Trial Day 3: 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 244-408
9 H. Keith Henson, an )
Individual, ) volume 3
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
18
Law offices of Thomas R. Hogan
19 By: Thomas R. Hogan
60 south market street, suite 1125
20 San Jose, California 95113
21
22 reported by: Lee-Anne Shortridge, csr #9595
Irene l. Rodriguez, csr #8074
23
24 Appearances continued on next page
25 Computerized transcription by stenocat
244
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
4
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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245
1 Index of witnesses
2 Page
3 plaintiff's
4 H. Keith Henson
5 As on cross by Mr. Rosen (resumed) 262
As on direct by Mr. Berry 291
6 Recross by Mr. Rosen 347
Redirect by Mr. Berry 377
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13 Index of exhibits
14 Admitted
15 plaintiff's
16 43 283
61 362
17 62 369
2, 3, 4, 5, 9, 10-1, 10-8, 10-9, 387
18 10-12, 10-16, 10-19, 10-29,
10-34, 10-36, 10-42, 27a,
19 10-26, 10-28 and 10-65
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246
1 Thursday, May 7, 1998
2 (whereupon, the following proceedings were held out
3 Of the presence of the jury.)
4 The Court: Good morning.
5 Mr. Rosen: Good morning, your Honor.
6 The Court: All right. We'll take up quickly what
7 you wanted to bring up.
8 Mr. Rosen: Yes, your Honor. Number one, yesterday
9 with respect to the press release that Mr. Henson distributed,
10 you indicated you were going to make copies and let us have
11 them. I'd like -- I don't have one, and I'd also like one
12 marked as a trial exhibit if we could. I'm not going to show it
13 to the jury, but I want it to be part of the record.
14 The Court: I said it would be part of the record.
15 I'll make copies at the break, or I'll have copies made at the
16 break.
17 Mr. Rosen: Number two, someone is intent, I
18 believe, upon making sure that this jury is polluted. Last week
19 we gave you -- excuse me, earlier this week we gave you an
20 article which appeared in the April 30th peninsula edition of
21 the San Jose Mercury which was extraordinarily critical,
22 drumming up allegations about people who went to jail for
23 Scientology, et cetera. And your Honor asked, per our request,
24 whether anybody had seen that.
25 An extraordinary thing happened. That was Sunday.
247
1 two days later, the newspaper published again essentially the
2 same article. I think there was one line different in the
3 peninsula edition.
4 Today, two days later, that article is in this
5 morning's paper. Yesterday I personally saw two jurors walking
6 in with newspapers when I was downstairs having a cigarette.
7 One of them, I could see, was the Mercury. The other one I
8 could not see what it was. The juror had it folded.
9 I appreciate your Honor asked the question of
10 whether anybody has seen anything, but with all due respect,
11 somebody is trying to pollute this jury, and one of my concerns
12 is that these articles, and if I may hand up copies and ask that
13 they be marked, both the April 30th one, the Tuesday one, and
14 the one of today, ask that they be marked into the record.
15 One of these articles, this article quotes lawrence
16 Wollersheim. Mr. Wollersheim is Mr. Berry's expert on
17 Scientology in the fishman case. Mr. Wollersheim --
18 The Court: I know who Mr. Wollersheim is.
19 Mr. Rosen: -- Was one of Mr. Berry's clients, and
20 all of a sudden, a San Jose newspaper is reaching out to
21 somebody in boulder, colorado and quoting him on practices of
22 the church.
23 I don't know what can be done about this, your
24 honor, but I have one or two thoughts, and there is no really
25 good answer.
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1 One thing is I think at some point I'm going to ask
2 your Honor to hold an evidentiary hearing as to how the
3 newspaper got these materials. I fully appreciate the press'
4 right to publish, but a republication three times of the same
5 article is extraordinary.
6 Number two -- and the source of it is something I
7 think is of major concern.
8 The second thing is if we recess today at 12:00
9 o'clock and the jury goes home for three days and we have to
10 come back Monday, based on the history so far, it is clear to me
11 that there is a strong likelihood that, whether it's
12 Mr. Henson's press releases getting to the paper or whether it's
13 the newspaper publishing again, we're going to have an
14 extraordinarily high probability of a polluted jury.
15 And I would ask, and I know your Honor's schedule is
16 dismal, I would ask that we start today and we just keep going
17 until we're done, because as soon as this jury goes home for
18 three days, we've got a substantially enhanced chance of even
19 more pollution of this jury to the extent it's not already
20 polluted by this.
21 The other thing, your Honor, is yesterday you gave
22 an instruction because of Mr. Henson's press release. I went
23 back and looked at that instruction, and I believe it's on page
24 109 of the trial transcript of yesterday.
25 That instruction simply says that somebody is
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1 handing out, may have been handing out materials on the
2 courthouse property.
3 In the context of this case, any reasonable person
4 hearing that would believe that it was my client.
5 The Court: Oh, come on.
6 Mr. Rosen: Well, your Honor, why should we take the
7 risk of being tarred with that? We didn't do it.
8 I'm going to ask that your Honor instruct the jury
9 that we did not. I'm not asking that, to instruct that
10 Mr. Henson did, but as between an organization where jurors have
11 said in their questionnaires, "i've seen commercials for
12 Scientology, I've seen all kinds of commercial material, I've
13 seen books," it is far more likely that a person would believe
14 that if something were given being out, a leaflet or pamphlet
15 were given out, it would come from an organization rather than
16 an individual.
17 So I do ask, your Honor -- I'm not asking you to tar
18 Mr. Henson with it, I'm just asking you to instruct the jury
19 that it was not us.
20 And in fact, I'll go a step further. If your Honor
21 wants to tell the jury, I know it's not truthful, but if your
22 honor wants to tell the jury, I will consent to an instruction
23 that is what you mentioned yesterday, the jury should not
24 believe it was handed out by either party to this case. At
25 least that's a neutral instruction.
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1 The Court: I can't say that because that's not
2 true.
3 Mr. Rosen: That's the problem. I was trying to
4 figure out some pragmatic way of taking the stigma off my
5 client. And I appreciate it's not true, but I don't know how
6 else to deal with it, Judge.
7 The Court: All right. Anything else?
8 Mr. Rosen: I have a couple of other quick things to
9 add, but let me, on a different subject, but I'll certainly
10 defer to Mr. Berry.
11 The Court: We've got to get going. I don't want to
12 leave this jury sitting there waiting. This is their time.
13 It's not our time.
14 What do you have Mr. Berry?
15 Mr. Berry: I have no idea about anything Mr. Rosen
16 has just said, for the record. I haven't spoken to
17 Mr. Wollersheim for weeks.
18 Secondly, we don't know whether Scientology itself
19 picked up these documents and may be distributing them. I think
20 the jury has been told enough already without being told more.
21 Thirdly, I've made appointments to see clients in
22 Los Angeles this afternoon.
23 The Court: I can't vary the schedule. That's out.
24 Mr. Berry: And there is a matter I want to bring up
25 at the end of the morning when the jury goes, additional
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1 briefing on an issue.
2 The Court: All right.
3 Mr. Rosen: May I hand up the articles then and ask
4 that they be marked?
5 The Court: We'll mark -- we'll just call them --
6 non-jury exhibit 1 will be the press release that was handed out
7 at least to a court security officer, and how many newspaper
8 articles are there?
9 Mr. Rosen: Three.
10 The Court: Non-trial exhibits 2, 3 and 4 are the
11 newspaper articles.
12 Mr. Rosen: And your Honor, at some point when you
13 take a break, I don't want to take the time now, I want to
14 formally move certain exhibits into evidence.
15 The Court: Are you going to be seeking to offer any
16 of the new ones that you marked yesterday, the ones 28 and
17 above, before our break?
18 Mr. Rosen: Before our break? Yes. And Mr. Berry
19 has indicated he has no objections to those. He hasn't had a
20 chance to read the second set, which was 53, 56 and 59 to 62.
21 The Court: Is that correct, Mr. Berry?
22 Mr. Berry: I would like to reserve foundation, your
23 honor, on the internet postings.
24 The Court: Internet postings? Were there new
25 exhibits on internet postings? I don't recall new exhibits on
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1 internet postings.
2 Mr. Rosen: I think Mr. Berry might be referring to
3 one that Mr. Henson posted just the other day.
4 The Court: Frankly, I have a real problem with some
5 of these exhibits. I think we're just getting -- we're starting
6 to do exactly, Mr. Rosen, on your side, what you don't want
7 Mr. Berry doing on his side, and that is turning this case into
8 a circus and a question of whether Scientologists are nuts and
9 whether Mr. Berry, or Mr. Henson is a nut. That's not the issue
10 in this case.
11 Mr. Berry: That's okay, your Honor. They think I'm
12 nuts too.
13 Mr. Rosen: Your Honor, that is not the issue in
14 this case. But as our charge indicated, the jury has to
15 understand the nature of Mr. Henson and what kind of a person he
16 is for deterrence.
17 The Court: But whether Mr. Henson believes in
18 cryonautics (sic), I don't see the relevance.
19 Mr. Henson: Cryonics.
20 Mr. Rosen: Mr. Berry did, in his opening
21 statement --
22 Mr. Berry: I was anticipating it, your Honor, from
23 past experience.
24 The Court: Which ones do you intend to offer before
25 the break that are above 28?
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1 Mr. Rosen: 28, 29 -- By the way, your Honor, some
2 of these we may not offer. In an exercise of caution, some of
3 these I put in even though they're probably going to be
4 refreshing recollection or impeachment. 28, 29, 32.
5 The Court: 28 --
6 Mr. Rosen: I'm sorry?
7 The Court: I was just repeating. 28, 29.
8 Mr. Rosen: 32, 33.
9 The Court: Just a second. What in the world is the
10 relevance of 29?
11 Mr. Rosen: Mr. Berry brought it up in his opening
12 statement that Mr. Henson's hobby is making bombs.
13 Mr. Berry: Used to be 20 years ago, your Honor.
14 The Court: Why did you even mention it?
15 Mr. Berry: I've been in trial with these people
16 before with Mr. Henson, and I've seen what they brought up. I
17 was expecting it to be brought up and dealt with ad nauseam, so
18 I was dealing with it in advance to take the sting out of it,
19 your Honor.
20 The Court: Don't you think the court has some sense
21 that it would keep out something that you've objected to that
22 had to do with making bombs that has no relevance in this case?
23 Mr. Berry: The court may recall that I came into
24 this case too late to make motions in limine.
25 Mr. Rosen: What was the last number I gave your
254
1 honor?
2 The Court: 29. I just don't see 29. I'm not going
3 to let this case turn into that, so 29 is not coming in.
4 Mr. Rosen: I think we were on 32, 33.
5 The Court: I just don't see 30 either. I don't see
6 it.
7 Mr. Rosen: 32?
8 The Court: 403 Considerations far outweigh any
9 probative value of both of those.
10 Same with 33. We're getting into stuff talking
11 about kiddie porn. That doesn't belong in this case.
12 Mr. Rosen: Your Honor, I'm sorry? I can't hear
13 you.
14 The Court: I'm sorry. 33 Has something to do with
15 kiddie porn. That certainly has nothing to do with this case.
16 Mr. Rosen: This is Mr. Henson referring to this in
17 a posting which is in evidence, that this was his prior activity
18 just before he got involved in the, in ARS.
19 The Court: I just think the potential prejudicial
20 effect, despite Mr. Berry sitting there not objecting, is far
21 outweighed by, far outweighs any probative valuing.
22 Mr. Rosen: Very well. 33?
23 The Court: What's the relevance of -- oh, I'm
24 sorry. What relevance does this have?
25 Mr. Rosen: This is, relates to the stature issue.
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1 Mr. Henson was complaining that he wasn't being recognized on
2 the internet. "You left me out. I'm offended."
3 The Court: That's -- Mr. Henson has essentially
4 admitted that. I just think we're getting way off base. I'm
5 not going to let that in here.
6 Mr. Rosen: Okay. Your Honor, I notice I skipped
7 one. 28, Mr. Henson's brief to the court.
8 The Court: I don't have any problem with your
9 referring to the comment.
10 Mr. Rosen: Okay. 35?
11 The Court: I just don't think the whole document
12 would be appropriate to come in. I don't have a problem with
13 your referencing the motion and comment. Although that, again,
14 is something that's been gone into at length.
15 35?
16 Mr. Rosen: 35, Yes, your Honor.
17 The Court: Same thing. I think it's just getting
18 too far away. I understand the purpose of that, but I'm not
19 going to allow it.
20 Mr. Rosen: Okay. 38A and b are the injunction
21 orders, and they're only marked, your Honor, for purposes of
22 possible impeachment if Mr. Henson says he doesn't remember
23 being enjoined.
24 The Court: Okay. That I don't have a problem with.
25 I don't think he is disputing that, but if he were, then it
256
1 could be for that purpose.
2 I am concerned particularly with the preliminary
3 injunction coming in. Because it's a preliminary injunction,
4 those findings have no relevance, are not binding for final
5 findings. It gets into trade secret issues, which aren't in
6 this case, so I'd have a problem with introducing it.
7 But as far as, you know, if he were to deny that he
8 got it or saw it, then we'd have a different issue.
9 Mr. Rosen: Your Honor, I must say, as you know, we
10 have reserved our right to add additional exhibits for
11 impeachment or for refreshing recollection, but I erred on the
12 side of caution and I put that in. That is pure impeachment.
13 Mr. Berry: I would object, your Honor.
14 The Court: What?
15 Mr. Berry: I do object to 38a and b.
16 The Court: Well, if he denies that he was enjoined
17 or the times of it, or if the terms of it, the terms -- the
18 terms that are relevant to this case, then there might be a
19 problem. Otherwise I don't think Mr. Rosen is even seeking to
20 offer it.
21 Mr. Rosen: 39.
22 The Court: 39, Isn't that the -- I don't have a 39.
23 Yes I do. I'm sorry.
24 Mr. Berry: 39 I object to, your Honor.
25 The Court: I wish you'd decide what you were going
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1 to object to and what you weren't rather than telling me what
2 you don't and what you do.
3 Mr. Berry: The ones that I haven't objected to,
4 your Honor, I'm not objecting to.
5 The Court: The representation was made, which I
6 thought you agreed, was that the initial group you had seen and
7 you had no objection to.
8 Mr. Berry: This is the -- and I said I had an
9 objection to it.
10 And then there was a second group that Mr. Rosen --
11 Mr. Rosen: Your Honor, 39, let me point to the only
12 part we may offer, and it probably is going to come in in the
13 case in defense, and that's Mr. Henson's stipulation that he
14 practices open heart surgery on aids patients.
15 As your Honor knows, the defense here is that he,
16 that we're practicing medicine without a license. I think that
17 goes to his credibility.
18 Mr. Berry: What number, Mr. Rosen?
19 Mr. Rosen: I'm sorry. Is that the wrong one? I
20 apologize. It's a different exhibit. I apologize, your Honor.
21 39 Is a transcript, and that's being offered solely
22 for the purpose of, if Mr. Henson denies it, that he had not
23 complied with your impoundment order and he was told to do so by
24 the 29th of April.
25 Mr. Berry: I still object, your Honor.
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1 The Court: I haven't looked at what he filed. Has
2 he complied now?
3 Mr. Rosen: I haven't seen it.
4 The Court: You didn't see what he handed in
5 yesterday?
6 Mr. Rosen: No. You told him to file it with the
7 clerk's office and serve it. He never served us.
8 The Court: I'm going to ask you to hold off on that
9 until I see what he's filed.
10 Mr. Rosen: Okay. 34 I think is the next one.
11 The Court: 43, I think.
12 Mr. Rosen: Okay. 43 Is -- oh, I'm sorry. It's in
13 a different order.
14 Did your Honor -- your Honor didn't address 34, did
15 you?
16 The Court: I thought I did.
17 Mr. Rosen: My notes show 32, 33 and 35. We skipped
18 over 34.
19 The Court: Oh. This is a physics today article
20 from 1974?
21 Mr. Rosen: Yep.
22 The Court: And the purpose of that is to show that
23 he knows what a copyright is?
24 Mr. Rosen: Nope. The purpose of this is in the
25 context of another exhibit in which he identifies this document,
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1 this magazine, as one that he got it and he made 2,000 xerox
2 copies of. And he admitted in another one of the exhibits, the
3 purpose of this is to show recitivism. This is not the first
4 time he's infringed a copyright.
5 The Court: I'm not going to allow that.
6 All right. Is everybody ready to go? That covers
7 anything you would have offered before the break; right?
8 Mr. Rosen: Plus the five last night.
9 The Court: Are those before the break?
10 Mr. Rosen: What time is the break?
11 The Court: We'll break probably in about an hour
12 and 15 minutes.
13 Mr. Rosen: No.
14 Mr. Berry: Did we skip over the aids patient one,
15 your Honor?
16 Mr. Rosen: It's already in. It's 16.
17 The Court: I haven't seen it. What do you mean,
18 it's already in?
19 Mr. Rosen: It was an exhibit that wasn't objected
20 to, 16.
21 The Court: It was in the original group?
22 Mr. Rosen: Yes, 16. All the original ones are up
23 to 27.
24 Mr. Berry: 16 I have as a stipulation of fact.
25 Mr. Rosen: Right.
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1 Mr. Berry: We'll deal with it, your Honor.
2 The Court: All right. Bring the jury in, please.
3 (Whereupon, the following proceedings were held in
4 The presence of the jury.)
5 The Court: All right. Good morning everyone.
6 One of the things that I told you at the beginning
7 of the trial was to avoid any newspaper or radio or television
8 that might pertain to one of the parties or this case.
9 Has anybody seen any newspaper article or heard
10 anything on radio or television that concerns any of the parties
11 since the beginning of this case?
12 Juros: (Shake heads back and forth.)
13 The Court: Again, I would just remind you, if you
14 happen to see something in a paper, just don't read it. If you
15 happen to hear something on the radio, just please change the
16 station.
17 All right. Mr. Rosen, you may continue.
18 Mr. Rosen: Thank you, your Honor.
19 The Court: Mr. Henson, would you come back to the
20 stand, please?
21 H. Keith Henson, defendant, resumes the stand
22 The Court: We won't reswear you, but you're still
23 under oath.
24 The Witness: I understand.
25 As on cross examination by Mr. Rosen (resumed)
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1 Q Mr. Henson, you recall when we broke yesterday, I
2 want to bring your mind back to this, we were talking about fun
3 and recreation and entertainment. Do you remember that
4 generally?
5 A generally.
6 Q okay. And there came a time in this case,
7 Mr. Henson, in early 1997, when RTC made a motion before this
8 court for summary judgment and for the entry of a permanent
9 injunction against you. Is that right?
10 A I don't remember the dates exactly.
11 Q is it approximately early 1997?
12 A I believe it was, but I'm not sure.
13 Q okay. And RTC offered the court a significant
14 amount of paper in terms of briefs and exhibits and the like in
15 support of that motion? Yes or no, Mr. Henson?
16 A certainly.
17 Q okay. And Mr. Henson, is it correct that in
18 response to that motion for entry of a permanent injunction
19 against you, you told this court, however -- excuse me.
20 You told this court that you could only answer the
21 motion within the limitations of your entertainment budget?
22 A well --
23 Q yes or no, did you tell the court that?
24 A I don't remember.
25 Q okay.
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1 The Court: Why don't you show it to him and ask him
2 if -- all right. Look at that portion only.
3 The Witness: Well, entertainment budget --
4 by Mr. Rosen:
5 Q wait a second. Excuse me, Mr. Henson. Do you see
6 it now?
7 A yes.
8 Q does that refresh your recollection that that's what
9 you told this court?
10 A if that's a paper that I signed, I would guess so.
11 The point is that I'm not a man with a lot of money.
12 Q excuse me, Mr. Henson. Mr. Henson, there's not a
13 question.
14 Do you deny that you signed this paper?
15 A take a look. Is my signature on it?
16 Q let's put up on the top, you'll see the heading of
17 this is "response to motion for summary judgment as to copyright
18 claims for relief."
19 Do you recognize that as a document you filed with
20 this court?
21 A probably.
22 Q okay. But you don't recall signing it?
23 A I asked you if I had. If it's a signed document by
24 me, then I did it. That's proof enough.
25 Mr. Rosen: Your Honor, may I approach the witness?
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1 The Court: Yes. In the future, if you're going to
2 ask him to refresh his recollection with a document, I don't
3 want it put up. There's not a problem with this, but refreshing
4 recollection is just to see if something refreshes somebody's
5 recollection. It's not evidence at that point.
6 Mr. Rosen: Yes, your Honor.
7 The Witness: There's a page with my signature --
8 ah, no signature.
9 By Mr. Rosen:
10 Q it has your name typed on it, Mr. Henson?
11 A why is my signature missing?
12 Q does it have your name typed on it?
13 A it has my name typed on it. But that's bizarre. I
14 don't recall having ever turned in a document that I failed to
15 sign before I dated it.
16 Q Mr. Henson, this is the copy that you served on RTC.
17 Do you sign the copies you serve on RTC, or just the one you
18 filed with the court?
19 A my normal procedure is I sign the original, file it
20 with the court, I make a bunch of copies. I sign the original,
21 file -- make a bunch of copies, file it with the court, and
22 serve Mr. Hogan with a stamped copy.
23 Q Mr. Henson, looking at that document, do you deny
24 that you submitted this to this court?
25 A well --
264
1 Q yes or no, Mr. Henson?
2 A I recognize, for example, that it's my signature, my
3 handwriting that's on the date. But that's kind of strange.
4 Q my question, Mr. Henson, again, is do you deny that
5 you submitted this document, you filed this document in this
6 court?
7 A I don't know why on earth you would be bugging me
8 about that. It's part of the court record.
9 The Court: Would you answer the question if you
10 can?
11 The Witness: As far as I know, to the best of my
12 knowledge, this is a copy of the document that I submitted to
13 the court in response to -- it's a response to partial motion
14 for a partial summary judgment as to copyright claims for
15 relief.
16 By Mr. Rosen:
17 Q thank you, Mr. Henson.
18 Yesterday, Mr. Henson, there was some -- I just want
19 to bring you back to a subject, there was a discussion about the
20 status and stature among ARS people.
21 A yes.
22 Q okay.
23 The Court: All right. Before we start, what are
24 you playing, page and line?
25 Would you hold that, please?
265
1 Mr. Rosen: That's in the letter, your Honor.
2 The Court: I know, but I just want to state for the
3 record so we know what you're playing.
4 Mr. Rosen: Oh, I'm sorry. They are the excerpts
5 which are yellow highlighted in the exhibit that was put in,
6 your Honor, and they are pages 82 to 83, 86, 90, 91 and 94 to
7 97, those portions which are highlighted in your book.
8 The Court: And those are in the juror's books too.
9 Mr. Rosen: That's correct.
10 May I proceed, your Honor?
11 The Court: Yeah. Just so we're all straight, and
12 it's under the heading video excerpts, right?
13 Mr. Rosen: Correct.
14 The Court: All right. You may proceed.
15 (Videotape deposition played.)
16 The Witness: There's more --
17 by Mr. Rosen:
18 Q Mr. Henson --
19 A yes.
20 Q I just heard at the end of that that ARS is a
21 culture of 30,000 people.
22 A as a guess.
23 Q I asked you yesterday if you could tell us
24 approximately how many readers there are to ARS, and you told me
25 you couldn't; right?
266
1 A it's a very rough guess.
2 Q does that refresh your recollection that it's about
3 30,000, approximately?
4 A it's an extremely difficult thing to measure. But
5 to the best of my ability, it usually runs -- usually the thing
6 is you can take the number of people who post in a month and
7 multiply it by 20 or so, 20 to 100, and that gives you somewhat
8 of an idea of how many people are reading it.
9 Q okay. Now, Mr. Henson, we saw, during that clip,
10 you said something like "if I haven't thanked mrs. Kobrin for
11 sending me that cease and desist letter, I want to thank her
12 now."
13 A yes.
14 Q okay. And that's because by sending her -- by
15 mrs. Kobrin sending you a cease and desist letter, you now were
16 elevated to sp 4 status?
17 A that's correct.
18 Q and --
19 A along with hundreds of other -- well, 50 other
20 people.
21 Q and in order to get to sp 5 status, which is what
22 you aspired to, you had to require the cult to sue you; right?
23 You had to be sued by the cult; right?
24 A that's correct.
25 Q so that when my client brought this lawsuit, you got
267
1 an enhanced status? You were now an sp 5; right?
2 A that's correct.
3 Q and part of the reason for that enhanced status,
4 once you force them to sue you for copyright infringement, is
5 that you know you're then causing my client to spend a lot of
6 time and money to stop you; isn't that right?
7 A time and money that doesn't get used for abusing
8 other people.
9 Q Mr. Henson, yes or no, is that the reason for the
10 enhanced status, because you know to sue, you're causing my
11 client time and money?
12 A it's a minor consideration.
13 Q okay. In fact, you know it's not a minor
14 consideration, Mr. Henson. You know it's a substantial
15 consideration in terms of the time and money to bring a lawsuit?
16 A you guys spend 20 million a year anyway --
17 Mr. Rosen: Your Honor, I move to strike this.
18 The Court: That's stricken.
19 Can you answer the question, please?
20 The Witness: What was the question?
21 Mr. Rosen: May I have the reporter read it back,
22 please?
23 The Court: Yes.
24 (Record read.)
25 The Witness: Yes.
268
1 by Mr. Rosen:
2 Q in fact, Mr. Henson, you know reverend McShane here?
3 A yes.
4 Q he's sitting in the courtroom. You know he's the
5 president of RTC; right?
6 A he's the most powerless president I've ever run
7 into.
8 Mr. Rosen: Your Honor, I move to strike this and I
9 ask for an admonition to the witness.
10 The Court: Mr. Henson, we can go a lot faster --
11 The Witness: His title --
12 The Court: Just answer the question. You may have
13 your comments. Your comments aren't appropriate in responding
14 to a question.
15 If you can answer the question that's asked, just
16 answer the question.
17 If your attorney wants to bring out other matters
18 that are relevant, he can do so.
19 The Witness: His title is president.
20 By Mr. Rosen:
21 Q and Mr. Henson, you recall that Mr. McShane was
22 present every time you were in this courtroom, right, in this
23 case?
24 A I don't believe so.
25 Q do you recall him being present at your deposition?
269
1 A yes.
2 Q do you recall him being present at another
3 deposition, at any other depositions taken in this case? Yes or
4 no?
5 A I don't believe there were any other depositions.
6 Q do you recall -- no other depositions taken in this
7 case? You don't remember any, Mr. Henson?
8 A oh, sorry. Yes, of course, the one with david
9 miscavige.
10 Q you had forgotten that you went down to riverside
11 county to depose Mr. Miscavige, the spiritual worldwide leader
12 of Scientology; right? You forgot that?
13 A my memory isn't perfect.
14 Q right. And Mr. McShane was there as well?
15 A I actually couldn't swear to it.
16 Q and when you were in court in -- when RTC filed this
17 case and moved for a preliminary injunction against you, was
18 Mr. McShane here?
19 A I believe so.
20 Q and when, in 1997, as we went over a few moments
21 ago, when RTC moved for summary judgment and a permanent
22 injunction against you, was Mr. McShane here in this courtroom?
23 A I don't actually remember.
24 Q and over the last several weeks when we've had
25 meetings with the Judge on preparing for this trial, has
270
1 Mr. McShane been here?
2 A at least some of that time.
3 Q thank you. Well, Mr. Henson, up until this moment,
4 did you ever thank mrs. Kobrin for suing you and giving you this
5 enhanced status of sp 5?
6 A I don't believe so.
7 Q okay. Mr. Henson, is it a fact that you were so
8 proud of having achieve sp 5 that you even made up a t-shirt
9 that said you're an sp 5, or words to that effect?
10 A that's not true.
11 Q did you have a t-shirt that had sp 5 on it?
12 A no.
13 Q did you, at one point, post something saying you're
14 going to make up such a t-shirt and wear it to your deposition?
15 A I don't believe so.
16 Q you don't remember a posting to Mr. Erlich where you
17 said, "after considering it, I think I'm going to wear an sp
18 t-shirt to my deposition"?
19 A that was one I already had.
20 Q I see. That was one you had already. And the one
21 that you had said sp 5 on it?
22 A no. It said "save ARS" and on the back there's a
23 large sp on it.
24 Q excuse me. With no number; right?
25 A no. There aren't many sp 5s.
271
1 Q you're pretty proud of that, aren't you? There
2 aren't many sp 5s?
3 A I'm not an sp 5 anymore.
4 Q I thought you said you reach sp 5 when you force my
5 client to sue you. Isn't that what we're doing right now?
6 A that's true. But you win sp 6 if you win a suit.
7 Q I see. But right now you're an sp 5; right?
8 A no, I'm an -- I'm an sp 6. I won some of the other
9 suits they filed against me.
10 Mr. Rosen: Your Honor, I'm going to move to strike
11 that.
12 The Court: I'm going to allow that.
13 By Mr. Rosen:
14 Q Mr. Henson, do you recall that in April of 1997,
15 after you filed your opposition limiting it to your
16 entertainment budget, that this court issued a permanent
17 injunction against you?
18 A yes.
19 Q and you recall that that permanent injunction
20 included an order of impoundment?
21 A excuse me?
22 Q an order of impoundment?
23 A I don't believe it did, but maybe it did.
24 Q let me see it if I can refresh your recollection,
25 Mr. Henson. Do you recall that the Judge's order, in April of
272
1 1997 -- actually, that's the permanent injunction. The one
2 before it was the preliminary injunction, and it permanently
3 prohibited you from posting or infringing the copyright in NOTs
4 34?
5 A that's not an impoundment order, is it?
6 Q no. I'm taking it one step at a time, Mr. Henson.
7 Do you recall that much?
8 A yes. And I certainly have complied with that.
9 Q and do you recall that you were also instructed to
10 delete NOTs 34 from your computer and you told the Judge you
11 needed to save one copy of it for the preparation of your
12 defense in this case?
13 A that's correct.
14 Q okay. And Mr. Henson, there then came a time after
15 that, in March of this year, two months ago, in which you
16 announced --
17 A no. It was earlier than that, wasn't it?
18 Q how about if I try my question, Mr. Henson? Let me
19 finish, please.
20 Did there come a time then in March of this year, or
21 earlier in this year, when you announced that you were going to
22 deliver a copy of NOTs 34 to a federal agency if, if you could
23 arrange for network TV cameras to film you doing it?
24 A it was an offer.
25 Q was it an offer, or was it a statement of your
273
1 intention, Mr. Henson?
2 A you can take it either way. I mean, it was an offer
3 and an intention if I could get the, get somebody interested
4 enough in doing it.
5 Q and you knew when you made that offer and that
6 statement that you're going to do this on national TV, or
7 network TV, you knew that was a violation of the Judge's order?
8 A absolutely. In fact, I stated so in the offer.
9 Q all right. Let's put it up. That's 10-65?
10 A that's a matter of civil disobedience.
11 Q that's a matter of 10-65.
12 This is a posting from you March 4th, 1998, two
13 months ago; right?
14 A why have you redacted that?
15 Q Mr. Henson, is this a posting from you March 4th,
16 1998? Yes or no?
17 A I have no idea.
18 Q okay. Mr. Henson, do you see the from line that
19 says from hk Henson?
20 A we have argued this I don't know how many times. I
21 cannot tell you. It's been out of my hands. It is not pgp
22 sign.
23 Mr. Rosen: Your Honor, I ask that the witness be
24 instructed to answer the question?
25 The Witness: I think that --
274
1 The Court: Wait a minute. Both of you are getting
2 on any nerves to be blunt.
3 There's a dignified way to run a trial, and I want
4 to do that.
5 Mr. Henson has explained several times what this
6 means to him as far as whether or not it's from him or not.
7 Mr. Henson, you don't need to go into a speech each
8 time you're asked a question. Just answer the question.
9 All right. Let's try it from here.
10 By Mr. Rosen:
11 Q Mr. Henson, this document indicates, it says that
12 it's from you?
13 A that's what the characters read.
14 Q do you deny that you posted it?
15 A I don't know.
16 Q do you have any evidence to offer that somebody
17 posted this in your name as a forgery?
18 A no.
19 Q let's look at the text of it. Four lines up from
20 the bottom, "i've made the offer to engage in civil disobedience
21 and give a copy of NOTs 34 to the f.D.A. If I can do it on
22 national TV."
23 A right.
24 Q you said that; right?
25 A of course. "I don't expect to get away with this,
275
1 so I will March myself right down to the courthouse" --
2 The Court: Mr. Henson, aren't you doing what I just
3 told you not to do?
4 The Witness: Excuse me.
5 The Court: Could you answer his questions, please?
6 The Witness: This looks like what I wrote.
7 By Mr. Rosen:
8 Q and you said, "I don't expect to get away with it,
9 I'm going to do it and walk down to the courthouse and report to
10 Judge Whyte with my toothbrush so he can put me in jail for
11 contempt."
12 The Witness: He should have done that.
13 Mr. Rosen: Your Honor, excuse me.
14 Q Mr. Henson, did you say that or not?
15 A I believe that is an accurate representation of what
16 I said.
17 Q and then it continues on. "This is not a sure
18 thing," because what you're saying here is "whether I do this or
19 not depends on whether a national TV program is willing to tape
20 it." Right?
21 A that's what it says.
22 Q and then you conclude this with "the likelihood of
23 it coming about would be increased if cos," church of
24 Scientology, "went to Judge Whyte in a panic and tried to get me
25 tossed in jail first. Hint." Right?
276
1 A right.
2 Q what you wanted us to do was to run to Judge Whyte
3 and ask him to throw you in jail before you could go on national
4 TV with this; is that right?
5 A sure. It's called prior restraint.
6 Q and if that had happened, Mr. Henson, if you were
7 thrown in jail for violating the Judge's order, would you get an
8 increased status on ARS?
9 A no.
10 Q you don't get a promotion for being thrown in jail?
11 A I probably would have.
12 Q yes or no?
13 A no.
14 Q okay. Now, Mr. Henson, you're aware that there are
15 three cases in this court, in this court, the one involving
16 Mr. Erlich, the one involving Mr. Ward, and this one involving
17 you, all of which involve NOTs 34 postings. You're aware of
18 that; right?
19 A yes.
20 Q okay. As things turned out, yours is the first one
21 that's coming to trial?
22 A that's true.
23 Q okay. The fact that you're the first one to go
24 before a jury, does that give you any greater status?
25 A no.
277
1 Q if this jury awards a substantial amount of damages
2 against you, Mr. Henson, will that give you a greater status?
3 A no.
4 Q what will give you a greater status, Mr. Henson?
5 A just --
6 Q what does this jury have to do to give you a greater
7 status?
8 A there's no way this jury can do anything to give me
9 a greater status. I'd have -- to get a greater status, I'd have
10 to sue Scientology.
11 Q I see. Would you have -- apart from any official
12 promotion, like to the next sp level, would you enjoy greater
13 status and admiration if the jury came back with a very small
14 award?
15 A it would certainly be of great interest to the
16 worldwide readers of alt.Religion Scientology.
17 Q okay. Now, Mr. Henson, before this trial actually
18 started, is it true that you expected to be found guilty of
19 willful infringement? Yes or no?
20 A no.
21 Q is it true that you expected the jury to award a
22 substantial amount of money against you?
23 A I have no idea.
24 Q you never had that thought?
25 A never had what thought?
278
1 Q that the jury would award a substantial amount of
2 money against you?
3 A the jury does whatever the jury does.
4 Q Mr. Henson, did you ever communicate in this
5 courtroom that you expected, in words or substance, that you
6 expected to lose this case?
7 A I've already lost it.
8 Q this case before this jury?
9 A oh. When you go before a jury, you take your
10 chances.
11 Q my question, Mr. Henson, is --
12 A I don't know.
13 Q okay. Mr. Henson, do you recall being in this
14 courtroom on February 5, 1998, three months ago?
15 A yes.
16 Q do you recall that the reason for being in the
17 courtroom at that time was that the Judge was trying to set a
18 date for a trial?
19 A yes.
20 Q and do you recall that the Judge suggested February
21 23rd as the date for trial of your case?
22 The Court: Would you approach, please?
23 (Sidebar discussion off the record.)
24 Mr. Rosen: Your Honor, may I have the permission to
25 withdraw that?
279
1 The Court: Yes.
2 Mr. Rosen: Thank you.
3 Q Mr. Henson, do you -- have you ever written anything
4 that's copyrighted?
5 A oh, yes.
6 Q and your articles have appeared in magazines with
7 copyright notices on them?
8 A of course.
9 Q so -- and that's all before you posted NOTs 34;
10 right?
11 A I don't believe that I've written anything for
12 public, or magazine publications since then.
13 Q I'm saying the articles that you wrote that were
14 published and copyrighted were published before March of 1996?
15 A yes, of course.
16 Q so you understood, and you do understand, the
17 meaning of copyrights; right?
18 A I also understand the meaning of fair use.
19 Q Mr. Henson, my question is, you understand what a
20 copyright is, don't you?
21 A of course.
22 Q and Mr. Henson, in fact, in one case, a newspaper,
23 excuse me, a magazine sought permission to reprint an article
24 you had written, and they had to come to you and get your
25 permission to do so, didn't they?
280
1 A it was a courtesy that they did, for sure.
2 Q and you gave them your permission to reprint an
3 article that you had written; right?
4 A of course.
5 Q did you ever ask my client for permission to print,
6 to reprint NOTs 34, Mr. Henson?
7 A no.
8 Q now, Mr. Henson, in addition to infringing, as you
9 have been found to have infringe NOTs 34 copyright, have you
10 encouraged other people to infringe RTC's works?
11 A perhaps by example.
12 Q have you encouraged them in words, Mr. Henson?
13 A I don't know for sure.
14 Q don't remember? Okay.
15 Mr. Henson, do you recall posting a notice on ARS in
16 March of 1996 --
17 A no.
18 Q wait a minute, let me finish the question.
19 Do you recall posting a notice to ARS in which, I'll
20 delete March of 1996, in which you said that you would like to
21 receive another copy of NOTs 34, whether it was obtained legally
22 or illegally?
23 A I don't believe those would be words that I would
24 have used.
25 Mr. Rosen: Your Honor, may I approach the
281
1 witness?
2 The Court: Sure.
3 Mr. Rosen: Your Honor, may the record reflect I'm
4 handing the witness trial exhibit 43 (handing)?
5 The Court: All right.
6 By Mr. Rosen:
7 Q does that refresh your recollection, Mr. Henson?
8 A this is a joke.
9 Q Mr. Henson, does it refresh your recollection?
10 A I don't -- again, given the usual kind of things,
11 the usual sorts of restrictions that I can't really verify this,
12 I'll take credit for this one.
13 Q okay.
14 A excuse me.
15 Mr. Rosen: Your Honor, I move for the admission of
16 exhibit 43 and for permission to show it to the jury.
17 The Court: Would you hand it to me, Mr. Henson?
18 The Witness: I'd be delighted for this to be shown
19 to the jury, your Honor (handing).
20 The Court: All right.
21 The Witness: Excuse me.
22 The Court: 43 Is admitted. 43 Is not in the book,
23 right, the jurors book?
24 Mr. Rosen: No, it is not, your Honor.
25 The Court: Okay. 43 Is admitted.
282
1 (exhibit 43 was admitted into
Evidence.)
2
3 by Mr. Rosen:
4 Q okay. This is one you want to take credit for, huh?
5 A do you recognize what I'm talking about, a four inch
6 in white tissue on a role?
7 Q Mr. Henson, my question is, is this one that you're
8 claiming credit for?
9 A it's a joke. Yes, sure, I'll take credit for it.
10 Q you want somebody to print out and send to you NOTs
11 34 so you can use it for toilet paper; right?
12 A well, actually, no, I don't think so. It's the
13 whole collection of NOTs, which is about 150 pages or 200 pages.
14 Q all of which you want to use as toilet paper, right,
15 Mr. Henson?
16 A it's a joke.
17 Q Mr. Henson, is that what that means?
18 A yes.
19 Q Mr. Henson, you are aware, are you not, that
20 Religious Technology Center is a nonprofit religious
21 organization?
22 A that's what is claimed.
23 Q you're not aware of that, sir?
24 A there's considerable argument about that.
25 Q Mr. Henson, have you conceded before this court that
283
1 Religious Technology, that what Religious Technology Center
2 claimed is correct?
3 A that I -- excuse me. I don't understand the
4 question.
5 Q have you conceded, have you admitted before this
6 court that what Religious Technology Center says about itself,
7 that it is a nonprofit religious organization, that that is
8 correct?
9 A do they say that about themselves?
10 Q no. Have you agreed with that?
11 A no.
12 Q Mr. Henson, is it correct that NOTs 34 is a
13 religious work?
14 A that's a matter of opinion.
15 Q Mr. Henson, have you ever conceded or acknowledged
16 that NOTs 34 is a religious work?
17 A no, I don't believe so.
18 Q exhibit --
19 A maybe I have.
20 Mr. Rosen: May I have a moment, your Honor?
21 (Pause in proceedings.)
22 Mr. Rosen: Your Honor, may I approach the witness,
23 please?
24 The Court: Yes.
25 Mr. Berry: Your Honor, if this is an exhibit we
284
1 haven't seen, can I see it first?
2 Mr. Rosen: Yes.
3 The Court: Sure.
4 (Pause in proceedings.)
5 Mr. Berry: Your Honor, if this is to be given to
6 the jury, I'd ask that it be given in its totality.
7 The Court: All right. I haven't seen it yet, so I
8 don't know what -- could I see what you're showing him?
9 Mr. Rosen: Yes, your Honor. At this point, I'm
10 just showing it to him to refresh his recollection (handing).
11 (Pause in proceedings.)
12 The Court: So you're solely showing it to him to
13 see if it refreshes his recollection?
14 Mr. Rosen: At this point, yes, your Honor.
15 Q Mr. Henson, would you look at exhibit 47, and
16 particularly the highlighted portion on page two (handing)?
17 Does that refresh your recollection, sir?
18 A right.
19 Q you now recognize that you -- you recognize this
20 document, Mr. Henson? Mr. Henson, do you recognize the
21 document?
22 A yes.
23 Q something you filed with this court; right?
24 A yes.
25 Q could you read into the record the highlighted
285
1 portion on the second page, sir?
2 Mr. Berry: Objection, your Honor. This is being
3 offered solely to refresh his recollection.
4 Mr. Rosen: He's now identified it. I offer the
5 document.
6 The Court: The entire document?
7 Mr. Rosen: Yes.
8 The Court: The entire filing?
9 Mr. Rosen: No. I offer just the lines that are
10 marked on the second page, your Honor. That's why I asked him
11 to read into the record.
12 Mr. Berry: If it's going to be read into the
13 record, I ask that it be marked in its totality and be given to
14 the jury so they can read it in context.
15 The Court: Well, the context -- I think the
16 context --
17 The Witness: It is the entire response (handing).
18 The Court: Let me take a look.
19 (Pause in proceedings.)
20 The Court: You may ask him if he made the
21 statements that's reflected in this, and if he denies it, then
22 I'll consider whether the exhibit should be admitted.
23 By Mr. Rosen:
24 Q Mr. Henson, did you make the statement --
25 A I believe so.
286
1 The Court: Let me read -- well, finish the
2 question.
3 By Mr. Rosen:
4 Q did you make the statement shown on the highlighted
5 portion --
6 The Court: No, no. Read the statement and ask him
7 if he made it.
8 Mr. Rosen: Okay.
9 Q did you make the statement that "the plaintiff,"
10 meaning RTC, "has repeatedly stated that these are religious
11 works and trumpets that the internal revenue service granted
12 them 5013(c) tax exemption. Thus, there is no question of fact
13 or law that these are religious works."
14 Did you make that statement?
15 A I did.
16 Q and the religious works you're referring to is NOTs
17 34; isn't it?
18 A I believe it would be much more inclusive than that.
19 Q well, would it include NOTs 34?
20 A yes.
21 Q okay.
22 The Court: I'm not going to admit the document in
23 its entirety, but I did allow you to read that portion and get
24 his acknowledgment.
25 Mr. Rosen: Thank you, your Honor.
287
1 Q Mr. Henson, apart from the 30,000, roughly, people
2 on, or readers on ARS, do other folks who are not, who have
3 computers, do they also have access to these postings?
4 A yes.
5 Q in fact, Mr. Henson, you know, since you're a
6 computer engineer, that anyone with a p.C. And an access to the
7 internet can access any of these postings of yours; right?
8 A sometimes it's fairly hard, but generally, yes.
9 Q so the potential universe of people who would read
10 your postings, who could read your postings, I'm not saying that
11 they would, but who could read your postings would be equal to
12 the number of people in this world who have p.C.S and who have
13 access to the internet; right?
14 A right. Something on the order of 50 million people.
15 Q okay. Mr. Henson, do you understand that one of
16 the factors the jury will consider in deciding the proper amount
17 of its award is deterrence of you from infringing again? Do you
18 understand that?
19 A yes.
20 Q Mr. Henson, how much of a jury award do you think
21 would deter you from infringing my client's copyrights again?
22 A I don't know.
23 Q now, Mr. Henson, you're also aware, are you not,
24 that one of the other factors the jury will consider is the need
25 to deter other people from infringing?
288
1 A well, that's all right. I'll agree to that.
2 Q okay. And you understand that by that, we mean that
3 if the jury enters a large, returns a large verdict against you,
4 that that would deter other people from doing what you've done?
5 A I would disagree with you there because, for
6 example, a large number of the people on the net are not in this
7 country and are not subject to the laws here.
8 Q how about the large number of people in this
9 country? Do you think that they might be deterred by being
10 aware, by postings to the internet, of a substantial jury award
11 against you?
12 A I would say that they would be more cautious in
13 using anonymous re-mailers instead of posting it in the open.
14 Q in other words, what they would do is they would try
15 to hide their identity?
16 A correct.
17 Q it's kind of like they'd wear a mask when they held
18 up a store so you couldn't identify them; right? Is that what
19 the analogy is?
20 The Court: You're getting awfully argumentative.
21 Mr. Rosen: I'll withdraw that, your Honor. I'm
22 sorry.
23 Q Mr. Henson, with respect to the people within ARS,
24 the folks that you correspond with in these 30,000 people, in
25 the United States, do you think that they are likely to start
289
1 using anonymous re-mailers and hiding their identity?
2 A a large number of them do it already.
3 Q do you think those that don't, that are not inclined
4 to do that, may be deterred from a substantial damage award
5 against you, Mr. Henson?
6 A I can't speak for them.
7 Mr. Rosen: Okay. May I just have a moment, your
8 honor?
9 The Court: Sure.
10 (Pause in proceedings.)
11 Mr. Rosen: Your Honor, I have nothing further at
12 this time.
13 The Court: All right.
14 Mr. Rosen: Oh, your Honor, may I address one
15 comment? The jury books, we will be -- the exhibits that were
16 placed in the jury books originally were only those we were
17 certain we would using and did not want the jury to see before
18 we used them. After the ones that we used yesterday, we have
19 copies to insert at an appropriate break. Can we insert those
20 into the juror's books?
21 The Court: Why don't you just -- at a break, we can
22 put them on each chair so the jurors can add those that have
23 been admitted to their books.
24 Mr. Rosen: Okay.
25 The Court: Mr. Berry, do you have any questions at
290
1 this time?
2 Mr. Berry: Yes, your Honor.
3 As on direct examination by Mr. Berry
4 Q good morning, Mr. Henson.
5 A good morning, Mr. Berry.
6 Q Mr. Rosen just asked you about RTC being a nonprofit
7 organization; correct?
8 A as of 1993, that's the situation.
9 Q what --
10 A following some 2200 lawsuits against the ARS.
11 Mr. Rosen: Your Honor, I move to strike this.
12 The Court: That'll be stricken.
13 Mr. Henson, please answer only the question. If you
14 continue to do this, I'm going to have to take stronger action.
15 You can just answer the question that's asked, please.
16 The Witness: Okay.
17 By Mr. Berry:
18 Q what is your belief as to RTC's function?
19 Mr. Rosen: Objection.
20 The Court: Sustained.
21 By Mr. Berry:
22 Q what is your understanding as to their claim that
23 they're a nonprofit organization?
24 Mr. Rosen: Objection.
25 The Court: Sustained.
291
1 The issue in this case -- I'm trying to get
2 everybody to focus on it. The issue in this case is, was the
3 copyright, the posting of NOTs 34 by Mr. Henson willful. It's
4 willful when it's done with knowledge that it's in violation of
5 the owner's copyright or with reckless disregard of the
6 copyright owner's rights.
7 Mr. Berry: That may be so, your Honor, but counsel
8 has just opened the door to a lot of material that I would like
9 to go into on --
10 The Court: He asked him if Mr. Henson had admitted
11 that RTC was a nonprofit religious organization, and he said --
12 he read what he said.
13 Whether Mr. Henson believes it is or not is another
14 question. He was asking whether it is, in fact is, not what his
15 belief is.
16 Mr. Berry: And his belief, your Honor --
17 The Court: Go on to another question, please.
18 By Mr. Berry:
19 Q he then asked you as to whether NOTs 34 was a
20 religious work, and you said it was a matter of opinion;
21 correct?
22 A that's true.
23 Q and what is your opinion as to whether or not it's a
24 religious work?
25 A I believe it is a religious work and a criminal
292
1 instruction manual for the practice of medicine without a
2 license.
3 Mr. Rosen: Your Honor, I move to strike that.
4 The Court: You asked him what his opinion of NOTs
5 34 was. I'm going to let him answer that question.
6 Mr. Rosen: This is beyond the scope of direct.
7 The Court: I'm going to allow him to ask the
8 question.
9 By Mr. Berry:
10 Q and why do you believe it's a criminal instruction?
11 The Court: Well --
12 Mr. Berry: Okay, your Honor. I'll come back to
13 that in my case.
14 The Court: All right.
15 by Mr. Berry:
16 Q yesterday Mr. Rosen asked you about cryonics;
17 correct?
18 A that's correct.
19 Q in your opinion, is cryonics a serious science that
20 you pursue?
21 A it does its best to base itself in serious science.
22 Q and are there some very prominent people involved in
23 this science?
24 A yes, there are. Dr. Eric drexler, for example,
25 dr. Marvin minsky, a number of other people. A number of
293
1 doctors. There's seven or eight doctors involved with it.
2 Q and Mr. Rosen had you refer to a poem which was a
3 take off on the scarlet pumpernickle; correct?
4 A that's correct.
5 Q it referred to seeking a head; right?
6 A right.
7 Q did you ever have that head in your possession?
8 A no. I wasn't even involved in the, any of the
9 physical aspects of cryonics at the time the dora kent event
10 occurred.
11 Q and there has been a number of questions directed to
12 you about taunting; correct?
13 A that's certainly true.
14 Q is Scientology the only organization that you have
15 taunted on the internet?
16 A no.
17 Q are there some others?
18 A oh, definitely.
19 Q can you indicate which they are?
20 A oh, there's a fairly long list of them. The
21 larouchians, l-a-r-o-u-c-h-e, I'm not sure, or larouchians,
22 i-n-s. It's the follower's of linden larouche.
23 Q any others?
24 A I observed the mormons getting taunted all the time.
25 I have --
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1 Mr. Rosen: Objection, your Honor.
2 The Court: The question was, who have you taunted?
3 The Witness: Ah.
4 Not a lot of people. I've taunted a fair number of
5 individuals that have acted like complete idiots on the net,
6 david stern, for example, who is so legendary that he has his
7 own news group.
8 By Mr. Berry:
9 Q when you say they've acted like idiots on the
10 internet, what are you referring to in terms of the internet
11 etiquette?
12 A these are people generally who take positions that
13 are clearly obviously ridiculous, and then support the positions
14 ad nauseam. Sometimes it's very difficult to tell the
15 difference between a troll and somebody who's just completely
16 clueless on the net.
17 Q what is a troll, Mr. Henson?
18 A troll comes from the idea of dragging bait through
19 the water and seeing if the fish will bite it, or at least
20 that's one of the, one of the interpretations of it.
21 It's posting something on the net that is going to
22 generate some kind of responses, and they're usually with an
23 intent to, an intent to deal with somebody's lack of humor.
24 The Scientologists, by their complete and utter lack
25 of humor, are particularly good at doing this.
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1 Mr. Rosen: Your Honor, I move to strike this,
2 comments about Scientologists' humor. It's not responsive to
3 the question.
4 The Court: It is not responsive to the question. I
5 will strike it.
6 Please confine yourself to just answering the
7 question.
8 By Mr. Berry:
9 Q have the Scientology responses to any of your trolls
10 indicated a sense of humor?
11 Mr. Rosen: Objection, no foundation.
12 The Court: Sustained. It's irrelevant.
13 By Mr. Berry:
14 Q was there some event which precipitated you
15 beginning to troll the Scientology organization?
16 A absolutely.
17 Q what was that event?
18 A an extraordinarily unfriendly action, which has
19 never been apologized for, by helena Kobrin.
20 Mr. Rosen: Your Honor, I move to strike this. May
21 we approach?
22 The Court: Unless there's some foundation for
23 that -- I mean, if he just has an opinion she did something and
24 has no basis for it, that's not relevant evidence.
25 If you can establish a foundation as to why he
296
1 started that has some basis in fact, you can ask it.
2 Mr. Berry: Can I approach him a moment, your Honor?
3 You want personal knowledge.
4 The Court: Come up for a minute.
5 (Sidebar discussion off the record.)
6 By Mr. Berry:
7 Q Mr. Henson, was there some event which precipitated
8 you taking an interest in the alt.Religion Scientology news
9 group, or ARS?
10 A yes.
11 Q and what was that event?
12 A helena Kobrin's, what I believe was a cancel from
13 helena Kobrin that issued, she actually issued a thing called an
14 rm group which, worldwide, on all the computers that it was not
15 turned off on, destroyed the news group.
16 It did an effective like delete in your ordinary
17 computer. It did a delete of all the postings which were
18 currently within that directory under the alt.Religion
19 Scientology directory, and then went up a level and destroyed
20 the directory itself.
21 The Court: Ladies and gentlemen, you can consider
22 that testimony from Mr. Henson as to it being the reason in his
23 mind that he started the activity that he's described.
24 Whether or not that statement is true or not,
25 namely, that MS. Kobrin did this, there has been no foundation
297
1 or basis to show that that statement, in fact, is true.
2 So you can consider it for his state of mind, that's
3 why he started, but you cannot consider it as being evidence of
4 the truth that she, in fact, did that.
5 By Mr. Berry:
6 Q was the effect of the rm group command similar to,
7 perhaps, the removal of everyone's newspapers and the
8 destruction of the newspaper records?
9 Mr. Rosen: Objection, your Honor. That's leading.
10 The Court: Sustained. You can ask him what the
11 effect was.
12 Mr. Berry: I was going to, your Honor. Thank you.
13 Q what was the effect of the rm command?
14 A on a large number of computers, I don't know exactly
15 the number, but on a very large number of computers, the message
16 that were purported to be from helena Kobrin, of which I have a
17 copy by the way, caused this, caused this destruction. It is
18 perhaps one of the most unfriendly things that you can do.
19 The command is out there, and it used to be that the
20 net was a very trustworthy kind of a place and the command was
21 out there because it was used to clean up news groups which
22 nobody had posted into for months or years. It reclaimed disk
23 space on the computer systems in what are called I nodes.
24 And doing this was a profoundly unfriendly thing.
25 It jumped the readership of ARS by perhaps a factor of 10 or 20
298
1 within a period of a very short length of time because the
2 information in this spilled into a lot of other groups. In
3 particular, it spilled into the group that I was reading into
4 the read com.Org.Iff.Talk.
5 Mr. Rosen: Objection, move to strike, and not
6 responsive to the question. No foundation.
7 The Court: Again, it's not offered for the truth,
8 but it's offered to explain his state of mind.
9 I'll allow it for that purpose, but let's move on.
10 By Mr. Berry:
11 Q how did you become aware of the rm group cancel?
12 A there were -- I was not -- I had never read the
13 group alt.Religion Scientology before that. But as I say, it
14 got cross-posted.
15 The fact that that had occurred was a matter of
16 news. It was like -- it essentially became front page news and
17 spilled into I don't know how many groups.
18 The use net has 15,000 groups on it, and I would
19 guess that it spilled into several hundred of the largest
20 groups, especially the ones which were concerned about civil
21 rights, freedom of speech.
22 The Court: All right, you've answered the question.
23 The Witness: And such.
24 The Court: You've explained how you became aware of
25 it.
299
1 by Mr. Berry:
2 Q what sort of groups did it spill over?
3 A miscellaneous.Legal, miscellaneous.Legal computer.
4 Oh, it was a large list. I'm sorry. I don't even know all of
5 them. Alt.Altivism, alt.Slack, which is where the subgenius
6 guys hang out. I think it even wound up in places like
7 alt.Journalism.Gonzo.
8 Q and when you say cross-post, what do you mean by
9 that?
10 A there's a facility that you can use in news group
11 readers which allows you to either post to a number of different
12 groups if it's a topic that could be of interest to a number of
13 different groups.
14 Or if you see a post which was not posted to a group
15 that you think it should be posted to, you can type an x on it,
16 which into the control buffer on it, and you can then put in the
17 additional group that you think it should go into and it becomes
18 cross-posted to that group.
19 Q and did you observe the reaction of the internet to
20 the rm group cancel?
21 Mr. Rosen: Objection, irrelevant.
22 The Court: Sustained.
23 By Mr. Berry:
24 Q what was your reaction to the rm group cancel?
25 A same as several thousand other people.
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1 The Court: Mr. Henson --
2 Mr. Rosen: Your Honor, I move to strike that.
3 The Court: That'll be stricken.
4 The question was --
5 The Witness: My reaction --
6 The Court: -- What was your reaction? You heard me
7 before sustain the objection to the reaction of others, and then
8 you start to put it in your answer.
9 The Witness: Excuse me.
10 The Court: That is not proper. Answer the question
11 you're asked, please.
12 The Witness: My reaction was to subscribe to the
13 news group alt.Religion Scientology.
14 By Mr. Berry:
15 Q you just testified that the rm cancel had totally
16 destroyed alt.Religion Scientology. Did something happen after
17 that to enable you to subscribe to it?
18 A I testified that it destroyed it in a lot of
19 machines. The exception or rejection of the rm group is at the
20 exception of the people who are the news administrator on the
21 machine, and it's a feature which can be turned off.
22 It was turned off on at least one of the machines
23 that I was reading at that time, so I was able to subscribe to
24 it and it had material in it.
25 Q did you receive posts from other people with their
301
1 reaction to the rm group cancel?
2 A a lot of them.
3 Q and what was the essence of those posts you
4 received?
5 Mr. Rosen: Objection.
6 The Court: Sustained. The purpose of the line of
7 questioning was to explain why he started monitoring
8 alt.Religion Scientology. We've heard that.
9 What other people's reactions were, that's not got
10 any relevance to the issues that are in this case.
11 By Mr. Berry:
12 Q and do you recall approximately when the rm group
13 cancel order went out?
14 A I believe it was January 11th of 1995.
15 Q now, Mr. Rosen also asked you about your statistics
16 in connection with posts to the ARS, or alt.Religion Scientology
17 news group; correct?
18 A that's correct.
19 Q and you said that you weren't in the top 20;
20 correct?
21 A oh, that statistic.
22 Q yes or no?
23 A yes.
24 Q and what did you mean by that answer?
25 Mr. Rosen: Your Honor, objection. That's not what
302
1 the witness testified to, number one; and number two, counsel is
2 leading.
3 The Court: Well, I think he can address a
4 particular area you asked about and then ask questions.
5 Mr. Rosen: I didn't ask anything.
6 The Court: I don't recall any question about that.
7 If you can refresh my memory, or refer me to a place,
8 Mr. Berry, I might consider it. I remember he testified as to
9 the number of people that were involved with alt.Religion
10 Scientology.
11 Mr. Berry: Unfortunately, I don't have a copy of
12 the transcript, your Honor.
13 The Court: Well --
14 Mr. Berry: I do have in my notes the fact that he
15 had responded by saying he wasn't in the top 20.
16 The Witness: I remember what that was. I can
17 explain it if you wish.
18 The Court: Well, go ahead.
19 The Witness: There are two statistics involved
20 here.
21 Earlier this morning we were talking about the
22 estimated number of people on ARS.
23 There's another program people run where they take
24 the postings of a weeks' worth of ARS and run a sort on them and
25 count the number on them. It's a fairly simple thing to do.
303
1 In that particular thing, I've seldom been in the
2 list of top 20 posters.
3 By Mr. Berry:
4 Q when we were viewing the video of your deposition in
5 this case on various occasions, I noticed that you had a
6 different shirt on frequently within the same series of images.
7 Can you explain that?
8 A yes. I had -- I took an extra shirt with me and
9 changed shirts at noon during the deposition. That's the reason
10 it jumps around.
11 Q there's also the same shirt in the same series of
12 images that are being shown. Can you explain that?
13 A excuse me?
14 The Court: I don't understand the question.
15 The Witness: I don't quite understand.
16 By Mr. Berry:
17 Q the same series of images we've watched at one point
18 in time has you wearing a different shirt. Can you explain that?
19 A yes. Like I say, I changed shirts during the middle
20 of the day. So these images are obviously -- it's obviously cut
21 out of temporal sequence on the, this cut-down version from six
22 hours, or whatever it was, of deposition.
23 Q and then you said to Mr. Rosen, in response to a
24 question about NOTs 34, that it was obviously a cut and paste
25 operation. Do you recall that?
304
1 A that may have been how I put it into the letter that
2 I wrote to Judge Whyte. Or was it in context of something else?
3 Q it was in the context of a list.
4 Mr. Rosen: Wait a minute. Now the witness is
5 asking counsel a question and counsel is answering.
6 The Witness: I'm trying to get a clarification.
7 The Court: It's not appropriate for Mr. Berry to
8 testify.
9 Ask another question.
10 by Mr. Berry:
11 Q do you recall testifying about the list of
12 copyrighted works, trial exhibit 2, that Mr. Rosen showed you?
13 A yes.
14 The Court: Do you need to see 2?
15 The Witness: I may need to see it.
16 The Court: I have it right here. I'll show it to
17 him (handing).
18 I gave you exhibit 2 because that's the one that
19 Mr. Berry referred to.
20 The Witness: Oh, 2 starts here.
21 Mr. Berry: I think it's bates stamped at the bottom
22 page 0045.
23 The Court: You're looking at something different
24 then.
25 Mr. Berry: Exhibit 2.
305
1 The Witness: Exhibit 2 extends from 37 on.
2 The Court: You're referring to a list on page 45?
3 Mr. Berry: Yes.
4 The Witness: Okay.
5 By Mr. Berry:
6 Q you said that was obviously a cut and paste
7 operation.
8 A right.
9 Q do you recall what you meant by that?
10 A I'm not certain it was with this exhibit exactly,
11 but cut and paste means that you -- that, for example, you start
12 out with a document and you cut another piece of a document and
13 put it into the one that you're working on.
14 Q now, in connection with one of the t-shirts you wore
15 to your deposition, Mr. Rosen asked you about the hacker's
16 conference; correct?
17 A that's correct.
18 Q you explained the various meanings of the word
19 "hacker;" correct?
20 A yes.
21 Q and there was one meaning that was particularly
22 derogatory that you explained. Do you recall that?
23 A oh, yes. The -- yes, I do.
24 Q and can you remind the jury what the negative
25 meaning of hacker is?
306
1 A the negative meaning that hacker has acquired is the
2 aspect of people breaking into computers. The word actually had
3 a very honorable sort of a meaning at m.I.T. And other places in
4 the remote past, and for computer era, in the remote past.
5 And the people who are, go to the hacker's
6 conference where that t-shirt came from are not people who break
7 into computers. They are people on the scale of donald knuth,
8 dr. Donald knuth, and dr. Marvin minsky, and people who are
9 major figures in the computer business, on the scale of john
10 Walker, former of chairman of auto desk.
11 Q taking the negative meaning of the word hacker, have
12 you ever engaged in hacking?
13 A no.
14 Q Mr. Rosen also asked you about a posting you made to
15 ARS of ot vii; correct?
16 A yes.
17 Q and you responded that you thought it was fair use.
18 Do you recall that?
19 A yes, I did.
20 Q why did you think it was fair use?
21 Mr. Rosen: Objection. It's there's no allegation
22 of infringement on it, your Honor.
23 The Court: There is no allegation of infringement
24 on ot vii.
25 However, you did ask him about the posting and that
307
1 he got a cease and desist order letter with it, with respect to
2 it, so I think it's appropriate for him to comment on what his
3 state of mind was when he posted it.
4 You're correct, absolutely correct, that ot vii and
5 the posting of it is not an issue in this case.
6 But you can ask the question.
7 By Mr. Berry:
8 Q why did you think it was fair use?
9 A it was a tiny fragment, six lines. In fact, it's
10 ot vii point 42, so there's -- it's like a tiny fraction of the
11 total. There is no probability that any court would ever find
12 that six lines, out of a large document, could be considered
13 anything but fair use.
14 Q so what was your reaction to a cease and desist
15 letter?
16 A I laughed.
17 Q under the circumstances --
18 A I laughed at it. It was nothing short of funny,
19 because it was ridiculous that anybody would make such a threat.
20 Q have MS. Kobrin's letters, cease and desist
21 letters, been posted by other people to the internet?
22 A dozens of times.
23 Q and have you posted them on those occasions?
24 A at the time I received mine, I believe I just maybe
25 cut a fraction of it off the top and posted that, because by
308
1 that point, there had been so many of them posted that it seemed
2 excessive.
3 Q have other people, to your knowledge, posted
4 MS. Kobrin's cease and desist letters to the internet?
5 A plenty, lots of people.
6 Q to your knowledge, have lots of people received
7 them?
8 A my guess is that it's --
9 Mr. Rosen: Objection, your Honor. No foundation
10 for this.
11 The Court: If it's a guess, there is no foundation
12 for it.
13 The Witness: Best estimate is 50.
14 The Court: Well, Mr. --
15 The Witness: Excuse me.
16 The Court: There's nothing pending at the moment.
17 Why don't we take a morning recess at this time?
18 We'll be in recess for 15 minutes.
19 (Recess.)
20 The Court: All right. Mr. Berry, you may continue.
21 Mr. Berry: Thank you, your Honor.
22 Q now, Mr. Henson, yesterday Mr. Rosen asked you as to
23 you being a druid. Do you recall that?
24 A yes, I do.
25 Q could you explain to the court how he came to ask
309
1 that question of you on the basis of what perhaps was out the
2 public?
3 Mr. Rosen: Objection, your Honor.
4 Mr. Berry: Let me rephrase.
5 The Court: Yeah, I think you can rephrase that.
6 By Mr. Berry:
7 Q have you ever claimed to be a druid in the past?
8 A yes.
9 Q and what circumstances did you claim to be a druid?
10 A as a joke on the university of arizona.
11 Q and what were the circumstances in which that joke
12 came to be made?
13 A the university of arizona had a religious preference
14 card in their registration material. On it -- on one of the --
15 you were supposed to fill out your religion. That offended me,
16 even in those days.
17 And so in the second semester, I decided I would
18 play a joke on them and put down druid. In the fashion of a
19 replicating information pattern, or meme, spelled m-e-m-e, it's
20 sort of the human equivalent of a computer virus.
21 This fad, which is another name for memes, sped
22 among the students of the university of arizona until eventually
23 a full 20 percent of them were claiming some obsolete pagan
24 religion as a joke on the university.
25 And of course the joke was extended on the order of
310
1 trolls and such things by there being, of course, reformed
2 druids; and of course that opened the door for orthodox druids;
3 and there was a primitive druid study center there because there
4 was a primitive baptist church; there were southern druids.
5 And we even had -- one of the best ones were zen
6 druids. Zen druids worshipped trees which might not have been
7 there.
8 Of course, arizona is full of mormons, so we had to
9 have, naturally, the latter day druids.
10 Q now, yesterday Mr. Rosen asked you about exhibit
11 10-9.
12 The Court: Just for reference purposes, did you
13 hand out at the break the additional exhibits or not?
14 Mr. Rosen: No, we did not, your Honor.
15 The Court: Do you have them in organized packets?
16 Mr. Rosen: The ones that we intend to move?
17 The Court: No. The ones that you said were
18 referenced yesterday that weren't in the books.
19 Mr. Rosen: Yes, we have the packets.
20 The Court: Okay.
21 Mr. Rosen: We were going to, at the next break,
22 physically insert them. This is not one of them.
23 The Court: Okay.
24 By Mr. Berry:
25 Q do you recall that exhibit?
311
1 Mr. Rosen: This one was already in the book, I
2 believe. I'm sorry, it's added. I apologize.
3 The Witness: Yes, I do.
4 By Mr. Berry:
5 Q in that exhibit, there's a reference to Scientology
6 being a punching bag.
7 The Court: Could we just have a reference as to
8 what that exhibit is so the jury will know?
9 The Witness: If you want, you can put it on the
10 elmo. Why don't you do that, the display system. If they can
11 do it? That's fine by me.
12 by Mr. Berry:
13 Q let me read it. "Grady Ward has pointed out that
14 the fight with cos," and let me stop there for a moment. Cos
15 has a dollar sign. Why is that?
16 A it's one of the common jokes that one plays because,
17 of course, Scientology is incredibly concerned with --
18 Mr. Rosen: Your Honor, I move to strike this.
19 The Court: Well, if that's a posting by him, he can
20 testify as to why he put a dollar sign on it.
21 If it's something where he's just speculating as to
22 somebody else's intent, that's a different issue.
23 By Mr. Berry:
24 Q why did you put that dollar sign?
25 The Court: Let's find out if he did first.
312
1 Is that his posting?
2 The Witness: For the purpose of --
3 by Mr. Berry:
4 Q Mr. Henson --
5 A -- of this, I'll accept it being mine.
6 Q and did you make a habit of putting a dollar sign of
7 cos?
8 A yes.
9 Q and what was the reason for doing that, in your
10 mind?
11 A because it's incredibly concerned with money. It
12 cost enormous amounts of money to be involved with Scientology.
13 Mr. Rosen: Your Honor, I move to strike.
14 The Court: All right.
15 Again, that can be considered as showing his state
16 of mind to the extent that's relevant to any issue that's before
17 you in this case.
18 Whether or not that is true or not, in other words,
19 whether or not Scientology is concerned about money, it cannot
20 be offered for whether or not that statement, or assertion, is
21 true or not true.
22 It's just offered for his state of mind as to
23 relevance with respect to the issues before you, which I won't
24 repeat again because I've repeated them so many times. But I do
25 want the jury to focus on what the issues are in this case.
313
1 by Mr. Berry:
2 Q and have you seen other people use the same symbol?
3 Mr. Rosen: Objection.
4 The Court: Sustained.
5 By Mr. Berry:
6 Q now, on that posting, Mr. Henson, there's a
7 reference to a warm up exercise and a punching bag. I think
8 Mr. Rosen asked you some questions about that yesterday.
9 Correct?
10 A that's correct.
11 Q now, what did you mean by a warm up exercise and
12 punching bag?
13 A it has very long been a, a known thing on the net
14 that, or a widely shared belief on the net that eventually a
15 large government is going to come down very hard on the net and
16 try to censor it like the chinese have done. It has been
17 something which has been speculated about for at least five or
18 ten years, and it has never occurred yet, at least not in this
19 country. There are countries that it has occurred in.
20 Q having said that, what did you mean by warm up and
21 punching bag?
22 A well, Scientology was trying to censor the net, at
23 least that was our view of it, and my view in particular. And
24 they were, they did this by a number of methods, which I could
25 go into if the court would permit me.
314
1 But it was a -- it was an exercise. What do you do
2 when an organization has material that is generally of a nature
3 that you believe should be out in the public domain in terms of
4 a government, for example, trying to cover up activities like
5 the, well, for example, the infection of the blacks in the '40's
6 with syphyllis that they didn't treat.
7 Mr. Rosen: Your Honor, I move to strike this. This
8 is --
9 The Court: Yeah, I think we're getting far afield.
10 I'll strike that.
11 By Mr. Berry:
12 Q now, you mentioned that Scientology had tried to
13 censor the net in certain ways. In what ways have they done so
14 in your view and to your knowledge?
15 Mr. Rosen: Your Honor, move to -- I object to that
16 on the grounds of what was the state of mind at the time he
17 posted NOTs in March of 1996. There's been no foundation that
18 this has anything to do with it, and in fact, consistent with --
19 The Court: I'll agree. Sustained.
20 The Witness: Okay.
21 By Mr. Berry:
22 Q when you posted NOTs 34 in 1996, what was your state
23 of mind --
24 A my state of mind --
25 Q -- as to why you were posting it and why you
315
1 thought --
2 Mr. Rosen: Your Honor, I object. May we approach
3 just quickly for a moment?
4 The Court: Real quickly.
5 (sidebar discussion off the record.)
6 By Mr. Berry:
7 Q I'm withdrawing the question, Mr. Henson. I'll come
8 back to it in your own case.
9 Now, Mr. Rosen asked you again yesterday about you
10 posting NOTs 34 not once, but twice. Do you recall that?
11 A yes, I do.
12 Q why did you post it twice?
13 A because the first one had been canceled. I
14 actually, at the time, did not realize it had been canceled. I
15 thought I had just done something wrong because the next day I
16 went looking for it, I actually turned the thing back on to
17 where I could see my own postings, and it wasn't there.
18 So I figured I had done something wrong on posting
19 it and it had gone astray, or else netcom had eaten it, so I put
20 it back up.
21 Q you said you -- sorry, withdrawn.
22 Mr. Henson -- I'm sorry. Mr. Rosen asked you about
23 whether or not you'd asked Scientology's permission to post
24 this. Correct?
25 A that's correct.
316
1 Q did you have a reason for not asking their
2 permission?
3 A of course.
4 Q and what was that reason?
5 A well, they had -- they obviously are not going to
6 give permission for something which they're doing their dead
7 level best to keep secret.
8 Q many of the postings Mr. Rosen showed you were
9 reposts and continuations of --
10 A threads.
11 Q -- other people's threads; correct?
12 A right.
13 Q since you've just used the word, what is a thread?
14 A a thread is a -- it's like a chained bunch of
15 postings. Many news readers actually visually display these
16 threads as actually as coming down from an original posting that
17 somebody puts up, and then other people will reply to it and
18 people reply to those and it branches out. Some of them show
19 quite a graphic scheme of how they branch out.
20 The ones that I've seen here show stuff three or
21 four levels deep.
22 Q when you say three or four levels deep, can you
23 explain what you mean by that, and what you meant yesterday when
24 you said that to Mr. Rosen?
25 A sure. It's a matter that you can see it -- if
317
1 people are doing the proper protocol on it, which some do and
2 some don't, but the usual protocol is that you put a symbol,
3 colons, greater than signs or other things, at the beginning of
4 your, of the material that you're going to quote so it is set
5 off from the other material, the new material that you're adding
6 so people can both skip through it relatively fast, and so that
7 attribution will be maintained.
8 Attribution is incredibly important on the net.
9 It's one of the things which will get you flamed thoroughly if
10 you fail to attribute material correctly.
11 Q and what do you mean when you say "flamed"?
12 A postings saying what a twit you are for doing
13 something stupid.
14 Q now, you said protocol is extremely important. Is
15 there a protocol in connection with the re line that's part of a
16 thread?
17 A yeah. The normal thing is that whatever it is, even
18 if it's a, an insult against you personally, you don't change
19 the subject line on it because changing the subject line means
20 that the, that the news readers will not deal properly with the
21 fact that it's a follow-up to a previous posting.
22 So no matter how vicious it is, and there's been
23 plenty vicious ones against me, even --
24 Mr. Rosen: Objection, your Honor, move to strike
25 that.
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1 The Court: I think that's just explaining in
2 general terms. He's not attributing viciousness to any
3 particular person.
4 Go ahead.
5 The Witness: If I'm following these up, I leave
6 the subject line alone so that people who are reading it can
7 continue to make a connection between one post and the next post
8 in a historical sequence.
9 By Mr. Berry:
10 Q and in your mind, is that the reason why people
11 repeat the previous posting, no matter what it contains before
12 they proceed?
13 A they usually repeat some or all of it, and they
14 seldom change the subject line, although sometimes people add
15 onto the subject line or say it was something else if it's
16 gotten an excessive amount of what's called topic drift.
17 Q what is topic drift?
18 A well, topic drift means that that -- as somebody --
19 it's kind of like playing telephone where one person will
20 comment on something and another person will make a comment on
21 it and a third one will make a comment on it.
22 And within three or four or five of these, some of
23 these go on to strings of hundreds, I've seen some postings that
24 went to 150 or 200 or even 400 in a thread, and often times
25 somebody will pick up on a minor matter of some response, and
319
1 eventually the posting will have absolutely nothing to do with
2 the topic line that's on it.
3 Q so is it fair to say that these threads are like a
4 continuance letter that people are reading and adding to and
5 reading and adding to?
6 A right. Only they branch even worse, because of
7 course many people -- it's not like a linear process that
8 there's only one thread in it. The threads typically branch in
9 many directions. A good topic will branch a number of ways on
10 it. They all seem to terminate at what's called godwin's law.
11 Q I beg your pardon?
12 A all -- all topics or all threads, if they continue
13 long enough, wind up with one of the parties calling the other
14 one a nazi.
15 Q ah. If you change the re line, what happens to the
16 posting then?
17 A well, it still gets posted, but it may well not be
18 correctly threaded, so it doesn't -- if you were replying to
19 somebody and you changed the posting on a thing, the news
20 readers may treat it as the beginning of the new thread and it's
21 not connected to the old things.
22 It's very useful because you read the stuff by
23 threads, and as you go into a subject line, you read the new
24 postings which have been made on that subject as you go through
25 it.
320
1 Q so would that be the -- would that be the reason --
2 sorry, withdrawn.
3 Why didn't you change the re lines that referred to
4 MS. Kobrin?
5 A well, because what I was doing was a follow up on
6 it. I actually don't -- if I remember correctly, my follow-up
7 had almost nothing to do with MS. Kobrin, or I don't think -- I
8 think by the time it had reached that level, I'm not sure that
9 it had anything at all to do with -- the topic had drifted away
10 from whoever had originally posted on it.
11 There are many skatilogical thread subject titles in
12 alt.Religion Scientology. In fact, I would probably guess,
13 estimate on there it's one in ten that --
14 Mr. Rosen: Your Honor, I'm going to move to strike
15 that, not responsive and best evidence.
16 The Court: Overruled.
17 Go ahead.
18 By Mr. Berry:
19 Q now, did the reference to the 'ho have anything to
20 do, in your mind, with ladies of the night?
21 A no.
22 Q and in your mind, what did the reference to 'ho
23 mean?
24 A well, it was -- it was a complicated double pun that
25 was involved, but the idea of it was that people who were
321
1 prostating themselves, prostituting themselves in the legal
2 profession working for Scientology was a widely accepted
3 viewpoint of the critics on alt.Religion Scientology.
4 Q and when you say it was a complicated double pun,
5 what did you mean by that?
6 A well, it obviously relates to the whore of babylon,
7 which is described, if I remember correctly, in revelations, and
8 it is of course one of the things which parsons and Hubbord were
9 doing in the '40's.
10 Mr. Rosen: Objection, no foundation for that. This
11 witness has no knowledge of such things.
12 The Court: Sustained. I'll strike the last
13 comment.
14 by Mr. Berry:
15 Q what is your understanding of the origin of the
16 phrase you just referred to?
17 Mr. Rosen: Same objection, your Honor, no
18 foundation. And I don't think it's relevant to anything.
19 The Court: I have trouble with its relevance. You
20 did go into it a little bit.
21 I think the point that's been brought out is that he
22 did not use, at least he says he did not use the expression
23 himself, except in a string where it was used by someone
24 previously, that he did not use the expression himself.
25 Is that correct, Mr. Henson?
322
1 The Witness: One exception, your Honor.
2 The Court: All right.
3 The Witness: That I know of.
4 By Mr. Berry:
5 Q but you did acquire knowledge as to what the whore
6 of babylon referred to and where it came from; correct?
7 A it was -- I don't recall particularly ever -- I
8 don't recall particularly ever a specific incident, especially
9 not since I got into the Scientology battle here, that I -- but
10 I knew it before that. It was a term from black magic and the
11 bible and a number of other things. It could be looked up, if
12 somebody wanted to, it's probably in a tech dictionary.
13 Q and who was this jack parsons that you referred to?
14 A a friend of the author of NOTs 34.
15 Q and do you have any understanding as to his
16 involvement in black magic?
17 Mr. Rosen: Objection.
18 The Court: Sustained. That's irrelevant.
19 By Mr. Berry:
20 Q Mr. Rosen asked you about a reference that you
21 didn't write, that you reposted --
22 A posting a follow-up is the proper --
23 Q let me see if I can get that right then.
24 Mr. Rosen asked you about a follow-up post of yours
25 that had, in its re line, I think a reference to david miscavige
323
1 as being the asthmatic dwarf; correct?
2 A that's correct.
3 Q did you acquire an understanding as to why he was
4 referred to as an asthmatic, and why that was significant in
5 your mind?
6 Mr. Rosen: Objection, your Honor.
7 The Court: Well, the problem I have is that you did
8 go into and ask him about those terms.
9 I really think this whole area is irrelevant to the
10 issues that we're going into. You asked about it. There was no
11 objection, I let it go.
12 Now he's following up and asking what Mr. Henson's
13 understanding of that term was because it was being offered by
14 you as to tend to show some state of mind of Mr. Henson that
15 might indicate a need to deter with respect to the possibility
16 of reposting a Scientology document or the willfulness of a
17 posting.
18 I think, under those circumstances, a brief
19 explanation of his understanding is appropriate.
20 I think all of this is of marginal relevance to the
21 issues in this case, and I would again advise the jury as to
22 keep focussed on what the issues are, and this testimony, any
23 testimony that I allow can only be considered as it is relevant
24 to those issues and nothing else.
25 Mr. Rosen: Your Honor, the reason for my objection
324
1 was slightly different grounds, and that is that the witness
2 testified he didn't post it, he didn't create it, and he just --
3 it was on a posting that he followed up on, so therefore, the
4 question of what he meant by it is a non sequitur.
5 The Court: Yeah. The concern I have is that there
6 was perhaps, and I'm not saying what implication the jury should
7 draw, or inference the jury should draw or should not draw, but
8 that that was used, and that in some way Mr. Henson was
9 repeating something that was derogatory that may tend to suggest
10 that his posting before had been willful, or that there was some
11 need to deter.
12 If he had a different understanding as to what that
13 term meant, it might negate that inference, so I'll allow the
14 question.
15 Mr. Berry: Thank you.
16 Q Mr. Henson, did the reference to Mr. Miscavige as an
17 asthmatic, in your mind, have some relevance to your state of
18 mind in connection with NOTs 34?
19 A yes.
20 Q and what was that connection?
21 A the connection is that Scientology makes a
22 tremendous number of claims to improve people's --
23 Mr. Rosen: Your Honor, I move to strike this. This
24 is the subject of sidebar.
25 The Court: No. I'm -- go ahead.
325
1 The Witness: Scientology makes large numbers of
2 claims to cure medical problems, and especially in places like
3 dianetics and other --
4 The Court: All right. Answer the question about --
5 don't get off the subject. The question was asthmatic dwarf,
6 what relevance that had to NOTs 34 in your mind at the time.
7 The Witness: Well, it relates directly -- and it
8 was invented by other people by the way, but it was related
9 directly to the general and very widespread belief that I share
10 in that Scientology doesn't do a darn thing in terms of medical
11 practices.
12 Mr. Rosen: Your Honor, I move to strike that as to
13 what others believe.
14 The Court: Okay. It'll be stricken as to what
15 other believe.
16 The Witness: My belief --
17 The Court: And it is offered solely as to his
18 belief.
19 Whether or not that belief is right or wrong, that's
20 a different issue.
21 By Mr. Berry:
22 Q why -- in your mind, why is Mr. Miscavige being an
23 asthmatic relevant as to whether or not Scientology works and
24 NOTs 34 is a medical process?
25 The Court: Well --
326
1 Mr. Rosen: Objection, your Honor.
2 The Court: The question as to his posting relates
3 to his state of mind at the time of the posting. I don't know
4 whether this term was used prior to the posting or not. I don't
5 remember the timing.
6 by Mr. Berry:
7 Q did you see this term before you posted NOTs 34?
8 A I believe so.
9 Q and in your mind, what was the connection between
10 Mr. Miscavige's asthma and Scientology not working?
11 A well, the highest person in Scientology isn't helped
12 by it.
13 Mr. Rosen: Your Honor, this posting is September
14 23, 1995. It's exhibit 10-16.
15 The Witness: That's before.
16 Mr. Rosen: Unless -- that's the only one --
17 The Court: Okay. That's before the date of the
18 posting.
19 Mr. Rosen: That's seven months before the
20 infringing posting.
21 The Court: Okay. Let's move on. It's his opinion.
22 Whether or not it helped Mr. Miscavige or whether he
23 even used it, that's not before the court.
24 Mr. Berry: Well, your Honor, it's before the
25 posting, so obviously it was in his mind.
327
1 The Court: I was just saying whether or not his
2 belief is true or not --
3 Mr. Berry: Ah.
4 The Court: -- Is not before the court.
5 The only thing it can be considered for is his state
6 of mind and what was meant by that term.
7 To respond to any inference that Mr. Rosen was
8 suggesting should be drawn from that, you can draw your
9 inferences. Whether either side -- whether that subject is
10 relevant to the issues is something the jury can decide.
11 By Mr. Berry:
12 Q now, in response to Mr. Rosen's series of questions
13 about your attitude to MS. Kobrin, you said you utterly
14 disagreed with her being just another lawyer. Do you recall
15 that?
16 A that's certainly true.
17 Q what did you mean by that?
18 A well, she works for Scientology.
19 Q and why is that significant in your mind?
20 A she doesn't just work for Scientology, she is a
21 Scientologist.
22 Mr. Rosen: Objection, your Honor. There's no
23 foundation for that.
24 The Court: Sustained.
25 by Mr. Berry:
328
1 Q now, let me show you exhibit 10-19 (handing). Do
2 you recall that exhibit?
3 A yes, I recall it from yesterday.
4 Q and in that exhibit where you refer to the old
5 hos' --
6 A yes.
7 Q -- what did you mean by that?
8 A well, I was trying to be more polite than other
9 people were. Helena was subjected to vicious postings by other
10 people, certainly more vicious than this.
11 Q have you been subjected to vicious postings from
12 people you believe are Scientologists?
13 A oh, yes.
14 Q and what sort of postings have you been subject
15 dollars to.
16 Mr. Rosen: Objection, your Honor. Are we going
17 into whatever, any of the eight million Scientologists posted
18 that offended him?
19 The Court: Let's just make the objection.
20 Sustained.
21 By Mr. Berry:
22 Q now, in exhibit 10-19, there's a reference -- you
23 say "are you trying to get us to pass her over the whole stupid
24 bridge" and comment on it. Do you recall that?
25 A yes, from yesterday.
329
1 Q what did you mean by that? Well, first of all, what
2 was your reference to a bridge?
3 A it's a joke that L. Ron Hubbord made on his
4 followers.
5 Mr. Rosen: Your Honor, I move to strike this. This
6 witness is now attacking the religious precepts.
7 The Witness: My understanding of it is that it's a
8 joke.
9 The Court: You asked him about the posting, and --
10 Mr. Rosen: I didn't ask him anything about this
11 part of it, your Honor.
12 The Court: Let me see the posting, please.
13 Mr. Berry: Your Honor, it's before the jury. I
14 think they're entitled to know the --
15 The Court: Would you wait a minute, please?
16 (Pause in proceedings.)
17 The Court: All right. Looking at this, it
18 refreshes my recollection. The documents was shown to
19 Mr. Henson with respect to the helena old hos' comment, and what
20 was intended, or that reference by him to that. You can ask
21 about that.
22 I think getting into other subjects that have
23 nothing to do with that is not relevant.
24 By Mr. Berry:
25 Q in your mind, what does the reference to a bridge
330
1 mean?
2 Mr. Rosen: Objection.
3 The Court: Sustained.
4 By Mr. Berry:
5 Q in this context --
6 The Court: The question is with reference to helena
7 old hos'. If you have some question with reference to that,
8 that'll be fine.
9 Mr. Berry: I'll come back to it in my case, your
10 honor.
11 by Mr. Berry:
12 Q we talked a little about trolling.
13 A yes.
14 Q is trolling a sophisticated practice?
15 A it can be very sophisticated sometimes.
16 Q in what way?
17 A it can be elaborate jokes, as elaborate as you would
18 ever see an Saturday night live. I could give a couple of
19 examples of it if you thought it was worth it.
20 Q do you have any examples of the sophistication of
21 trolling?
22 A one of them which was particularly good was
23 Scientology posted something, which I don't remember what it
24 was, but it irritated a guy by the name of jessy garron.
25 Mr. Rosen: Objection, your Honor. There's no
331
1 foundation that Scientology posted anything.
2 The Court: Sustained.
3 Let me just see if I can help focus this case.
4 Mr. Berry: I'll move on.
5 The Court: No, let's just take a moment and think
6 about what we're doing here.
7 The issue, or the question, of whether or not
8 Mr. Henson's postings were funny or not funny; whether they were
9 appropriate or inappropriate; whether Scientology was a good
10 religion or a bad religion; whether Mr. Henson has a funny
11 personality or inappropriate personality; whether people
12 connected with Scientology are good people; whether they are out
13 to spread a religion or whether they're people that are out to
14 make money or do something else, none of those things are the
15 issue in this case.
16 The issues in this case are, was Mr. Henson's
17 posting of NOTs 34 willful, and what statutory damages are
18 appropriate for his posting?
19 Relevant questions, questions as to what Mr. Henson
20 may have said or done, is relevant only to the extent that it
21 sheds some light, if it does, on whether or not the posting of
22 NOTs 34 by him on March 30th, 1996 was willful.
23 And what he has said and done afterwards is relevant
24 only to the question of what statutory damages are appropriate.
25 And to the extent that his comments or actions since
332
1 shed light on whether or not something needs to be awarded to
2 deter similar conduct to the posting of NOTs 34 on March 30th,
3 1996, the evidence can be considered for that purpose only.
4 We're not here to make a judgment as to whether
5 Mr. Henson does appropriate things or inappropriate things,
6 other than with respect to dealing with posting of NOTs 34 or a
7 posting of a similar type, or the possibility of a posting, if
8 there is one, of a similar type by him in the future.
9 Mr. Berry: The court just reminded me of something.
10 Q this morning Mr. Rosen asked you what it would take
11 monetarily to deter you from posting NOTs 34 in the future. Do
12 you recall that?
13 A that's correct.
14 Q have you given that question some further thought
15 since then?
16 A well, it's not just a monetary matter. I would be
17 subject to, obviously, jail time.
18 Q and why is that?
19 A because I'm under an injunction not to do it. If I
20 were to post it, it would be with the full realization that I
21 would not be facing merely the possibility of fines and such
22 things, but jail time on it.
23 It would take a very high level of motivation for me
24 to do that. I might conceivably do it. I can't -- I can't deny
25 that it's possible that I would do it, but I wouldn't anticipate
333
1 that I would do it.
2 It certainly has no -- certainly the monetary amount
3 that's involved in the thing is not going to make such
4 difference one way or the other.
5 Q so jail time would be a very serious deterrent to
6 you, would it?
7 A not necessarily. Many people have gone to jail,
8 martin luther king as a typical example, for things that they
9 strongly believed in, for causes that they felt were worth
10 doing. This is a matter of civil disobedience more than
11 anything else.
12 Q and if you did go to jail, would that be an
13 experience that would cause severe financial hardship to you and
14 your family?
15 Mr. Rosen: Objection, your Honor.
16 The Court: I think we're getting a little bit
17 beyond. The question up to then was fine, but I'm going to
18 sustain the objection to that question.
19 By Mr. Berry:
20 Q upon further reflection, would an award of minimal
21 damages be sufficient to deter you, in addition to this jail
22 time?
23 A certainly.
24 Q would anything other than a minimal award of damages
25 be a deterrent to others?
334
1 A no.
2 Q and why is that?
3 A well, just, for example, NOTs 34 has been posted a
4 dozen times in the last several days here, many of them by
5 people out of this country, some with comment, some with no
6 comment on them.
7 I noticed last night, fortunately, I only looked at
8 the first page of it, so it was only inadvertent, which I'm
9 following the Judge's orders on that, but I noticed last night
10 that it was posted at least from norway, germany, and the
11 netherlands.
12 Plus there's several web sites that were announced
13 on there, and some of them are in the United States. And the
14 web sites contain not just NOTs 34, but the entire NOTs series,
15 50 some odd --
16 Mr. Rosen: Your Honor, I object to this. There's
17 no foundation for this.
18 The Witness: Deterrence? Doesn't deter. Sorry.
19 The Court: Well, he was asked -- you asked him
20 about deterrence. He asked about deterrence, and now he's
21 testifying as to what he's aware of, I take it, from his own
22 observation on the net.
23 Mr. Rosen: That was my objection. There's no
24 foundation for this.
25 The Court: Well, you can lay a foundation as to
335
1 whether he looked at what's posted on the internet.
2 By Mr. Berry:
3 Q have you -- I think you testified to Mr. Rosen that
4 you spend generally 45 minutes a day on the internet. Correct?
5 A that's correct.
6 Q and have you been on the internet in the last,
7 yesterday and the day before?
8 A yes.
9 Q and have you gone to ARS yesterday and the day
10 before?
11 A yes.
12 Q and in the course of reviewing the postings to ARS,
13 have you observed that NOTs 34 is available on ARS worldwide?
14 A yes.
15 Q and have you observed how many times NOTs 34 appears
16 to be posted on ARS in the last few days?
17 A yes.
18 Q and how many times does it appear to you that it has
19 been posted?
20 A approximately a dozen.
21 Q and did you also observe the creation of any web
22 site specifically for the NOTs materials?
23 A I don't know that any were created recently, but a
24 number of them that have been around for quite awhile were
25 announced.
336
1 Q so if this jury was to award minimal damages,
2 anything more than minimal damages, what do you think its
3 deterrent effect would be on the worldwide electronic
4 population?
5 A I don't believe it would have much of an effect.
6 And although it's not particularly in my interest to
7 say this, I don't believe that the jury awarding minimal or
8 maximum is going to make a difference.
9 Q do you think that anything more than a minimal award
10 would outrage the electronic world into actually doing what it's
11 supposed to be a deterrent against?
12 A this trial has caused it to be posted a dozen times.
13 That would be my analysis.
14 Q have you -- I'm sorry. I'll come back to that in my
15 case in chief.
16 Mr. Rosen asked you about doomii.
17 A yes.
18 Q correct?
19 A a fine game.
20 Q very brief, is doomii some kind of sinister thing?
21 A it's a computer game. It was one of the most
22 popular games around.
23 Q and it's something like dungeons and dragons for
24 adults?
25 A yes. It's a semi shoot-em-up dungeons and dragons
337
1 game. The same company has gone on to make another extremely
2 popular game called quake.
3 Q now, have you ever testified before Mr. Henson?
4 A yes.
5 Q when was the previous occasion?
6 A I testified before Congress.
7 Q and what was that in connection with?
8 Mr. Rosen: Object, your Honor. It has no relevance
9 to this.
10 The Court: Sustained.
11 Mr. Berry: I'll withdraw.
12 Q Mr. Rosen spent some considerable time with you as
13 to what he appeared to think was your amusement at these entire
14 proceedings.
15 The Court: What Mr. Rosen thinks or what you think
16 is irrelevant.
17 Mr. Berry: I appreciate that, your Honor. I'll
18 rephrase the question.
19 The Court: It's what the evidence means to the
20 jury. Neither one of you are witnesses.
21 Mr. Berry: I'll rephrase the question.
22 Q you -- the court was shown a series of videotaped
23 extracts from your deposition, one of which was a portion where
24 you said you found this extremely, sorry, screamingly funny. Do
25 you recall that?
338
1 A yes.
2 Q was that reference to the entire proceedings and the
3 entire case or to something in particular?
4 A it was the -- the particular was a troll that
5 Mr. Lieberman had swallowed hook, line and sinker.
6 Q and what was that troll?
7 A it's an exhibit, I believe, that was introduced at
8 that time, but it had to do with a technical matter on the
9 internet.
10 A person had posted that they had all of
11 Scientology's ot material on a site and gave an address for the
12 site.
13 The site was instantly recognizable to anyone
14 skilled in the computer business as being a loopback site, which
15 meant that it went nowhere at all except back in your computer.
16 So I followed up on this troll by saying something
17 of the class, you can refresh my memory with the actual thing if
18 you wanted to, but great troll, but don't you think the whore,
19 referring to the common usage at the time of helena Kobrin, will
20 blow a gasket?
21 And then went on to say 14th filing in the third
22 word over, fifth paragraph, third word over, there's an e-i
23 reversed when, of course, no such thing existed whatsoever.
24 And when Mr. Lieberman brought this up to me, which
25 I had thoroughly forgotten at that point, and showed it to me, I
339
1 nearly fell out of the chair I was laughing so hard, because I
2 had no idea that anybody would ever fall for a troll that, that
3 obvious.
4 Q so that is what you found screamingly funny?
5 A it was really hilarious.
6 Q and not these proceedings generally?
7 A no. The proceedings in general have had their funny
8 moments. But my enjoyment of this does not necessarily have to
9 be a matter that it isn't serious as well.
10 For example, I very much enjoyed other kinds of
11 things which I've been involved in in the past, some of which
12 were incredibly serious and very, very important in long-term
13 political sense.
14 Q such as?
15 A the united nations treaty on the uses of outer
16 space.
17 Q now, in response to a question from Mr. Rosen, you
18 said that the internet was a funny place, you people cannot take
19 a joke. Do you recall that?
20 A that's certainly true.
21 Q what did you mean by that?
22 Mr. Rosen: I don't believe that that's what was
23 said. In fact, I think, if I remember, the witness started to
24 volunteer something like that and your Honor struck it.
25 The Court: Sorry. Would you repeat the question?
340
1 by Mr. Berry:
2 Q in response to a question from Mr. Rosen, you said
3 the internet was a funny place, you people cannot take a joke.
4 The Court: Yeah, I don't think we went further with
5 that.
6 Mr. Berry: Mr. Rosen didn't follow up it. I was
7 going to ask him what he meant by it, because it doesn't show as
8 struck in my notes.
9 The Court: I'm going to sustain the objection.
10 Move on to something else.
11 By Mr. Berry:
12 Q in response to some questions by Mr. Rosen in
13 connection with exhibit 10-29, there was some discussion about
14 dennis Erlich needing a serious reality adjustment. Do you
15 recall that?
16 A right. It's in quotes.
17 Q what do you understand -- do you have an
18 understanding as to where you got the phrase "severe reality
19 adjustment"?
20 A well, I have to --
21 Mr. Rosen: I object, your Honor. There was no
22 question about this.
23 The Court: There was some discussion about this
24 area, but I'm not sure what relevance it has. What --
25 Mr. Berry: I'm rehabilitating this witness, your
341
1 honor, and I took it to be a, a negative impact. I'm trying to
2 clean it up.
3 The Court: Can you refresh my memory -- why don't
4 you move on to something else and you can tell me about it at
5 the break. I don't remember this subject in the way you
6 apparently do.
7 By Mr. Berry:
8 Q why were you trying to cheer Mr. Erlich up?
9 A Mr. Erlich had posted in that that he was under a
10 great deal of stress. He mentioned chinese water torture with
11 pleading paper. And Mr. Erlich is, would of course understand
12 what I did.
13 Mr. Rosen: Your Honor, I move to strike this.
14 The Court: There was some discussion about that.
15 I'll ask you to move on, but we'll take a look at it at the
16 break. There was some discussion about this.
17 I don't want to be unfair, but again, I think we're
18 getting really on the fringes of anything that's relevant.
19 But I do recall something and I want to look at it
20 at the break and be fair to both sides.
21 By Mr. Berry:
22 Q Mr. Rosen asked you some questions in relation to
23 your awareness of RTC making a trade, sorry, a copyright claim.
24 Do you recall that?
25 A that's correct.
342
1 Q and you said that you knew that they made the claim;
2 correct?
3 A that's correct.
4 Q did you believe their claim?
5 Mr. Rosen: Objection. It's part of the case in
6 defense, your Honor, which I thought we resolved before
7 The Court: There was another area that Mr. Berry
8 said he was going to go up on his case.
9 Mr. Berry: I'll take it there, your Honor.
10 The Court: Okay. There was some discussion about
11 aware of copyright. But if you --
12 The Witness: Irregularities.
13 Mr. Berry: I'll pick it up later, your Honor.
14 The Court: All right, fine.
15 By Mr. Berry:
16 Q and why weren't you sure that the e-mailgram came
17 from MS. Kobrin?
18 The Court: Which e-mailgram are you talking about?
19 By Mr. Berry:
20 Q exhibit 2.
21 A the reason that I did is because mail had come from
22 MS. Kobrin's account at times when she was clearly somewhere
23 else, particularly at a --
24 Mr. Rosen: Excuse me, your Honor --
25 The Witness: She was somewhere else and not at her
343
1 terminal.
2 The Court: What's the objection?
3 Mr. Rosen: The words the witness was about to try
4 again to utter.
5 The Court: Well, again, whether she was gone or not
6 gone, unless there's some foundation for this witness saying
7 that, it cannot be considered for whether, in fact, she was gone
8 or not gone.
9 If he believed, however, from some source that she
10 was gone, it can go to his question as to whether or not that
11 e-mail came from her.
12 Mr. Rosen: Your Honor --
13 The Court: So it cannot be considered for the truth
14 of whether she was gone or not gone, but if he claims he has
15 some doubt as to the authorship of that letter, he can explain
16 why he had that belief.
17 Mr. Rosen: Your Honor, the premise of this
18 testimony is that at the time the letter was sent --
19 The Court: Let's not have that.
20 Mr. Rosen: I apologize, your Honor.
21 The Court: Go ahead.
22 By Mr. Berry:
23 Q did some event occur which provided you with
24 knowledge that MS. Kobrin was somewhere else in public at a time
25 that e-mail was sent, e-mails from her were being sent? Just
344
1 say yes or no.
2 A yes.
3 Q and without describing that event, can you explain
4 why you gained that understanding?
5 A it was discussed at length along a thread by people
6 who analyzed the date headers on the, on some messages which
7 came from the hkk account at netcom.Com and decided the timing
8 of it was inconsistent with her being at a terminal.
9 So it's not an unusual thing that she would, that
10 somebody would have someone else logged in, although that's
11 supposed to be the private account that you're only supposed to
12 use yourself, but nonetheless, it was quite clear in the minds
13 of people, including myself.
14 Mr. Rosen: Objection.
15 The Court: Let's not talk about minds of others.
16 If you want to say --
17 The Witness: It was clear in my mind that letters
18 from helena Kobrin were not necessarily due to her own typing on
19 a keyboard. Or more correctly, such was my belief at the time.
20 Still is.
21 By Mr. Berry:
22 Q and is that still your belief?
23 A yes.
24 Q now, exhibit 1 is a copy of the letter you posted to
25 the internet; correct?
345
1 A to the best of my knowledge, that is true.
2 Q the NOTs 34 portion is missing; right?
3 A right.
4 Q and we'll introduce that during your case, but the
5 parts that are there, and that the jury does have --
6 The Court: I don't think -- are you sure you're
7 referring to exhibit 1?
8 The Witness: 2 Maybe?
9 The Court: I think you're referring to exhibit 2,
10 aren't you?
11 Mr. Berry: Exhibit 1, I believe. We'll let the
12 witness answer that.
13 The Court: I'm sorry.
14 by Mr. Berry:
15 Q is exhibit 1 --
16 The Court: Does the jury have exhibit 1?
17 Mr. Rosen: No.
18 The Witness: Actually, this may be --
19 Mr. Berry: Oh, sorry. The jury will receive it
20 later.
21 Q is that the document that you posted? Does that
22 appear, to the best of your ability, to be a document, a copy of
23 the document you posted to the internet?
24 A I believe it is. I can't -- as I say, I can't
25 authenticate stuff that's been out of my hands, and it's
346
1 obviously redacted in two different places. But with those,
2 with those reservations, I believe it is.
3 Q now, in that posting, you explain why you're posting
4 it.
5 A that's correct.
6 Q at the time you posted it, were the reasons stated
7 in that document beliefs that you generally and honestly had?
8 Mr. Rosen: Your Honor --
9 The Court: Didn't you say you were going to do this
10 portion during his case?
11 Mr. Berry: I'm just wrapping up, your Honor. I've
12 got one more question.
13 The Witness: Yes.
14 by Mr. Berry:
15 Q and do you still hold those beliefs?
16 A yes.
17 Mr. Berry: I have no further questions for the
18 witness at this time, your Honor.
19 The Court: Okay.
20 Mr. Rosen: Brief, just a few questions, your Honor,
21 if I can read my notes.
22 As on recross examination by Mr. Rosen
23 Q let me start with something you said a moment ago.
24 The letter from mrs. Kobrin that your counsel is referring to
25 is, of course, the March 30th, 1996 cease and desist letter;
347
1 right?
2 A isn't it 31st?
3 Q 30th.
4 A okay.
5 Q it's the one that says "stop infringing RTC's
6 copyrights, don't post NOTs 34."
7 A right.
8 Q okay. So you had some belief, yes or no,
9 Mr. Henson, that at the time that that was sent to you, or at
10 least the time that appeared on it, mrs. Kobrin was not, was
11 away from her terminal?
12 A I had no idea.
13 Q can you post and send e-mails from a laptop?
14 A with a metricom modem or something similar on it.
15 Q okay. Can I post and send e-mails from somebody
16 else's p.C. As long as I have my access codes?
17 A yes.
18 Q so right now, Mr. Berry, whose office is in los
19 angeles, his secretary could be sending out an e-mail or posting
20 something, assuming she has his codes, without him being there?
21 A that's certainly true.
22 Q and in fact, right now Mr. Berry, if he wanted to
23 come to Mr. Hogan's office, could post something and everybody
24 will say, "well, wait a minute, Mr. Berry is in San Jose."
25 Right?
348
1 A there's a difference.
2 Q yes or no, Mr. Henson? Please, sir. We're trying
3 to move on.
4 A sorry. Can't answer it.
5 Q have you ever heard of people, like attorneys, who
6 have, who employ secretaries?
7 A yes.
8 Q think an attorney can dictate a letter to his
9 secretary, and by the time the secretary types it and sends it
10 out, or in this case electronic mail, the attorney is out of his
11 office?
12 A of course.
13 Q is that something -- that's not something that's
14 strange to you, is it?
15 A not a bit.
16 Q okay. Now, is it, at the time that you received the
17 March 30th cease and desist letter from mrs. Kobrin, you had a
18 belief at that time that, or some reason to believe it didn't
19 come from her?
20 A there's always a serious question on this particular
21 account.
22 Q well, would you tell me, then, sir, why you answered
23 it?
24 A it really didn't matter whether it came from helena
25 personally or not.
349
1 Q you answered that letter, you posted an e-mail in
2 response, and not only did you send an e-mail, you posted it on
3 the internet?
4 A of course.
5 Q your response to mrs. Kobrin?
6 A it's always considered appropriate to post e-mail,
7 threatening e-mail.
8 Q sir, is it considered appropriate to send an e-mail
9 letter to someone who you didn't think sent you a letter?
10 A the account sent me a letter. The hkk account at
11 netcom sent me a letter. I responded to it.
12 Q Mr. Henson, you've testified on your cross
13 examination to your belief in terms of some cancellation that
14 occurred in, what was that, 1994?
15 A excuse me?
16 Q I think you called it an rm group.
17 A right.
18 Q that occurred when, in '94?
19 A no. January 11, '95.
20 Q okay. Sir, can we agree on one thing?
21 A yes.
22 Q that whatever you believe happened, and whoever you
23 believe did it, had nothing whatsoever to do with you posting
24 NOTs 34 14 months later on March 30th, 1996?
25 A oh, no. It had everything to do with it.
350
1 Q okay.
2 A I never would have been there at all if it hadn't
3 been for that.
4 Q you may not have been there at all, Mr. Henson, but
5 14 months later -- you're telling us that on March 30th, you
6 posted NOTs 34 because of something that happened in January a
7 year earlier?
8 A yes.
9 Q all right. Mr. Henson, the ARS group includes not
10 only people like you who are critical or taunting of
11 Scientology, but also includes people who are in favor of
12 Scientology?
13 A that is correct.
14 Q and it also includes people who are neither in favor
15 or against, but who may tune in, so to speak, to ARS because
16 they may want information?
17 A they're rare, but that does happen.
18 Q okay. So you think that -- withdraw that.
19 Mr. Henson, your counsel asked you about these very
20 small excerpts, small number of excerpts, that we showed in
21 court out of six hours of a deposition of yours.
22 A right.
23 Q do you remember that?
24 A yes.
25 Q you have the right -- you had the right, in March of
351
1 1996, to buy a copy of this video, didn't you?
2 A at enormous expense, yes.
3 Q and you didn't, right?
4 A I bought the deposition transcript.
5 Q okay. So you can offer any part of this, of that
6 deposition of yours, that you would like to offer to the jury to
7 place your statements in context, can't you?
8 A I can?
9 Q okay.
10 A thank you.
11 Q Mr. Henson, you said in connection with your posting
12 of ot vii in July of 1995 --
13 A a tiny fragment of ot vii.
14 Q I'm sorry, six lines of ot vii, a tiny fragment, and
15 I believe you said in connection with that that no court would
16 ever find six lines to be copyright infringement.
17 A out of a document of that size, that's my belief.
18 Q well, Mr. Henson --
19 A I may be wrong, but it's my belief.
20 Q well, Mr. Henson, when you make a statement, it
21 sounds almost like a lawyer's opinion, when you make a
22 statement, "no court would ever find a posting of that to be
23 copyright infringement," is that because -- is that based upon
24 your knowledge of, and reading of, copyright cases?
25 A no.
352
1 Q are you aware of any -- were you aware, at the time,
2 of any court decision on whether or not posting six lines out of
3 a larger work, I don't know how many lines it is, that it is or
4 is not copyright infringement?
5 A yes.
6 Q you had read some cases before this, before you made
7 that statement?
8 A I had read about some cases. I hadn't actually read
9 the case file itself.
10 Q and you read them in law books and things?
11 A in where?
12 Q in law books?
13 A no, on ARS.
14 Q oh. In other words, this is from other people who
15 had posted legal principles on ARS and you read it?
16 A newspaper articles.
17 Q I see. Okay. Now, did you do any research on that
18 subject as to whether those articles were correct?
19 A it was the washington post. I sort of doubt that
20 they were incorrect.
21 Q okay.
22 A the washington post was being sued, but they said
23 it.
24 Q Mr. Henson, you had an understanding that no court
25 would ever find copyright infringement for posting six lines of
353
1 a larger work?
2 A that was my belief then, and it is my belief today.
3 Q and in fact, Mr. Henson, RTC never sued you for
4 infringing ot vii, did they?
5 A they threatened me.
6 Q did they sue you?
7 A no.
8 Q Mr. Henson, do you remember --
9 A not on that.
10 Q do you remember how much of, how many lines of
11 ot vii it was, or what the six lines were? Are we talking like
12 one percent?
13 A I don't remember.
14 Q a very small amount; right?
15 A well, I don't remember. It was a relatively small
16 amount. It was, my guess is like -- I won't guess. I don't
17 know. I could run -- I could go get it and give you a count for
18 it.
19 Q no, that's okay.
20 When it came to March of 1996, March 30th in your
21 posting of NOTs 34, how much of it did you post?
22 A 1.4 Percent of the whole thing.
23 Q no, Mr. Henson. How much of NOTs 34 did you post,
24 Mr. Henson? 100 Percent of it; right?
25 A as an example to the Judge so that it wouldn't be
354
1 considered out of context.
2 Q Mr. Henson, how much of NOTs 34 did you post? Third
3 time. All of it?
4 A it says right in there, all of it.
5 Q thank you, sir, every single word, every single
6 line; right?
7 A I cut it out of the buffer.
8 Q Mr. Henson --
9 A actually, no, I did not post it all.
10 Q Mr. Henson --
11 A I found out later there's two lines that are missing
12 from my copy.
13 Q okay. You thought you posted it all?
14 A I posted all that had been previously posted on the
15 net.
16 Q and Mr. Henson, in connection with the summary
17 judgment and the permanent injunction against you, this court
18 has already found that you posted NOTs 34 verbatim, word for
19 word; right?
20 A I think the words I used were "in its entirety."
21 Q okay. Mr. Henson, you had offered some testimony
22 about the use of a dollar sign in cos and the use of a dollar
23 sign instead of an s?
24 A that's correct.
25 Q is it your belief that -- or is it your
355
1 understanding that all religions, whether they be catholicism,
2 jehovah's witnesses, Scientology, the jewish religion, exist on
3 the contributions, primarily, maybe not exclusively, but
4 primarily on the contributions of the members of the that
5 religion?
6 A none of them like Scientology.
7 Q how about answering my question, Mr. Henson, please
8 sir?
9 A there is a fundamental difference between them.
10 Q do you know of any religion that does not exist in
11 large part upon the contributions of its parishioners?
12 Mr. Berry: I think the witness should finish his
13 answer.
14 The Witness: It was not --
15 The Court: Let's go one at a time. I think the
16 question that was asked had been answered. Go ahead.
17 By Mr. Rosen:
18 Q do you know of any religion which does not exist, if
19 not entirely, in large part, on the charitable donations,
20 withdraw that, on the contributions and donations of their
21 parishioners?
22 A yes.
23 Q which religion?
24 A the subgenius.
25 Q which religion?
356
1 A it's related to Scientology. The church of the
2 subgenius.
3 Q Mr. Henson, are you saying that Scientology does not
4 exist, as a religion, it does not exist on parishioners'
5 contributions?
6 The Court: Your question was whether there was a
7 church that does not exist on contributions, and I think his
8 answer was -- I don't know the name, I can't repeat it, but he
9 gave you the name of a church that did and said it was related
10 to Scientology.
11 By Mr. Rosen:
12 Q okay. Mr. Henson, you said in your response to a
13 question from your counsel that when one posts on the net,
14 quote, "attribution is critically important"?
15 A that is correct.
16 Q I thought you told me a few moments ago that people
17 can avoid liability for infringement by using anonymous
18 re-mailers.
19 A no, sorry. You've misunderstood this.
20 Q okay. Wait a minute. Did you tell me a few moments
21 ago that people can avoid being caught for copyright
22 infringement by using anonymous re-mailers, yes or no?
23 A yes.
24 Q and when one uses an anonymous re-mailer, the person
25 who has created this posting, his name never appears; right?
357
1 A absolutely true.
2 Q okay. And in fact, the purpose of an anonymous
3 re-mailer is so that no one knows who you are?
4 A right. But that's not the kind of attribution I was
5 referring to.
6 Q I understand that, sir. I just wanted to make sure
7 that we were on the same track here.
8 A it's unrelated to the attribution I was referring to.
9 Q okay. In connection with a question your counsel
10 asked you about the reference to mrs. Kobrin as a whore, I think
11 your answer was that any attorney who prostitutes themselves by
12 representing Scientology, that's what you're talking about. If
13 an attorney represents Scientology --
14 The Court: Didn't you object to this area and I
15 sustained it?
16 Mr. Rosen: Not to this question, I don't believe,
17 your Honor. It had to do with -- the sustaining of the
18 objection was whether mrs. Kobrin was a Scientologist.
19 The Court: Go ahead. I didn't hear an objection
20 from Mr. Berry.
21 by Mr. Rosen:
22 Q so any attorney who represents Scientology is
23 prostituting themselves; right?
24 A that is my opinion.
25 Q including the attorneys here in this room
358
1 representing Scientology?
2 A every one of them.
3 Q and I guess you would say the same thing about
4 attorneys representing other religions?
5 A not necessarily.
6 Q no? Would you say that attorneys who represent
7 mormons are prostitutes?
8 A not generally.
9 Q how about mormons who represent seventh day
10 adventists, attorneys who represent seventh day adventists, are
11 they prostitutes?
12 A let me back up a little bit on that.
13 Q never mind. I'll withdraw the question.
14 Now, you indicated that it would take an
15 extraordinarily high level of motivation for you to post NOTs 34
16 again in violation of my client's rights. Do you remember
17 that?
18 A well, not only that.
19 Q did you say that?
20 A it seems extraordinarily excessive at this point
21 since so many other people have done it.
22 Q is it true that it would take an extraordinarily
23 high level of motivation for you to post NOTs 34 again?
24 A I don't think I would post NOTs 34 again at all.
25 Q Mr. Henson, that extraordinarily level of motivation
359
1 which you testified to in response to your counsel's question,
2 that was presented to you --
3 A this --
4 Q let me finish, please sir. -- That was presented to
5 you two months ago when you said, "if I can get a network TV to
6 film this, I'm going to do this and go to jail."
7 A but that's not posting it.
8 Q no. But it's making a copy of it, isn't it?
9 A I won't even have to make a copy of it for heaven's
10 sake.
11 But I mean, the point of giving it to the f.D.A. Is
12 for the p.R. Of what the contents of NOTs 34 is.
13 Q Mr. Henson, you understand that making a copy,
14 including downloading from somebody else's posting, is copyright
15 infringement, don't you?
16 A if you give that, there's 30 million people that
17 copyright infringe on a daily basis.
18 Q okay. In any event, when you were considering two
19 months ago doing this, the threat of jail did not dissuade you,
20 what dissuaded you was a you couldn't get a TV network to film
21 you either; right?
22 A I didn't try very hard either. This is what's known
23 as a troll. In fact, I never called any TV companies.
24 Q Mr. Henson, you testified a few moments ago that you
25 did not believe that a substantial damage award would deter
360
1 anyone because just in the, I believe you said in the last day
2 or two, several other people have posted NOTs 34 to the
3 internet. Did I get that right?
4 A that's correct.
5 Q Mr. Henson, in fact, they posted NOTs 34 in response
6 to an invitation from you to do so, didn't they?
7 A to the best of my knowledge, I haven't asked that,
8 at least recently.
9 Mr. Rosen: Your Honor, may I approach the witness?
10 The Court: All right. If you've got something
11 you're going to show him, make sure you show it to Mr. Berry
12 first.
13 Mr. Rosen: He has it. This was sent over to
14 Mr. Berry and your Honor yesterday.
15 The Court: What's the number?
16 Mr. Rosen: 61. Does your Honor have it? Here's
17 another copy here.
18 Q Mr. Henson, can you tell me what that is (handing)?
19 A this looks like a posting, and since it's so very
20 recent, it certainly looks like something I did, and I don't
21 have any problem with it. You want to read it to the jury? Go
22 for it. Put it on the elmo. I don't care.
23 Mr. Rosen: Your Honor, in view of the witness'
24 statement, I take it as an authentication. May I offer the
25 document into evidence?
361
1 The Witness: I've got no problem with it.
2 Mr. Berry: I have no objection, your Honor, because
3 I'm going to ask for an explanation.
4 The Court: 62?
5 Mr. Rosen: 61, Your Honor.
6 The Court: I'm sorry, 61.
7 The Witness: I don't see how you can possibly make
8 that into requesting people to post it.
9 Mr. Rosen: Your Honor, I don't think I have a
10 question pending.
11 The Court: There is no question pending, but I was
12 looking at the wrong exhibit. Let me take another look.
13 (Pause in proceedings.)
14 The Court: All right. 61 Is admitted.
15 (Exhibit 61 was admitted into
Evidence.)
16
17 by Mr. Rosen:
18 Q okay. This is a posting of yours, Mr. Henson, of
19 Tuesday, May 5, 1998; right?
20 A yep.
21 Q and the time of this posting is 13:56:19 Gmt?
22 A I presume that's what it says.
23 Q that's 1:56 P.M.?
24 A yeah, I guess so.
25 Q and it's headed subject matter, "Henson needs help."
362
1 A yeah.
2 Q and in this, you advise that Judge Whyte has
3 forbidden you from generating a list of web sites where NOTs 34
4 is located, makes it hard to defend on the issue of damages, and
5 you're also asking for somebody to lend you a laptop so you
6 could try to access NOTs 34 in this courtroom.
7 Is that a fair statement of what you did?
8 A yes.
9 Q Mr. Henson, you didn't intend for this posting, you
10 didn't intend for this to induce people to post NOTs 34, did
11 you?
12 A no.
13 Q but in fact, right after you posted this, several
14 people did, didn't they?
15 A I'll --
16 Q in response to your "Henson needs help," several
17 people posted NOTs 34, didn't they?
18 A well, it's widely known all over the world that this
19 trial is going on.
20 Q Mr. Henson, please.
21 A I did not have that intent at all. This is not an
22 intent to cause anybody to post it.
23 Q Mr. Henson, in fact, yes or no, sir, several people,
24 within a matter of a couple of hours after getting your "Henson
25 needs help," several people posted NOTs 34?
363
1 A I didn't ask for that.
2 Q I didn't ask you if you asked for it, sir. I asked
3 you if they did it.
4 A I don't know.
5 Q you don't know?
6 A I don't know whether it was hours or how long it
7 took.
8 Q but you do know they did it?
9 The Court: Let him finish his answer.
10 Mr. Rosen: I apologize.
11 The Witness: I know two or three people sent me a
12 list of web sites, just exactly like I asked in e-mail.
13 Mr. Rosen: Your Honor, may I approach the witness
14 and show him an exhibit? This is exhibit 62.
15 The Court: All right.
16 With respect to 61, I'll just advise the jury that
17 the exhibit can be considered for, with respect to the first
18 paragraph about, or first sentence -- well, actually I guess
19 it's the second sentence, dealing with what the injunction that
20 I issued said.
21 It can be offered for his understanding of the
22 injunction, but not necessarily what the injunction, in fact,
23 says.
24 The Witness: Yes, it is a posting from -- it's a
25 highly redacted posting from tilman hausherr.
364
1 by Mr. Rosen:
2 Q and this was done on what date?
3 A it says on May 5, 17:30.
4 Q same day you posted your "Henson needs help," right?
5 A let's see. That's about 14 -- about three and a
6 half hours later.
7 Q okay. And let's go to the next page of the exhibit.
8 The Court: Well, let me ask a question.
9 Is this a posting that you saw?
10 The Witness: Me? I believe it is. I looked at --
11 I looked briefly at the net the other night.
12 The Court: Okay.
13 The Witness: And I would download the headers and
14 24 lines of this stuff and "oh, another copy of this" and click
15 on to the next one.
16 The Court: So this is a posting, you believe, based
17 on your observation, that was on the internet?
18 The Witness: Huh?
19 The Court: This is a posting that you believe,
20 based on your own observation, was on the internet?
21 The Witness: I think so, yes.
22 By Mr. Rosen:
23 Q okay. And the second --
24 A it's not a follow-up to my posting.
25 The Court: I'm not asking that. I'm asking if you
365
1 observed it.
2 Mr. Rosen: I'm sorry.
3 Q and the second page shows that there is another
4 posting on May 5, 1998, at 17:16 By somebody else; right?
5 A yes.
6 Q it also shows another posting, and that's a posting
7 of NOTs 34, of course; right?
8 A well, not exactly.
9 Q it says re NOTs 34, doesn't it?
10 A right. But on the first one, it says on the subject
11 line, NOTs 34. The second one says re NOTs 34. That means that
12 it's a follow-up of it, and they apparently just -- I don't know
13 whether they added any material, because I can't tell from here
14 whether they added material or not.
15 But they sucked it all in and reposted it under
16 their own name with the attribute lines on the sides of it. It
17 says the article tilman hausherr wrote, and then they quote some
18 unknown piece of it, probably the whole thing.
19 Q now, Mr. Henson, in addition on that page, it shows
20 another posting on May 5 at 22:16 Hours?
21 A I don't think I have that one.
22 Q say again.
23 A I don't think I have that one.
24 Q it's the third entry on page two of the exhibit.
25 A oh.
366
1 Q see it?
2 A I don't see it.
3 Q I'm sorry. I apologize. I may have misread that.
4 Tuesday, May 5, 22:16, Directly underneath that is somebody
5 named mozilla? Second page.
6 A second page?
7 Q do you see it?
8 A yeah.
9 Q 22:16 Hours; right?
10 A yeah. But that's the same time as, one is gmt and
11 the other is minus six. So this is a posting with two different
12 times, but they're the same time. You see, the seconds are the
13 same in that.
14 So there's only -- this is only a single -- the
15 first page is one posting, the second page is another posting.
16 Q that's fine, Mr. Henson. It's a posting of NOTs 34;
17 right?
18 A I can't tell.
19 Q is that what the re is, what the subject is?
20 A well, that's what the subject says, yes.
21 Q and now if you'll go to the third page of the
22 exhibit?
23 A yeah, which is probably the second. There was an
24 original, a follow-up, and another follow-up to the original.
25 Q and in fact, Mr. Henson, if you go to the third
367
1 page, you'll see a posting from cristino to alternate religion
2 Scientology of re NOTs 34 on May 5 at 15:32 Hours, or
3 approximately --
4 A right.
5 Q -- 3:30 P.M.; Right?
6 A well, minus three.
7 Q okay. Mr. Henson, let me ask you something, sir.
8 Is it your testimony and belief that all of these postings that
9 occurred on May 5 of NOTs 34 had nothing whatsoever to do with,
10 and were not in response to, your posting of "Henson needs
11 help"?
12 The Court: Well, that's -- we need a foundation
13 laid for it. He said that he believes he saw the first posting
14 you asked about. He's not indicated one way or another as to
15 whether he has any actual knowledge of these postings. He may
16 or he may not.
17 So I think we need to establish that before we start
18 talking about or admitting these into evidence.
19 Mr. Rosen: I thought he was identifying it. He's
20 talking about the page, which was three postings, your Honor.
21 The Court: I don't know.
22 Mr. Berry: Your Honor, I have no objection to that
23 coming into evidence. In fact, I have an additional stack of
24 postings that someone gave to me that I think Mr. Rosen --
25 The Court: Well, I don't want to have -- well,
368
1 let's not get into what else you have.
2 But if you have no objection to this exhibit, I'll
3 admit it.
4 (Exhibit 62 was admitted into
Evidence.)
5
6 Mr. Rosen: Okay.
7 Q so is it your testimony and your belief, Mr. Henson,
8 that these three postings of NOTs 34 which occur on May 5, 1998,
9 this past Tuesday, after 1:56 P.M., Were not invited or
10 responsive to the posting, "Henson needs help"?
11 A I'm sorry. I can't figure what their motivation
12 was.
13 Q but let's understand one thing, Mr. Henson. Is it
14 your testimony that when you posted "Henson needs help" on may
15 5, 1998, you were not in any way trying to ask people to post
16 NOTs 34, were you?
17 A no. And I was not asking them to put up a new web
18 site either. All I was asking for --
19 Q you answered my question, sir, you were not.
20 Well, do you have your laptop in court today?
21 A no.
22 Q no one would lend you one?
23 A no. Several people offered, but we figured it
24 wouldn't go, it wouldn't be useful until Monday.
25 Q and Mr. Henson, one last question, sir. Your belief
369
1 is that a substantial jury award will not deter any of these
2 other people, like the ones who posted NOTs 34 Tuesday night,
3 they won't be deterred; right?
4 A let's take the first one. This guy is in berlin, it
5 won't deter him.
6 Q I'm not talking about -- excuse me. I didn't mean
7 to interrupt.
8 The Court: You're asking if it would deter these
9 people and he's saying it would not deter the first one.
10 The Witness: I don't have any idea what the at
11 domain is, so I kind of doubt that's going to deter anybody.
12 Nor, c-o-q-u-i.Net might be United States. I'd have
13 to use who is on there to find out where this is located.
14 But two out of three, the answer would be no.
15 By Mr. Rosen:
16 Q how about everybody else? Do you think that a
17 substantial award will deter everyone else in the United States
18 from posting NOTs 34? Or anybody else in the United States?
19 A it's not going to deter anybody who uses anonymous
20 re-mailers.
21 Q how about if people don't use anonymous re-mailers
22 and are candid enough to sign their own name to their postings?
23 Will it deter them?
24 A some of them.
25 Mr. Rosen: Thank you, sir.
370
1 The Witness: Maybe.
2 Mr. Rosen: No further questions, your Honor.
3 The Court: All right. We'll take a recess until
4 about 11:30, And we're just going to 12:00 today.
5 (Recess.)
6 (Whereupon, the following proceedings were held out
7 Of the presence of the jury.)
8 Mr. Rosen: Your Honor, assuming that Mr. Berry
9 doesn't have any recross, I just want --
10 Mr. Berry: That's an incorrect assumption.
11 Mr. Rosen: Okay. When Mr. Berry is done with his
12 recross, I just wanted to let you know where we're going and ask
13 how you'd like us to handle this.
14 We have a set of exhibits which have been, which we
15 think have been admitted. We just want to make sure and go over
16 the list. Any that we don't, we will offer them so that the
17 record is complete, and then the plaintiff will rest.
18 The Court: Okay.
19 Mr. Rosen: Do you want me to do the offer in front
20 of the jury or outside the jury's presence?
21 The Court: It would probably be better, if you
22 could, if you could even do it at the break, to go over the list
23 with Mr. Berry and see if there's any disagreement with him as
24 to any of the exhibits.
25 If there's not, then we could just read the list in
371
1 front of the jury and have them in.
2 If, on the other hand, there is a dispute, I don't
3 want to take up the dispute in front of the jury.
4 Mr. Rosen: Right.
5 The Court: So --
6 Mr. Rosen: I think most of these have been admitted
7 yesterday, but I just want to make sure, your Honor, that our
8 record is complete.
9 The Court: I understand. That makes sense.
10 Mr. Rosen: Okay.
11 The Court: Okay.
12 Mr. Rosen: Thank you.
13 The Court: So why don't you just, when we -- well,
14 when he finishes, when you finish with the examination of
15 Mr. Henson, assuming there's no objection, go ahead and offer
16 them.
17 If there is some objection, go ahead and offer the
18 ones to which there's no objections, and then we'll discuss the
19 ones to which there is objection.
20 Since you're resting, I think we could excuse the
21 jury for the day a few minutes early if there is objection, and
22 then we'll start with Mr. Berry's case in chief on Monday.
23 Mr. Berry: Oh, are you resting?
24 Mr. Rosen: I'm going to rest after you --
25 Mr. Berry: Oh, you're not calling Mr. McShane?
372
1 Mr. Rosen: I'm going to rest after you finish your
2 recross and I offer my exhibits.
3 I have one question in terms of scheduling. Is your
4 honor planning to start at 1:30 On Monday?
5 The Court: Yes.
6 Mr. Rosen: And may we have an idea, since I'm going
7 to be resting, as to approximately how long Mr. Berry's case is?
8 The Court: I think the question is how long is
9 your direct of Mr. Henson going to be?
10 Mr. Berry: I don't think it's going to be more than
11 a couple of hours at the most.
12 The Court: So we'll probably finish with the
13 evidence on Monday?
14 Mr. Berry: I certainly don't want to cover too much
15 of the same territory.
16 The Court: Okay. And assuming his representation,
17 which I'm sure is correct, I don't mean to imply anything by the
18 way I said that --
19 Mr. Berry: I really haven't finished mapping out my
20 examination. I think it's two to three hours maximum.
21 The Court: Right. And your witness is Mr. Henson?
22 Mr. Berry: Mr. Henson. I was wanting Mr. McShane,
23 but apparently he's not going to be calling him.
24 The Court: Well, if he doesn't call him, he doesn't
25 call him.
373
1 Mr. Rosen: Would your Honor then, if that were the
2 schedule and it would look like we would finish the testimony,
3 if not at the end of Monday, but on Tuesday morning, would your
4 honor want to have a charging conference on Monday?
5 The Court: Depends on when we finish. I will hand
6 out to you what I intend to give as my instructions, and I'll
7 give those to you Monday. And then if we have time, we'll go
8 over that on Monday.
9 But in any event, I would expect to argue first
10 thing Tuesday. If we haven't gone over the instructions, I
11 might just have you in at 8:00 On Tuesday and argue at 9:00 or
12 something like that.
13 But I don't -- I mean, frankly, there may be a
14 couple of things that need to be dealt with, but pretty much the
15 concluding instruction is going to be very similar to the
16 preinstruction. I don't see much difference, other than the
17 form instructions on deliberations and stuff like that that I'm
18 sure nobody will disagree should be given.
19 If there's something that, based on the evidence,
20 either side feels changes the instructions they feel are
21 appropriate, I'd like to see a submission of that right away so
22 I could have it over the weekend.
23 Mr. Rosen: We were actually -- you recall the
24 discussion we had yesterday, and that is that our understanding
25 is that Mr. Berry was given an opportunity and did not object,
374
1 and in fact, affirmatively represented that our requests to
2 charge were okay.
3 There was some disagreement as to that, and
4 unfortunately, the court reporter who took that is tied up with
5 something else, but she indicated that we're going to have that
6 transcript hopefully tomorrow. I think that is going to be an
7 issue once we see what the transcript says. We have different
8 recollections of what was said.
9 The Court: But regardless, Mr. Berry was going to
10 turn in any additional -- my memory, which I think, frankly, is
11 a little more consistent with Mr. Berry's than with yours, was
12 that what Mr. Berry said was, and the transcript will show, and
13 somebody's recollection is innocently, I think, not right, is
14 that Mr. Berry said something along the lines of he'd looked at
15 them and he didn't have disagreement except with a couple of
16 little things and asked about submitting instructions.
17 And I said, "well, you can submit them by," I think
18 I said Monday or something, "but I'm not saying that I'll
19 consider them."
20 Mr. Berry: And since then --
21 Mr. Rosen: You mean because they were untimely?
22 The Court: Right.
23 Mr. Berry: And since then, your Honor, on the basis
24 of what's happened in the trial, I would have one brief
25 instruction that I'd like to draft tomorrow.
375
1 The Court: Either side can offer an instruction,
2 based on good faith, on something that came up during the
3 trial. I would just ask if you could have those to me sometime
4 tomorrow, because I would like to finalize the instructions, or
5 what I intend to give as final instructions, over the weekend so
6 we don't have any delay with my having to do work on Monday.
7 Mr. Berry: I'll fax that to chambers, your Honor.
8 It's simply going to be a brief instruction based on what your
9 honor ruled were the elements of willfulness, the subject of how
10 they phrased, and the subject of an objective element.
11 The Court: Okay. And if you have something else,
12 just exchange them and have them in to me, let's say, by no
13 later than 2:00 O'clock tomorrow afternoon.
14 Mr. Rosen: I will certainly try and do that.
15 The Court: Or 4:00.
16 Mr. Rosen: The logistics are we might be in an
17 airplane. But we'll get it to you.
18 The Court: Let's say by 4:00 on Friday.
19 Mr. Rosen: Thank you, Judge. About ten minutes?
20 The Court: If you can, cut it down a little.
21 How much redirect do you have?
22 Mr. Berry: Ten minutes.
23 The Court: Ten minutes. And then you might or
24 might not have a few minutes more then, I take it?
25 Mr. Rosen: I would hope not.
376
1 The Court: So if you could go over the exhibits
2 now, that'd be great.
3 (Recess.)
4 The Court: All right. Mr. Berry, did you have
5 some additional questions?
6 Mr. Berry: Yes, your Honor.
7 As on redirect examination by Mr. Berry
8 Q now, you're aware of even more postings of NOTs 34
9 in the last day than Mr. Rosen indicated; correct?
10 A I believe so.
11 Q and do you know where an andreas a-n-d-r-e-a-s,
12 hadal, h-a-d-a-l, lund, l-u-n-d is located?
13 A I've never met him, but he's located somewhere in
14 norway.
15 Q would he be deterred by a large award of damages
16 against you?
17 A I would very much doubt it.
18 Q and do you know a joe cisar, c-i-s-a-r?
19 A I recognize the name. He's a regular poster on ARS.
20 And I don't know where he actually is located, so I don't know
21 whether he would be deterred or not.
22 Q to the best of your knowledge, would he be aware of
23 the injunction?
24 A oh, yes.
25 Q and how about a hud, h-u-d, nordin, n-o-r-d-i-n? Do
377
1 you have any idea where he is located?
2 A he's local.
3 Q and would he be aware of the injunction?
4 A of course.
5 Q and does he appear to have been deterred?
6 A no.
7 Mr. Rosen: Objection. No foundation.
8 The Court: There's not a foundation at this point
9 for that, so I'll strike the answer.
10 By Mr. Berry:
11 Q Mr. Rosen asked you about people on ARS; correct?
12 A yes, he did.
13 Q now, there are people who follow ARS who are neither
14 posters for or against Scientology; correct?
15 A they're called lurkers.
16 Q is there any estimate of how many lurkers there
17 are?
18 A as before, there's some kind of numbers which are
19 used to multiply the number of people who post on a news group
20 to the number of people who read it, and the number that is
21 standardly used ranked between 20 and 100 times.
22 So if there's 300 people posting on it, you would
23 expect perhaps as many as 30,000 people to be reading it. It's
24 a wild estimate. It may be very much distorted or alt.Religion
25 Scientology because a lot of people are afraid to post there.
378
1 Q why are they afraid?
2 Mr. Rosen: Objection, your Honor.
3 The Court: Sustained.
4 By Mr. Berry:
5 Q why didn't you post NOTs 34 through an anonymous
6 re-mailer?
7 Mr. Rosen: Objection, beyond the scope of redirect.
8 The Court: I'm going to allow it.
9 The Witness: I'm an up-front kind of a guy. I
10 wrote a letter to Judge Whyte which was --
11 Mr. Rosen: Your Honor, I move to strike this.
12 The Witness: -- A public matter.
13 The Court: I didn't have the impression that that
14 was really answering the question.
15 The question was, why did you not post anonymously?
16 The Witness: I'm an up-front sort of person.
17 The Court: Okay.
18 By Mr. Berry:
19 Q what do you mean by that?
20 A I take responsibility for the things that I do.
21 Also, I felt I was justified.
22 Q now, why do you believe that attorneys who represent
23 the Scientology organization are prostituting their profession?
24 A statistically, I can answer that question from the
25 standpoint that Scientology has been party to more litigation --
379
1 Mr. Rosen: Your Honor, I object and move to strike
2 this.
3 The Court: You went into it. He can go into his
4 state of mind.
5 Again, it's not offered for whether it's true or
6 not. I think we're getting into irrelevant areas, but if one
7 side does it, the other side can do it.
8 Mr. Rosen: The door was opened by on cross by
9 Mr. Berry. He solicited this. I did not, your Honor, on
10 redirect.
11 The Court: Go ahead. Mr. Berry, you can have him
12 answer.
13 The Witness: It is my belief, based on other
14 people's information, that Scientology has been party to or
15 initiated more litigation than any other organization accept the
16 federal government of the United States.
17 The Court: Again, that can be considered only as to
18 his state of mind. Whether that's true or not is not an issue
19 before you and is really totally irrelevant to this case.
20 By Mr. Berry:
21 Q and others have posted NOTs 34 to the internet;
22 correct?
23 A at least 20 times before I did.
24 Q to your knowledge, have each of those persons been
25 sued as you have?
380
1 A one of them at least.
2 Q would it be correct that most of them have not been
3 sued?
4 A I -- it would be very difficult for me to answer
5 that, because I don't know whether the people who posted it were
6 people or persons, ones in the singular, or a large number of
7 them. My -- the internal evidence is that there were a lot of
8 people involved.
9 Mr. Rosen: Objection, your Honor.
10 The Court: Sustained.
11 The Witness: But it's my opinion --
12 The Court: Sustained. I'll strike it.
13 By Mr. Berry:
14 Q is it -- is it your understanding that the
15 Scientology organization has not sought to enforce these
16 copyrights against everyone who has posted NOTs 34?
17 Mr. Rosen: Objection.
18 The Court: Sustained.
19 By Mr. Berry:
20 Q is it your belief --
21 The Court: That has nothing to do with the issues
22 in this case as to whether they sued everybody or did not sue
23 everybody that they think they can sue. It's not an issue.
24 By Mr. Berry:
25 Q why did you want to give NOTs 34 to the federal drug
381
1 administration?
2 Mr. Rosen: Beyond the scope of redirect.
3 The Court: Sustained.
4 The Witness: I believe it was on --
5 The Court: Sustained. I'm not saying you can't go
6 into that later, but not at this time.
7 By Mr. Berry:
8 Q you were asked by Mr. Rosen as to your view of other
9 religions. Do you recall that?
10 A yes.
11 Q are you aware of any other religions that charged,
12 charge fixed donations for learning the basis of their
13 religion?
14 Mr. Rosen: Objection, no foundation.
15 The Court: Sustained. There's no evidence that
16 that's what they, in fact, do. No fact -- and I don't mean by
17 that that that isn't true, or that it is true, but there is no
18 evidence before this court that's been offered one way or
19 another on that subject, and there's no one here that has been
20 offered for that.
21 By Mr. Berry:
22 Q now, you were aware that the washington post was
23 sued?
24 Mr. Rosen: Objection, your Honor.
25 Mr. Berry: It was mentioned just by Mr. Rosen, or
382
1 during the last session, your Honor.
2 Mr. Rosen: Excuse me. I don't think I ever
3 mentioned it.
4 The Court: Sustained. I think it came up in a
5 response by Mr. Henson.
6 by Mr. Berry:
7 Q this posting you made on May 5, exhibit 61 --
8 A the one where I was asking for the, asking for web
9 sites that had NOTs 34 on it?
10 Q yes.
11 A yes.
12 Q did I ask you to put that up there?
13 A no.
14 Q did I ask for a list of sites?
15 Mr. Rosen: Your Honor, I don't think Mr. Berry is a
16 defendant and there's no relief sought against him, so I have no
17 idea what the relevance is as to whether counsel asked him to do
18 it.
19 The Court: I don't know that we want to get into
20 attorney-client conversations either.
21 Mr. Berry: No, no.
22 Q have I expressed a wish, not just to you, but to
23 other people, to provide this jury with a list of sites where
24 NOTs 34 can be found today?
25 Mr. Rosen: Objection, your Honor.
383
1 The Court: I'm lost. Why -- what's the purpose of
2 this?
3 Mr. Berry: This document, which apparently is so,
4 so damning, is merely a list, a request for a list of internet
5 sites where NOTs 34 can be found.
6 The Court: Right.
7 Mr. Berry: And I have requested that from a number
8 of people.
9 Mr. Rosen: Your Honor --
10 The Court: You're not a witness. You can ask him
11 why he sent this letter, if you want.
12 The Witness: Actually --
13 The Court: Or why he posted it.
14 The Witness: Actually, I --
15 Mr. Rosen: Your Honor, I don't think there's a
16 question before the witness.
17 The Witness: Can I correct myself?
18 The Court: You want to correct something you said?
19 The Witness: Yeah. I've been through so much,
20 there's been such a tremendous amount of information flowing to
21 me, that it may well be that, I'm not certain about that,
22 whether posting it was my own idea or Mr. Berry's idea. But we
23 may well have discussed it and I decided to ask for it. I'm not
24 sure.
25 by Mr. Berry:
384
1 Q and are there other copies -- sorry, let me rephrase
2 that.
3 A did I get a response?
4 Q are you aware of an internet site called theta.Com?
5 Mr. Rosen: Objection, beyond the scope of redirect.
6 Mr. Berry: It's okay, your Honor. I'll deal with
7 it after the jury leaves and in my case-in-chief.
8 The Court: All right. If you want to withdraw it,
9 I was looking back over my notes, but go ahead.
10 By Mr. Berry:
11 Q and it was your honest intent, at the time you
12 posted NOTs, or 61, exhibit 61, that no one actually do more
13 than provide you with a list of internet sites where NOTs 34
14 could be found; correct?
15 Mr. Rosen: Your Honor, Mr. Berry is testifying.
16 The Court: You can ask him what his purpose was in
17 the posting of 61. The way you phrased the request is improper
18 since --
19 by Mr. Berry:
20 Q what was your purpose, Mr. Henson, in posting
21 exhibit 61?
22 A it's clearly stated on the exhibit itself. I am
23 forbidden to go out and purposely grope around through the net
24 for a, for copies of, for places where NOTs 31 is stored. So I
25 asked other people to do it and forward me a list. They did.
385
1 Q and is it for the purpose of assisting in your
2 presentation of your defense to the jury?
3 A absolutely.
4 Mr. Rosen: I'm sorry, your Honor. I should have
5 objected to Mr. Berry testifying.
6 The Court: I'm going to allow it.
7 Mr. Berry: No further questions at this time.
8 Mr. Rosen: No further questions.
9 The Court: All right. You may step down.
10 The Witness: Thank you, your Honor.
11 Mr. Rosen: Your Honor, at this point, the
12 plaintiff, Religious Technology Center, will offer, and I think
13 some of these exhibits have already been offered.
14 The Court: All right.
15 Mr. Rosen: But these are all been agreed to.
16 The Court: All right.
17 Mr. Rosen: And they are exhibits 2; 3; 4; 5; 9;
18 10-1; 10-8; 10-9; 10-12; 10-16; 10-19; 10-29; 10-34; 10-36;
19 10-42; exhibit 27a, the videotape excerpts, the portions which
20 correspond, which are in the back of the juror books of the
21 transcript; exhibit 10-26; 10-28; 10-65; exhibit 43; exhibit 61
22 and exhibit 62.
23 Mr. Berry: No objection, your Honor.
24 The Court: All right. Those are admitted.
25
386
1 (exhibits 2, 3, 4, 5, 9, 10-1,
10-8, 10-9, 10-12, 10-16, 10-19,
2 10-29, 10-34, 10-36, 10-42, 27a,
10-26, 10-28, 10-65 were admitted
3 Into evidence.)
4
5 The Court: Are there any exhibits that are in the
6 juror books that were not read?
7 Mr. Rosen: Yes. There are three that were offered
8 but were not read or put on the screen. 10-26, 10-28 And 10-65.
9 The Court: No. I phrased my question poorly or you
10 misunderstood my question.
11 Is there any exhibit that is in the jury's books
12 that is not one of these? In other words --
13 Mr. Rosen: Not one of the ones I just recited?
14 The Court: Right. In other words, I want to make
15 sure there's nothing in their books that was not admitted into
16 evidence.
17 Mr. Rosen: No, nothing at all.
18 The Court: Now, have you made packets, or can you
19 have the additional exhibits available for addition to their
20 books first thing Monday afternoon?
21 Mr. Rosen: We're going to do it immediately after
22 court if the jurors will leave their books on their chairs.
23 We'll do it this afternoon.
24 The Court: Do you have the packets made up?
25 Mr. Rosen: Accept for the last several exhibits,
387
1 the ones we just marked, 61, 62, and I think there was one other
2 one. But we will physically insert them, your Honor, so that
3 they're in numerical order.
4 The Court: Let me ask a question. Has any juror
5 made any notes in your black exhibit notebook? So if somebody
6 were to add an exhibit to it, they wouldn't see any notes you'd
7 taken?
8 Jurors: (Shaking heads back and forth.)
9 The Court: Okay. All right. Then if you'll just
10 leave your exhibit books on your chairs when we leave today,
11 we'll have them add the additional exhibits.
12 All right. Anything else?
13 Mr. Rosen: Your Honor, at this point, religious
14 Technology Center rests.
15 The Court: All right. Since it's about five of
16 12:00, We'll just call it for today, and as it appears now from
17 talking to the attorneys at the last break, I would anticipate
18 that the evidence will be completed Monday afternoon, and
19 that'll probably mean that the arguments by the attorneys will
20 take place first thing Tuesday morning, and then the case will
21 be yourself for deliberation and decision. So that's what I
22 would anticipate at this point.
23 I think it's unlikely, I don't want to promise for
24 sure, but I think it's unlikely that we will actually go into
25 Tuesday for any presentation of evidence. I think the only
388
1 thing that'll take place Tuesday is the attorneys summations, my
2 instructions to you, and then your deliberations.
3 So with that, I'll excuse you until Monday at 1:30.
4 I would emphasize, though, please do not talk about
5 this case with anybody or talk about anybody that has anything
6 to do with it.
7 Once the case is over, you'll be free to talk if you
8 wish, but during the course of it, it's a no-no, and that
9 includes talking among yourselves about the case. When the
10 case, obviously, is submitted to you for decision, you will talk
11 about it among yourselves. But until then, don't do it.
12 Please also be careful, I'm not suggesting that
13 there would be, but if you should hear somebody's name, a
14 party's name or anything that might deal with one of the parties
15 or be in connection with this case in any way, please change the
16 radio station or TV station or don't read any article if there
17 is any in the newspaper. As I say, I'm not suggesting that's
18 going to occur, but I just want to emphasize that to you.
19 With that, have a good weekend, and we'll see you
20 Monday at 1:30.
21 (Whereupon, the following proceedings were held out
22 Of the presence of the jury.)
23 The Court: All right. We'll have any additional
24 proposed jury instructions to me by 4:00 On Friday. I will try
25 and have my proposed instructions available to you Monday so you
389
1 can look at them before you argue.
2 And after the evidence is concluded, I will give you
3 an opportunity to -- what I usually ask, I say "these are the
4 instructions I propose to give. First I want to hear if you
5 have any objections to the ones that I propose to give, and
6 following that, I want to hear if there are any additional
7 instructions that you want that are not included in the group
8 that I propose to give."
9 Usually that conference, in most cases, I've found
10 goes very quickly because my handing out what I propose to give
11 seems to really help people focus whatever your concerns are.
12 Hopefully both sides will think they're fine. But
13 if they don't, if you don't, you can let me know.
14 Mr. Berry, you were going to supply, through
15 Mr. Henson, the materials I indicated, or asked for.
16 Mr. Berry: Yes. I believe he has some of them, but
17 not all of them.
18 The Court: All right.
19 Mr. Berry: And I was going to give you a brief, but
20 it hasn't been faxed to me yet.
21 The Court: All right. Can you do that by tomorrow
22 noon?
23 Mr. Berry: Oh, yes. And I was going to advise the
24 court, and so that counsel is aware, that I'll be fedexing a
25 brief to the court Monday morning on the issue of the
390
1 admissibility of evidence as to Fair Game and as to Mr. Henson's
2 state of mind.
3 This is the only court I'm aware of in the last 20
4 years, federal and state, here in the ninth circuit that has
5 ruled that Fair Game was canceled and only applied to
6 Scientologists. It was never canceled as applied to --
7 The Court: I haven't made any such ruling,
8 Mr. Berry.
9 Mr. Berry: I have been excluded on the basis of
10 what the plaintiff submitted from getting into Fair Game, and
11 yet even, even the ninth circuit, two years ago, upheld a
12 sanctions award of 2.8 Million dollars against this
13 organization.
14 The Court: How does -- Fair Game, if it's
15 admissible, would be admissible to show bias or impeach
16 somebody.
17 They've elected to rely solely on the testimony of
18 Mr. Henson, so I can't, for the life of me, figure out how fair
19 game would be relevant.
20 I'll read a brief if you want to submit it. I would
21 sure like to have it before Monday morning.
22 Mr. Berry: It's relevant to selective enforcement
23 of their copyrights, which should be an issue that goes to the
24 amount of damages. It's relevant to his state of mind, that he
25 believes he has been Fair Gamed, and that should be an issue
391
1 that goes to the amount of damages.
2 The Court: I'll read your brief.
3 Anything else you wanted to bring up?
4 Mr. Berry: That's all, your Honor.
5 The Court: But I want to make it very clear, if
6 there was something that I said that was interpreted as saying
7 that Fair Game was, had been canceled -- I believe what I said
8 was based on the documents that were in front of me, it appeared
9 that what the documents were talking about was somebody that was
10 a member of the Scientology ministry, or church, who then, for
11 some reason, had become disenchanted otherwise, in dealing with
12 such an individual, that the board of trustees or directors, I
13 don't remember how they were termed, appeared to have canceled
14 that policy as of a certain date.
15 I think all I said was that's what appeared from
16 what I had. I think I specifically said after RTC rested, and
17 that was assuming that Mr. McShane, reverend McShane, I don't
18 know the correct --
19 Mr. Rosen: Mister is okay.
20 The Court: -- Way to refer to him, or the
21 appropriate way, Mr. McShane --
22 Mr. Rosen: Mister is okay in this context, your
23 honor. He's not performing any sort of religious right here.
24 The Court: I like to call anybody by the title that
25 they feel is appropriate. That's the reason I was asking the
392
1 question.
2 Mr. Rosen: He said mister is appropriate.
3 The Court: -- That then I would consider an offer
4 of proof as to what could be gone into with respect to
5 impeachment of him or showing of bias or something like that.
6 And you had even indicated to me that, until you
7 heard what he had to say, you didn't know whether you were going
8 to go into it at all or not.
9 Mr. Berry: I want to go --
10 The Court: So I just don't want to be accused, or
11 that's too strong a word, to suggest that I have made any
12 finding whatsoever about Fair Game or whether it's been
13 canceled.
14 All I did was read some documents in front of me, I
15 told you how it appeared to me, at very quick glance, and that I
16 was going to hear you out at a later time, which now doesn't
17 appear to be necessary, at least based upon what you had
18 indicated before you wanted to get into it for, and that was to
19 cross examine Mr. McShane.
20 Mr. Rosen: Your Honor, my recollection is very
21 clear on this, because I was the one who put the documents in
22 front of you.
23 I was urging you to make a determination before I
24 had to call Mr. McShane, because I thought I had a right to know
25 the scope of cross examination, whether this could be used for
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1 impeachment. So I was the one who put those before you.
2 But the issue is -- Mr. Berry's remarks indicate to
3 me that, one way or another, even though you ruled that his
4 written offer of proof had nothing to do with this case,
5 Mr. Berry, and more particularly, Mr. Henson, is going to blurt
6 out from the witness stand and is going continue to do this.
7 And the issue, as I understand it, is whether he
8 believed, on March 30th, 1996 when he posted NOTs 34, if he
9 reasonably believed it was the practice of medicine without a
10 license.
11 Anything else is going to be blurted out, and your
12 honor, I don't need to look, to count up the times in the record
13 when Mr. Henson has done that and I've had to ask to strike.
14 The Court: I don't think it helps him when that
15 happens.
16 Mr. Rosen: I know it doesn't help him, Judge, but I
17 hate to keep jumping up because I don't like to interrupt an
18 examination.
19 The Court: I understand.
20 Mr. Rosen: And I'd like an instruction to
21 Mr. Henson that he not volunteer these matters.
22 And Mr. Berry knows that the scope of this defense
23 is going to be this one issue of whether or not he had a good
24 faith belief that NOTs 34 was an illegal practice of medicine at
25 the time he posted it, and that's it.
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1 Mr. Berry: I think --
2 The Court: Both --
3 Mr. Berry: -- This morning --
4 The Court: Wait a minute. It goes beyond that, in
5 the sense that even if he believed it represented the illegal
6 practice of medicine, there would have to be something, a
7 reasonable belief beyond that --
8 Mr. Rosen: Yes.
9 The Court: -- That in some way affected the
10 validity of the copyright.
11 Mr. Rosen: Well, it trumped the copyright law and
12 allowed him to infringe.
13 I agree, I was only taking the first part.
14 But I would hope that we don't go beyond this, and
15 particularly by Mr. Henson volunteering things from the witness
16 stand.
17 The Court: Well, I will emphasize, because I do
18 think it's important, that Mr. Henson answer only the question,
19 Mr. Berry, that you ask him, and not volunteer additional
20 information that's not in response to the question.
21 And all I'll say is that if that happens, my
22 philosophy, and I've been fairly, I think I haven't been too
23 strong on it so far, is to deal with it just by sustaining the
24 objection or striking it.
25 But if it continues to occur, then I feel a stronger
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1 statement is necessary, and I think I did make one or two today.
2 And I just want to caution you, because I'm not
3 going to interrupt this jury trial to do things outside the
4 presence of the jury unless it's absolutely essential, and I
5 just want whoever is on the witness stand, and it looks like
6 Mr. Henson is going to be the sole witness in this case, to
7 respond to the question that is asked.
8 The reason for that is then the other side knows,
9 can make a decision as to whether the question is objectionable,
10 I can rule on that, and then the answer will come to the
11 question and we don't have an answer to some other question that
12 hasn't been asked and that the other side has not had an
13 opportunity to make objection to if they have any.
14 Mr. Berry: Now, the other thing I wish to brief the
15 court on, your Honor, is what constitutes the reasonableness of
16 his state of mind. The court has so far precluded me from
17 getting into all of the factors that led him to conclude that
18 these copyrights, even if prima facie, on file had no affect on
19 a criminal organization.
20 The Court: Where have I precluded you, other than a
21 couple times when issues came up and you said, "i'll defer that
22 to my case-in-chief"?
23 I don't think I have ever said that what was in his
24 state, what his state of mind was with respect to whether or not
25 NOTs 34 was represented the illegal practice of medicine was
396
1 something that he could not offer, and he could offer any
2 testimony going to his reasonable belief that at the time that
3 he posted, this material, NOTs 34, was not copyrighted.
4 Mr. Berry: That includes a lot of materials, a lot
5 of information that Mr. Rosen has so far successfully prevented
6 me from getting into, such as --
7 The Court: Tell me how he has prevented you from
8 getting into that.
9 Mr. Berry: The raids, your Honor, the search and
10 seizure raids.
11 The Court: What does that have to do with anything?
12 Mr. Berry: It has to do with the state of mind,
13 the d.C. 9 As we call it, the convictions of the church.
14 The Court: How does his state of mind -- besides,
15 "raid" is a very argumentative term.
16 Mr. Berry: I'll use search and seizure.
17 The Court: How does a search and seizure in another
18 case under other circumstances have anything to do with whether
19 or not NOTs 34 is copyrighted or whether or not NOTs 34
20 represents the illegal practice of medicine?
21 Mr. Berry: It's in the document itself, exhibit 1.
22 It's referred to. He was provoked by that. He felt that the
23 church had misrepresented facts to this court, had lied to this
24 court, just as --
25 The Court: But that has nothing to do with whether
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1 or not -- if he felt somebody lied to me or somebody else, what
2 does that have to do with whether or not NOTs 34 is copyrighted?
3 Mr. Berry: It has a lot to do with his state of
4 mind and the innocence of his conduct as justifying the actions
5 he took.
6 The Court: But you can't justify running a red
7 light because you think police lie. Or --
8 Mr. Berry: That's correct, your Honor.
9 The Court: Or the --
10 Mr. Berry: But this defendant, in connection with
11 his decision to post, had, in his possession, a whole array of
12 information that included the conviction of the church and its
13 officials on a number of occasions for criminal conduct.
14 The Court: But that has nothing to do with NOTs 34
15 and --
16 Mr. Berry: It has a lot --
17 The Court: -- Whether or not it's the illegal
18 practice of medicine.
19 Mr. Berry: But that is not merely the basis of the
20 defense.
21 The Court: Well, you're going to have to brief
22 this.
23 Mr. Berry: He believed it was the illegal practice
24 of medicine.
25 But he also thought the copyrights should never have
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1 been there in the first place, and if they were proper, that he
2 was acting properly as he explained with Judge, with dean pound
3 in posting them. So it goes to damages.
4 The Court: Let me explain to you. The issue with
5 respect to whether a copyright is lawful or not is, was there a
6 copyright registration? Did he know of the copyright?
7 If he thought it was expired, that may be something,
8 or if he thought what he was doing was fair commentary, and
9 therefore it was fair use, that might be something.
10 But whether or not RTC is a criminal organization
11 and it committed only crimes unrelated to, related to anything
12 other than what's at issue in this case is just totally
13 irrelevant.
14 And if there was some stretch of the imagination why
15 it was relevant, the probative value would be far outweighed by
16 the prejudicial effect.
17 Mr. Berry: I disagree, your Honor. The roxanne
18 frind case, for example --
19 The Court: Give me a brief. You want to put on
20 trial Scientology.
21 Mr. Berry: No, I don't.
22 The Court: You don't want to put on trial the issue
23 of this posting.
24 Mr. Berry: I want to put on trial --
25 The Court: You may be, for all I know, absolutely
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1 right about Scientology. You may not be. That is not the
2 relevant issue in this case, and you've got to focus on it.
3 Mr. Berry: I'd submit, your Honor, that it goes to
4 his state of mind as to whether or not he was --
5 The Court: I've got to draw --
6 Mr. Berry: -- He was justified.
7 The Court: I've got to draw some limits as to what
8 the issue is, and there are some limits on what's relevant to
9 one's state of mind.
10 Mr. Berry: I'll brief it, your Honor.
11 The Court: All right.
12 Mr. Berry: Two other points, your Honor. Exhibit
13 28, which was admitted, I failed to notice had been excised on
14 page 22, that there is some missing --
15 Mr. Rosen: 28 Wasn't admitted.
16 Mr. Berry: Oh, okay.
17 Mr. Rosen: It wasn't offered.
18 Mr. Berry: The other thing is, your Honor, there is
19 evidence that, at the moment, I'm precluded by the injunction
20 from obtaining.
21 In particular, for example, there is evidence that
22 theta.Com was a Scientology approved web site, and that NOTs 34
23 was available on that Scientology web site.
24 I want to be able to get into that. At the moment I
25 can't because I can't legally get the evidence of it. It's on a
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1 diskette that Mr. Henson found. I'd like the authority of the
2 court to bring those issues in before the jury on Monday.
3 The Court: You lost me.
4 Mr. Berry: Mr. Henson has been enjoined from having
5 any copies of NOTs 34 on his computer or anywhere else. He has
6 found some additional items.
7 I want to be able to use those items on Monday,
8 specifically, theta.Com being the source, prior to his posting
9 of copies of NOTs 34, and theta.Com being a web site that is a
10 Scientology sponsored web site.
11 The Court: How would you establish that
12 foundation?
13 Mr. Berry: The state of mind of Mr. Henson in
14 connection with the documents. The theta.Com web site itself
15 printout says "this is a Scientology members web site."
16 The Court: And he's -- and what you want to do is
17 to have him say that he observed NOTs 34 on that web site?
18 Mr. Berry: Exactly.
19 The Court: Prior to his posting?
20 Mr. Berry: Exactly.
21 The Court: Okay.
22 Mr. Berry: And I'd like to be able to show
23 copies -- I'd like to be able to introduce evidence of that,
24 that that exists without running afoul of the court's injunction.
25 The Court: That that, in fact, was on that web site
401
1 prior to his posting?
2 Mr. Berry: Yes.
3 Mr. Rosen: Nothing -- this is a fine time to spring
4 this, your Honor, after I've rested, number one.
5 Number two, no foundation. This witness can't
6 testify that the church of Scientology owns this web site.
7 And the fact that it was posted on there is just
8 another infringement without a foundation as to which this
9 witness is incompetent to testify.
10 The Court: Right, I agree.
11 Mr. Rosen: And not only that, your Honor, I go back
12 to something that I said at sidebar during the course of
13 Mr. Berry's opening, and that is that it is the responsibility
14 of counsel to have a good faith belief.
15 We have gone back, and in every single piece of
16 paper that Mr. Henson generated, to us and to your Honor, in
17 opposition to the P.I., The discovery responses, the only excuse
18 he's ever offered, he had ever offered until seven months after
19 the posting was "I thought it was the illegal practice of
20 medicine."
21 He has never offered, "gee, theta.Com or people
22 arrested before." This is all a creation of counsel, and it is,
23 with all due respect, for counsel to say "i'm going to even try
24 to get this," now that Mr. Henson is now going to testify that
25 he believed that theta.Com was Scientology and Scientology was
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1 posting its own NOTs 34 unpublished material, counsel can't
2 possibly have a good faith belief that that was Mr. Henson's
3 state of mind on March 30th, 1996.
4 Indeed, if it was, he would have told your Honor.
5 Mr. Berry: I suggest counsel go and read the
6 deposition transcript on that issue. It's mentioned in there.
7 Secondly, it has only just been discovered in the
8 course of Mr. Henson preparing the basis for submitting his
9 declaration as to copies.
10 And thirdly, his state of mind that this was a
11 Scientology sponsored and approved web site is relevant as to
12 damages.
13 The fact that it was available up there indicated to
14 him that the church, indeed, was not doing anything to stop it,
15 and I can actually produce to the court --
16 The Court: How many times was Mr. Henson, and then
17 you, given the opportunity to file a list of exhibits?
18 Mr. Berry: Mr. Henson only discovered that this
19 week.
20 Mr. Henson: Two days ago.
21 Mr. Berry: Two days ago.
22 The Court: Didn't he have a duty to look, during
23 the year and a half that this case was pending, if this was
24 posted prior to his posting and he knew about it?
25 Mr. Berry: He mentioned it in his deposition, your
403
1 honor. Theta.Com --
2 The Court: Where is it in any exhibit list?
3 Mr. Berry: Well, the court will recall, I'm sure,
4 that I only came into this case after exhibit lists were over.
5 Secondly, he only discovered the actual hard
6 evidence this week.
7 The Court: You can make an offer of proof, but we
8 have --
9 Mr. Berry: Oh, and I'm told, your Honor, it was
10 given to them as an exhibit at the deposition. They have the
11 weekend to work on it.
12 The Court: When we prepare for a trial, we have a
13 pretrial conference and both sides list exhibits. There were no
14 exhibits listed by Mr. Henson.
15 I think, we can look over and you can correct me if
16 my memory is wrong, that I specifically gave you additional
17 time, you didn't file anything. If --
18 Mr. Berry: You gave me additional time for
19 exhibits? I don't recall that, your Honor. Not when we, when I
20 first appeared on the motions in limine.
21 The Court: I will look back, but I think you're
22 wrong.
23 Mr. Berry: I was told I had no witnesses I could
24 call beyond Mr. Henson because they hadn't been listed, and no
25 exhibits because they weren't listed.
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1 The Court: Even if I did that, I think it's
2 correct, but my memory was that I gave you some additional time.
3 Maybe I didn't.
4 Mr. Rosen: April 22, April 22, in this courtroom,
5 Mr. Henson said "Mr. Berry is representing me" and you then set
6 out a schedule. That was the joint conference with Mr. Ward and
7 Mr. Henson's case.
8 You set out a schedule and you, over my objection,
9 you gave Mr. Henson yet additional time, not only to object to
10 exhibits, to our exhibits, but to submit his own, et cetera, and
11 you told him to go out and speak to Mr. Berry.
12 And indeed, the issue that came up was you told me
13 to confer with Mr. Henson and Mr. Henson went out and spoke to
14 Mr. Berry and Mr. Berry, that afternoon, faxed a letter to me,
15 care of your Honor's chambers, that he was representing
16 Mr. Henson, and he consented to me speaking with Mr. Henson
17 about settlement that day.
18 If Mr. Berry wants to say that Mr. Henson didn't
19 tell him what your Honor said on April 22, that's his problem,
20 your Honor, with all due respect.
21 The Court: That's my -- we can take a look at the
22 record, but my memory is that I have given several -- I
23 shouldn't say several, but at least one additional opportunity
24 to file exhibits.
25 Mr. Berry: Let's look at it on a fairness basis,
405
1 your Honor. We have had a number of additional exhibits
2 presented to us yesterday and today that we were told were not
3 going to be introduced.
4 The Court: They were all listed in the pretrial
5 statement, or they were ones that you had an opportunity to
6 object to. I had, frankly, made the tentative decision that I
7 was not going to admit any of the new exhibits that they
8 offered. You came in here and had no objection.
9 Mr. Berry: Correct.
10 The Court: So the fact that you don't object to new
11 exhibits they offer doesn't mean that they waive their objection
12 to something that you want to offer that you haven't given up,
13 or shown before.
14 Mr. Berry: Yes, your Honor. But I would expect
15 there to be that sauce for the goose is sauce for the gander,
16 and we get at least one of their exhibits, especially something
17 so vital as this that my client did not realize was so
18 important. If prejudice is a defense, utterly --
19 The Court: Mr. Berry, I just find your position
20 very hard to take. I just think that -- sometimes I --
21 Mr. Berry: It's not an issue, your Honor, that
22 they're unfamiliar with. They know about theta.Com. They can
23 deal with it. And they knew that Mr. Henson was aware of
24 theta.Com.
25 The Court: It was not listed as an exhibit. You
406
1 had ample opportunity to list it. Mr. Berry -- Mr. Henson
2 obviously knew of the existence of that posting beforehand.
3 Maybe he didn't --
4 Mr. Berry: Not correct, your Honor.
5 The Court: -- Know he had it on a disk, but he
6 certainly could have gone and looked for it in the year or
7 whatever it is that we've had.
8 Mr. Berry: No, your Honor. He believed that when
9 he complied with this court's order to delete everything on his
10 hard drive, he had done so. And when he was on his computer
11 earlier this week, he stumbled across, and he can testify to
12 this, address the court on that, he stumbled across a document
13 which he thought no longer existed.
14 The Court: You can brief anything you want. Get it
15 in to me by the end of Friday. I'll look at it. See you
16 Monday.
17 Mr. Rosen: Your Honor, can I ask just one question
18 on your schedule? We're going to start at 1:30 And Mr. Berry
19 has indicated his case is going to take about two or three
20 hours.
21 If, by chance, it goes earlier, can we -- if we
22 finish before 5:00, Can we still start fresh on Tuesday with
23 closing statements and the charge?
24 The Court: I will not make you argue on Monday.
25 That would be unfair.
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1 Mr. Rosen: I just didn't want to break up the
2 closings.
3 The Court: Okay.
4 Mr. Rosen: Thank you, your Honor.
5 (Whereupon, the proceedings were recessed for the
6 Day.)
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