On Wed, 18 Sep 2002 12:56:06 GMT, hkhenson@cogeco.ca (Keith Henson) wrote:

snip

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

RELIGIOUS TECHNOLOGY CENTER, a California non-profit corporation,Plaintiff,v. H. KEITH HENSON, an individual,Defendant.

CASE NO. C96-20271 RMW(EAI) RELIGIOUS TECHNOLOGY CENTER'S RESPONSE TO "DEFENDANT'S BRIEF PER AUG. 16 HEARING; OPPOSITION TO MOTION TO UNSEAL EXHIBITS"; AND EVIDENTIARY OBJECTIONS TO PROPOSED EXHIBITS DATE: September 20, 2002 TIME: 2:00 p.m. CTRM: Hon. Ronald M. Whyte

Introduction

On August 30, 2002, this Court granted defendant Henson's request to submit a "brief" in support of his position concerning Religious Technology Center's ("RTC") contempt motion and agreed to allow Henson to download and submit materials from the Internet that would otherwise be in violation of the permanent injunction. In that Order, the Court "reminded" Henson that the contempt hearing would be "an evidentiary hearing and that the Federal Rules of Evidence will apply to the parties' submissions. Submissions that are not admissible under the Federal Rules of Evidence will not be admitted into evidence."

Following the Order, Henson submitted a document entitled "Defendant's Brief Per Aug. 16 Hearing; Motion to Unseal Exhibits." Henson designated that document as Part II of his Brief and his August 26, 2002 Ex Parte Application as Part I. Henson included numerous exhibits with both Part I and Part II of his brief, and a Declaration with Part II. RTC therefore provides a three-prong submission in response to Henson's brief - a response to his brief with respect to the merits of the contempt motion, an opposition to his "motion to unseal exhibits," and evidentiary objections to Henson's proposed exhibits.

With respect to the exhibits, evidently Henson either did not understand the Court's Order or does not care that it requires him to comply with the Rules of Evidence, because his two-part brief and his exhibits are a collection of irrelevant, unauthenticated, hearsay documents and allegations that are entirely inadmissible as "evidence." They further consist of irrelevant allegations about all manner of things, including why RTC has brought its contempt motion against Henson, ad hominem attacks on this Court, the Riverside County Superior Court, and the Scientology religion, Henson's usual irrelevant references to an alleged "fair game" practice, which this Court rejected at least a dozen times just during the trial of this case, and diatribes about events that allegedly have occurred in other cases. All of these matters should be stricken.

To the slight extent that anything comprehensible can be gleaned from Henson's filing, the only argument that has any potential relevance to the issues before the Court in connection with the contempt proceeding is his argument addressing fair use. As RTC will show, Henson's publication of the URL to an infringing page and the page itself are not fair use.

With respect to Henson's motion to unseal exhibits, he has made no showing warranting such relief, and that motion should be denied.

Henson's Evidence Is Inadmissible

As the Court admonished Henson in its August 30 Order, any evidence he presents must be admissible at an evidentiary hearing. Henson has not presented anything that meets that requirement. Henson states in his declaration that he printed various exhibits off the Internet, but his out-of-court statement is hearsay that he is offering for the truth of that statement, and is therefore inadmissible. Live authentication of any exhibits at the hearing is needed. This lack of authentication should eliminate each of the exhibits Henson offers. However, the following objections also apply:

· Exhibits A-H, 1-8 : Internet print-offs. These items are hearsay if offered for the truth of what they state, and the majority of them are irrelevant. The sole possible exception with respect to relevance is the print-off of the page whose URL Henson inserted in his May 9, 2002 posting at issue here.

· Exhibit 9: A one-page list of Exhibits, listing various URLs, including Henson's descriptions of these items. This document is also hearsay and irrelevant and is simply not "evidence."

· Exhibit 10: An "amicus brief": This document is not an amicus brief. It has nothing to do with the contempt motion against Henson or this case in any way. It is also not a brief, and is not submitted by anyone other than Henson, as the only "signature" on the end of the document is "the Amicus group," and Henson also admits that he has edited the document himself. It is obvious that a Court cannot possibly accept an amicus brief from an anonymous source. And to the extent Henson believes he is offering this document as "evidence," nothing in it constitutes evidence for reasons of irrelevance, lack of authentication, hearsay nature, and so on. See the arguments made in the accompanying Opposition to "Leave to File Amicus Brief" and Request That Purported "Amicus Brief" Be Stricken," which are adopted as if fully set forth herein.

· Exhibit 11: A Motion filed in Henson's state court criminal case, along with a Declaration by a person named Frank Oliver. These are utterly irrelevant and are also rank hearsay.

· Unnumbered exhibit: RTC also objects to Henson's filing with the Court of an unnumbered exhibit that is allegedly related to "an active police investigation," which Henson has refused to serve on RTC or its attorneys. The Court should either give a copy of the exhibit to RTC's counsel or should return it to Henson. In either event, from the description, it appears to be totally irrelevant and should not be accepted or considered by the Court for any purpose.

· Exhibits I - L: RTC has no idea what these exhibits are because they are not referenced in Henson's Ex Parte Application, nor are his exhibits numbered. If they are intended to be some of the Internet print-offs Henson has submitted, the comments above are equally applicable.

· Exhibits M and N: Letters to the Riverside County Superior Court Appeals Division. These are hearsay if offered for the truth of what is asserted and are also utterly irrelevant.

· Exhibit O: A declaration by Henson's criminal attorney. This is both hearsay and irrelevant.

· Exhibits P and Q: This is another "exhibit list" and a "reply" to some unspecified document. Not only are these hearsay and irrelevant, they are incomprehensible.

· Exhibits R and S: These are not identified, and RTC has no idea what they are.

· Exhibit T: "Amicus brief" filed by Henson in a Florida case. This is totally irrelevant and entirely hearsay.

· Exhibit U: An Internet article by Henson. Henson purports to offer this as character evidence, but it does not go to truthfulness and does not comply with Rule 608, Fed.R.Evid. Moreover, whether Henson is "civic minded" has nothing to do with whether he is in contempt of the permanent injunction.

Henson's Posting at Bar Is Not Fair Use

Mid his stream-of-consciousness rantings, Henson makes a few points about alleged fair use. He claims that the Court should find fair use because the URL to which he pointed allegedly is not a commercial site, the use made on that site is transformative, unpublished works do not automatically receive fair use protection, and the use of the entirety of NOTs 34 at that URL does not bar a fair use finding.

First, this issue should be viewed in context. RTC is not suing Henson for copyright infringement. It has been there and done that already. Rather, RTC is asking this Court to find Henson, a fugitive from United States justice, who has previously been held in contempt of an order of this Court in this case, in contempt of a permanent injunction it issued five years ago. In the face of that injunction, Henson made his May 2002 posting in which he stated: "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.)," and then included a URL where his readers could find the entirety of NOTs 34. That "original letter" with NOTs 34 in it was, of course, the posting which led to this lawsuit.

Courts have long recognized that an important consideration in the application of the fair 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. 539 562?63, 105 S.Ct. 2218, 2231?32 (1985) (good faith or bad faith of infringer relevant to evaluating first factor of purpose or character of infringing use). Henson's statement that he can "stick in" infringing materials in his postings because he is no longer under this Court's jurisdiction is clear evidence of bad faith.

Second, there is no requirement that Henson's actions, or the underlying actions of the person who posted the URL to which he points, be undertaken for profit in order to infringe. 17 U.S.C. §§ 106, 501; Marcus v. Rowley, 695 F.2d 1171 (9th Cir. 1983) (rejecting defendant's fair use claim and granting summary judgment to plaintiff for defendant's ostensible use for non?profit, educational purposes). Furthermore, beyond his inadmissible bald-faced statement, Henson has offered no evidence that the site to which he pointed is not commercial.

Third, as the Second Circuit has explained, "[t]he issue is not simply whether a challenged work serves one of the non-exclusive purposes identified in section 107, such as comment or criticism, but whether it does so to an insignificant or a substantial extent." Twin Peaks Prods., Inc. v. Publications Int'l, Ltd., 996 F.2d 1366, 1374 (2d Cir. 1993). The court in Twin Peaks concluded that a book of comment and criticism which summarized in great detail the plots of eight episodes of the television series Twin Peaks was not a fair use. Although recognizing that a potentially infringing use would be transformative "if a plot was briefly described for the purpose of adding significant criticism or comment," the court held that "[w]here, as here, the [infringing use] serves no transformative function and elaborates in detail far beyond what is required to serve any legitimate purpose, the first factor cannot be weighed in favor of the fair use defense." Id. at 1376 (emphasis added). Here, of course, the URL to which Henson points sets forth virtually the entirety of the NOTs 34 work (a single sentence is missing).

Fourth, RTC has never argued to this Court that the unpublished nature of a work automatically renders it unsusceptible to any possible fair use. However, the courts have consistently recognized that "the scope of fair use is narrower with respect to unpublished works." New Era Publications Int'l ApS. v. Carol Pub. Group, 904 F.2d 152, 157 (2d. Cir.), cert denied, 498 U.S. 921, 111 S.Ct. 297 (1990)(quoting Harper & Row, 471 U.S. at 564, 105 S.Ct. at 2232); Salinger v. Random House, Inc., 811 F.2d 90, 97 (2d Cir.), cert. denied, 484 U.S. 890, 108 S.Ct. 213 (1987); Religious Technology Center v. Netcom, 923 F.Supp. 1231, 1246 (N.D. Cal. 1995)("[l]ess copying will be acceptable when the original is unpublished"), citing 3 Nimmer § 13.05[A][2], at pp. 13?185 n. 200. As another decision involving New Era Publications aptly observes, "[w]here use is made of [unpublished materials], the second fair use factor has yet to be applied in favor of infringer . . . ." New Era Publications Int'l, ApS v. Henry Holt and Co., Inc., 873 F.2d 576, 583 (2d Cir. 1989), cert. denied, 493 U.S. 1094, 110 S.Ct. 1168 (1990). Compare Los Angeles NewsServ. v. KCAL?TV Channel 9, 108 F.3d 1119 (9th Cir. 1997)(broadcast of a 30?second segment of a four-minute clip may not be fair use even where it had already been broadcast). The same conclusion is manifestly applicable here to the page to which Henson directed his readers.

In this very case, the Ninth Circuit, in its unpublished decision, stated of the summary judgment ruling herein that "the district court also properly found that Henson's copying did not constitute a fair use pursuant to the statute. Notably, Henson copied an unpublished work in its entirety . . ." (Footnotes omitted.) The Ninth Circuit noted that the unpublished nature of the work "is a consideration which cuts against the infringing defendant." Id. n. 3. The URL page also contains nearly the entirety of NOTs 34, and the same analysis is applicable.

Fifth, the third fair use factor relates to the "amount and substantiality of the portion used in relation to the copyrighted work as a whole." 17 U.S.C. § 107. Harper & Row, 471 U.S. at 565?56, 105 S.Ct. at 2233. Analysis of this factor includes a determination of quantitative, as well as qualitative, similarity. Marcus v. Rowley, 695 F.2d at 1176-1177. Even where a work is not copied in its entirety, the amount that may permissibly be copied under the fair use doctrine is extremely limited, particularly with respect to unpublished works. "Generally, no more of a work may be taken than is necessary to make the accompanying comment understandable." Supermarket of Homes, Inc. v. San Fernando Valley Bd. Of Realtors, 786 F.2d 1400, 1409 (9th Cir. 1986), quoted in RTC v. Netcom, 923 F. Supp. at 1249. In addition, quoting material that is "essentially the heart of" a copyrighted work precludes a finding of fair use. Harper & Row, 471 U.S. at 565, 105 S.Ct. at 2233; Abend v. MCA, Inc., 863 F.2d 1465, 1481 (9th Cir. 1988), aff'd, 495 U.S. 207, 110 S.Ct. 1750 (1990). Ultimately, "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?87; 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).

In its unpublished decision in this case, this Court ruled that Henson could "not sufficiently explain why he needed to post the entire text ... to educate the public." Id. at 7:8?9. Affirming that decision, and citing to 4 Nimmer on Copyrights, § 13.05[A][3] at 13-185 (1998) and Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 450, 104 S.Ct. 774 (1984), the Ninth Circuit stated in its decision that "[i]t is not generally a fair use if the entire work is reproduced."

RTC therefore submits that Henson has made no showing that he is entitled to a favorable ruling with respect to any of the fair use factors, and his claim of fair use should therefore be rejected.

The Exhibits Should Not Be Unsealed

Henson's entire argument in favor of unsealing RTC's Exhibits 13 and 14 and the exhibits that the Court ordered Henson to file under seal is that the exhibits are available in other places, it therefore will damage the Court's reputation to seal them, and besides, no one would look for these items in the Court's files because they can find them on the Internet. Henson has not provided a single valid reason why this Court should make itself a repository for unpublished, copyrighted works and thereby permit others to argue that the materials should not be afforded protection as a result. Any copies of NOTs 34 that are on URLs submitted by Henson are unauthorized, and it is obvious that Henson wants to unseal these materials in the misguided attempt to legitimize them by having them publicly available as part of the Court record.

This case was litigated under the protection of a Confidentiality Order (Docket No. 102). Henson opposed the Confidentiality Order, and the Court rejected his arguments at that time.

Here, RTC only filed Exhibits 13 and 14, and Henson only filed his sealed exhibits, because RTC brought what it perceived to be Henson's violations of this Court's permanent injunction before the Court on this contempt motion. RTC requested, and the Court granted, the right to seek enforcement of the injunction under the same protection that was afforded throughout the case to its confidential, unpublished copyrighted work, including clearing the courtroom during a portion of the trial that addressed NOTs 34 and holding Henson in contempt for posting a portion of the sealed transcript on the Internet. Henson did not oppose RTC's sealing motion. Because he had his opportunity to oppose sealing at that time, and he did not do so, he should not be permitted to seek unsealing of RTC's Exhibits now.

Furthermore, Henson also should not be permitted to seek unsealing of his own exhibits. He moved the Court for leave to violate the permanent injunction because, as he told the Court, "the permanent injunctions . . . make it impossible to brief certain defenses against the contempt motion without the possibility of violating the terms of the permanent injunction." (Ex Parte Motion, at 1.) Having procured an Order granting his motion, which permitted him to file documents containing NOTs 34 or portions of it under seal without violating the injunction, it is disingenuous for Henson to now ask the Court to unseal those very documents.

The reasons of confidentiality and proprietary rights in NOTs 34 that prompted the Court to issue the Confidentiality Order in the underlying case still exist today, as set forth in the Declaration of Warren McShane that was filed in support of RTC's motion for sealing. (Ex. A.) Having permitted RTC to litigate the infringement of its unpublished work under a Confidentiality Order, it would be most unfair to now penalize it for attempting to enforce the permanent injunction it obtained by unsealing the evidence containing the same work or portions of it.

In the circumstances presented here, Henson has failed to show any cause, let alone good cause, for the Court to unseal the exhibits.

Conclusion

Henson's exhibits must be excluded because they do not comply with the Rules of Evidence. His posting violates the permanent injunction, and it is not fair use. RTC therefore requests that this Court find Henson in civil contempt of the injunction. And finally, RTC submits that the Court should deny Henson's motion to unseal exhibits.

DATED: September 18, 2002 Respectfully submitted, MOXON & KOBRIN

____________________________________ Helena K. Kobrin

Attorneys for Plaintiff RELIGIOUS TECHNOLOGY CENTER