States.
On September 4 and 5, 2002 I downloaded Exhibits 1-8 and 10 from the Universal Resource Locators (URLs) listed in Exhibit 9. Each exhibit is a true and correct copy of the text that was displayed in the Microsoft Explorer Web browser window.
These Exhibits are self-authenticating, that is they are like newspaper stories of a particular publication and date. The plaintiff, the court, or any interested party can check a copy of a newspaper article against the public record of that newspaper. Likewise anyone can use a Web browser to check if they have any doubt that the exhibits are true and correct copies.
Exhibit 1 is the analysis of NOTs 34 on xenu.net. RTC claims it is a matter of contempt for me to mention its URL. It has been at the URL cited in Exhibits 2 and 9 since it was announced May 17, 1998. I first referenced the analysis at this URL in an Internet posting on December 1, 1998, Exhibit 3, Page 3. I also mentioned the URL of this analysis in the context of an amicus brief submitted to and accepted by Judge Schaeffer's court in St. Petersburg, FL in the Lisa McPherson wrongful death hearings. (Lisa McPherson was killed by the application of a different--but related to NOTs 34--illegal practice of medicine Scientology policy.) That amicus brief (without exhibits) was previously supplied to this court as an Exhibit B to the July 5, 2002 reply filing and Exhibit T of the PART 1 filing.
Exhibit 4 is the oldest copy of NOTs 34 I was able to find on the net (printed twice because of printer problems). It was put up Dec 26, 1994, before Helena Kobrin brought Scientology to my attention by trying to destroy a newsgroup with her famous "rmgroup" command (Exhibit 5) January 12, 1995. It is still in the Google Groups archive. Exhibit 6 is a posting of mine October 23, 1997 where I fair use quote part of NOTs 34 and analyze it for criminal content. No contempt charges were brought against me at that time and this posting is still available on Google.
Exhibit 7 is another copy of NOTs 34 found with a cursory search of the Web. In the course of locating material for this hearing, I found a number of copies of NOTs 34 beyond those listed and all of the NOTs series and the OT series in multiple places. Exhibit 8 is another detailed analysis of NOTs 34, which includes all of it.
Exhibit 9 is the list of the URLs for the other 9 exhibits.
Exhibit 10 is an "amicus brief" posting analyzing the state of the Lisa McPherson case after incessant legal harassment and extortion by Scientology removed Bob Minton from the picture. It states it was mailed to the court, presumably to one or both of the Florida courts now hearing testimony. Exhibit 10 has been reformatted and run through grammar and spell checking and in this respect it is *not* a true and correct copy.
Exhibit 11 is a true and correct copy of a motion from People vs Henson dated April 18, 2001 and attached declaration of Frank Oliver. The first nine exhibits are being filed under seal, per the order of the court. There is an additional sealed document being sent to the court only about an active police investigation. It should under no circumstances be provided to RTC or their counsel. If the court finds this inappropriate, please destroy it unopened.
Previously supplied Exhibits A to U included with PART 1 (dated Aug. 26) are also certified to be true and correct copies. Two of them, R and S are certified copies of exhibits obtained from a Florida court. The remainder can be rapidly authenticated as being true and correct copies through the Internet without need of the defendant's testimony because they are all hypertext linked to a copy of PART 1 at http://www.operatingthetan.com/nots56.htm
I certify under penalty of perjury in the Province of Ontario, Canada, and the laws of the United States that the above statements are true to the best of my knowledge.
Respectfully submitted,
H. Keith Henson, pro se
Dated September 6, 2002, signed in Oakville, ON.
**********************************
H. Keith Henson
2237 Munns Ave.
Oakville, ON L6H 3M9 Canada
905-844-6216 (Fax by prearrangement)
416-529-2789 (Cell)
hkhenson@cogeco.com
In Pro Per
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
RELIGIOUS TECHNOLOGY CENTER
Plaintiff, vs
H. KEITH HENSON,
Defendant
Case No. D 96-20271 RMW
DEFENDANT'S BRIEF PER AUG. 16 HEARING (PART 2), MOTION TO UNSEAL EXHIBITS
Date: Sept. 13, 2002
Time: 9:00 am
Courtroom: Hon. Ronald M. Whyte
I appreciate the court's allowing me to brief and provide exhibits. Per the court's instruction, the exhibits will be filed under seal.
Defendant moves that the court (after due study) consider this as a motion to unseal the attached exhibits and plaintiff's exhibits 13 and 14. It damages the courts' reputation to seal material more widely and persistently available to the public than any newspaper. And as a practical matter, who is going to dig into court files for material so widely available on the Internet?
In addition to the arguments expressed in DEFENDANT'S BRIEF (PART 1), page 2 starting at line 5, I have since found that I provided a link to the xenu.net analysis of NOTs 34 (Exhibit3) in December 1998. RTC made no claim of contempt at that time despite being well aware of the posting (it was a posting of an appeals filing that RTC certainly had notice of). RTC's failure to file a contempt action in 1998 weighs against taking action now for the exact same "offense." This supports my belief, based on RTC's failure to ask Google to remove the link to the NOTs 34 analysis, that even RTC considers the analysis on xenu.net to be fair use and brought this motion in bad faith (discussed in Part 1).
RTC by bringing this contempt motion will require the court to rule on the fair use character of the analysis of NOTs 34 on xenu.net since the injunction specifically permitted fair use of the "Works." However, this time the court can take advantage of the research skills of a large law firm. While they were referring to my open letter that started these many years of litigation, the same arguments apply to the analysis of NOTs 34 on xenu.net. See page 18 and following of the Petition for Writ of Certiorari previously filed as an exhibit in the Rule 60 motion before this court or about March 26, 2000.
"Petitioner's Use Was Of A Critical, Noncommercial Nature And Was Transformative Under This Court's Decision In Campbell
"Section 107 provides that the first factor a court must look at in the fair use analysis is "the purpose and character of the use, *including whether such use is of a commercial nature or is for nonprofit educational purposes."* 17 U.S.C. §107(1) (emphasis added)"
There is no question that the analysis on xenu.net is non-commercial. Andreas Heldal-Lund runs the entire xenu.net site as an education and information service at considerable personal cost. (As a result of his dedication and the wide linking to "Operation Clambake" www.xenu.net on September 5, 2002 was number 3 on Google for the word "Scientology," and it has ranked above all Scientology links in recent months.) The analysis is also transformative in that it certainly would not be used for the original purpose by the "faithful." (Read brainwashed: all former scientologists who dare to speak out say those still in are brainwashed.)
Though NOTs 34 is technically "unpublished," that is not a bar to fair use. See Writ of Certiorari, page 23, et. Seq.
"However, the notion that "the scope of fair use is narrower with respect to unpublished works" is an incorrect statement of the law. In 1992, Congress responded to Harper & Row, as well as to certain Second Circuit decisions that seemed to lean toward a per se rule against fair use for unpublished works,[24] by amending Section 107 of the Copyright Act to add the following provision:
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above [fair use] factors. --------------------------- [24] Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890 (1987); New Era Publications, Int'l ApS v. Henry Holt & Co., 873 F.2d 576 (2d Cir.), cert. denied, 493 U.S. 1094 (1990).
It is not a bar to fair use that all excepting two lines of NOTs 34 are incorporated into the analysis. See Writ of Certiorari, page 25 et seq., especially paragraph 3 on page 27
"This mechanical application of the third factor is erroneous. As this Court has noted, the task of analyzing application of the fair use defense "is not to be simplified with bright-line rules." Campbell, 510 U.S. at 577-78. With respect to the third factor, courts must determine "whether 'the quantity and value of the materials used' . . . are reasonable in relation to the purpose of the copying." Id. at 586. The "extent of permissible copying varies with the purpose and character of the use." Id.; see also Maxtone-Graham, 803 F.2d at 1263 ("There are no absolute rules as to how much of a copyrighted work may be copied and still be considered a fair use.").
"Indeed, courts have held that the copying of an original work in its entirety may constitute fair use. See, e.g., Sony, 464 U.S. at 456 (recording an entire television program for the purpose of watching it at a more convenient time ("time-shifting") constituted a fair use since the plaintiff failed to show that this practice would likely cause more than minimal harm to the potential market for their copyrighted works); Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1153-56 (9th Cir. 1986) (copying of an entire parody of a liquor advertisement constituted fair use because the defendant "did not use more than was reasonably necessary . . .to defend himself against . . . derogatory personal attacks"). [26]
"In the instant case, the Ninth Circuit and the District Court failed to consider fully the nature and purpose of the open letter to the District Court: to bring to the public's attention what Henson believed to be government conduct that violated his First Amendment right to free speech. Given the obscurity of NOTs 34, its brevity, and Petitioner's fears that he would be accused of taking the document out of context if he quoted any less, Petitioner believed that he could not post any less than he did and persuasively convey his message that the District Court's TRO prevented Henson and others from notifying the public of what he believed to be the Church of Scientology's dangerous and criminal conduct."
The same considerations apply to the analysis (and biting satire) of NOTs 34 on xenu.net. Finally with respect to the factor of "market harm" see page 28, et seq. From page 30:
"Surprisingly, the Ninth Circuit contradicted the District Court's finding of no market harm by concluding that Henson's copying did not constitute fair use because Petitioner had "conceded that such copying would lead to market harm." App. A at A-3. What Petitioner admitted, however, was only that his conduct "might convince the public not to buy the product because it is rubbish," "*not* because people will take the material from the Internet and use it." App. B at A19. This is precisely the type of market harm resulting from "biting criticism that suppresses demand" that this Court has held is not actionable. Campbell, 510 U.S. at 592. Although the Ninth Circuit characterized the "market harm factor as "the single most important element of fair use," App. A at A3, it completely misapprehended it.
"If, as Petitioner alternatively proposes, a rule were established instructing courts to liberally apply the fair use factors to support First Amendment interests in cases involving noncommercial, political speech, this factor, too, would require a finding of fair use."
What is really going on in this motion has nothing to do with the widely available cult "scripture" (Exhibits 1, 2, 3, 4, 6, 7 and 8) or copyright. It is Scientology applying "fair game" to the defendant. Scientology security agent Antonio Avila stated on the record in a Florida court hearing February 11, 2001 that the defendant was an "SP" or enemy. See Exhibit 11, Motion and Declaration of Frank Oliver, line 15. Such a designation requires Scientology agents to apply "the policy formerly known as 'fair game'" to the defendant.
HCO Policy Letter of 18 October 1967, Issue IV PENALTIES FOR LOWER CONDITIONS [cuts] ENEMY SP Order. Fair game. May be deprived of property or injured by any means by any Scientologist without any discipline of the Scientologist. May be tricked, sued or lied to or destroyed.
Scientology lawyers will tell the court that that the "fair game" policy was canceled. Here is the "cancellation."
HCO Policy Letter of 21 October 1968 CANCELLATION OF FAIR GAME The practice of declaring people FAIR GAME will cease. FAIR GAME may not appear on any Ethics Order. It causes bad public relations. This P/L does not cancel any policy on the treatment or handling of an SP.
This motion has been brought before this court now because RTC/Scientology has crushed a wealthy supporter of anti-Scientology activities, Bob Minton, and that has freed up legal resources. I attached as Exhibit 10 a recent anonymous amicus brief posted to alt.religion.scientology. Having followed this story from a distance I can state that the author(s) have done an excellent and accurate job of organizing the publicly available transcripts and exhibits, though the language is a bit salty for submission to a court. The extensive exhibits referenced in Exhibit 10 are available if the court is interested, having been posted into the Internet newsgroup alt.religion.scientology (a.r.s) a few days ago. Unlike the rest of the exhibits, Exhibit 10 has been edited to correct spelling and grammar.
I will, of course, not be surprised if the court finds these arguments unpersuasive and the defendant personally offensive. To quote plaintiff's exhibit 14,
On Thu, 09 May 2002 08:33:11 +0200, Tilman Hausherr <tilman@berlin.snafu.de> wrote:
>>Judge Whyte upholds DMCA :-(
>>http://www.law.com/cgi-bin/nwlink.cgi?ACG=ZZZCQLOYZ0D
>>"Robin Gross, a staff attorney with the Electronic Frontier
>>Foundation, which filed a brief backing ElcomSoft, said Whyte gave
>>"short-shrift" to the First Amendment arguments about computer code.
>>"Really the appropriate level of scrutiny should have been a strict
>>scrutiny," said Gross."
>Judge Whyte is not big on the First Amendment. That was my argument
>for posting the criminal instruction manual known as NOTs 34.
>At the time I did not know that a related scientology "medical
>method," the Introspection Rundown, had been used a few months earlier
>on Lisa McPherson--resulting in her death.
>Ah well, even if I had, to Judge Whyte commercial interest take[s]
>precedence over everything.
The above three paragraphs were written by the defendant. The "fair
game" plan of this motion includes biasing the court against the
defendant. The entirely unnecessary plaintiff exhibits 16 and 17 can
be seen in that light.
I have mixed feelings about this contempt motion by the Scientology cult. It would be just to win and for RTC to be sanctioned ten million dollars for abuse of process and wasting the court's time--especially on the NOTs 56 contempt charge where the origin of the parody is explained in RTC's own exhibit 13. However, if I am never returning to the US, the court's ruling against me on this abusive motion would provide a clear demonstration in my upcoming refugee hearing of how the US courts are used as a weapon by the rich litigant Scientology against "suppressive persons" and "enemies" of limited means. Exhibits R and S where RTC "expects to spend' an additional $350,000 against a bankrupt refugee are particularly noteworthy in this respect.
I am still trying to find counsel. If I do, they will be making a special appearance only. If the court finds this unacceptable, I would appreciate early notice so I can save expenses.
Where there are facts stated in this brief, I certify under penalty of perjury in the Province of Ontario, Canada, and the laws of the United States that they are true to the best of my knowledge. This same statement applies to DEFENDANT'S BRIEF (PART 1). Respectfully submitted,
H. Keith Henson, pro se Dated September 5, 2002, signed in Oakville, ON.