Trial Day 2: May 6, 1998
1 United States District Court
2 For the northern district of California
3 San Jose division
4
5 Religious Technology Center, ) case nos. C-96-20271 rmw
A California non-profit )
6 organization, )
) San Jose, California
7 Plaintiff, )
) May 6, 1998
8 Vs. )
) Pages 94-243
9 H. Keith Henson, an )
Individual, ) volume 2
10 )
Defendants. )
11 _____________________________)
12
13 Transcript of proceedings
Before the honorable Ronald M. Whyte
14 United States district Judge
15 appearances
16 for the plaintiff Paul, Hastings, Janofsky & Walker
By: Samuel D. Rosen, Michael Mervis
17 399 Park Avenue
New York, New York 10022
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Law offices of Thomas R. Hogan
19 By: Thomas R. Hogan
60 south market street, suite 1125
20 San Jose, California 95113
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22 reported by: Lee-Anne Shortridge, csr #9595
Irene l. Rodriguez, csr #8074
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24 Appearances continued on next page
25 Computerized transcription by stenocat
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1 appearances (con't)
2 for the plaintiff Law offices of moxon & Kobrin
By: Helena K. Kobrin
3 6255 Sunset Boulevard, suite 2000
Los Angeles, California 90028
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5 for the defendant Berry, Lewis, Scali & Stojkovic
H. Keith Henson By: Graham E. Berry
6 One Wilshire boulevard, 21st floor
Los Angeles, California 90017
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1 Index of witnesses
2 Page
3 plaintiff's
4 H. Keith Henson
5 As on cross by Mr. Rosen 164
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13 Index of exhibits
14 Admitted
15 plaintiff's
16 27a 163
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96
1 Tuesday, May 6, 1998
2 (whereupon, the following proceedings were held out
3 Of the presence of the jury.)
4 The Court: Good morning. I understand there's
5 something somebody wanted to bring up.
6 Mr. Rosen: Yes, your Honor. Good morning.
7 Just very quickly, I understand we're still waiting
8 for a juror, so I'm going to take about three minutes.
9 We submitted a charge on statutory damages, a
10 request to charge which included deterrence of Henson and
11 others.
12 Mr. Berry didn't object, but your Honor raised a
13 question and deleted it from your preliminary instructions. You
14 asked me yesterday, do we have any cases to support the
15 deterrence of others component of the charge?
16 The answer is yes. Nintendo against dragon, ninth
17 circuit, 40 fed3d 1007. That's not all that clear on it. It
18 seems to suggest it.
19 But more importantly than that is every case after
20 that cites to nintendo for exactly this express proposition.
21 The Court: All right. I'll take a look at it, and
22 if it needs to be in the final charge, it will be in.
23 Mr. Rosen: I was going to ask for your Honor to
24 give a supplementary preliminary charge to correct this since
25 this is part of my opening statement, that some of the evidence
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1 the jury is going to consider is the need for deterrence of
2 others, not just --
3 The Court: Let me see the case. I'm not going to
4 modify my opening charge, but --
5 Mr. Rosen: The top one is nintendo, and the other
6 three are cases citing to it for the proposition of deterrence.
7 Deterrence of others, I should have said.
8 The Court: Is there a particular page on this on
9 which that statement is made?
10 Mr. Rosen: Excuse me one second, your Honor.
11 (Pause in proceedings.)
12 Mr. Rosen: Can we have the other cases? We'll pull
13 it right out. There is a portion of the fitzgerald case in the
14 second circuit.
15 The Court: But I was looking specifically at
16 nintendo for that.
17 Mr. Hart: Your Honor, if I may, I can probably find
18 the marked page for you.
19 The Court: Okay.
20 Mr. Rosen: Is the marked copy --
21 The Court: And also, Mr. Berry, I also just handed
22 to Mr. Rosen a copy of the note I gave to that one juror per our
23 discussion yesterday.
24 Mr. Berry: Thank you, your Honor.
25 Mr. Rosen: This is the marked page of the cass case
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1 citing to nintendo, and this is the marked page from the playboy
2 versus webworld case citing to, excuse me, citing to nintendo as
3 well for the very proposition. And here's a nintendo decision,
4 your Honor, marked on page five of the printout.
5 (Pause in proceedings.)
6 The Court: Mr. Berry, do you have any comment?
7 These cases do appear to stand for that proposition.
8 Mr. Berry: Your Honor, I only looked at the
9 nintendo case. That's the only one I have a copy of with me.
10 I do note that they're all -- they appear to me to
11 be florida cases, no ninth circuit cases.
12 But if the court is minded to grant Mr. Rosen's
13 request, I would ask whether that precludes -- whether I'm
14 precluded at all from arguing to the jury that it's a matter for
15 them as to whether they wish to deter the exposure of criminal
16 conduct in the manner Mr. Henson believed he was doing.
17 The Court: Well, I'm not sure you could phrase it
18 that way. But certainly it's totally discretionary as to the
19 jury as to what factors they think they should apply in
20 determining the award of statutory damages.
21 What I'm going to do, Mr. Rosen, is I'm going to
22 allow you to, at this point, to assume that that is a factor.
23 I'm not going to amend the charge at this point, but I am going
24 to let you treat it as an issue.
25 And then unless there's some authority that points
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1 me otherwise, it appears, based on these cases, that it is a
2 proper consideration.
3 I would ask, as an officer of the court, though, in
4 researching this, did you find any cases that suggested
5 otherwise?
6 Mr. Rosen: I'll have to defer to my partner who did
7 the research.
8 Mr. Hart: Your Honor, I didn't personally research
9 it, and I will ascertain whether there's anything contrary in
10 the law. I personally do not believe so. The authorities
11 extend to the second circuit, which has been cited in the ninth
12 circuit as well.
13 The Court: Well, I'm not -- these cases are from
14 various parts of the country.
15 It would seem strange to me that whoever did this
16 research for you wouldn't have told you if there was something
17 that was contrary, and I'm asking, as an officer of the court,
18 are you presenting me with all the cases that you found that
19 deal with the issue? Is there any case out there that suggests
20 otherwise?
21 Mr. Hart: Your Honor, again, I'm not trying to be
22 cute about this at all. I got the cases last night at 1:00 In
23 the morning local time, so my associate, by that time, hopefully
24 was asleep. I did not speak to him.
25 My understanding of the case, as we presented to you
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1 yesterday, was precisely what these cases hold.
2 Mr. Rosen: Our associate in New York did the
3 research. We will check with that associate today, and I will
4 represent to you -- if there is any case that goes the other
5 way, we will give it to you this afternoon.
6 The Court: Okay.
7 Mr. Rosen: One last thing, my second and last point
8 I wanted to raise, and that is as we played out the way that the
9 defense was going to go yesterday, Mr. Henson is going to say,
10 "I believed that this was an illegal practice of medicine and my
11 belief was reasonable," et cetera.
12 And then, of course, the jury is going to have to
13 decide whether that was reasonable to believe that, which will
14 involve them looking at NOTs, as your Honor has ruled, and
15 saying, "okay, I could see where that may be the practice of
16 medicine, or one could believe it is, or maybe not."
17 That very process of the jury looking at it is
18 explicitly what was precluded by the leading case in the country
19 on this, founding church of Scientology of washington d.C. I'm
20 prepared to hand up copies of this, 408, 409 fed2d 1146. It's a
21 d.C. Circuit court of appeals, and I'll read you just a couple
22 of lines.
23 The Court: Just let me see it. We're not going to
24 get to that.
25 Mr. Rosen: Okay. I've marked the sections by dog
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1 earring the pages, your Honor (handing).
2 Mr. Berry: Do you have a copy for myself?
3 Mr. Rosen: No. I don't have a copy for me. It
4 goes --
5 The Court: Just reading the little blurb, I don't
6 think it's inconsistent with anything I've said.
7 Mr. Rosen: It goes on. There are two other
8 portions marked on the next two pages.
9 The Court: Okay. Well, we've got to get going if
10 the jury is here. See if everybody is here.
11 Just so you'll both be aware, I do not like to take
12 any time that's for the jury to take up issues with attorneys.
13 We do that before, which we need to be alerted ahead of time, or
14 at the end of the day.
15 (Pause in proceedings.)
16 The Court: Is everybody here? We're still missing
17 one?
18 We're still missing a juror. She'll go call him.
19 So I'll come back when we are ready to go.
20 Mr. Rosen: Okay.
21 (Recess.)
22 The Court: We're not having good luck with jurors.
23 The missing juror just called indicating that his car broke down
24 and it's going to be 45 minutes before he gets here. So I don't
25 think we have any choice under the circumstances but to wait
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1 because it's not one of the -- it's not the juror we kept that
2 had the possible difficulties.
3 So I think under the circumstances, and I think I
4 would in any case since it's only 45 minutes, but we're going to
5 have to wait until he gets here. So we'll start -- as long as
6 you're back here by 9:00, Hopefully he'll be here and we'll
7 start at that time.
8 Mr. Rosen: Judge, since we're not taking time from
9 the jury, can I just make one statement in terms of what I
10 handed up to you?
11 The Court: Yes.
12 Mr. Rosen: I think that the proposition that the
13 case sets forth is that no jury is allowed to be in a position
14 where they have to directly or indirectly decide issues of rule,
15 the truth or falsity of any rule, which is precept number one,
16 and number two, I think at most maybe the Judge decides it, not
17 the jury. So it does go to the issue of whether this defense is
18 tried to the court or tried to the jury.
19 The Court: All right. I'll read the case.
20 Mr. Rosen: Thank you.
21 (Recess.)
22 The Court: The reason that I wanted to speak to
23 you is it's come to my attention that being handed out, either
24 right outside the courtroom door or inside the courtroom door,
25 or the courthouse door, is a press release purportedly that
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1 appears to be from Mr. Henson. If not from Mr. Henson, it's
2 certainly somebody on his behalf. He is listed as the contact
3 at the bottom of the press release.
4 I will show the parties a copy of this. I am very
5 concerned because jurors come in and out of the court the same
6 way that other people do.
7 So at this time, subject to any briefing either side
8 wants to present to me, I am going to prohibit distribution of
9 that press release on the courthouse premises for the half hour
10 before the jurors are scheduled to arrive, and for the half hour
11 after the jurors are scheduled to leave.
12 Obviously handing such a document to a juror would
13 be jury tampering as far as I'm concerned.
14 I will also ask the jurors if any of them have
15 received this, and also instruct them not to accept any document
16 that is being distributed in or around the court.
17 Let me show the parties the press release, and as I
18 say, I will consider briefing from either side on what should be
19 done other than what I've suggested.
20 Mr. Berry: Your Honor, I've just --
21 The Court: I am very concerned -- let me finish.
22 I am very concerned about making sure this is a fair
23 trial. Individuals have First Amendment rights that I don't
24 want to interfere with.
25 But the parties have a right to a fair trial, and
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1 those interests have to be balanced, and certainly in my view at
2 least, the restriction that I've imposed regulates the time,
3 manner of distribution of such in a way that hopefully balances
4 those two interests. I guess that covers it.
5 Mr. Berry: Your Honor, I've just spoken with my
6 client, Mr. Henson.
7 The court's concerns are quite proper. He tells me
8 that he's only given it to the marshals on the way, in who asked
9 for it, and he's happy not to do, to distribute it to anyone at
10 any time on the court premises and apologizes for any concern he
11 may have caused the court.
12 The Court: It causes me a lot of concern. How did
13 it -- I mean, is he represented that the marshal just sort of
14 said, what are you carrying" and asked him for a copy? How else
15 would the marshal know about this?
16 Mr. Berry: I think it was waved in front of the
17 marshal.
18 Mr. Henson: Your Honor, may I speak?
19 The Court: With your counsel's permission on this
20 issue.
21 Mr. Henson: The marshals have been aware of this
22 case for a very long time, and when I came in the other day,
23 they were interested in it and asked me for a copy of a press
24 release.
25 This item has been posted on the internet. I have
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1 not given it to anyone accept the marshals here in the, in the
2 courthouse.
3 The Court: But you're saying the marshals knew that
4 you had a press release just out the blue?
5 Mr. Henson: They asked me what -- they asked me
6 what it was about, and I gave them one.
7 The Court: But how did they know -- when you say
8 what it --
9 Mr. Henson: I had a stack of them in my hands when
10 I came in one day. I was expecting some newspaper people to be
11 here.
12 The Court: So you were going to hand it out here?
13 Mr. Henson: No, not on the courthouse --
14 Mr. Berry: I think --
15 Mr. Rosen: I'm very concerned about this.
16 MS. Mcphearson, I see Mr. Berry's name, his firm name and his
17 telephone number at the bottom of this.
18 Mr. Berry: I haven't read it.
19 Mr. Rosen: I must tell you, I was downstairs during
20 this break as we were waiting for a marshal, excuse me, as we
21 were waiting for a juror, and there were two jurors who I saw
22 downstairs who were standing quite a ways away, and I didn't say
23 anything to them, of course.
24 And they are smokers, like I am, so whenever we have
25 a break that allows smoking, the smoking area is outside as,
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1 your Honor knows.
2 But every time there's a break, jurors go outside.
3 And I just cannot believe this. This has not been
4 posted, to my knowledge, to the internet. This is dated April
5 30th. And in fact, we attached to the submission we made to
6 your Honor last week, last Friday, I believe, what Mr. Henson
7 posted to the internet on April 30th.
8 This isn't it. This is absolutely inflammatory.
9 I'm going to consider, and I understand your Honor
10 wants briefing on this, but just so Mr. Berry is on notice, when
11 we're done for the day, I'm going to go back and research and
12 consider the propriety of a motion for a mistrial with prejudice
13 and striking a pleading entry of a default judgment.
14 The Court: Well, you can present to me briefing,
15 but my order at this point is that that document not be
16 distributed within one half hour of jurors either entering or
17 leaving the courthouse. That would include any time there's a
18 break, that there would be no distribution.
19 I'm hoping that Mr. Berry's representation is true
20 and that there will be no distribution whatsoever on the court
21 property.
22 And I am going to advise the jurors that they should
23 not take any document that is offered to them on the courthouse
24 property during the course of this trial, and also ask if
25 anybody has received any such document.
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1 Mr. Rosen: I'm going to ask one other thing, if I
2 may, your Honor, to include in your order.
3 Since you have the right to prohibit Mr. Henson from
4 making distributions on courthouse property, there is no reason
5 for him to have it in his possession where he's on courthouse
6 property. I don't want to get into another one -- "I wasn't
7 going to give it to a juror, I was going to give it to the
8 press." Leave it in his car. You have the right to prohibit
9 him from having it on courthouse property, and I ask you to do
10 that.
11 The Court: I'm not going to do that, but I will add
12 to it that it not be, during the times I mentioned, that it
13 would be kept within a closed container, such as a briefcase, or
14 inside and not out in any way where it would be observed by
15 anyone.
16 All right. All the jurors are here.
17 I do want that back because I want to -- I'll make
18 copies of it, but I want to mark it as an exhibit.
19 Mr. Berry: I guess, your Honor, Mr. Henson could
20 avoid the court having to make copies by providing extra copies
21 or however many the courts wants.
22 The Court: Well, let's not deal with that now.
23 (Change in reporters.)
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1 (whereupon, the proceedings were in the
2 presence of the jury.)
3 The Court: All right. Please be seated,
4 everyone. Good morning, everyone. Sorry we're
5 getting a late start but sometimes unforeseeable
6 events occur.
7 Mr. Yeh indicated to me yesterday some
8 concerns that he had not earlier expressed, and I
9 have excused him so now we're proceeding with a
10 jury of seven people.
11 Before we start with the opening
12 statements it's come to my attention that there may
13 be some literature that has been passed out on the
14 courthouse property. I just want to ask, has
15 anybody on the jury taken or seen any literature
16 that is being -- maybe being passed out around the
17 courthouse?
18 Jurors: (Nodding head side to side.)
19 The Court: I would ask or instruct you
20 that during the course of the trial that you not
21 take or read any literature that may be available
22 to you from someone during the course of the trial.
23 All right. Mr. Rosen, you may proceed
24 and give your opening statement.
25 Mr. Rosen: Thank you, your Honor.
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1 (whereupon, counsel for the plaintiff
2 gave their opening statement.)
3 Mr. Rosen: Good morning, ladies and
4 gentlemen. Let me start again by introducing some
5 folks sitting here with me. My name is sandy Rosen
6 and the gentleman over here is mike Mervis who is
7 from our law firm, and sitting next to him is
8 warren McShane, the president of RTC, and sitting
9 next to Mr. McShane is MS. Helena Kobrin. She's an
10 attorney who represents RTC in copyright matters,
11 and in fact, you will hear her name come up
12 frequently in the testimony you're going to hear.
13 As you know, the plaintiff in this case
14 is Religious Technology Center or as you have been
15 told already you will hear it referred to
16 frequently as RTC. RTC is an adjunct or a part of
17 the Scientology religion.
18 Church of Scientology is another phrase
19 that you will hear, and you will also hear an
20 abbreviation particularly in churches of
21 Scientology which is merely of c of s or cos, and
22 when you see that you will know that that means
23 church of Scientology.
24 For those of you who have not had the
25 pleasure of serving on a jury before, I am told
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1 that the purpose of my opening statement is kind of
2 like coming attractions. I'm supposed to give you
3 an idea of what the evidence is that you're going
4 to see that when the evidence is presented to you,
5 you'll have an understanding of what it is and how
6 it relates to the issues. And the reason for that
7 is that during the course of the presentation of
8 evidence, the attorneys are not allowed to speak to
9 you. So I can't, for example, tell you "look at
10 this document and here is why it is important."
11 And that's why the purpose of this is to kind of
12 let you understand what you're going to be seeing
13 and how we think it relates to the issues that you
14 will ultimately be asked to decide.
15 Now, Judge Whyte instructed you yesterday
16 on the subject of evidence, and the evidence is
17 what you hear in this courtroom. That evidence
18 consists of several different kinds and forms. One
19 is you'll notice -- I'm sure it's impossible not to
20 -- that there are video screens here, and the
21 reason for that is because some of the evidence
22 you're going to see are excerpts of the deposition
23 taken of Mr. Henson in this case.
24 Now, for those of you who have not been
25 involved in litigation, a deposition is an
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1 examination which is done before the case actually
2 comes to trial and in which you can ask the -- each
3 party can ask the other, what did you say? Why did
4 you do this? Et cetera. As you will see, that
5 deposition is taken under oath, the very same oath,
6 in fact, that is administered to a witness sitting
7 here in this courtroom. And that deposition
8 testimony is evidence just as if you heard it right
9 here from the witness stand. So that's one kind.
10 You will also be -- it may very well be
11 that we will be reading from deposition
12 transcripts. I don't want to take a lot of your
13 time showing you a full day of a deposition
14 videotape of Mr. Henson, but there will be parts of
15 the transcript -- the written transcript that we
16 may read to you. That's the same as the -- as the
17 videotape in the sense that this is sworn testimony
18 given by Mr. Henson.
19 Another aspect of evidence that you will
20 hear and see -- excuse me -- that you will see are
21 documents. Documents which the court rules are
22 admissible evidence will be given to you, and you
23 will be able to see them and read them, and in
24 fact, this little gizmo I'm told is called an elmo
25 will actually project it on a screen so that we can
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1 all look at it together.
2 And, of course, the last part of the --
3 the last kind of evidence that you're going to see
4 and hear is the testimony that you will hear from
5 the witness or witnesses in that witness chair and
6 you will consider that as well.
7 Judge Whyte has told you, and I believe
8 we have told you as well, this is not a trial about
9 religion. This is not a trial about whether one's
10 religious beliefs are better than anybody else's.
11 During the course of the selection of you
12 folks as the jury, you know that first by the
13 questionnaire that the court prepared, the written
14 questionnaire, and then by some of my questions we
15 asked you about certain religious beliefs.
16 Now, nobody likes to ask that because
17 most people feel that religion is about one of the
18 most personal things you can ever ask. No one
19 likes to ask, not the court or an attorney, about
20 what church you go to or how often do you go, but
21 the reason is -- the reason this was asked is
22 because the issues in this case may involve at
23 least some exposure to you of precepts of
24 Scientology religion, and the only purpose of
25 asking is not to pry and not to in any way make
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1 anybody feel uncomfortable, but just to make sure
2 that everybody, both the attorneys and court, in
3 fact, were satisfied that this jury will not be
4 influenced by hearing religious principles that
5 they may disagree with, and that was the only
6 purpose.
7 Okay. Next this case, as you know, is a
8 copyright case. It involves what is called
9 "unpublished works." When an author writes
10 something, the instant he writes it, that work is
11 unpublished. Some authors get around to
12 publishing, and then you can buy a book, as you
13 heard I think. So in the questionnaires there's a
14 reference to a book called "dianetics" by donald l.
15 Hubbord. It's published. Other works are not
16 published. Those are called unpublished works.
17 This case involves the infringement of
18 the copyrights of two of those unpublished works
19 written by Mr. Hubbord.
20 Now, Mr. Hubbord wrote a series of
21 unpublished works and some of them have titles and
22 characterizations or classifications, rather. You
23 will hear them referred to in this case by kind of
24 a shorthand. The works that you will hear, of
25 course, you will hear the work that Mr. Henson has
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1 already been found to infringe and that is called
2 NOTs 34. It's kind of like a shorthand way of
3 referring to it.
4 And you will also hear reference to
5 another unpublished work in this case, and it's
6 called otvii. Now, those -- those phrases will
7 have no meaning to you, and in fact, they will
8 probably have no meaning to you when you hear them
9 and all that you need to know is that when you hear
10 those, those are kind of a shorthand way in
11 referring to some of the works that were written by
12 Mr. Hubbord and which have not been published.
13 As you've been told, not only federal
14 copyright law but the United States constitution
15 protects copyrights and what authors create.
16 Neither the constitution nor the federal law makes
17 any value judgment as to whether something that's
18 written is good or bad. You can write a bad movie
19 a good book. You could write a bad poem, four
20 lines, it could be miserable. The copyright does
21 not sit in judgment on how good or bad it is. This
22 is not the oscars. We don't give out awards for
23 good movies and pan bad movies.
24 As the Judge explained, it's a form of
25 intellectual property like patents and trademarks,
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1 intellectual in the sense that you created it in
2 your mind and it's yours. Whether anybody likes it
3 or not is not the issue, it's yours.
4 (Change in reporters.)
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1 Mr. Rosen: The -- you're going to hear today, and
2 you've already heard I think a little bit, discussion about this
3 case involves infringement on the internet.
4 Now, some of you may have some familiarity with the
5 internet, some not. We're not going to get into -- I don't
6 think we're going to need to get into a big discussion of what
7 the internet is.
8 For your purposes, let me tell you what I think the
9 evidence will show and what I think you need to understand. The
10 internet is a worldwide method of people communicating. You put
11 something up on the internet, and as many people as have
12 computers in the world, whatever that number is, 25 million, 50
13 million, can access it.
14 It's like if you put something in the San Jose
15 Mercury and you then sent copies all around the world of that.
16 The difference, of course, is that you don't have to get the
17 newspaper to publish it. You can put it up yourself. All you
18 have to do is have access, and with your little keyboard, you
19 input whatever you want to post.
20 Now, the internet has on it what are called news
21 groups. News groups are like sections of a newspaper. I get
22 the paper at home on Sunday and I grab the sports page. My wife
23 gets the paper and grabs the fashion page and the financial
24 page.
25 And if one wants to look at things that have been
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1 posted to the internet on a particular subject, like let's say
2 how the sharks are doing, one can go to a particular news group,
3 instead of just kind of surfing the internet and seeing if
4 there's anything about sharks, one can zero in on a news group,
5 like the sports page, that tells you what's posted there.
6 The news group that you're going to hear in this
7 case to which Mr. Henson posting his infringing copies of my
8 client's unpublished works is alternate religion Scientology.
9 It is referred to, and will be referred to in many of the
10 documents and in the testimony, as ARS.
11 This is a news group, you will hear, that has about
12 30,000 people who, from time to time, fairly regularly, maybe a
13 little less regularly, will consult it.
14 And this is a news group to which, if people have
15 something to say about Scientology, they would post it there.
16 30,000 People, I'm sure, don't post to this group. A small
17 number do.
18 This group, as you will hear, consists of people who
19 are, who have positive views of Scientology, people who have
20 negative views, people who have no views, who just, you know,
21 are looking to read it and find out what Scientology is about.
22 It is not a commercial. It is not an advertisement.
23 These are -- it consists entirely of what people post to it.
24 So you'll be hearing that referred to as ARS,
25 alternate religion Scientology. That's the news group, the
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1 portion of the internet, like the portion of the newspaper,
2 which is primarily involved in this case.
3 Okay. We spoke about infringement a moment ago, and
4 of course the court has already explained to you what
5 infringement is. You, perhaps without even knowing it, have
6 seen infringement cases reported in the newspaper. It happens
7 frequently. Somebody comes out with a movie and then somebody
8 will sue and say, "hey, that movie is based on my book." That's
9 a copyright infringement.
10 A group comes out with a new song, another group or
11 composer says, "hey, I wrote that song. You stole it and you
12 recorded it." That's copyright infringement. That's kind of
13 the more usual case that you see in the newspaper reported of
14 copyright infringement.
15 Copyright infringement is essentially theft. It's
16 theft of the property I created through the work of my mind, the
17 intellectual exercise of my mind. It's no different than if I
18 stole your car.
19 Most copyright cases, in fact, that you read in the
20 papers and you may have heard about are cases where the theft is
21 for profit. People who take copies of a video of a popular
22 movie, let's say the titanic, and go around and sell them.
23 What are they doing? They're infringing a
24 copyright, but they're doing it to make money. It's illegal.
25 In fact, it is now criminal.
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1 But at least we understand it. You know, you
2 understand at least that somebody steals somebody, that somebody
3 takes some action in order to make money.
4 This case is entirely different. It is like no
5 copyright case you have or will ever hear of. The reason it's
6 different is because Mr. Henson is not your typical infringer.
7 He didn't post NOTs to make any money. He didn't post my
8 client's works and infringe their copyrights for any kind of
9 profit in the sense that somebody was going to pay him to do
10 this.
11 He posted it for a very different reason, and a
12 reason which I think is going to shock you, but I'm getting
13 ahead of my story.
14 Let me go back and tell you what the evidence will
15 show is the story of Mr. Henson's activities.
16 The story begins in February of 1995, and that's an
17 important date, February '95. At that point, Mr. Henson knew
18 nothing about Scientology. He will tell you, "I didn't read a
19 single thing about Scientology, hadn't read dianetics, hadn't
20 even spoken to a Scientologists. Don't even think I ever met
21 one accept one time somebody came to my door."
22 And he found ARS, alternate religion Scientology,
23 the news group. And from the very beginning, knowing nothing
24 about what Scientology is, Mr. Henson set out, and you'll see
25 his postings, to taunt the religion, to ridicule it, calling it
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1 names, the most vile and vicious postings I think you will agree
2 with me one can imagine.
3 Now, did Scientology or RTC do anything about this?
4 No. Do we like it? No. No one like to see things posted that
5 say bad things, nasty things, vicious things about themselves or
6 the religion they believe in.
7 But that's Mr. Henson's right, just like if, if we
8 wanted to, we could say bad things about him. That's his right.
9 July of 1995, about five months after he started
10 becoming involved in ARS, Mr. Henson took his activity to the
11 next level. He posted six lines of the work I mentioned before,
12 an unpublished work copyrighted called ot vii.
13 And at that time, you will hear MS. Kobrin,
14 mrs. Kobrin, RTC is one of her clients, she wrote Mr. Henson a
15 letter, and we call these letters a cease and desist letter.
16 It's a fancy lawyer's term.
17 It says, in effect, and you will see it, "my
18 client," mrs. Kobrin wrote, "rtc owns the copyright in that.
19 You don't have any right to do it, to publish it, and unless you
20 cease and desist from doing that, you're going to get sued."
21 So Mr. Henson, at that point, July of '95, is put on
22 notice, "stay away from our copyrighted works. Don't copy them.
23 Don't post them to the internet. Posting is infringement."
24 Well, next thing that happens is from July to about
25 February or March, Mr. Henson decides to step up his activities.
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1 his postings, you will see, get progressively more vicious, more
2 vile.
3 And then in February something happens. In
4 February, on of his cohorts on the internet, on ARS, by the name
5 of Erlich, a dennis Erlich, posted a series of copyrighted
6 works. Some of them had been published, some of them had not.
7 And one of these copyrighted works, unpublished
8 works, that Mr. Erlich posted was NOTs 34, the very, the very
9 publication, the very work, not publication, I'm sorry, the very
10 work that is at issue here.
11 Mr. Henson was very familiar with that. Immediately
12 RTC sued Mr. Erlich and Mr. Henson was present in this very
13 courtroom, in this very courtroom the evidence will show, when
14 the court enjoined Mr. Erlich and essentially said, "rtc owns
15 the copyright. Mr. Erlich, you can't publish them. You can't
16 post them to the internet."
17 That's what Mr. Henson heard. And Mr. Henson knew
18 that one of those works that was posted by Mr. Erlich, and an
19 injunction issued by this court, was NOTs 34.
20 The next thing that happens is another of
21 Mr. Henson's friends on the internet, this little group of folks
22 that were taunting Scientology, by the name of Ward, Mr. Ward,
23 Mr. Ward then posted a series of works, published and some
24 unpublished, and one of the works he posted was NOTs 34.
25 And how does Mr. Henson know this? Well, RTC
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1 immediately sued Mr. Ward for posting these works. And again,
2 in this very courtroom where you're sitting right now, the court
3 enjoined Mr. Ward, issued an injunction against him and said
4 "you cannot do this. That is copyright infringement."
5 Mr. Henson was here. He knew about it. He wasn't a
6 party in either of these cases, but he had apparently some
7 interest that caused him to be sitting in the back of the
8 courtroom, just as many people here today who may have an
9 interest in hearing about this case are sitting here. So he was
10 here.
11 Well, a matter of a couple of days after this court
12 enjoined Mr. Ward from publishing on the internet the works of
13 my client, including NOTs 34, guess what Mr. Henson did? He got
14 a copy of NOTs 34 and he posted it to the internet. And that
15 was on March 30th, 1996.
16 Immediately, the same day, March 30th, mrs. Kobrin
17 wrote to Mr. Henson and said -- and she had written to him
18 before, remember I told you, she had written to him in '95 about
19 his posting of a different work. She wrote to him and she said,
20 "cease and desist. Stop that. RTC owns the copyright in NOTs
21 34. And in fact, you, Mr. Henson, know about it and here's the
22 very injunction that the Judge just issued against Mr. Ward, so
23 now you're on notice again. Stay away from our works. You have
24 no right to do it." That was March 30th, 1996.
25 The evidence will show that Mr. Henson had two
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1 reactions to that, and this is kind of a window into the soul of
2 Mr. Henson.
3 The first one was, he wrote to mrs. Kobrin and he
4 said, "i'm going to be more polite in answering your letter than
5 my friend Mr. Ward was." Here is how he was polite. "You take
6 your letter and you fold it until it's all little corners and
7 then you stick it were the sun don't shine."
8 That's what the man said, and you're going to see
9 it.
10 And then he had another reaction. Second reaction
11 to receiving this letter on March 30th from MS. Kobrin,
12 mrs. Kobrin to say "stop doing this, after he did that, he said
13 "i'll show you guys."
14 So on March 31, the day after receiving the letter,
15 what did he do? He posted NOTs 34 again. Again.
16 At that point, he had already received cease and
17 desist letters. It was clear that he wasn't, he had no
18 intention of desisting, and RTC was obliged to sue and we came
19 into this very court where Mr. Erlich had been enjoined from
20 posting NOTs 34, where Mr. Ward had been enjoined, and in April
21 of 1996, this court issued a preliminary injunction against
22 Mr. Henson from posting NOTs 34.
23 Mr. Henson disagreed and he appealed to the ninth
24 circuit court of appeals. That is the highest federal court in
25 California. In fact, it's the highest court in the country
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1 until you get up to the United States supreme court, and that
2 court agreed that the preliminary injunction was appropriate.
3 In April of 1997, one year later, RTC moved for
4 judgment of infringement and for a permanent injunction now,
5 forever enjoining Mr. Henson from posting NOTs 34, or otherwise
6 infringing our copyrights.
7 And Mr. Henson presented all of his defenses, his
8 excuses, all of his reasons for doing it, and they were rejected
9 by this court. And this court, in April of 1997, issued a
10 permanent injunction against him, forever stopping him, or at
11 least telling him he shouldn't, whether it stopped him is
12 something else I'll address, from infringing the copyright.
13 Now, at this point, what's left for you? You may be
14 asking yourself, "why am I here? Sounds like you already got a
15 permanent injunction against him."
16 Well, yes, we did. But there are two issues for you
17 to decide, two issues left in this case, and they involve
18 damages and willfulness.
19 The copyright statute, as I think the court included
20 a description of if in its opening remarks, says that if you
21 infringe a copyrighted work, you will be liable for ordinarily
22 for 500 to $20,000. And the jury decides how much.
23 But if you find it's willful, if you find that this
24 infringement was willful, you can increase the damages up to
25 $100,000.
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1 And those are the two issues that you will be, you
2 are here to decide. Number one, is it willful? And number two,
3 what the amount of damages should be?
4 Willfulness I think you will find is easy. The
5 evidence we will present, as I've indicated, he knew that these,
6 that the posting of NOTs 34 was enjoined. He knew that it was a
7 copyrighted work, unpublished, owned by RTC and a copyright.
8 And he went and did it anyway.
9 That's about as willful as the law allows, or as the
10 law prescribes. That I don't think you, the jury, are going to
11 have any problem with at all.
12 The more complicated question is one of damages,
13 and here the evidence you're going to show, to be shown,
14 requires a little bit of an explanation.
15 The statute allows that if somebody infringes your
16 copyright, you can sue for actual damages, you know, like how
17 much you lost, if you can prove it.
18 Alternatively, you can claim for what's called
19 statutory damages, and that's what I've just described to you,
20 an amount fixed by statute.
21 That's what this case is about. Our client has no
22 way of proving how much they actually lost by way of damages, if
23 you will. I mean, if you take a movie, like I used the example
24 of titanic and somebody bootlegs it and makes illegal copies of
25 it, maybe you can find out how many they sold and you can figure
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1 out how much money you lost. That's not the case here. The
2 case is about statutory damages.
3 The law says that you're going to have to consider
4 several factors in deciding the amount of statutory damages.
5 These include, among others, the nature of the infringement,
6 what Mr. Henson did; the need to deter Mr. Henson. In other
7 words, how much money do we have to award to make him, to
8 convince him to stop. How much is going to make you stop doing
9 this, Mr. Henson?
10 And another factor that you will consider is the
11 deterrence of others. How do we make -- how do we stop other
12 people from infringing RTC's works?
13 We make an example of Mr. Henson. Do we put up a
14 big damage awards so that we say to everyone else, "that is what
15 happens if you do this."
16 Those are some of the things you'll consider, and
17 for that reason, we will be presenting evidence, evidence as to
18 what Mr. Henson is.
19 You can't decide what would be enough to deter
20 Mr. Henson without having an understanding of who Mr. Henson is
21 and what he is, what he believes in, what he stands for.
22 You don't know me. You've only laid eyes on me
23 yesterday. If you were asked a question, how much would it
24 deter me, how much would be needed to deter me from stop
25 smoking, as my wife is always nagging me about, you have no
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1 idea. You would have to know how long I've been smoking, how
2 much I smoke, et cetera. That's kind of the same thing.
3 (Change in reporters.)
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1 Mr. Rosen: So most of the evidence
2 you're going to hear is designed to show you what
3 Mr. Henson is all about, and in that way you can
4 determine what it's going to take to stop him.
5 Now, I said to you a little while ago
6 that Mr. Henson did not infringe to make money but
7 for a different reason. I'm going to tell you what
8 the evidence is going to show as to the reasons he
9 infringed our works, why he did what he did on the
10 internet. Before I tell I this, I'm going to warn
11 don't look at me cross-eyed because hear me out on
12 this.
13 The evidence is going to show that Mr.
14 Henson did what he did for fun, for entertainment,
15 for recreation. It was fun to do these things to
16 the church of Scientology. He was having a blast.
17 In fact, you will hear Mr. Henson say that even
18 this lawsuit -- this lawsuit is fun. He told this
19 court the cost of this lawsuit comes out of my
20 entertainment budget. This is Mr. Hansen's form of
21 entertainment. Some people go to the movies, some
22 people play golf. This is Mr. Henson's form of
23 recreation of entertainment.
24 And then Mr. Henson offered a second
25 reason. And again, don't jump on me because you
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1 may find this a little hard to believe, and that is
2 stature, status. Now, what do I mean by that?
3 When my kids were young, they would do whatever
4 they could to try to get my attention or my wife's
5 attention. You know, they're playing in the sand
6 box, and they would start a fight or something.
7 Well, most kids grow up and grow out of that. Not
8 Mr. Henson. His entire life has been trying to get
9 attention.
10 Now, we're going to focus on the
11 attention he did here -- he was trying to get here
12 in ARS, and you will hear Mr. Henson tell you that
13 why did he do the things that he did? Because it
14 was a small group of people on the ARS that were
15 constantly attacking Scientology, and each one was
16 trying to outdo the other to get the attention.
17 And you know what, they had it down to a science.
18 You know how police and military have
19 ranks like in the army? You know the lowest rank
20 is a private and then a pfc and a corporal and a
21 sergeant and a lieutenant and all the way up to a
22 five star general. Well, Mr. Henson and his
23 friends on the internet, this clique and group that
24 were attacking Scientology, they came up with their
25 own system of ranks and you got one point if you
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1 could, if you could get the church to -- if you
2 could annoy the church and criticize them. And you
3 got a promotion if you got them to answer you. And
4 if you get a cease and desist letter, like MS.
5 Kobrin sent twice, that gets you a promotion
6 because now you see you have attracted the church's
7 attention and now you have greater understanding
8 among your friends in this little group, because,
9 "hey, look at me, I annoyed them enough that they
10 sent me a cease and desist letter."
11 But you see that status was not enough
12 for Mr. Henson because the fifth level of status,
13 equivalent to maybe a captain in the army, is if
14 you can force them to sue you -- if you can force
15 the church to spend its money suing you, that's
16 what you want, and boy when we sued Mr. Henson, he
17 was in heaven. He couldn't wait to tell everybody
18 on the internet, I'm a sp5, I got them to sue me.
19 Why? Because now I can make them spend all of
20 their money. It doesn't cost me anything. It
21 comes out of my entertainment budget, until a week
22 ago Mr. Henson was pro se without a lawyer, okay.
23 It cost him nothing. It cost him paper.
24 But you know, it gave him the status
25 because it required RTC to spent money on lawyer's
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1 fee, and mine are very reasonable compared to some
2 others, but it also required them to spend money
3 internally, the people from the church who were
4 responsible for enforcing the copyrights have to
5 spend their own time and money as Mr. McShane is
6 sitting here today. This is what it is all about.
7 Now, am I telling you this because I
8 think I'm going to produce witnesses to prove this?
9 No. You will not hear, not on the screen, not from
10 the witness stand, a single witness called for RTC
11 to tell you about this. You know how you're going
12 to hear it? You're going to hear it from Mr.
13 Henson, from his own lips, from his own writings.
14 You're going to hear it from him, and you're going
15 to see it on the videotape. This is Mr. Henson's
16 explanation of why he infringed our copyrights of
17 why he did what he did. Fun and games, recreation,
18 entertainment, and it's a status thing. "I was
19 looking to get this promotion." That's what you're
20 going to hear.
21 If Mr. Henson has not done enough, and he
22 apparently believes he has not, the evidence will
23 show to cause our client enough time and money and
24 grief, he's got more, he's got more. After April
25 of 1997 when a permanent injunction was issued by
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1 this -- against him by this court saying you will
2 erase NOTs 34 from your computer, you can keep a
3 copy for your -- to prepare your defense, you will
4 not publish it again, you will not infringe these
5 works. After that, a permanent injunction, which
6 as you will be told, is backed up with the
7 possibility of incarcerating for violating a
8 federal court injunction.
9 What did Mr. Henson do? Mr. Henson,
10 barely two months ago, said I'm going to do it
11 again, I'm going to take a copy of NOTs 34, and I'm
12 going to give it to some government agent if I can
13 get a national t.V. Network to film it, in other
14 words, if I can get a t.V. Station to film my
15 handing this document, this NOTs 34, to a
16 government agent, then I'm going to do it. If I
17 can't get any media to cover it, it ain't worth it.
18 What did I tell you before about stature?
19 Status? I want to be on t.V. With this document.
20 That's what Mr. Henson is about, and that's what
21 the evidence will show. The evidence in our case
22 will show is what Mr. Henson is about and what you
23 will consider in terms of deciding how much of an
24 award is necessary to deter Mr. Henson from doing
25 this again and to deter others from doing -- from
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1 infringing our works. Excuse me.
2 Now, Mr. Henson, although he has already
3 told us in the videotape what his reasons are, he
4 comes to court and he has to have some defense.
5 Every defendant has a defense. We were kidding
6 outside about what is called in some places the
7 soddi, s-o-d-d-i, some other dude did it, not me,
8 but Mr. Henson's defense in this case is, "I
9 thought in good faith that I had a right to post
10 this NOTs 34 because it is a criminal document, it
11 constitutes practicing medicine without a license."
12 That's what he's going to tell you. And he's going
13 to ask you to believe two things:
14 Number one, that he reasonably
15 believed -- because it's not a question of someone
16 could wake up -- I could wake up today and believe
17 I'm in cleveland. That's unreasonable. He
18 reasonably believed that NOTs 34 was somehow
19 illegal because it taught to practice medicine
20 without a license, and he has to show you the
21 second thing, which is that he reasonably believed,
22 that even if he were right, that this is some sort
23 of a license to infringe somebody's copyright. In
24 other words, even if one were to believe the first
25 half, oh, if you don't believe the second half that
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1 he -- that this is some license to infringe a
2 copyright, then -- then it's meaningless and the
3 first half is not true. I mean, infringe the
4 license to committing a criminal act. This is more
5 of Mr. Henson, vituperative, vicious conduct
6 against the church of Scientology for whatever
7 reason you'll decide, I don't know. I'm not going
8 to suggest to you why he does.
9 I've told you what evidence I intend to
10 produce in this case. If I am wrong, if I don't
11 live up to my word and show you the evidence I've
12 just described to you, you've got a right to be
13 pretty mad at me because I'm standing here taking
14 your time and telling you what this evidence is
15 going to show. If I'm wrong, you're going to be
16 mad at me. But if I'm right, I'd like for us to
17 reach an understanding, not a contract but an
18 understanding. If I show you what I just told you
19 I'm going to show you, if I show you the character
20 of this man, if I show you what he did and out of
21 his own mouth why he did it, then at the end of
22 this case when I stand back up here again in what
23 is called closing argument, after all of the
24 evidence is presented, at the end of this case I'm
25 going to ask you to listen to me as to what I think
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1 the verdict should be, and I would hope that you
2 would listen at that point.
3 Thank you very much for your time.
4 The Court: Mr. Berry, do I wish to make
5 an opening statement?
6 Mr. Berry: Yes, I do, your Honor.
7 The Court: Okay.
8 (Whereupon, counsel for the defendant
9 gave their opening statement.)
10 Mr. Berry: Good morning, ladies and
11 gentlemen. My name is graham Berry. I represent
12 the defendant Mr. Henson who sits over here. And
13 just to get it out of the way, my accent is from
14 down under. I was born in new zealand, and if you
15 don't understand me at any point, please ask me to
16 repeat whatever it is I'm saying.
17 Mr. Henson is a local guy from San Jose.
18 He works here, and he's been here for many years.
19 Two years ago the Scientology organization filed
20 this lawsuit against Mr. Henson and he has been
21 litigating it heavily ever since.
22 Yesterday you saw seven lawyers in the
23 courtroom representing the church. Today there is
24 five, most of them from New York at great expense.
25 Whatever Mr. Rosen says about the reasonableness of
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1 his fees, it is a very wealthy church of
2 Scientology.
3 Mr. Henson --
4 Mr. Rosen: Your Honor, I'm going to
5 object to that.
6 The Court: The wealth or lack of wealth
7 of Scientology is irrelevant.
8 Mr. Berry: Mr. Henson is not a wealthy
9 guy. He couldn't afford a lawyer until last week.
10 You heard about his entertainment budget. It is a
11 very small one.
12 Mr. Rosen has done a good job of
13 explaining the process that we're involved in so
14 I'm not going to repeat it, but I am going to tell
15 you a different story and paint a different picture
16 because there are two sides to most stories and two
17 sides usually make a lawsuit.
18 And this lawsuit is all about copyright
19 and freedom of speech and free debate upon the
20 internet. Although there are some complex issues
21 about copyright law, which you must follow
22 according to the Judge's instructions, you do not
23 have to leave your common sense outside of this
24 courtroom.
25 One thing you can bring into this
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1 courtroom is your common sense as every day people
2 and your life experiences living in a democracy,
3 your life experiences of freedom of speech, your
4 life experiences of freedom of debate and your
5 knowledge of the freedoms on this new information
6 highway called the internet.
7 This is going to be relatively a short
8 trial. There will probably only be two witnesses
9 and only on the issue of damages. As you heard Mr.
10 Rosen say, summary judgment has already been
11 granted as a matter of law. Mr. Henson did not
12 have a lawyer then and so his arguments as to fair
13 use were rejected.
14 But his same arguments --
15 Mr. Rosen: Your Honor, I'm going to
16 object to that.
17 The Court: Well, any implication that he
18 has a fair use defense but wasn't articulated
19 cannot be considered. The court considered the
20 evidence and found that the fair use defense was
21 not applicable to this case for the reasons that I
22 instructed you at the beginning, namely, that the
23 posting of NOTs 34 was verbatim and unaccompanied
24 by significant comment on the contents of the
25 document. That issue has been determined. You may
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1 proceed.
2 Mr. Berry: However, even though the fair
3 use defense was rejected, its elements can still be
4 considered in relation to how much damages you
5 decide to award.
6 Elements such as the purpose and the
7 character of the use, the nature of the work
8 infringed, the effect of the infringement upon the
9 market for the work and the amount and
10 substantiality of the infringement, and that's the
11 last item that has been decisive in this case. And
12 you will get the document to look at yourselves in
13 order to make your own decision as to what damages
14 would be appropriate.
15 Now, if you believe Mr. Henson honestly
16 and reasonably believed he was acting within the
17 fair use exception to the copyright statute, you
18 may consider that when deciding what damages to
19 award because Mr. Henson is going to testify about
20 his knowledge of Scientology at the time he posted
21 NOTs 34, and you may consider that knowledge when
22 deciding whether or not Mr. Henson's posting was
23 willful as defined by law, in other words, did he
24 honestly in good faith believe he was acting
25 properly in reposting NOTs 34 on the internet? And
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1 when I say reposting, I mean it was already there,
2 and it remains there, and you'll find through the
3 evidence it was there at least as early as 1995 and
4 was reposted by others as recently as last night.
5 (Change in reporters.)
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1 Mr. Berry: Secondly, you can consider whether his
2 belief was honest and reasonable to a person who had the same
3 information that Mr. Henson had when he went ahead and posted
4 NOTs 34.
5 Mr. Rosen has told you in his opening that this is
6 like no other case. That is not correct. There are probably a
7 dozen such cases floating around that have involved people such
8 as a Mr. Mayo and Mr. Erlich and Mr. Klemensrud and netcom,
9 digital systems, washington post, Mr. Lerma, factnet,
10 Mr. Wollersheim, Mr. Penny. And you're going to hear it --
11 Mr. Rosen: Your Honor, I object. May we approach?
12 The Court: Not at this point.
13 Mr. Rosen: I object.
14 The Court: I will make the comment that what went
15 on in those other cases is irrelevant to this case.
16 Mr. Rosen did make the comment in his opening
17 statement that this case is unlike any other case. Mr. Berry is
18 entitled to indicate that it is.
19 But remember that comments of lawyers in their
20 opening statements are not evidence. Whether the other cases
21 are similar or not may well not come into evidence, and
22 certainly what went on in those other cases is irrelevant to
23 this case.
24 You may proceed.
25 Mr. Berry: And he told you that Mr. Henson's
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1 postings were vile and vicious.
2 Well, you will learn that that goes both ways on
3 ARS, or alt.Religion Scientology. You will realize that there
4 are vile and vicious postings by Scientologists back at
5 Mr. Henson. It's not a one-way street. It is -- it is an
6 excited, aggressive and colorful debate.
7 You've heard from Mr. Rosen that Mr. Henson
8 apparently did this for status, for status of sp 1 through
9 sp 9.
10 Well, Mr. Henson will come across to you, I expect,
11 as a man with a sense of humor, and so also will some of the
12 other people that you will hear of.
13 And you will learn that Scientology has advanced
14 technology, or levels, ot I through ot viii. And you will learn
15 that the status afforded to the critics of Scientology on the
16 internet is a mere mockery, a joke, built upon Scientology's own
17 rankings or bridge. And the military rankings are nothing more
18 than a mockery of what Mr. Henson believes is a paramilitary
19 organization.
20 And Mr. Henson has a lifelong history of involvement
21 in freedom of speech and doing the right thing. He has been
22 mentioned in books at length about his hobby with explosives in
23 the desert in the 50's; he's written at length on the internet,
24 article after article on many, many different subjects; he's
25 been involved in cryonics, and remains involved in cryonics, and
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1 the development of that technology.
2 And he writes. He writes at length. He's written
3 articles on space. He was involved with the formation of the
4 national space foundation.
5 And he was involved in the early days with the
6 development of the internet. Now, as Mr. Rosen has told you, the
7 internet extends worldwide. It is instantaneous.
8 But it also has its own culture. It also has its
9 own standards of conduct called netiquette. You will hear a lot
10 about netiquette in relation to MS. Kobrin and others, and it
11 involves people who operate as netizens in their own society
12 electronically.
13 And you will learn, which I will come back to, that
14 the actions of the church of Scientology towards the internet
15 are what triggered Mr. Henson's interest, in early 1995, in an
16 organization he had only noted in passing.
17 Now, Mr. Rosen has told you that Mr. Henson's
18 explanations for his conduct are new ex post facto.
19 But they're not really, because three weeks after he
20 was sued, he filed an answer. Mr. Rosen's client filed a
21 complaint, Mr. Henson filed an answer.
22 And in that answer, he quoted one of the great
23 jurists, or jurist prudential writers, rosco pound. And in his
24 answer, he quotes dean pound as saying, "one who intentionally
25 does anything which, on its face, is injurious to another must
143
1 repair the resulting damage, unless he can justify his act under
2 some social or public interest, or assert a privilege because of
3 a counterveilling interest of his own for which there is a
4 social or public interest in securing."
5 And Mr. Henson went on to say that he justifies his
6 acts and asserts a privilege in the name of society and the
7 public interest, and that the contents of at least some of these
8 documents, trade secret or copyright issues aside, should be
9 exposed in the public interest.
10 And he went on in that document to explain how we
11 get to where we are today.
12 He is a computer consultant, as well as an author,
13 as I've explained. And he's been involved in the founding of
14 not-for-profit organizations and for-profit organizations. He's
15 a senior member of the electrical and electronic engineers.
16 And he explained in his answer that he had been a
17 participant in thousands of discussions over the internet during
18 the last eight years, or now ten years, primarily in areas of
19 libertarian, legal, space science, civil rights, nano
20 technology, cryonics, and cyberpunk forms.
21 And before January 11, 1995, not February, but
22 January 11, 1995, he had never participated in any discussions
23 involving the beliefs of Scientology.
24 So what happened on January 11, 1995? The evidence
25 will show that Mr. Henson became aware of MS. Kobrin, on behalf
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1 of Scientology, allegedly executing a special command to the
2 internet, a command called rm group, or remove group, which was
3 intended to eliminate entirely the entire alt.Religion
4 Scientology news group.
5 To the internet community, this was perhaps the
6 worst thing that anyone could do, just to tear up people's books
7 and papers, so to speak. It was like the burning of the books
8 in nazi germany in 1933.
9 Mr. Rosen: Your Honor, I'm going to object to that.
10 The Court: I'm going to sustain the objection.
11 We're getting a little bit off the issues in this
12 case. The issue in this case is whether or not Mr. Henson's
13 copyright infringement was willful because -- and the question
14 is whether it was done with knowledge that it was in violation
15 of the owner's copyright, or with reckless disregard of the
16 owner's rights. That's the issue with respect to willfulness.
17 What we're talking about is the posting of NOTs 34.
18 You may proceed.
19 Mr. Berry: As a result of what he learned, he
20 started following alt.Religion Scientology and began to learn a
21 lot about an organization he had hitherto known very little.
22 And he learned this over a period of some 14 months before he
23 posted NOTs 34.
24 What did he learn? The evidence will show that he
25 learned of a number of lawsuits involving the church of
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1 Scientology.
2 The evidence will show that he learned that
3 Scientology had conducted the largest ever known infiltration --
4 Mr. Rosen: Your Honor, I object to this.
5 The Court: Could you approach the bench, please?
6 (Sidebar discussion off the record.)
7 Mr. Berry: One of the things that Mr. Henson
8 learned during this 14 months before he posted NOTs 34 was that
9 a lot of Scientology's hitherto documents had ended up on the
10 internet. He learned that there was something called the
11 fishman declaration --
12 Mr. Rosen: Objection, your Honor.
13 The Court: Whether there were other publications of
14 documents on the internet does not have anything to do with
15 whether or not there was a violation of the copyright on NOTs
16 34.
17 Mr. Berry: May we approach, your Honor?
18 The Court: One more time, but we've got to keep
19 this going.
20 Mr. Berry: Yes.
21 The Court: And keep it focussed on what the issues
22 are.
23 Mr. Berry: That's where we're going, your Honor.
24 (Sidebar discussion off the record.)
25 Mr. Berry: As I was saying, Mr. Henson discovered
146
1 many of Scientology's claimed unpublished works on the internet,
2 many of them.
3 And the evidence will show that all the time he was
4 reading MS. Kobrin's cease and desist letters to other people on
5 the internet, he was also seeing all this material up there,
6 leading him to conclude, in his own mind, that whatever claims
7 had been made about this material being unpublished had long
8 been lost as a matter of law in his mind.
9 And he learned, as a result of the raids on certain
10 premises, that --
11 Mr. Rosen: Objection, your Honor.
12 The Court: You can --
13 Mr. Berry: I'll rephrase that, your Honor.
14 The Court: Yes, you should. And please stay away
15 from using inflammatory language.
16 Mr. Berry: He learned that the church of
17 Scientology had obtained search and seizure orders against
18 people you've already heard about, Mr. Erlich, Mr. Ward and
19 Mr. Lerma, and Mr. Wollersheim, and factnet, and factnet.
20 Mr. Rosen: Objection, your Honor.
21 The Court: That's -- one more time. Come up.
22 (Sidebar discussion off the record.)
23 (Change in reporters.)
24
25
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1 Mr. Berry: Let me correct something,
2 there was no search and seizure order in the Ward
3 case, but as a result of learning about these other
4 cases, in particular the Erlich case, Mr. Hansen
5 came to this courtroom and sat in on the Erlich
6 hearing and looked at the court file in the Erlich
7 case. He noted what documents were covered by the
8 injunction, and he went back to the internet and
9 looked them all up on the internet, and he found
10 many of them up there. In fact, the entire NOTs
11 series he found up there, and they can still be
12 accessed there today.
13 Mr. Rosen: Objection, Mr. Berry is
14 testifying to facts that will not ever be
15 presented.
16 The Court: Sustained and it is stricken.
17 Mr. Berry: And the NOTs 34 document was
18 the first thing that turned up on his news reader.
19 And he read it with an understanding of other
20 Scientology documents that he had read, and he also
21 had read a court decision which related to a
22 Scientology device called an e-meter and his
23 understanding of that court decision was that the
24 e-meter and auditing sessions could not be used to
25 cure physical illnesses. But looking at NOTs 34 he
148
1 concluded in his own mind, and you will have the
2 document before you, at various points during this
3 trial, he concluded in his own mind that this was a
4 criminal instruction manual for the curing of
5 illness by auditing, and he reached this from the
6 title of the document, he reached this from the
7 contents of the document and from the internal
8 details of how the process was to be used. And so
9 he posted it, and he received a cease and desist
10 letter.
11 He, in his own mind, believed that the
12 copyright laws should not extend to protect what he
13 believed was illegality, and as I said, he believed
14 that this involved illegal conduct. And he
15 believed that he was justified in bringing it to
16 the public attention, and he further believed that
17 it should be brought to the government's attention.
18 He also came across another document
19 otvii. And he quoted six lines from that document
20 surrounded by some other commentary, and he's being
21 sued on that as well.
22 The Court: I'm sorry. What did you say?
23 Mr. Berry: He's being sued on that as
24 well.
25 Mr. Rosen: That's news to me.
149
1 The Court: There's no action in this
2 court that concerns that. The only action against
3 Mr. Henson concerning this court is the issue
4 concerning NOTs 34.
5 Mr. Berry: I don't -- we thought that
6 was the case, but I looked at the document this
7 morning and it indicated to me otherwise, and I
8 stand corrected and relieved.
9 The Court: The only issue in this case
10 is NOTs 34.
11 Mr. Berry: And what Mr. Rosen didn't
12 tell you in his opening statement about Mr.
13 Hansen's posting of NOTs 34 was that he wrote a
14 letter to Judge Whyte.
15 Mr. Rosen: Your Honor, I'm going to
16 object to this.
17 Mr. Berry: The evidence is coming in.
18 The Court: You may proceed.
19 Mr. Berry: He wrote a letter to Judge
20 Whyte in which he said essentially "I have this
21 document. I believe it's the illegal practice of
22 medicine. Am I doing anything wrong if I publish
23 it?"
24 Now, as a layman, he didn't know that not
25 being a party to the Erlich lawsuit that he didn't
150
1 have a right to approach Judge Whyte or that Judge
2 Whyte would not respond to a letter, and so he got
3 no response, only from the court clerk that he was
4 not a party to the Erlich decision and proceedings.
5 So he took what Mr. Rosen might refer to
6 as a negative option as a green light, and he
7 posted it not once, but twice. And what he did was
8 repost something that was already there that had
9 been posted a number of times between, at the very
10 latest, February 1985 and the time that he
11 originally posted it.
12 He has not caused, to the best of his
13 knowledge, any diminution or reduction in the
14 market for this work, and that's a factor you're
15 entitled to consider in awarding damages. He has
16 not adversely impacted the church's revenues and
17 that's a factor you are also entitled to consider.
18 He is not the only one who has posted this
19 particular document or many of the other documents
20 that the church claims are either trade secret or
21 copyright or unpublished and shouldn't see the
22 light of the public day.
23 This case may be legally tenable, but it
24 is morally wrong, and at the conclusion of this
25 case I am going to ask each and every one of you on
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1 the basis of the evidence that will be presented to
2 award minimal damages against Mr. Hansen. Thank
3 you for listening, and I apologize for the
4 interruptions that had to occur.
5 The Court: All right. So we'll take a
6 short recess at this time, and we'll be in recess
7 until 11:00 O'clock.
8 (Whereupon, a recess was taken.)
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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1 (whereupon, the following proceedings were held out
2 Of the presence of the jury.)
3 The Court: All right. We had a couple of
4 interruptions in the opening statement, and I told you at
5 sidebar I would let you put on the record whatever objections
6 you had and disagreements, if any, you had with anything that I
7 instructed at sidebar.
8 Mr. Rosen?
9 Mr. Rosen: Your Honor, I don't have any problems
10 with your instructions. Actually, I asked, "when we speak to
11 you at sidebar, is that being reported so it's part of the
12 transcript?"
13 The Court: And I thought everybody understood it
14 wasn't, and I always allow people to put things on at breaks.
15 If you want sidebars transcribed, I will, from this
16 point forward, do it. The problem from a physical standpoint is
17 that the reporter has to physically move her stuff over to
18 sidebar and it just creates a greater interruption.
19 Mr. Rosen: I'm not asking for it. I was just
20 curious as to whether it was.
21 The Court: Right.
22 Mr. Rosen: Your Honor, my position at this point is
23 that Mr. Berry has done exactly what he said he was going to do
24 in his offer of proof.
25 You told him his offer of proof was irrelevant, and
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1 this is the way this case is going to be tried. Mr. Berry is
2 going to try to smear my client to enrage the jury with
3 statements like they're a paramilitary organization, they've got
4 these other cases, the fishman affidavit.
5 None of this is relevant to the issues as you have
6 defined them as we've discussed them at great length and many
7 times as to what his state of mind was, Mr. Henson's state of
8 mind, in posting NOTs 34 as to whether he thought it was the
9 practice of medicine, period.
10 None of this has anything to do with it. Everything
11 Mr. Berry said is designed to inflame the jury and paint
12 Scientology as some sort of strange organization that does not
13 deserve justice in this court.
14 And that is absolutely offensive to me in view of
15 all the time your Honor has spent, and I can't even count the
16 hours, but I think I spent more time, with all due respect to
17 your Honor, and I admire the amount of time you have spent in
18 hearing the pretrial issues, many Judges would not take the time
19 that you did, and with the clear instructions you gave in your
20 rulings, some of which I have to live with, which I don't like,
21 okay, for Mr. Berry to get up here and make that inflammatory
22 opening statement is absolutely inconceivable to me.
23 The Court: Well, let me just clear up something
24 that I think you said, and this is your opportunity to put on
25 the record if you disagree, is that there were several
154
1 objections that you made that I sustained. There were several
2 things I told Mr. Berry at sidebar not to do.
3 Mr. Rosen: Right.
4 The Court: My understanding is, from what you said,
5 and again, correct me if I'm wrong, I'm not going to be the
6 least bit offended or hurt, that you don't quarrel with any
7 ruling that I have made in connection with the opening
8 statement.
9 What your objection to is what Mr. Berry tried to do
10 in the opening statement, and to the extent he said things that
11 I gave an instruction about, you're concerned about its
12 sufficiency.
13 Mr. Rosen: That is 99 percent correct.
14 The only specific ruling that I objected to at
15 sidebar was at the point that we came up, and I forget which
16 point it was, where Mr. Berry had made some statement and I
17 asked your Honor to, at that point, give an instruction to the
18 jury to disregard it, that Mr. Berry is not allowed to say those
19 things. I forget even what it was.
20 The Court: Well, I think --
21 Mr. Rosen: But you're right. Every ruling you've
22 made on any specific statement he has made I don't have, I am
23 not objecting to.
24 The Court: Okay. Let's -- I think I remember the
25 specific one that you're talking about, and let's just, in
155
1 fairness to you, get it out and on the record.
2 You, although you didn't object exactly at the time
3 it was made, at a time you came up afterwards, you wanted me to
4 strike and make some comment with respect to his use of the word
5 "paramilitary."
6 Mr. Rosen: This was that plus what brought us to
7 sidebar, and I think what brought us to sidebar on that occasion
8 was the fishman affidavit, and I said to your Honor, "that's
9 improper. I want an instruction. And while I'm here, although
10 I did not object when he said it, I would like you to" -- and
11 that's my honest recollection of how it came out.
12 The Court: That's fine. Let me just say then, so
13 it's clear -- and again, either side can disagree with me if
14 it's different from what was discussed at sidebar.
15 I indicated getting into the fishman declaration was
16 not appropriate, except to the extent that Mr. Berry wanted to
17 say that something that was posted on the internet pertaining to
18 Scientology documents contributed to Mr. Henson's belief that
19 the documents were published, and therefore, raised some
20 question in his mind as to whether they were subject to
21 copyright.
22 And I said, is that -- "if that's all you're going
23 to say, then you can go ahead and say it." And then I think
24 after he came back, he didn't even say that. But he didn't say
25 anything further about fishman.
156
1 Mr. Rosen: I don't disagree with your Honor.
2 The Court: And I also warned him that if he got
3 into fishman and it was his, he had something to do with
4 fishman, fishman material being there, that that might be
5 something that could come out in cross examination later if it
6 was made, if there was an issue made of it. I think that's the
7 substance of our conversation.
8 So I think he mentioned fishman, you immediately
9 objected, we had a sidebar, and there was no further mention of
10 fishman thereafter, I don't believe.
11 Mr. Rosen: I agree with your Honor.
12 The Court: Okay.
13 Mr. Rosen: I'm saying that when I asked you to give
14 an instruction which was cumulative in the sense of everything
15 he's been saying, the thing that I brought to -- after we were
16 discussing what was at sidebar, I did point out the paramilitary
17 comment. I did not object at the time.
18 If your Honor is concerned that, and I want the
19 record to be clear, that not having jumped up because I get
20 tired of jumping up and objecting at the instant the word
21 "paramilitary" came out of his mouth, I agree with that.
22 The Court: Well, I also said that there was a
23 reference in your opening to the critics, for want of a better
24 term, getting some sort of rank depending on what they got
25 Scientology to do from the standpoint of a cease and desist
157
1 letter or suing.
2 And I made the comment, there was a reference by you
3 to military, and Mr. Berry, I think, could legitimately point
4 out that there were levels and that the reference to military
5 rank had some relationship to what, how the Scientologists
6 classified things.
7 Paramilitary, admittedly, is a little different.
8 Mr. Rosen: How could he possibly do that in good
9 faith? Mr. Berry knows that we don't have those rankings. We
10 don't have --
11 The Court: I don't know that.
12 Mr. Rosen: But my question is, given the constraint
13 of opening statement of what an attorney reasonably believes the
14 evidence will show, Mr. Berry knows we don't have sp 1, sp 9.
15 He knows that.
16 Mr. Berry: I didn't say that, your Honor. I said
17 that there was a mockery of their ranks.
18 Mr. Rosen: But we don't have ranks.
19 Mr. Berry: Ot I to ot viii. The head of the
20 church --
21 The Court: All right.
22 Mr. Berry: -- Is a captain, your Honor, or a
23 commodore.
24 The Court: Mr. Berry?
25 Mr. Berry: May I be heard, your Honor?
158
1 The Court: Yes, you may.
2 But first I want you to state for the record whether
3 my recitation of what took place at sidebar is in any way
4 inaccurate or incomplete, because if it is, I want you to have
5 the opportunity to put it on the record.
6 Mr. Berry: No, your Honor. It is entirely accurate
7 and a correct summary of what occurred.
8 The Court: Okay.
9 Mr. Berry: And I would merely like to add to it by
10 saying that all of the references during opening statement, as
11 was explained by me at sidebar, were intended to go either to
12 Mr. Henson's state of mind or to the appropriate measure of
13 damages.
14 The Court: All right. See you back and we'll start
15 with -- you're going to call Mr. Henson?
16 Mr. Rosen: Yeah. Do you want me to use this when I
17 examine? Should I move it over here?
18 The Court: Well, let me tell both counsel. As far
19 as I'm concerned, you're not constrained to the podium. You can
20 wander during your questioning whenever you're comfortable.
21 The only restrictions I have is, one, that you don't
22 block the other counsel's view of the witness, you don't get
23 close to the witness, or you don't get close to the jury.
24 Other than that, if you want to stand at the back of
25 your table or use the podium, you're free to do what you see
159
1 fit.
2 Mr. Rosen: Can we have permission just to move
3 that? We're going to play the video tapes excerpts, and they're
4 going to show on two t.V.'S, but I just want to turn that one a
5 little so you and the witness and Mr. Berry can see it.
6 The Court: Sure. And Mr. Berry, I'll just say you,
7 because you're the first one it's going to apply to, this
8 courtroom is small enough that sometimes when there are easels
9 or video screens or monitors used, that it's difficult to put
10 them in a position where everybody can see.
11 So either counsel, and if Mr. Henson or Mr.,
12 Dr. McShane, are free to stand up and move to a place where you
13 can observe if it's hard.
14 And although I ideally like to see, and probably
15 should in this case, if it's -- I've allowed, at times, my view
16 to be blocked. And I'd rather not -- I'd rather that would not
17 be, but if it's necessary, I'm not going to have a fit about
18 that.
19 Mr. Rosen: Your Honor, one more thing before the
20 jury comes in. I want to move the introduction of a series of
21 exhibits that were all ones that we had submitted to your Honor.
22 They were on our list. They've never been objected to. We have
23 prepared a series of books for the jurors, just a handful of six
24 or seven exhibits. We have one for the court and one for
25 Mr. Berry.
160
1 The Court: Just have Mr. Berry look at it. He did
2 indicate he had no objection to your exhibits, so as long as
3 it's a subset of what he indicated he had no objection to, you
4 can admit them as a group.
5 Mr. Berry: Well, your Honor, I would suggest that
6 we mark them for identification first, because we don't know
7 whether they're all going to be placed before the witness and,
8 therefore, be properly given to the jury.
9 The Court: He's representing that he's going to
10 admit them. You've already represented you had no objection to
11 them. I want them marked.
12 Mr. Rosen: They are marked.
13 The Court: Why they can't have them? What's the
14 problem with that? Unless there's something that he's put in
15 there that was not in the group that was in the group that you
16 said you had no objection to.
17 Mr. Rosen: This is only a small subset of the ones
18 that we identified as to which there were no objection to.
19 Here's your copy, Mr. Berry (handing).
20 Here's a copy for your Honor, just so you know
21 exactly what the jury has. You have a book of larger trial
22 exhibits, but I just, so your Honor knows what the jury has
23 before it.
24 Mr. Berry: I don't believe we waived any objection
25 as to foundation, your Honor.
161
1 The Court: You indicated you had no objection to
2 any of the exhibits.
3 Mr. Berry: It was not my intention, your Honor, to
4 waive foundation.
5 The Court: Well, it's a little late now. Sorry.
6 Mr. Berry: Those are electronic documents easily
7 altered.
8 The Court: You were given every opportunity to file
9 objections to exhibits. You did not do it. If these were in
10 the group that was provided to you, they're coming in.
11 Mr. Berry: As the court wishes.
12 (Recess.)
13
14
15
16
17
18
19
20
21
22
23
24
25
162
1 The Court: Mr. Rosen, do you want to
2 call your first witness?
3 Mr. Rosen: Yes, your Honor. May I also
4 ask for the admission of exhibit 38a -- excuse me,
5 27a? These are the videotaped excerpts of the
6 transcript of the deposition that were previously
7 identified?
8 The Court: All right.
9 (Whereupon, plaintiff's exhibit number
10 27a, having been previously marked for
11 Identification, was admitted into
12 Evidence.)
13 Mr. Rosen: RTC calls Mr. Howard Keith
14 Henson.
15 The Court: All right. Mr. Henson, would
16 you come forward, please.
17 Madam court reporter: Raise your right
18 hand.
19 H. Keith Henson,
20 being called as an adverse witness on behalf of the
21 plaintiff, having been first duly sworn, was
22 examined and testified as follows:
23 The Witness: I do.
24 Madam court reporter: Please state your
25 full name for the record, please.
163
1 The Witness: Howard Keith Henson.
2 As on cross-examination
3 by Mr. Rosen:
4 Q Mr. Henson, where do you live?
5 A Palo alto.
6 Q Mr. Henson, I'm going to ask you a series of
7 questions, most of which are capable of being
8 answered yes or no. I'm going to ask you, in the
9 interest of moving this trial along, that if you
10 can answer a question yes or no fairly to please do
11 so. If not, then don't, and if you have to explain
12 it. May I ask your cooperation in doing that, sir?
13 A Sure.
14 Q Mr. Henson, you gave a deposition in this case
15 in may of 1996?
16 A That's true.
17 Q And that was before you retained Mr. Berry as
18 your counsel; right?
19 A Two years roughly before that.
20 Q Okay. And you retained Mr. Berry as your
21 counsel when?
22 A Very recently.
23 Q When?
24 A A week or ten days ago for this counsel,
25 although Mr. Berry had been my lawyer for other
164
1 cases that Scientology brought against me before
2 that.
3 Q All right. The court officer just
4 administered an oath to you to tell the truth. Do
5 you recall having that oath administered to you
6 when your deposition was taken in may of 1996?
7 A Yes.
8 Q And did you tell the truth then?
9 A To the best of my recollection and the best of
10 my abilities I told the truth. It doesn't mean
11 that my testimony will be absolutely consistent or
12 that I am -- that I will not occasionally forget
13 something.
14 Q I just asked you if you told the truth in your
15 deposition?
16 A To the best of my ability.
17 Q Okay. Mr. Henson, you have repeatedly
18 referred in this case to my client the church of
19 Scientology as a "cult"; is that right?
20 A Yes.
21 Q And you intended that to be a derogatory
22 term -- a negative term; right?
23 A I usually used the phrase "criminal cult."
24 Q Okay. Did you intend criminal cult to be a
25 derogatory term?
165
1 A Descriptive.
2 Q Is it laudatory? Is it phrasing or is it
3 derogatory, Mr. Henson?
4 A I'll stand on descriptive.
5 Mr. Rosen: Your Honor, can I have the
6 witness answer my question?
7 The Court: I think he answered it in his
8 mind. Go ahead.
9 Mr. Rosen: Okay.
10 Q Do you say -- are you used to saying such
11 things about other religions, Mr. Henson?
12 A Yes.
13 Q About your own religion?
14 A I don't really espouse much in the way of
15 religion.
16 Q Mr. Henson, aren't you a druid or weren't you
17 a druid?
18 A (laughing). Yes. Excuse me. I was a druid
19 to the standpoint that the druids and a druid
20 student center were a joke played on the university
21 of arizona.
22 Q Okay. A druid is a pre-christian sect or cult
23 that believes in things like animal sacrifice and
24 human sacrifice?
25 A I would not call them a cult. They're an
166
1 ancient religion. There's a distinction between
2 cult and religion which primarily has to do with
3 something -- the length something has been around.
4 Q Mr. Henson, are you a religious bigot?
5 A I've been called that many times.
6 Q I'm asking you is that true?
7 A I don't consider myself to be a religious
8 bigot for the reason I highly appreciate religion.
9 Q I just asked you a yes or no question, Mr.
10 Henson.
11 A No.
12 Q Thank you. Thank you. Let's look at some of
13 the deposition videotape taken of you of May 19,
14 1996, Mr. Henson. And you can watch it on every
15 screen as everybody else can, and please pay
16 attention to it because I'm going to be asking you
17 some questions about it, okay?
18 A Proceed.
19 The Court: When deposition transcripts
20 are either read or played, and both sides agree
21 that the court reporter does not need to try and
22 take down what is already on the transcript or in
23 the deposition.
24 Mr. Rosen: Certainly, your Honor.
25 Mr. Berry: So stipulated.
167
1 The Court: All right. We'll just
2 reference the page and line numbers, please.
3 Mr. Rosen: The deposition is taken by
4 videotape, your Honor, and the videotape itself is
5 an exhibit.
6 The Court: Hold it. Hold it.
7 Mr. Rosen: The videotape is the exhibit.
8 The Court: So what you're playing is
9 what is in the excerpt that has been admitted?
10 Mr. Rosen: Yes, but this videotape is an
11 excerpt of the deposition itself, and we have given
12 you and Mr. Berry and offered not only the entirety
13 of the deposition excerpts transcript but the tape
14 itself in which this is made.
15 The Court: I'm concerned about what is
16 with the jury. What does the jury have?
17 Mr. Rosen: Excerpts from the deposition.
18 The Court: And that is what you're going
19 to play?
20 Mr. Rosen: Yes.
21 The Court: So that's under the tabbed
22 video excerpts?
23 The Witness: Your Honor, I do not recall
24 being offered this tape.
25 The Court: Is that what you had marked
168
1 in the book as video excerpt?
2 Mr. Rosen: Yes, your Honor.
3 The Court: All right. Mr. Berry, is
4 there something --
5 Mr. Berry: I'm just wanting to see the
6 screen, your Honor.
7 The Court: Your client said something.
8 You're his attorney. Is there anything you want to
9 say before this is played?
10 Mr. Berry: Well, I just said to Mr.
11 Rosen, I have not received a copy of the videotape
12 either, not that there is much I could do with it
13 at this point.
14 The Court: Well, when the deposition was
15 taken, either side could order a copy of the
16 videotape from the court reporter. So if you did,
17 you did. If you didn't, you didn't.
18 You may proceed, Mr. Rosen.
19 Mr. Rosen: Thank you, your Honor. I
20 have to rewind it, your Honor.
21 (whereupon, a videotape was played in
22 open court, off the record.)
23 The Court: Could you stop it for a
24 moment, please?
25 Mr. Rosen: Sure.
169
1 The Court: I notice that as I'm trying
2 to follow along that what is on the screen is not
3 consistent with what is highlighted. Could you
4 explain that so that anybody who wants to follow
5 along, if they want to, they can.
6 Mr. Rosen: Your Honor, I appreciate you
7 reminding me of that. What is in the book are the
8 excerpts of deposition that we offered, but when we
9 put this together, they weren't in the order in
10 which they appear in the book. So if you're
11 looking at the deposition transcript that appears
12 in the book, it's not going to be in this order and
13 they were -- they were grouped by subjects as
14 you'll see as we get on. So it might be better if
15 we just watch the video and not the book.
16 The Court: All right. You may proceed.
17 (Whereupon, a videotape was played in
18 open court off the record.)
19 By Mr. Rosen:
20 Q Mr. Henson, when you were asked those
21 questions and you said you had only been a party to
22 one other lawsuit, you had honestly forgotten until
23 reminded that you had actually brought a lawsuit
24 against the federal bureau of investigation?
25 A Well, the question --
170
1 Q Yes or no, Mr. Henson, did you not remember it
2 until you were reminded, yes or no?
3 A At the time, yes.
4 Q And is that because --
5 A May I explain?
6 Q No. Your counsel will give you an
7 opportunity. I just want to try and get through
8 this, and I think yes or no answers would be
9 sufficient.
10 You also forgot at the time you were
11 asked that you previously brought a lawsuit against
12 the county of riverside, California; is that right?
13 A It was all one action, really. It was about
14 one event.
15 Q Well, wait a minute. It wasn't one action.
16 It was two different lawsuits with two different
17 defendants, wasn't it?
18 A Right, but I wasn't deposed in either one of
19 them.
20 Q The question wasn't whether you were deposed.
21 The question was whether you were a party to a
22 lawsuit?
23 A That's correct.
24 Q And you had honestly forgotten until reminded
25 by counsel that you were a plaintiff that sued the
171
1 fbi and separately you were a plaintiff that sued
2 the county of riverside, California, is that right,
3 you honestly had forgotten that?
4 A I honestly -- at the time I had not remembered
5 it.
6 Q Okay.
7 (Whereupon, a videotape was played in
8 open court off the record.)
9 (Change in reporters.)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
172
1 by Mr. Rosen:
2 Q Mr. Henson, could you tell us what cryonics is?
3 A oh, I would be delighted to. How much detail do you
4 want?
5 Q if you can keep it in 25 words or less.
6 A it is the practice of treating people with cryo --
7 treating freshly expired people with cryo-protective agents and
8 then freezing them to liquid nitrogen temperature in the hope
9 that nano technology, or similar kind of reconstructive advanced
10 medical procedures, would be able to put them back on the
11 street --
12 Q let me see if I understand.
13 A -- in the future.
14 Q I'm sorry. Let me see if I understand that. You
15 take somebody who has died --
16 A legally dead, yes.
17 Q someone who's died --
18 A who passed.
19 Q you cut their head off and you freeze it?
20 A no, no. It's much more complicated than that.
21 Q well, what part of the body do you cut off?
22 The Court: If any --
23 The Witness: Depends on what they paid for.
24 By Mr. Rosen:
25 Q you personally participated in this activity of
173
1 cutting off the heads of dead people?
2 A yes.
3 Q and in fact, you've not only been written up about
4 it, but you actually authored a poem about it, didn't you?
5 A a poem?
6 Q yes, a poem.
7 A I don't recall ever having written a poem, but I
8 would be interested to see what you have.
9 Q let me see if I can refresh your recollection.
10 The Court: I think we're getting a little far
11 afield.
12 The Witness: I'm curious, your Honor. It should be
13 a short poem.
14 The Court: If nobody objects, I'll let you do it.
15 But you've got time limits. Spend your time as you see fit.
16 Mr. Rosen: Okay.
17 Q let me see if I can refresh your recollection on
18 that subject.
19 A I don't recall that I've ever written a poem.
20 Q okay.
21 A I may have been quoting one.
22 Q do you recall a --
23 A is it the scarlett pumpernickle take off?
24 Q do you recall an article about a woman --
25 A dora kent?
174
1 Q dora kent, and you recall writing, for publication,
2 a poem that apparently the police were looking for what happened
3 to her head?
4 A oh. Can I say it if you don't mind? I can do a
5 better job.
6 Q if you want to recite a poem, go ahead.
7 A they seek it here, they seek it there, the coroner
8 seeks it everywhere. It alive or is it dead, that damned
9 elusive frozen head.
10 Q and it's the head you were talking of MS. Kent's?
11 A but I wasn't --
12 Q let me finish my question. That was the head you
13 were talking about of MS. Kent which the coroner and the police
14 were looking for; right?
15 A that's right.
16 (Videotape deposition played.)
17 By Mr. Rosen:
18 Q now, the "it" that you're referring to there is the
19 internet; right?
20 A right.
21 Q and you spend 45 minutes a day on it, most of that
22 on ARS; right?
23 A it varies.
24 Q and there are about 30,000 readers to the ARS?
25 A I'm sorry. I can't put a real number on it.
175
1 Q is that -- is that an estimate that you have given,
2 30,000?
3 A people have estimated numbers between 10 and
4 100,000. I don't believe it's known much better than that.
5 Q Mr. Henson, have you given an estimate of how many
6 people read ARS?
7 A probably.
8 Q and does 30,000 sound familiar?
9 A no.
10 Q page 97, counsel.
11 Mr. Henson, do you recall being deposed and being
12 asked the following question?
13 I'm sorry. We're going to come to it later. I
14 apologize. Let me withdraw that.
15 Mr. Henson, is it correct that you set out to taunt
16 Scientology?
17 A no.
18 Q okay. Mr. Henson, let me show you exhibit 10-1.
19 This is a posting from you, Keith Henson; right?
20 A I cannot be sure.
21 Q well, does it say it's from Keith Henson?
22 A sure.
23 Q are you telling us that this posting is not yours?
24 A I can't tell you for certain.
25 Q okay. It says hk Henson at cup.Portal.Com. Is that
176
1 your e-mail address?
2 A no longer.
3 Q but was it at the time, Mr. Henson, February 21,
4 1995?
5 A at that time that -- what date again?
6 Q February 21, 1995?
7 A that was one of my addresses.
8 Q okay. Do you have any reason to believe that
9 somebody forged this and put it up on the internet in your name,
10 Mr. Henson?
11 A not especially. But it's impossible to actually
12 tell whether this is what I wrote or not.
13 Q okay. This is one of the first postings you made;
14 right?
15 A I haven't any idea.
16 Q you don't know if this is one -- well, is this about
17 the time that you started reading on ARS, February 21, 1995?
18 A no. I believe I started reading it the day that
19 helena Kobrin issued the rm group, which I think was January
20 11th. But this may have been one --
21 Mr. Rosen: Your Honor, I move to strike the answer.
22 This witness is not answering the questions.
23 The Court: I think he said he thought he started in
24 January about the time that certain events took place.
25 Mr. Rosen: Okay.
177
1 The Court: I'll let that stand.
2 By Mr. Rosen:
3 Q Mr. Henson, is this one that is taunting of the
4 church?
5 A well, I sort of doubt it. It seems to me like a
6 pretty straightforward, level news report reporting of it,
7 something that I have done in other matters before.
8 Q well, in other words, you think that the bottom
9 part, exhibit b, "for all those who want a complete collection
10 of what cos," church of Scientology, "considers hot shit," you
11 don't think that's a taunting and insulting comment, do you?
12 A in the context of the internet, no. But I'm not at
13 all sure I wrote it either.
14 Q okay.
15 (videotape deposition played.)
16 by Mr. Rosen:
17 Q Mr. Henson, were there other instances in which you
18 posted taunting materials taunting of the church and critical of
19 the church?
20 The Court: Would you rephrase the question, please?
21 MS. Berry: Objection, your Honor.
22 The Court: He --
23 by Mr. Rosen:
24 Q were there --
25 The Court: You're characterizing it in a way he's
178
1 not accepting.
2 Mr. Rosen: I apologize, your Honor.
3 Q do you recall instances in which you made postings
4 that were taunting of the church?
5 A I don't know whether I would consider what I posted
6 taunting of the church or not.
7 Q Mr. Henson, do you recall --
8 A probably.
9 Q probably. Do you recall making a posting on
10 February 24th, 1997, saying that "i'm looking for various secret
11 cult crap. Perhaps someone can send me a list. I have a
12 fireplace. I could stir the ashes so they can't be read."
13 Do you recall something to that effect?
14 A no.
15 Q let me see if I can refresh your recollection.
16 A let's see. What date is this again, '97?
17 Q February 24th, 1997, Mr. Henson.
18 Mr. Berry: What exhibit are we looking at counsel?
19 Mr. Rosen: 9.
20 The Witness: Yes.
21 By Mr. Rosen:
22 Q does that refresh your memory?
23 A and your point is? I can't verify that this is
24 something that I posted.
25 Q Mr. Henson, I'm not asking you to verify it's
179
1 something that you posted. Are you telling this jury that you
2 did not post it?
3 A I can't tell.
4 Q Mr. Henson, are you swearing before this jury that
5 somebody else posted this in your name, that this is not your
6 posting?
7 A no.
8 Q okay. Now, this is not the only one that you posted
9 taunting of the church, is it?
10 The Court: Well, let --
11 Mr. Rosen: Withdraw the question.
12 The Court: All right.
13 Mr. Berry: Excuse me, your Honor.
14 The Court: You're misstating what his answer was.
15 The jury can decide what to conclude from his answers with
16 respect to whether he posted this or not.
17 But his answer was he can't say whether he posted it
18 or not.
19 By Mr. Rosen:
20 Q Mr. Henson, did you -- during the period of time
21 that you were posting on the ARS, did it ever come to your
22 action, as you were reading this 45 minutes a day, did you ever
23 see any postings that had your name on it that you didn't post?
24 A excuse me? Try that again.
25 Q sure. You're looking at ARS 45 minutes a day since
180
1 January or February of '95. Did you ever look at it and say,
2 "gee, there's a posting that has my name on it, somebody forged
3 it. I didn't post that." Yes or no, Mr. Henson?
4 A I can't answer that question without explaining the
5 way a news reader works. I don't see my own postings.
6 Q and you don't have a record of them; right?
7 A yeah, I have a record. But all it has is titles on
8 it. It doesn't have anything else in there.
9 The Court: Let's stop for a minute.
10 The question was, did you ever see a posting on the
11 internet that purported to be from you that you identified as
12 not being from you in the ARS news group?
13 The Witness: No. And furthermore, I didn't see any
14 of my postings.
15 The Court: Well --
16 by Mr. Rosen:
17 Q Mr. Henson --
18 The Court: Let me just follow up with that.
19 We're not asking -- he's asking you whether you saw
20 something that was not by you that purported to be by you, and
21 you're saying you didn't see your own postings.
22 Obviously we're not talking your own postings.
23 We're talking about a posting that was attributed to you that
24 you say you identified as not being from you.
25 The Witness: The only way I would have seen a
181
1 posting like that is if somebody else had followed it up and
2 quoted a big piece of it and I had looked at it and didn't
3 recognize it as being my work.
4 The Court: Did that ever occur?
5 The Witness: No.
6 By Mr. Rosen:
7 Q okay.
8 Mr. Berry: Your Honor, may I bring one thing up? I
9 don't seem to be provided with a full set of exhibits.
10 I'm missing 5 through 10. I certainly don't have
11 exhibit 9, which has just been referred to.
12 Mr. Rosen: I believe we -- when we gave a copy to
13 the Judge last week, we gave it to Mr. Berry.
14 MS. Berry: Yes, I know, but it doesn't contain the
15 exhibits that you're referring to. It's a little hard for me to
16 follow the evidence --
17 The Court: Yeah, you should have a copy of any
18 exhibits. One side says you were given it, the other side says
19 you didn't.
20 I know I was given a copy last week in court, and I
21 thought they were handed out to everybody at that time.
22 Mr. Berry: I was handed a copy, your Honor, but it
23 has a number of exhibits missing.
24 The Court: There was the one that was handed just
25 before Mr. Henson's examination that Mr. Rosen indicated was a
182
1 condensed version, and then there's a group that you were given
2 last week, I think.
3 But let's take a minute, and if you don't have it,
4 I'll have Mr. Rosen show you what he's referring to.
5 Mr. Rosen: I think it's -- there it is, your Honor.
6 But we can certainly get another copy.
7 MS. Kobrin: It was the one you were given last
8 week.
9 Mr. Berry: Oh, last week's one.
10 The Witness: Your Honor, as long as this is on the
11 screen, could you have him slide it up a little?
12 Mr. Rosen: Your Honor --
13 The Court: What? I'm sorry?
14 The Witness: As long as it's on the screen, could
15 you have him slide it up a little so we can see the rest of the
16 context?
17 Mr. Rosen: Your Honor, we're only showing parts of
18 it, and I'm sure Mr. Henson's counsel --
19 The Court: Well, let me take a look, because if
20 there's something that needs to be shown to put it in context,
21 it needs to be shown.
22 But if it's a different subject, then Mr. Henson's
23 counsel can bring it out if he wants on his turn.
24 What page is that on? What exhibit number is it?
25 (Change in reporters.)
183
1 Mr. Rosen: Exhibit 9.
2 The Court: Exhibit 9.
3 Mr. Berry: Your Honor, I've solved my
4 problem now.
5 Mr. Rosen: Your Honor, may I continue?
6 The Court: Yes. Mr. Henson, if at a
7 later time your counsel wants to show the whole
8 exhibit, you're free to do so since he's shown part
9 of it.
10 By Mr. Rosen:
11 Q Mr. Henson, do you recall a posting on August
12 6th, 1995 to the ARS in which you said "that is why
13 we're out to break the church of Scientology. If
14 we happen to save a lot of souls from this
15 slack-sucking crock of shit, that is just gravy."
16 Do you remember posting that?
17 A No, but in that particular case even if it
18 wasn't mine, I like the terminology well enough
19 that I will accept it.
20 Q In other words, you're so proud of it you will
21 claim credit for it even if you didn't post it;
22 right?
23 A That's right.
24 Q All right.
25 Mr. Berry: What exhibit?
184
1 Mr. Rosen: That's 10a.
2 The Court: Please address everything to
3 me.
4 Mr. Rosen: I'm sorry.
5 The Court: I'm just commenting for
6 future reference because I want to keep things
7 orderly.
8 By Mr. Rosen:
9 Q Do you recall posting on August 11th, 1995,
10 "Grady Ward has pointed out that the fight with the
11 church of Scientology is just a warm-up exercise
12 for the main event with multiple governments. It's
13 an odd thing to say, but I actually appreciate
14 their role, church of Scientology's role, as a
15 punching bag." Do you remember saying that?
16 A Actually, no. However, again --
17 Q Excuse me. If you don't remember, we'll put
18 it up and help you refresh your memory, 10-9. Do
19 you see it now, Mr. Henson?
20 A Excuse me. I'm not --
21 The Court: If you can't read that, we
22 can have a copy for you.
23 The Witness: There we go. Ah, yes.
24 By Mr. Rosen:
25 Q Do you remember posting that now?
185
1 A Actually, no, and certainly I do not swear to
2 all of the words, all of the characters being
3 correct in it, but again, it looks good enough to
4 me that I will take credit for it even if I didn't
5 do it.
6 Q Well, let's just look at the header.
7 A It doesn't mean a thing, I'm sorry to say.
8 Q It says, "from: HkHenson"?
9 A It doesn't mean a thing.
10 Q Excuse me, sir.
11 Mr. Rosen: Your Honor, may the witness
12 be instructed to let me finish a question?
13 The Court: Yeah. Let's do this in a
14 dignified way. Ask your question, give him an
15 opportunity to respond.
16 Mr. Berry: Your Honor, could we have a
17 brief recess to compare my exhibits to the
18 plaintiff's? We're not getting any explanation as
19 to numbers.
20 The Court: Well, I will ask him to, in
21 the future, refer to a specific number, but these
22 are exhibits that were handed out last week and
23 this morning, but I would ask Mr. Rosen, if you are
24 going to read from something or show it to the
25 witness, before you do that, that you identify the
186
1 document so that Mr. Berry and I can find it and if
2 it is in the juror's book, tell us. If it is not
3 one that is in the juror's book, tell us that.
4 Mr. Rosen: Very well, your Honor.
5 Mr. Berry: I understand there was a
6 10-9, and I don't seem to have a 10-9 in either of
7 the books I've been provided.
8 The Court: All right. Would you show
9 him 10-9.
10 Mr. Rosen: Sure.
11 Q Okay. Let's go on, Mr. Henson.
12 The Court: Wait a minute. I just want
13 to make sure.
14 Mr. Berry: I don't have such an exhibit,
15 your Honor, in either of the books that I've been
16 provided by plaintiff.
17 The Court: So that's an exhibit that
18 you're saying you've never seen before?
19 Mr. Berry: That's right, your Honor.
20 The Court: All right. Well, it hasn't
21 been offered yet, and I will take that up before I
22 let it into evidence and it is offered.
23 By Mr. Rosen:
24 Q Mr. Henson, do you recall making a posting on
25 August 14th, 1995 saying --
187
1 A No. All of the chances are high that I made
2 one.
3 The Court: Let him finish the question,
4 please.
5 The Witness: Oh.
6 By Mr. Rosen:
7 Q Okay. Do you remember making a posting at any
8 time, without the specifics, of August 14th, in
9 which you said "what amuses me slightly is that I
10 can freely tell you the unspoken consensus game
11 plan goading church of Scientology into actions
12 which will outrage an even larger number of people
13 and the lot of you so hardwired in your responses
14 it won't make a bit of difference. Ps, and thanks
15 for being a punching bag. We, of course, are in
16 training for a considerably larger event and church
17 of Scientology makes a nice expendable sparring
18 partner."
19 Do you remember posting that, Mr. Henson?
20 A Actually not.
21 Q Would you take credit for it? Is it a good
22 one?
23 A Absolutely.
24 Q Okay.
25 Mr. Berry: What number was that,
188
1 counsel?
2 Mr. Rosen: I thought I said it. I
3 apologize. 10-12.
4 The Witness: If I'm having difficulty
5 recalling these postings, please understand --
6 The Court: Let him finish his answer.
7 He was answering a question and you started
8 playing.
9 Mr. Rosen: I started it before.
10 The Court: I don't think so.
11 Would you finish your answer.
12 Mr. Berry: Your Honor, I would request a
13 copy of 10-12 as well. I haven't got that either.
14 The Witness: If I seem to be having
15 difficulty in recalling the specifics of these
16 postings, it's because I made something like 1200
17 of them and I'm not -- they were in the context of
18 a continuing discussion. As you see there is
19 usually quoted material at the top of these. I was
20 making these things at a fairly high rate, and
21 there's no way I can remember the details of all of
22 the postings I made at that time, but again, if you
23 show them to me and they look like something I
24 would have done and they sound good enough, I'll
25 take credit for them, even though I cannot
189
1 authenticate them, because they were out of my
2 hands.
3 Mr. Berry: Your Honor, could I advise
4 the court that I'm missing -- I now see what the
5 problem is. My package is missing everything from
6 10-2 to 10-25. Perhaps Mr. Rosen can accommodate
7 me in that regard.
8 Mr. Rosen: We will give you every
9 document.
10 The Court: 10-2 Through 10-25 were not
11 in the group that was handed to me or to the group
12 handed to the jury?
13 Mr. Rosen: No. That was in our original
14 list that was submitted February 20th.
15 The Court: All right. Were they in the
16 packet given to court and opposing counsel last
17 week?
18 Mr. Rosen: No. They were dealing with a
19 particular subject that we gave you last week, last
20 Friday.
21 The Court: Then before you show
22 something, I want you to give the number and make
23 sure Mr. Berry sees it before you go on and ask any
24 questions about it.
25 Mr. Rosen: Very well.
190
1 (whereupon, a videotape was played in
2 open court off the record.)
3 By Mr. Rosen:
4 Q So that was the best estimate of the total
5 number of postings you had made, the best estimate
6 taunting the church from January of '95 until the
7 date of this deposition in may of 196; is that
8 right?
9 A No.
10 Q Isn't that what you just said?
11 A They weren't all taunting.
12 Q Oh, but that's your best estimate?
13 A The number of postings?
14 Q Twelve hundred and --
15 A It was just a guess. It was taken off a
16 counter in ten.
17 Q In other words, you have a copy of the record?
18 A No.
19 Q Let me finish, Mr. Henson, please.
20 A I'm sorry.
21 Q You have a copy of the record of the number of
22 postings you made; right?
23 A That's correct.
24 Q Okay.
25 A I had a record.
191
1 Q Okay. So that works out to what? Let's see,
2 between January and February of '95 and the date of
3 this deposition, may of '96, that's what, about
4 three a day, seven days a week; is that right?
5 A That's right. I seldom wound up in the top
6 20.
7 Mr. Rosen: Your Honor, there's no
8 question before the witness.
9 The Court: Just answer the question
10 you're asked, and if counsel wants to bring up
11 something else when it's his turn to question he
12 can.
13 Mr. Rosen: I apologize for my lack of
14 dexterity.
15 (whereupon, a videotape was played in
16 open court off the record.)
17 Mr. Rosen: I'm going to forward this to
18 the next one, your Honor, we just saw.
19 (Whereupon, a videotape was played in
20 open court off the record.)
21 Mr. Rosen: Again, I apologize for my
22 lack of dexterity with these inventions, your
23 honor.
24 (Whereupon, a videotape was played in
25 open court off the record.)
192
1 The Witness: I'd like to object on that
2 one.
3 The Court: You have counsel, Mr. Henson.
4 Go ahead.
5 (Whereupon, a videotape was played in
6 open court off the record.)
7 By Mr. Rosen:
8 Q "that's no problem, I could put anybody's name
9 on it." Is that what you said?
10 A Yes.
11 Q Isn't that forgery?
12 A Yes.
13 Q And that's not a problem for you. You can do
14 that; right?
15 Mr. Berry: Objection, mischaracterizes
16 his evidence, your Honor.
17 The Court: I think the question needs to
18 be rephrased.
19 Mr. Rosen: Okay.
20 (Change in reporters.)
21
22
23
24
25
193
1 by Mr. Rosen:
2 Q okay. Do you have any reservations about committing
3 forgery by posting something on the internet under somebody
4 else's name?
5 Mr. Berry: Objection, misstates the evidence, your
6 honor.
7 The Court: I don't know if it misstates the
8 evidence, but I don't see where it's relevant unless you're
9 claiming that he forged something, and I don't think that's an
10 issue in this case.
11 So I'll sustain the objection.
12 Mr. Rosen: All right, your Honor. I'll move on.
13 The Witness: I'll be glad to discuss it more if you
14 want.
15 Mr. Berry: Can I ask Mr. Rosen to identify these
16 exhibits that he keeps putting on the screen?
17 The Court: I assume the ones in the deposition, you
18 have the deposition transcript. But I will ask him to identify
19 them before he shows them.
20 Mr. Berry: With the screen being out of a sinc with
21 the transcript, it's a little hard to keep track.
22 The Court: All right. I will can ask him to do
23 that.
24 by Mr. Rosen:
25 Q Mr. Henson, the document you were being examined on
194
1 that you identified is a list of the works belonging to RTC that
2 Mr. Erlich posted and that had been enjoined by this court?
3 Mr. Berry: What's the document number?
4 The Witness: Excuse me.
5 The Court: What document are you referring to?
6 Mr. Rosen: It was the exhibit identified in the
7 transcript as exhibit 2, your Honor.
8 The Court: To the deposition?
9 Mr. Rosen: Yeah. 10-1 Trial exhibit. It was
10 deposition exhibit 2.
11 The Court: Okay. So it's 10-1 in my book and the
12 juror's book and Mr. Berry's book.
13 Mr. Rosen: Correct.
14 Q do you remember that, Mr. Henson?
15 A could you state that again?
16 Q sure. The document you were just being examined on,
17 exhibit, trial exhibit 10-1, was a list of those works
18 copyrighted by RTC which Mr. Henson, excuse me, which Mr. Erlich
19 had posted to the internet.
20 A well --
21 Q yes or no, Mr. Henson?
22 A no.
23 Q it wasn't, okay. Let's put up --
24 A your question, it was too complicated to answer in
25 any kind of affirmative way. But I'll help you get there if
195
1 you'd like.
2 Q Mr. Henson, I don't want you to help me. Just help
3 me by answering the questions.
4 Did you post the document to the internet listing
5 the works that Mr. Erlich, the titles of the works that
6 Mr. Erlich had posted?
7 A it is my recollection that I posted a document which
8 I created by getting court files and typing a number, a whole
9 batch of numbers in, and I posted that document to the
10 internet.
11 Q and that document that you posted included, among
12 the listings of what Mr. Erlich had posted, NOTs 34; right?
13 A as I recall --
14 Q yes or no, Mr. Henson?
15 A I don't know.
16 Q okay. Let's put it up. This is the third page of
17 the exhibit, this is 10-1.
18 Do you see NOTs -- can you zoom on it?
19 NOTs issue 34, do you see that?
20 A that's correct.
21 Q and in fact, to the right of it is the copyright
22 registration number?
23 A that's correct, which has about as much meaning to
24 me as the serial numbers on a dollar bill. I couldn't be
25 expected to remember those.
196
1 Mr. Rosen: Your Honor, I move to strike that. This
2 is not responsive.
3 The Court: I'll strike the latter part of the
4 answer.
5 He said that he recognized it. He said that --
6 If I understand you, you're saying that you
7 recognized that as a copyright registration. Is that correct?
8 The Witness: That's correct.
9 The Court: Okay. That part of the answer will
10 stand.
11 by Mr. Rosen:
12 Q now, Mr. Henson, in fact, you then posted, on the
13 30th of March, a list of the RTC copyrighted works which the
14 court had enjoined Mr. Ward from infringing; right?
15 A I don't recall that, but I might have.
16 Q and do you recall that that might have included NOTs
17 34?
18 A I really don't know.
19 Q okay. This is exhibit 2. It's the last page of the
20 exhibit.
21 The Court: And you're referring to exhibit 2 in our
22 books?
23 Mr. Rosen: Correct, your Honor.
24 Mr. Berry: Is that exhibit --
25 by Mr. Rosen:
197
1 Q recognize this? See NOTs 34 there?
2 A I doubt that I typed this in.
3 The Court: Let's --
4 Mr Rosen: I didn't ask you if you typed it.
5 The Court: Wait a minute. Let's break down the
6 question. You asked him two questions.
7 By Mr. Rosen:
8 Q does this --
9 The Court: If he recognized that, and he didn't
10 answer that.
11 By Mr. Rosen:
12 Q is this --
13 The Court: Let's ask questions separately.
14 By Mr. Rosen:
15 Q does this refresh your recollection that you posted
16 to the internet a list of the RTC works that had been enjoined
17 by this court, Mr. Ward had been enjoined by this court from
18 posting?
19 A no.
20 Q does this refresh your recollection that one of the
21 works that this court enjoined, that Mr. Ward had posted, was
22 NOTs 34?
23 A no.
24 Q let me go back to the beginning of the document,
25 please.
198
1 A I'd be glad to explain why it doesn't refresh my
2 recollection.
3 Q go ahead. Tell me, Mr. Henson.
4 A because it was obviously a cut-and-paste operation.
5 Q Mr. Henson, did you know that Mr. Erlich had been
6 enjoined from infringing RTC's works by this court, including
7 posting of NOTs 34?
8 The Court: Did you mean Mr. Erlich or Mr. Ward?
9 By Mr. Rosen:
10 Q Mr. Erlich, did you know that?
11 A at the time I did it?
12 Q yeah.
13 A no.
14 Q Mr. Henson, weren't you in this courtroom when
15 Mr. Erlich was enjoined?
16 A I don't recall whether I was in the courtroom or
17 not. I came in very late in that, in that hearing.
18 Q and in fact, didn't you say, a few moments ago on
19 this videotape, that after the court hearing, you went to the
20 court file and got a copy?
21 A I believe that's what I did, and I posted that
22 material.
23 Q and --
24 A but expecting me to remember that after a year is
25 beyond my ability. Sorry.
199
1 Q okay. And do you recall being, being aware that
2 Mr. Ward was enjoined before you posted NOTs 34, was enjoined by
3 this court from posting it?
4 A I -- well, that was obviously the case, because i,
5 that was the subject of my letter to Judge Whyte.
6 Q okay. So you knew that before you posted NOTs 34;
7 right?
8 A that's correct.
9 Q okay.
10 A I take full credit for that.
11 Q okay. I noticed in the last piece of the videotape
12 you had a shirt, t-shirt, that said hackers. Can you tell us
13 what hackers are?
14 A sure. This is the hacker conference. The shirt is
15 from the hacker conference that is run by the point foundation.
16 Q can you tell me what a hacker is?
17 A it originally comes from people who shape furniture
18 with an ax.
19 Q okay. What does it mean in the internet,
20 Mr. Henson?
21 A it's a subject of enormous controversy because the
22 old line hackers are the people who built such things as the
23 internet and programmed the early computers.
24 It's a term which comes from m.I.T., And if you
25 want, we can introduce the hacker's dictionary as part of this
200
1 proceeding.
2 Q Mr. Henson, doesn't hacker mean somebody who invades
3 another computer, somebody else's network?
4 A that is a, an additional meaning of it, but it is
5 not the meaning of it that I refer to. The hackers conference,
6 for example, has people like donald knuth and marvin minsky,
7 both of whom are full professors who come to that, those
8 meetings.
9 Q Mr. Henson, do you recall in or about July of 1995,
10 you posted to the internet an RTC copyrighted work, six lines of
11 it anyway, called ot vii?
12 A yes.
13 Q and you knew at the time it was copyrighted; right?
14 A yes.
15 Q at that time, July of 1995, an attorney representing
16 RTC, mrs. Helena Kobrin, then wrote to you and demanded that you
17 stop?
18 A an obviously bogus demand.
19 Mr. Rosen: You know something, your Honor. I'm
20 going to ask that be stricken.
21 The Court: I'll strike that answer. He can answer
22 yes or no as to whether he received a letter.
23 The Witness: I received a letter.
24 By Mr. Rosen:
25 Q and the letter said that RTC owned the copyrights of
201
1 ot vii, you were infringing it, please stop doing it, right, in
2 substance.
3 A in substance, yes.
4 Q okay. And you took MS. Kobrin, mrs. Kobrin's
5 letter, and you were so proud of it that you posted it?
6 A not on the net.
7 Q no, on your bulletin board where you work?
8 A cork board, yes.
9 Q uh-huh. You were really proud of that letter; right?
10 A it was hilarious.
11 Q you thought it was a big joke?
12 A six lines.
13 Q the threat of being sued you thought was a big joke;
14 right?
15 A it was an empty threat.
16 Q okay.
17 A there is fair use.
18 (Videotape deposition played.)
19 Mr. Berry: What trial exhibit, your Honor, is being
20 referred to?
21 The Court: Could you stop it for a moment, please,
22 Mr. Rosen?
23 Mr. Berry: What trial exhibit are we referring to,
24 your Honor?
25 The Court: What exhibit is --
202
1 Mr. Rosen: There is no trial exhibit.
2 The Court: All right.
3 The Witness: Okay.
4 (Videotape deposition played.)
5 By Mr. Rosen:
6 Q you posted NOTs 34 to the internet on March 30th,
7 1996, right, Mr. Henson?
8 A I believe that's correct.
9 Q and --
10 A well, I posted something on that date.
11 Q you don't know what it is, but you posted it?
12 A at the time -- I since have seen it, and other than
13 a couple of lines, it seems to be consistent with what
14 Scientology registered with the copyright office.
15 Q and you knew it was copyrighted at the time you
16 posted it; right?
17 A of course.
18 Q and you knew that RTC owned the copyright; right?
19 A that's not so obvious.
20 Q why? Who do you think owned it?
21 A well, for example, it could have been expired, or it
22 could have been failed to be properly registered.
23 Also, there's a very interesting chain of custody
24 that seems to be very odd.
25 Mr. Rosen: Your Honor, I move to strike this.
203
1 The Court: You asked him the question as to --
2 Mr. Rosen: He's going to say something your Honor
3 ruled to be inadmissible.
4 The Court: At the time -- I'm not sure that's true.
5 I'm not sure it's not true. I'm not challenging you.
6 At the time that you posted NOTs 34, the question
7 was, did you think RTC was, or you knew RTC was the owner and
8 you said that's not so clear.
9 Then the next question, I believe, was who did you
10 think owned it?
11 Mr. Rosen: Right.
12 The Court: Who did you think owned it? Let's not
13 get into --
14 The Witness: Who did I think owned it?
15 The Court: -- Why, but who did you think owned it?
16 The Witness: I figured there was at least a fair
17 probability that it had fallen into the public domain.
18 By Mr. Rosen:
19 Q Mr. Henson, on March 30th when you posted NOTs 34,
20 you were aware that this court had already enjoined Mr. Erlich
21 from posting RTC's works, including NOTs 34; right?
22 A say that again.
23 Q at the time you posted NOTs 34 on March 30th, you
24 were aware that this court had already enjoined Mr. Erlich from
25 posting RTC's unpublished work NOTs 34? Yes or no?
204
1 A no.
2 Q at the time --
3 A I'd forgotten it.
4 Q you had forgotten it two weeks later? Okay.
5 At the time you posted --
6 The Court: Well --
7 Mr. Rosen: I withdraw that comment, your Honor
8 The Court: No comments. It's his testimony we're
9 considering, not your questions or comments.
10 Mr. Rosen: I apologize, your Honor.
11 Q at the time on March 30th, 1996 when you posted NOTs
12 34, were you aware that this court had enjoined Mr. Ward from
13 posting NOTs 34?
14 A absolutely.
15 Q and you were aware that the plaintiff in that
16 lawsuit against Mr. Ward was RTC; right?
17 A yes.
18 Q and you were aware that in that lawsuit, RTC claimed
19 it owned the copyright in NOTs 34?
20 A they made the claim.
21 Q and the Judge issued a preliminary injunction
22 against Mr. Ward posting the NOTs 34, didn't it? Didn't the
23 court do that?
24 A absolutely. It's the subject of the complaint in my
25 letter to Judge Whyte.
205
1 Q okay. So you knew that RTC, or you had reason --
2 withdraw that.
3 Following your posting of March 30th, Mr. Henson, of
4 NOTs 34, did you receive a letter from MS. Kobrin?
5 A yes. I -- well, actually, I don't know.
6 Q you don't know?
7 A I don't know. I don't know if it was from
8 MS. Kobrin.
9 Q okay. Well, it's exhibit 2.
10 A I received a letter which purports --
11 Q there's no question before you, Mr. Henson.
12 Let's go to the top line of the letter. It's an
13 e-mail to be precise. Can you zero in on the top, mike, on the
14 header?
15 See this says March 30th, 1996, from helena Kobrin.
16 Subject, unauthorized posting of copyrighted material. To
17 hk Henson at net.Com. You see it?
18 A I see it.
19 (change in reporters.)
20
21
22
23
24
25
206
1 by Mr. Rosen:
2 Q Did you receive this letter?
3 A I have no idea.
4 Q Have you ever seen this letter before, Mr.
5 Henson?
6 A Oh, yes.
7 Q Now, let me see if I understand this. Let's
8 look at the rest of the letter and see if it helps
9 refresh your memory as to whether you've ever seen
10 it.
11 And we're seeing the first paragraph mrs.
12 Kobrin is informing you that she represents RTC;
13 that they own the copyrights in these works,
14 including NOTs 34?
15 A The letter looks familiar.
16 Q But you mean as you sit here today, Mr.
17 Henson, under oath, you can't tell us whether you
18 remember receiving it?
19 A I remember receiving a letter from someone
20 purporting to be helena Kobrin, whether this is
21 that letter, I can't be sure, and I also can't be
22 sure that it was actually helena Kobrin who sent
23 it.
24 Q Well, the letter says that it's from helena
25 Kobrin; right?
207
1 A That's correct, but that's not proof.
2 Q Right. Somebody could have forged her name?
3 A Well, for example, it was known that helena
4 was other places --
5 Mr. Rosen: Your Honor, I move to strike
6 that.
7 The Court: Sustained. Strike it.
8 By Mr. Rosen:
9 Q Well, in any event, this letter informed you
10 of RTC's ownership and demanded that you cease and
11 desist from any further postings or displays of
12 NOTs 34; right?
13 A That's what the letter on the screen says.
14 Q And that's March 30th, 1996; right?
15 A That's what the date says on the letter on the
16 screen says.
17 Q And the next day, Mr. Henson, on March 31,
18 1996, you posted NOTs 34 to the internet again;
19 right? Yes or no?
20 A I believe I did, but I can't be absolutely
21 certain.
22 Q You believe you did. Okay. Let me see if I
23 can refresh your recollection, exhibit 3. Let's
24 start at the top and zoom. Let's see, this is
25 posting March 31, from Henson. Do you see that?
208
1 A I see it.
2 Q And the portion of NOTs -- the portion is
3 redacted, and at the bottom you say "anyway, here
4 it is again;" right?
5 A That's what it says on that sheet of paper.
6 Q Well, Mr. Henson, let me ask you, having seen
7 this, does this help refresh your recollection that
8 on March 31, you posted NOTs 34 again?
9 A I believe that I did that.
10 Q Thank you, sir. Okay.
11 The Court: Okay. Why don't we take a
12 short recess, and we'll be in recess until about
13 12:15 And then we'll go till 1:00. Recess for ten
14 minutes.
15 (whereupon, a recess was taken.)
16 The Court: All right. You may proceed.
17 Mr. Rosen: Thank you, your Honor.
18 (Whereupon, a videotape was played in
19 open court, off the record.)
20 By Mr. Rosen:
21 Q Now, you were asked whether there was any
22 doubt about MS. Kobrin's letter was telling to
23 cease and desist from RTC NOTs posting, and you're
24 telling us you did not remember?
25 A That was my answer.
209
1 Q Let's put the March 30th, letter up again.
2 "I represent Religious Technology Center,
3 The owner of the confidential advanced
4 Technology of the religion and
5 Scientology and the holder of exclusive
6 Rights under the copyrights applicable to
7 The advanced technology materials. Among
8 These copyrighted and confidential
9 Materials are advanced technology
10 Materials of certain levels known as ned
11 For the series or what is called NOTs. I
12 Hereby demand that you cease and desist
13 From any and all further posting,
14 Display, reproduction, solicitation or
15 Acquisition of NOTs series 34 or any of
16 The advanced technology works of the
17 Scientology religion."
18 Was there something about that letter
19 that you didn't understand, Mr. Henson?
20 A Several things.
21 Q How about the part that I just read, did you
22 understand that MS. Kobrin was demanding that you
23 stop infringing?
24 A The words are clear.
25 Q Thank you. Okay.
210
1 Now, I believe you said a moment ago that
2 you weren't sure -- withdraw that. Let's just do
3 the next one.
4 (whereupon, a videotape was played in
5 open court, off the record.)
6 By Mr. Rosen:
7 Q Stop. I guess you knew at the time that you
8 posted for the second time on March 31, that Judge
9 Whyte had enjoined both Mr. Erlich and Mr. Ward;
10 right?
11 A No.
12 Q You knew that they enjoined Mr. Ward; you
13 didn't know about Mr. Erlich?
14 A I had forgotten.
15 Q Oh, in other words, you had forgotten that you
16 were here in court at the end of the hearing in
17 which Mr. Erlich was enjoined?
18 A No. I had forgotten that NOTs 34 was on the
19 list of stuff that he was enjoined from.
20 Q Okay. In fact, Mr. Henson, your taunting and
21 your comments about Scientology as a religion is
22 not even limited to Scientology itself but anyone
23 associated with it such as lawyers; right?
24 A Um --
25 Q Yes or no?
211
1 A I can't think offhand whether I did that, but
2 I almost certainly did.
3 Q Including someone like MS. Kobrin who the only
4 thing she ever did to you was that in representing
5 RTC she sent you a letter saying "stop infringing
6 my client's rights"; is that right?
7 A I don't know that.
8 Q Let's play the next one and see.
9 (Whereupon, a videotape was played in
10 open court, off the record.)
11 (Change in reporters.)
12
13
14
15
16
17
18
19
20
21
22
23
24
25
212
1 The Court: Would you stop it for a minute, please?
2 Do we have an identification of that exhibit that he was
3 referring to?
4 Mr. Rosen: It's trial exhibit 4, your Honor.
5 The Court: Thank you.
6 (Videotape deposition played.)
7 By Mr. Rosen:
8 Q so you -- so you told MS. Kobrin to fold it into
9 corners, take her demand letter of March 30th that you cease and
10 desist, fold it into corners and shove it were the sun don't
11 shine; right?
12 A I don't think you got the wording exactly correct.
13 Q is it substantially right?
14 A substantially.
15 Q and you were disappointed because then somebody else
16 came along and instead said use it as an origami butt plug?
17 A no. They changed the subject line.
18 Q oh. What's an origami butt plug?
19 A you can figure it out as well as I can. I've never
20 actually heard of it before.
21 Q you were laughing at it. Are you laughing at
22 something you don't know what it means, Mr. Henson?
23 A well, before this, before somebody else did it.
24 Q do you know -- you're sitting here today,
25 Mr. Henson. Do you know what an origami butt plug is?
213
1 Mr. Berry: Objection.
2 The Court: Sustained. That's not appropriate.
3 The Witness: Excuse me.
4 Mr. Rosen: Let's put up 10-16, mike.
5 The Court: 10-16?
6 Mr. Rosen: 10-16.
7 Q Mr. Henson, do you recognize this as a posting of
8 yours of September 23rd, 1995?
9 A no.
10 Q take a look at the text of it and see if that helps.
11 A I'm sorry. No, it doesn't help.
12 Q notice the top line, the header, says it comes from
13 hk Henson.
14 A that's correct.
15 Q and you don't have any evidence or reason to believe
16 that somebody forged this in your name, do you, Mr. Henson?
17 A not especially.
18 Q okay. Let's look at the subject line. Re: 'Ho of
19 babble-on.
20 A yes.
21 Q what does "ho" mean, Mr. Henson?
22 A well, I think I should explain first what re means,
23 r-e.
24 Q no, Mr. Henson. Who does "ho" mean?
25 A it's a short for black term for whore.
214
1 Q and this is a reference to mrs. Kobrin; right?
2 A well, it's a double play on words, because ho of
3 course refers to L. Ron Hubbord's whore of babylon.
4 Q my question, Mr. Henson, when you used this, that
5 ho, it is a reference to mrs. Kobrin as a whore; right?
6 A do you see the re on that?
7 Q Mr. Henson, will you answer my question yes or no,
8 please?
9 A of course.
10 Q thank you. And I see the second re, the "evil
11 asthmatic wheezeing dwarf."
12 Is this a reference to david miscavige, the
13 worldwide ecclesiastical leader of Scientology, yes or no?
14 A it has been used to refer to him that way.
15 Q you've never --
16 A I would have identified both mrs. --
17 Q just yes or no is sufficient, Mr. Henson.
18 A sure.
19 Q at the time that you posted, that this was posted,
20 September 23rd, 1995, had you ever even seen Mr. Miscavige?
21 A I don't believe so.
22 Q is this something -- but you knew that Mr. Miscavige
23 was the world wide ecclesiastic leader of the church of
24 Scientology?
25 A Mr. Rosen --
215
1 Q no.
2 A can I point out that I did not write --
3 The Court: Wait a minute, wait a minute.
4 Let him finish his answer. Let him finish his
5 question. I don't want this talking over one another.
6 The Witness: Excuse me.
7 The Court: Your question assumed that he wrote
8 this. I don't know that he has said that he did, so I'd ask you
9 to ask that foundational question.
10 By Mr. Rosen:
11 Q did somebody else write this, Mr. Henson?
12 A yes.
13 Q but you took it and posted it; right?
14 A in the normal fashion of use net, you bring in
15 somebody else's posting, comment on it, change or not change the
16 subject line as you please.
17 If you don't change the subject line, you put -- the
18 machine automatically puts a re on there.
19 I was following up somebody else's posting in this.
20 In this particular case -- if this is mine, of course, what is
21 the name, f.D. Bart, whatever this, or p.D. Something at
22 aol.Com. They used the subject line.
23 I followed up their posting. I did not write any
24 references to ho of babble-on or evil asthmatic wheezeing dwarf.
25 Q Mr. Henson, when you re-posted this, you elected to
216
1 keep the same subject line that the previous author had used.
2 Yes or no, sir?
3 A it's common to do that. In fact, if you don't --
4 Q thank you.
5 A -- it doesn't make any sense.
6 Q and Mr. Henson, at the time of this posting that you
7 repeated a subject line, you had never even seen Mr. Miscavige,
8 the worldwide ecclesiastical leader of the church of
9 Scientology, had you?
10 A do you want to ask me if I thought it was accurate
11 later?
12 Q no, sir. I asked --
13 Your Honor, can I have an instruction for this
14 witness to answer my questions?
15 The Witness: No.
16 Mr. Rosen: Thank you, sir.
17 Q Mr. Henson, you say in connection with this one,
18 that the subject line was there and you just continued it when
19 you posted it; is that right?
20 A I don't know that I even noticed the subject line
21 when I did it.
22 Q apart from that, did you ever post anything in which
23 you wrote and referred to mrs. Kobrin as a whore?
24 A probably.
25 Q I'm not talking about ones that you re-posted that
217
1 somebody else did. I'm talking about ones you wrote, you
2 created.
3 A chances are at least fair that I did that.
4 Q this is a woman who you had never met; right?
5 A not true.
6 Q you had met mrs. Kobrin?
7 A I believe that I met mrs. Kobrin at the Erlich
8 hearing.
9 Q the hearing you don't remember attending?
10 A no. I said I --
11 The Court: I don't think that's what he said. He
12 said he attended.
13 The Witness: I was late getting to it.
14 by Mr. Rosen:
15 Q did you talk with mrs. Kobrin at that time?
16 A I don't remember.
17 Q did she say or do anything do you to cause you to
18 think that she was a whore?
19 A no.
20 Q do you know, for example, that mrs. Kobrin has been
21 happily married for over 25 years?
22 A I'm not sure that I knew that.
23 Q did you know, for example, that she has two
24 children?
25 A I did know she had children.
218
1 Q do you know, for example, that she's just another
2 lawyer representing clients and doing her job?
3 A I utterly disagree with that statement.
4 Q okay. And on the basis of the fact, the only
5 communication you had with her was her sending you a cease and
6 desist letter; right?
7 A I disagree with --
8 Q did you ever have any other communications --
9 The Court: Wait a minute.
10 The Witness: I don't know that she sent those cease
11 and desist letters.
12 The Court: Let him --
13 by Mr. Rosen:
14 Q as of --
15 The Court: Mr. Rosen, would you wait, please?
16 Mr. Rosen: I'm sorry. I didn't hear you.
17 The Court: Maybe I need to speak up.
18 You keep talking over one another and we've got to
19 do this in an orderly fashion.
20 Mr. Rosen: I didn't hear you, Judge.
21 The Court: If he hasn't finished his answer, let
22 him finish his answer.
23 If you feel that he's saying more than answering the
24 question, you can move to strike, and if it happens more than
25 once or twice, I will stop it.
219
1 But I don't want this continued each of you talking
2 over the other.
3 By Mr. Rosen:
4 Q Mr. Henson, as of September 23rd, 1995, had you had
5 any communications with mrs. Kobrin other than the cease and
6 desist letters she had send you in July?
7 A September '95? I don't know.
8 (Change in reporters.)
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
220
1 by Mr. Rosen:
2 Q Okay. Let's go to 10-19.
3 The Court: All right. 10-19 Is not in
4 either of the exhibit books; correct?
5 Mr. Rosen: That's right, it was in one
6 of the ones originally submitted, but I'm going to
7 put it in.
8 The Court: Could both of you approach
9 the bench for a second?
10 (Side-bar conference.)
11 By Mr. Rosen:
12 Q This is 10-19, exhibit 10-19. Mr. Henson,
13 you'll notice that that says from hkHenson@shell?
14 The Court: Let me stop for a minute
15 before we go on.
16 What I asked Mr. Rosen to do from this
17 point forward is if the exhibit that he's referring
18 to is in your books, to tell you what number it is.
19 If it's not in your book, to tell you that it's not
20 in your book. And then if Mr. Berry wants it
21 added, we will add it, but I know I'm having a
22 little bit of trouble, sometimes, when I'm not sure
23 whether an exhibit is in the book or not and I look
24 for it and I lose a little bit of the testimony.
25 So I want it from this point forward to be
221
1 identified, hopefully, it will at least be helpful
2 for me, whether it is helpful for the jury it's up
3 for you to decide.
4 Go ahead.
5 By Mr. Rosen:
6 Q And I'm be happy to comply.
7 This purports to be from
8 hkHenson@shell.Portal.Com?
9 A Yes.
10 Q And this is October 2, '95; do you see that?
11 A With difficulty, yes.
12 Q Okay. Can you zoom in on that? Is that
13 another reference to mrs. Kobrin?
14 A Yeah, but h-o-s means old horse.
15 Q Hold horse?
16 A No, horse, old horse.
17 Q Oh, I see. You're referring to mrs. Kobrin as
18 an old horse?
19 A It's a friendly term.
20 Q I see. This is not one on a prior posting
21 which you just repeated, is it? You created it; is
22 that correct?
23 A That's correct. Well, assuming it is mine, of
24 course. I don't remember this one at all.
25 Q Let's go to trial exhibit 5. It's not in the
222
1 book. Zoom in on the top. This is a posting from
2 Mr. Henson, hkHenson@netcom.Com?
3 A Same objection, of course.
4 Q Same what?
5 A Same objection.
6 Mr. Rosen: Your Honor, can I ask you to
7 instruct.
8 The Court: All right. Mr. Henson --
9 The Witness: Excuse me, your Honor.
10 The Court: -- If he asks you a question,
11 you can respond. I think we understand what you're
12 saying and have said before is that it bears your
13 name, and that's not proof to you that you posted
14 it.
15 The Witness: Even if it was my posting,
16 your Honor --
17 The Court: Wait a minute. Is that an
18 accurate statement of what you said?
19 The Witness: It's not what I'm referring
20 to here.
21 The Court: All right.
22 The Witness: But it is an accurate
23 statement of what I have said, but this one has
24 additional problems.
25 The Court: Wait until he asks you a
223
1 question.
2 Go ahead. And if the question assumes
3 something that is not in evidence, we'll take it
4 up.
5 By Mr. Rosen:
6 Q And the subject of this one is "i've got
7 mine"?
8 A Right.
9 Q Did you write that subject?
10 A No.
11 Q This is a reposting that you did of somebody
12 else's posting; right?
13 A It is a follow-up to somebody else's posting.
14 Q Okay. And --
15 A In fact, it's two layers deep.
16 Q And the first highlighted of the text is "did
17 you get your official 'ho gram?" Do you see that?
18 A Yes, I see it.
19 Q Thank you, Mr. Henson. Can you tell me what a
20 'ho gram is?
21 A At the time this was a letter --
22 The Court: Can we please stop playing
23 that while the testimony is going.
24 Mr. McShane: I'm sorry.
25 The Witness: At the time that was a
224
1 reference from helena Kobrin, and this is not
2 something I used. This is two levels deep. Woods
3 is the one that said that, Grady quoted him and
4 then I quoted him.
5 By Mr. Rosen:
6 Q So you posted the letter that a comment from
7 mrs. Kobrin?
8 A No, I did not repost it. You have to get the
9 terminology from internet stuff right. I posted a
10 follow-up to their posting.
11 Q And in the course of posting the follow-up,
12 you also then display, if you will, the letter that
13 the message that you're following up to; don't you?
14 A Usually part of it. You usually clip most of
15 it.
16 Q You didn't clip, "did you get your official
17 'ho gram?" Did you?
18 A No, I did not clip that. In fact, there's no
19 evidence that there was any clip in this at all
20 because normally you put in the word snip in there
21 to take stuff out.
22 Q Okay. Did you ever post to ARS a posting that
23 said in words of substance, "but don't you expect
24 the ho to blow a gasket?"
25 A Oh, yes, I did I believe.
225
1 Q And that was a reference to mrs. Kobrin;
2 right?
3 A That was in the reference to a troll, like
4 trolls under a bridge.
5 Q Was the ho, h-o, was that you were referring
6 to there, was that a reference to mrs. Kobrin?
7 A The other lawyer seemed to think it was.
8 Q But you disagree?
9 A That's a difficult one to say.
10 Q Okay. By the way, have you ever apologized to
11 mrs. Kobrin for referring to her as a whore?
12 A I don't believe I have.
13 Q Not to this day; right?
14 A No, and I haven't apologized to any of the
15 other people either.
16 Mr. Rosen: Your Honor, I move to strike
17 that.
18 The Court: It's nonresponsive, I
19 suppose. If you want it stricken, I'll accept his
20 answer that he did not apologize to MS. Kobrin.
21 I'll strike the rest of the answer and tell the
22 jury to disregard it if you want it stricken.
23 By Mr. Rosen:
24 Q Would you like to apologize to mrs. Kobrin
25 today for calling her a whore?
226
1 Mr. Berry: Objection, your Honor. This
2 is a copyright case, not a defamation case.
3 The Court: Yeah. The issue in this case
4 is whether his posting of NOTs 34 was willful and
5 what is appropriate statutory damages for that
6 posting. I think we're getting far afield.
7 Go ahead.
8 By Mr. Rosen:
9 Q Mr. Henson, is it correct to say that your
10 activities here, which are the subject of this
11 lawsuit, that this is all fun for you,
12 entertainment?
13 A No.
14 Q It's not correct to say that? Okay.
15 A Not all of it.
16 Q Let's go to 14.
17 (Whereupon, a videotape was played in
18 open court, off the record.)
19 The Court: Wait, wait, wait. You said
20 14. Are you referring to an exhibit?
21 Mr. Rosen: No, no. I'm sorry. That's
22 the excerpt number so we can keep track of it.
23 The Court: Okay.
24 (Whereupon, a videotape was played in
25 open court off the record.)
227
1 (change in reporters.)
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
228
1 Mr. Berry: Your Honor, may we approach?
2 The Court: All right.
3 (Sidebar discussion off the record.)
4 Mr. Rosen: Exhibit 10-29, not in the book. Can you
5 put it up, please?
6 Q Mr. Henson, this is a posting of yours of May 1,
7 1996. Do you see that?
8 The Court: Let me ask him first if it's -- your
9 question is confusing as to whether you're asking him if this is
10 his posting or does he see it, and I realize you may think it's
11 one and the same.
12 Mr. Rosen: Sure.
13 Q Mr. Henson, do you see that the from line here is
14 from hk Henson.
15 A the characters read that way.
16 Q and do you see the date and line is May 1, 1996?
17 A again, the characters read that way.
18 Q okay. Let's move it up to the --
19 A at 1:00 O'clock in the morning?
20 Q now, do you recall, Mr. Henson, that on or about may
21 1, 1996, you were preparing to go in for your deposition, this
22 very deposition we're showing you of May 6th. Do you recall
23 that?
24 A excuse me. Say that again.
25 Q do you recall, on May 1, 1996, that you were getting
228
1 ready, in a few days, you would be going in for that deposition,
2 the deposition that was conducted of you on May 6th?
3 A I don't recall that specifically. But assuming that
4 I had a deposition on May 6th, it would seem like I was
5 preparing for it a few days earlier.
6 Q and the highlighted portion, if it might help -- "it
7 might help if you consider the whole thing as theater. For
8 example, after considerable soul searching, I decided against
9 the red nose and floppy shoes and will just be wearing my sp
10 t-shirt to my deposition."
11 You see that?
12 A the words read that way.
13 Q did you post this, Mr. Henson?
14 A I cannot be sure, but it certainly looks like
15 something I would have posted.
16 Q so let's see if I understand this. What you were
17 considering was coming to your deposition in, what, a clown
18 costume, floppy shoes and a big red nose? Is that what you were
19 considering, Mr. Henson?
20 A not seriously.
21 Q but you -- it says, "instead I'm just going to wear
22 my sp t-shirt to the deposition." Right?
23 A well, continue.
24 Q Mr. Henson, does it say "i'm just going to wear my
25 sp t-shirt," yes or no?
229
1 A would you mind me reading the next sentence?
2 Q go ahead.
3 A "I haven't decided about pants yet."
4 Q so now you --
5 A can you take this seriously? The internet is a
6 funny place. I'm being funny. You guys can't take anything as
7 a joke.
8 Q Mr. Henson, did you, in fact, show up at your
9 deposition in an sp t-shirt?
10 A yes. And I decided to wear pants too.
11 Q okay. Thank you. But you thought that your
12 deposition was, quote, theater, closed quote?
13 A I did not say that. This was an advise to
14 dennis Erlich, who was complaining about Scientology litigation
15 like chinese water torture using pleading paper, performed by
16 scumsucking sadistic lawyers, but the trial hasn't began yet and
17 probably never well." And hasn't.
18 "I asked for a jury trial to decide."
19 It goes on like that. I was advising dennis that I
20 think you're in serious need of a reality adjustment, which is a
21 violent move on the part of Scientology.
22 Mr. Rosen: Your Honor, I move to strike this, the
23 explanations.
24 The Court: Well, he can read what --
25 Mr. Rosen: I didn't ask him to read it. He's just
230
1 reading it gratuitously and explaining it.
2 The Court: Well, let's just go on from here. Ask
3 your next question.
4 by Mr. Rosen:
5 Q Mr. Henson, yes or no, you were suggesting to
6 Mr. Erlich that he consider this, this whole thing, the
7 litigation with Scientology, as, quote, "theater"? Isn't that
8 what you told him?
9 A it was an attempt to cheer him up.
10 Q okay. Let's go to the bottom of this one.
11 Speaking of pleading paper, I used up what I had
12 left, cost me $100. So far Scientology, scn, I assume is
13 Scientology, has paid $120 just to file the case. It's going to
14 cost some money, but when we get to depositions, the
15 entertainment value alone will be well worth the cost.
16 Those are your words, right Mr. Henson?
17 A I don't know for sure.
18 Q is this another joke?
19 A probably not. And again, it's one of those cases
20 where I will -- even though I can't authenticate it, I will be
21 glad to take credit for it.
22 Q let's go to the signature line and see if you'll
23 take credit for this one. This is how you signed this posting.
24 A it seems likely that I signed it that way. I was
25 trying to cheer up dennis.
231
1 Mr. Rosen: Okay. Let's go to 10-36. Not in the
2 jury books. It is in the jury book. 10-36.
3 Q Mr. Henson, you see this says from hk Henson?
4 A again, the usual objections, but continue.
5 Q do you deny that you posted it, Mr. Henson?
6 A I don't know.
7 Q okay. Do you have any basis to believe that
8 somebody forged your name and posted it, or any evidence of
9 that, sir?
10 A no. But it's been out of my hands and in yours.
11 Q okay. This is October 8th, 1996; right?
12 A that's the date that's on it.
13 Q and you are reporting here on the fact that you were
14 just in court, in this court, on this case; right?
15 A actually, I don't know.
16 Q well, let's see if we can help refresh your memory.
17 A okay.
18 Q I asked at the case management conference last
19 Friday, Hogan, is that Hogan, is that Mr. Tom Hogan, another
20 attorney for RTC from here in San Jose?
21 A yes. He was in yesterday.
22 Q he was telling Judge Whyte how in my internet
23 postings how I had a bad attitude, with the cost of this
24 litigation coming off of my entertainment budget and the
25 expressing of the opinion that the whole business is a hoot.
232
1 You wrote that; right?
2 A I don't know. But again, I'll take credit for it.
3 Q command performance, of course, but it's nice to
4 know you have a readership; right?
5 A I've said I'll take credit for it even though I
6 can't authenticate it.
7 Q 10-34. This says from hk Henson, and the date of
8 this one is 18 September 1996. Do you see that, Mr. Henson?
9 A with difficulty.
10 Q okay.
11 A 18. Okay.
12 Q and this is a posting where somebody named
13 Mr. Wevers is posting something and you're responding to it?
14 A if this is one of my postings, yes.
15 Q okay.
16 A wait a minute. Okay.
17 Q I'm only interested in your advise to Mr. Wevers.
18 A it's two levels deep.
19 Q okay.
20 A I don't know than was responding to a posting of
21 mine and I'm responding to his postings. These things continue
22 sometimes to great depths.
23 Q let's continue to the second page.
24 A okay.
25 Q you're advising john, "if you indicate you are
233
1 considering a proceed se defense," meaning no lawyer --
2 A right.
3 Q -- "especially one based on the illegal character of
4 some of the NOTs, they might just ask you to not to re-post NOTs
5 again and let it go at that."
6 The "they" is RTC; right?
7 A that's correct. And that's what happened if I
8 remember correctly.
9 Q "if they take a hard line and sue, well, there is a
10 limit on how many of these suits they can keep going, not to
11 mention there is a certain degree of amusement value."
12 That's what you said. That was the advise you gave
13 this gentleman; right?
14 A again, I'm not certain that this is a posting of
15 mine, but it seems reasonably much like what I would have been
16 posting at that time.
17 Q okay. Let's go to 10-42.
18 A my opinion has changed in the intervening $40,000
19 worth of litigation.
20 Q let's go to 10-42.
21 A or 50.
22 Mr. Rosen: I move to strike that last answer, your
23 honor. It was not responsive to anything.
24 The Court: All right. I'll strike the last answer.
25 The jury is instructed to disregard the comment about changing
234
1 and litigation expenses to date.
2 Mr. Rosen: 10-42 Is a posting that says it's from
3 hk Henson, April 29th, 1997.
4 Q do you see that?
5 A that's what it says on the paper that you're
6 presenting.
7 Q okay. Now, at the time, was there some sort of a
8 computer game called doomii, d-o-o-m 2, or double i?
9 A oh, there certainly is. It's still existing.
10 Q and were you -- was that a game that you played in
11 April of 1997 on your computer, doomii?
12 A April '97? I don't believe so.
13 (Change in reporters.)
14
15
16
17
18
19
20
21
22
23
24
25
235
1 by Mr. Rosen:
2 Q Let's go down the middle. You gave up playing
3 doomii to play whack a cult?
4 A Yes.
5 Q Those are your words; right?
6 A I don't know that they were my words, but it
7 certainly is something I will take credit for.
8 Q Mr. Henson, if you don't know they were your
9 words, who do you think wrote it and post it under
10 your name?
11 A It's fairly probable, but I cannot
12 authenticate this stuff because it's been out of my
13 hand. I didn't sign my documents with a
14 cryptographic hash, and they're not paper documents
15 that I signed, but I'm willing to take credit for
16 this one. What is your problem?
17 Q Mr. Henson, you say you can't verify it
18 because it's out of your hands. Earlier today did
19 you read from memory a poem about a lady's head
20 that was missing that was out of your hands for a
21 long time?
22 A Out of my hands for a long time.
23 Q Out of your hands?
24 A Yeah.
25 Q Okay.
236
1 A But there's a difference between a poem and
2 1200 or 1500 ARS postings that I -- I can't
3 remember that much stuff.
4 Q I assume, Mr. Henson, that whack a cult has
5 some reference to my client?
6 A I would say it does, but I would like to
7 correct something. I gave up doom around the time
8 I started reading ARS, not at this date.
9 Q Mr. Henson, do you think that -- do you still
10 think today as you're sitting here that litigation
11 is fun?
12 A It has its funny aspects.
13 Mr. Rosen: Okay. Your Honor, this is
14 the point at which --
15 The Court: All right. It's 1:00
16 o'clock. So we'll break for today, and we'll see
17 you tomorrow at 8:00. Before you leave, however, I
18 just want to make sure the jury is focused on what
19 the issues are in this case.
20 The issues are not whether the
21 Scientology religion or teachings are good or bad,
22 whether their principles are true or not true, or
23 whether Mr. Henson's postings are funny or not
24 funny. The questions that you have to decide in
25 this case are was the posting of NOTs 34 willful
237
1 and what statutory damages are appropriate based
2 upon the factors that you have been instructed on
3 and will be instructed on at the end of the case.
4 The testimony that has been offered today
5 is relevant only for the purposes of answering
6 those two questions, and I don't want us to get off
7 the focus in this case since obviously there is
8 emotions and feelings on both sides that that is or
9 those are the questions that you will be asked and
10 answered and the testimony that is offered may only
11 be considered as it is relevant to answering those
12 questions.
13 All right. We'll see you tomorrow.
14 (Whereupon, the following proceedings
15 were out of the presence of the jury:)
16 The Court: All right. Everybody sit
17 down. You don't need to keep standing.
18 Mr. Rosen: Judge, 30 years of practice,
19 you don't think about it.
20 The Court: That's fine. I just want to
21 go over a few matters before we break for the day.
22 Number one, I want Mr. Rosen and you to
23 advise Mr. Berry specifically of any documents or
24 deposition passages that you plan to refer to
25 tomorrow in your further examination of Mr. Henson.
238
1 Mr. Berry, if there are any exhibits to
2 which Mr. Rosen has referred that you wish to have
3 introduced into evidence and placed in the jury
4 binders, advise Mr. Rosen so that he can have those
5 exhibits hole punched and ready to be added to the
6 jury books tomorrow.
7 With respect to the issue pertaining to
8 the subpoena that was purportedly served on Mr.
9 Henson with respect to financial documents, at this
10 time what I want is for Mr. Henson to supply in a
11 sealed envelope to the court his latest tax return
12 on him and his company and latest financial
13 statement on each along with what -- which I want
14 served -- that I just want served in a sealed
15 envelope to me -- along with, if he has any, any
16 legal objection either based on privilege or
17 otherwise to consideration of those documents, and
18 I want that served on the court and opposing
19 counsel.
20 Mr. Rosen: Your Honor, could I address
21 that just for one second?
22 The Court: Yes.
23 Mr. Rosen: Just to make clear the
24 financial documents we've asked for includes
25 specifically Mr. Henson bought a house a year ago.
239
1 The Court: I'm not including that in the
2 order. I think what I indicated is sufficient at
3 this point.
4 Mr. Rosen: The reason I ask for this is
5 because if Mr. Henson claims inability to pay, one
6 of the impeachment documents will be the schedule
7 of debts in the bankruptcy that he filed, and we
8 think that schedule of debts is incorrect and that
9 includes his mortgage and the cost of his home and
10 that's the reason we asked for it.
11 Mr. Berry: Your Honor, they must have
12 already given some thought to this despite their
13 representation because I -- despite their
14 representation because their exhibits contain
15 documents from the bankruptcy court.
16 The Court: Yeah, that came -- those were
17 indicated last Thursday or Friday when we met in
18 court and that's, I believe, when they were added,
19 if my memory serves me correctly.
20 Mr. Rosen: They were added before, but
21 we indicated we added them because at the time we
22 had not had your Honor's ruling on whether you
23 would allow the financial claim and just to be safe
24 and in the interest of disclosure we put them in.
25 The Court: All right. Well, you can put
240
1 in writing any objection. I'm not going to let
2 anybody see those documents until I consider
3 whatever you want to give to me. The only reason I
4 am concerned about the timeliness of the subpoena,
5 what I've asked to produce, I think, should be easy
6 to produce. I do feel that because of when the
7 issue came up that there is some that there is some
8 legitimate explanation as to the timing of it, but
9 I want to take a look at what we have, and I think
10 the documents are sensitive enough that you ought
11 to have an opportunity to indicate to me any legal
12 objection or any concern you have.
13 For example, I believe under California
14 law, which I'm not asking you to produce tax
15 documents or privileged, I don't think that same
16 rule applies in the federal income tax and the
17 federal law, but I am concerned. But I'm also
18 concerned about the fairness. If Mr. Henson's
19 financial situation is going to be offered by him
20 that there be a fair presentation of whatever that
21 is, and I'm not suggesting in any way that Mr.
22 Henson wouldn't be candid on that. I don't have
23 any reason to feel that he would not be. I think
24 that's a fair compromise under the circumstance and
25 that's how we're going to handle it.
241
1 Obviously I'm assuming, and Mr. Rosen can
2 correct me if I'm wrong, that as far as Mr.
3 Henson's financial situation, that will only be
4 gone into if it's brought up by the defense, which
5 they've indicated it will be, but that would be
6 part of the rebuttal case rather than the case in
7 chief.
8 Mr. Rosen: Precisely, your Honor, I will
9 not be raising it in my case in chief.
10 The Court: All right. I think that
11 covers loose ends. If there are any other others,
12 let me know.
13 Mr. Berry: Just quickly for the record,
14 your Honor, I would like to note my objection to
15 the video being an edited version of the transcript
16 without any indication as to where in the written
17 transcript these different portions were being
18 selected and edited from.
19 The Court: Isn't it the case, however,
20 Mr. Berry, that as soon as you raised that that I
21 indicated that Mr. Rosen should not go forward with
22 doing it without indicating it?
23 Mr. Berry: Correct, your Honor, but the
24 horse is already out of the stable of what has gone
25 before.
242
1 The Court: Right, but as soon as you
2 brought it up.
3 Mr. Berry: I do not accuse the court at
4 all, not at all. Quite the contrary.
5 The Court: See you tomorrow at eight.
6 Mr. Berry: Your Honor, Mr. Henson would
7 like the court to know that I think he's filing his
8 declaration that has been the subject of the order
9 to show cause, along with a diskette, I guess of
10 what he just discovered was on his computer.
11 The Court: All right. File it
12 downstairs and if you have a copy of it you can
13 leave it with me, but file it down in the clerk's
14 office because I don't want to take custodial
15 responsibility. That's the clerk's job.
16 I'll see you in the morning.
17 Mr. Rosen: Your Honor, is that going to
18 be filed under seal?
19 I presume what Mr. Berry is referring to
20 --
21 Mr. Berry: Yes. Mr. Henson just told me
22 it should be filed under seal.
23 The Court: That's correct.
24 (Whereupon, the evening recess was
25 taken.)
243
