Letter to Hogan
H Keith Henson
H. Keith Henson
P.O. Box 60012
Palo Alto, CA 94396
415-520-3458 (pager)
September 17, 1996
Thomas R. Hogan
60 S. Market St., #1125
San Jose, CA 95113
Dear Mr. Hogan:
This letter has several purposes.
First is to inform you that I have moved. Please inform your client so
they will not harass the people who bought my old place in San Jose.
Second is to inform you that ten days from the date of this letter I will
deliver a copy of the criminal instruction manual known as NOTs 34 to the
FDA. I have read Judge Whyte's order and it seems that supplying a copy
of this material to appropriate law enforcement agents falls within fair
use. If your clients disagree, you can either obtain an order from the
court forbidding me to disclose criminal matters, or you can wait and seek
contempt charges against me. Either way I get something to frame.
Third, in reply to the subpoena, I have (to the best of my knowledge)
never received any postal mail from Grady Ward. I have only received a
small amount of electronic mail from Mr. Ward, and have deleted most of
that. Most of I received concerns the sharing of costs for depositions or
other similar matters and is of the same privilege level as communications
between yourself and Mr. Lieberman. In any case, email falls under the
ECPA, and you need a court order to get it. I don't keep a diary, though
I am likely to regret not doing so when the time comes to write a book
about my experiences. I have no problem in stipulating that I talk to Mr.
Ward on occasion, though I don't believe I talked to more than his
answering machine over the phone prior to Scientology filing suit against
him. Since then, I have talked to him because the cases were related by
your client and we need to coordinate on legal matters. I will not turn
telephone billing records over to you or your client without a court order
and a special master to sort out the calls to Mr. Ward. I don't want
unrelated people I call to be harassed by Scientology goons. But in any
case, I am unable to do so at this date since my phone records have not
shown up since I moved.
As far as your other requests go, the material I have falls into three
classes. Public postings on alt.religion.scientology (which your client
certainly has), private email, and material which is privileged because it
involves my thoughts and speculations on the case at hand. None of the
email contains information on who SCAMIZDAT or Vorlon might be, and in any
case, it is protected by the ECPA.
Sincerely,
H. Keith Henson
Pro se.
cc Judge Whyte, posted to a.r.s
[sent by email, a copy will be filed with the Court Sept. 20, 1996]
Ex Mudder
hkhe...@netcom.com (Keith Henson) wrote:
>
> We have agreed that my clients may seek an order from the
>court prohibiting you from copying and or supplying NOTs 34 to the FDA
>or anyone else and that this matter will be heard by the Judge on
>October 4, 1996. You have advised that unless the Judge explicitly
>prohibits you on October 4, you intend to supply the entirety of the
>NOTs 34 to the FDA on October 5, 1996.
>
> If I have anyway misstated our conversation, please advise
>immediately. Thank you for your agreement to have this matter
>presented to the court on October 4, 1996.
Hmm... Grady, Dennis, either of you have anything to go before the
Court on the 4th?
I'll show to provide moral support. And, if you want, I'll give
anyone who shows directions to the Final Five screening on the 5th ;)
Keith Henson
Something interesting was dumped on my doorstep today. Not unexpected
since I talked to Tom Hogan about it yesterday. The only thing he
left out is that I want the order suitable for framing, an order from
a Federal Judge forbiding me to provide evidence of criminal activity
to a law enforcement agency. Keith Henson
LAW OFFICES OF
THOMAS R. HOGAN
60 SOUTH MARKET STREET, SUITE II
SAN JOSE, CALIFORNIA 95II3-~33~
September 24, 1996
TELEPHONE (408) L9~ 7600
FACOI M~LE (405) 79~ 761
Via Hand Delivery
H. Keith Henson
(they know where I live, not unexpected)
Palo Alto, California 94306
Re:
Religious Technology Center, Inc. v. Henson, United States District
Court, Northern District of California Case No. C-96 20271 RMW EAI
Dear Mr. Henson:
This will confirm the substance of our telephone conference of
today's date concerning your September 17, 1996, e-mail to me.
I advised that I have been under the doctor's care while
hospitalized for pneumonia and, as a result, was unable to get your
e-mail until a few days ago. I requested that you agree that the FDA
not be supplied with the entirety of NOTs 34 but instead, you make
whatever allegations you deem appropriate and that my clients would
respond to any request that might be forthcoming from the FDA
concerning your complaints. You advised that it was your position that
the entirety of NOTs 34 be supplied to the FDA and that, unless the
court entered an order prohibiting such, you would take the action
that was described in your e-mail.
We have agreed that my clients may seek an order from the
court prohibiting you from copying and or supplying NOTs 34 to the FDA
or anyone else and that this matter will be heard by the Judge on
October 4, 1996. You have advised that unless the Judge explicitly
prohibits you on October 4, you intend to supply the entirety of the
NOTs 34 to the FDA on October 5, 1996.
If I have anyway misstated our conversation, please advise
immediately. Thank you for your agreement to have this matter
presented to the court on October 4, 1996.
Very truly yours,
A
Thomas R Hogan
TRH/lh
[Nope, Tom, you got it right.]
Ted Mayett
On Wed, 25 Sep 1996 04:14:47 GMT, hkhe...@netcom.com (Keith Henson)
wrote:
>Something interesting was dumped on my doorstep today. Not unexpected
>since I talked to Tom Hogan about it yesterday. The only thing he
>left out is that I want the order suitable for framing, an order from
>a Federal Judge forbiding me to provide evidence of criminal activity
>to a law enforcement agency. Keith Henson
>
>Dear Mr. Henson:
>
> We have agreed that my clients may seek an order from the
>court prohibiting you from copying and or supplying NOTs 34 to the FDA
>or anyone else and that this matter will be heard by the Judge on
>October 4, 1996. You have advised that unless the Judge explicitly
>prohibits you on October 4, you intend to supply the entirety of the
>NOTs 34 to the FDA on October 5, 1996.
>
Makes me wish I lived near you. 10/4 should prove to be an
interesting day.
M. Council
On Wed, 25 Sep 1996, Keith Henson wrote:
> Re:
> Religious Technology Center, Inc. v. Henson, United States District
> Court, Northern District of California Case No. C-96 20271 RMW EAI
>
> Dear Mr. Henson:
>
> This will confirm the substance of our telephone conference of
> today's date concerning your September 17, 1996, e-mail to me.
>
> I advised that I have been under the doctor's care while
> hospitalized for pneumonia and, as a result, was unable to get your
^^^^^^^^^
From reading the OT levels? Or from stressing out because it's obvious
his biggest client is about to go down the tubes?
[snipped for brevity]
>
> Very truly yours,
> A
>
>
> Thomas R Hogan
> TRH/lh
>
--------------------------------------m. council, human being
Hell, if you understood
everything I say, you'd cou...@luna.cas.usf.edu
be me. -Miles Davis keeper of Maggie's Drawers - SP4
-------------------------------------------------------------
Keith Henson
M. Council (cou...@luna.cas.usf.edu) wrote:
: On Wed, 25 Sep 1996, Keith Henson wrote:
: > Re:
: > Religious Technology Center, Inc. v. Henson, United States District
: > Court, Northern District of California Case No. C-96 20271 RMW EAI
: >
: > Dear Mr. Henson:
: >
: > This will confirm the substance of our telephone conference of
: > today's date concerning your September 17, 1996, e-mail to me.
: >
: > I advised that I have been under the doctor's care while
: > hospitalized for pneumonia and, as a result, was unable to get your
: ^^^^^^^^^
: From reading the OT levels? Or from stressing out because it's obvious
: his biggest client is about to go down the tubes?
Nah, I think Hogan is actually getting into the bizarre aspects and
starting to see the humor in all this. Since he is no a clam, this
should not worry his client.
However, I have something I could use some quick comment on. Since I
don't have a lawyer, I use the net to help me keep from stepping on some
appendage. Suggestions on these motions would be appreciated. You
might mail them back as well as posting, because I hope I can file this
in about 12 hrs. Keith Henson
H. Keith Henson
P.O. Box 60012
Palo Alto, CA 94306
(415) 325-7533
(415) 520-3458 (pager)
pro se
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
RELIGIOUS TECHNOLOGY CENTER, a ) Case No. C-96-20271RMW
California non-profit corporation, )
Plaintiff, ) MOTION
) QUASH SUBPOENA,
v. ) MOTION TO
) MODIFY INJUNCTION
H. KEITH HENSON, an individual, )
Defendant. )
____________________________________
Date_______Time_____
The Honorable Ronald M. Whyte
Motion to quash subpoena
The Federal Rules of Civil Procedure Rule 30(a)(2)(B)
states that a person may only be deposed once in a case. RTC
has filed multiple related cases and has already deposed the
defendants in these cases, a very extended, exhaustive, and
abusive deposition of the defendant in the Grady Ward case.
The recently issued third party subpoena to Henson in the Ward
case seems to be an attempt to get a second deposition of
Henson in violation of the spirit if not the letter of the
Federal rules. This should be clear from the subject matter
discussed in the letter to Mr. Hogan dated Sept. 17, and filed
with this motion. No documents are requested to be produced
which were not on the list for the previous Henson deposition.
Defendant request that in considering this motion for a
an order to quash the subpoena issued for Henson in the Ward
case the Court consider the well established fact that the
plaintiff's *creed* requires them to use the courts to harass
critics.
Defendant also request the court consider modifying the
injunction issued by this Court against the defendant to
remove the issue of trade secret in the light of new material
supplied in the accompanying sealed affidavit. As part of the
pendant legal action against defendant, plaintiffs disclosed
certain items. Among those were copies of the masked versions
NOTs filed with the copyright office and available to anyone
who asks for a copy.
Defendant immediately noticed that close to 50% of the
letters are visible. English has a redundancy of about 50%,
and so, defendant believed, that the text could be recovered
with the help of some programs and a dictionary.
Missing from the NOTs series posted world wide about
May 6 by "Vorlon" was NOTs Series 23 and 53. NOTs 23 was
shorter, so defendant picked NOTs 23 as a test. Defendant has
*never* seen hardcopy of any CoS trade secret material with
the exception of the masked versions *provided by the
plaintiff*. Nor has defendant seen an electronic document
purporting to be NOTs 23 except the version produced by
defendant.
Recovering the full text, or something close to the
full text, proved possible from the masked version. Defendant
does not know if the recovered NOTs 23 contains trade secret
material or not. (The recovered version makes no more sense
then other Scientology material defendant has seen.) If
plaintiff decides recovered version does not contain trade
secret material, defendant intends to post (fair use)
defendant's recovered version of NOTs 23 in the context of
discussing the recovery methodology. If plaintiff decides the
material does expose whatever trade secrets are in NOTs 23,
then *none* of the NOTs which were filed with the copyright
office contain trade secrets because the *plaintiff* made them
available to the public and any one with minimal computer
skills and a little persistence can recover the text.
Perhaps there is a lesion here about "double dipping"
trade secret and copyright.
Dated September 26, 1996 Respectfully submitted,
H. Keith Henson
pro se
Art Kreitman
Keith Henson <hkhe...@netcom.com> wrote in article
<hkhensonD...@netcom.com>...
stuff deleted
>
> LAW OFFICES OF
> THOMAS R. HOGAN
> 60 SOUTH MARKET STREET, SUITE II
> SAN JOSE, CALIFORNIA 95II3-~33~
stuff deleted
> I advised that I have been under the doctor's care while
> hospitalized for pneumonia and, as a result, was unable to get your
Wow, RTC lawyer Thomas Hogan got pneumonia. I understand that he's not
a Scientologist. Do you think he accidentally read those dangerous OT3
documents??
Ex Mudder
hkhe...@netcom.com (Keith Henson) wrote:
p/m
Comments:
1) I reccomend you delete the last last line. Its a bit "slap in
the face" I kinda doubt the Judge will appreciate it. But see if you
can refer to it subtly in the main body.
2) Not quite sure what to say about this, but you might want to
change to less loaded words. I swear, this is the FIRST time I have
EVER seen a court document gloat at me.
Keith Henson
Ex Mudder (dke...@best.com) wrote:
: hkhe...@netcom.com (Keith Henson) wrote:
: p/m
: Comments:
: 1) I reccomend you delete the last last line. Its a bit "slap in
: the face" I kinda doubt the Judge will appreciate it. But see if you
: can refer to it subtly in the main body.
: 2) Not quite sure what to say about this, but you might want to
: change to less loaded words. I swear, this is the FIRST time I have
: EVER seen a court document gloat at me.
On advice from several people I toned it down a little. Thanks to
all of you, and next time I *will* allow more time. Keith Henson
H. Keith Henson
P.O. Box 60012
Palo Alto, CA 94306
(415) 325-7533
(415) 520-3458 (pager)
pro se
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
RELIGIOUS TECHNOLOGY CENTER, a ) Case No. C-96-20271RMW
California non-profit corporation, )
Plaintiff, ) MOTION TO
) QUASH SUBPOENA,
v. ) MOTION TO
) MODIFY INJUNCTION
H. KEITH HENSON, an individual, )
Defendant. )
____________________________________
Date_______Time_____
The Honorable Ronald M. Whyte
I. MOTION TO QUASH SUBPOENA
The Federal Rules of Civil Procedure Rule 30(a)(2)(B)
states that a person may only be deposed once in a case. RTC
has filed multiple related cases and has already deposed the
defendants in these cases, a very extended, exhaustive, and
abusive deposition of the defendant in the Grady Ward case.
The recently issued third party subpoena to Henson in
the Ward case seems to be an attempt to get a second
deposition of Henson in violation of the spirit if letter of
the Federal rules. This should be clear from the
subject matter discussed in the letter to Mr. Hogan dated
Sept. 17, and filed with this motion. No documents are
requested to be produced which were not on the list for the
previous Henson deposition.
Defendant request that in considering this motion for a
an order to quash the subpoena issued for Henson in the Ward
case the Court consider the well established fact that the
plaintiff's *creed* requires them to use the courts to harass
critics. (Defendant's reply, #22.)
II. MOTION TO MODIFY INJUNCTION
Defendant also request the court consider modifying the
injunction issued by this Court against the defendant to
remove the issue of trade secret in the light of new material
supplied in the accompanying sealed affidavit. As part of the
pendant legal action against defendant, plaintiffs disclosed
certain items. Among those were copies of the masked versions
NOTs filed with the copyright office and available to anyone
who asks for a copy.
Defendant immediately noticed that close to 50% of the
letters are visible. English has a redundancy of about 50%,
and so, defendant believed, that the text could be recovered
with the help of some computer programs and a dictionary.
Missing from the NOTs series posted world wide about
May 6 by "Vorlon" were NOTs Series 23 and 53. NOTs 23 was
shorter, so defendant picked NOTs 23 as a test. Defendant's
only access to NOTs 23 in any form, electronic or printed, is
solely to the masked printed copy *provided by the plaintiff.*
Recovering the full text, or something close to the
full text, proved possible from the masked version. Defendant
does not know if the recovered NOTs 23 contains trade secret
material or not. (The recovered version makes no more sense
then other Scientology material defendant has seen.) If
plaintiff decides recovered version does not contain trade
secret material, defendant intends to post fair use excerpts
of defendant's recovered version of NOTs 23 in the context of
discussing the recovery methodology. If plaintiff decides the
material does expose whatever trade secrets are in NOTs 23,
then *none* of the NOTs which were filed with the copyright
office contain trade secrets because the *plaintiff* made them
available to the public and any one with minimal computer
skills and a little persistence can recover the text,
especially an interested and motivated competitor.
Perhaps there is a fundamental problem caused by the
Copyright Office masking rules for registering copyright which
makes "double dipping" trade secret and copyright of English
text material effectively impossible. This problem may be
beyond the control of plaintiff, defendant, and the Courts.
WHEREFORE, Defendant prays for relief as follows:
1. That Plaintiff be limited to one deposition per
defendant witness in all of the related copyright cases it has
filed before this court.
2. That the Preliminary Injunction entered in this
case be modified so as to delete any reference to trade
secrets, and
3. That the court find as a matter of law that
Plaintiff, because of its own conduct in registering
incompletely-masked copies of the Advanced Technology, is
estopped from claiming that said materials contain trade
secrets."
Steve A
In alt.religion.scientology, hkhe...@netcom.com (Keith Henson)
wrote:
> Ex Mudder (dke...@best.com) wrote:
> : hkhe...@netcom.com (Keith Henson) wrote:
>
> : p/m
>
> : Comments:
> : 1) I reccomend you delete the last last line. Its a bit "slap in
> : the face" I kinda doubt the Judge will appreciate it. But see if you
> : can refer to it subtly in the main body.
> : 2) Not quite sure what to say about this, but you might want to
> : change to less loaded words. I swear, this is the FIRST time I have
> : EVER seen a court document gloat at me.
>
> On advice from several people I toned it down a little. Thanks to
> all of you, and next time I *will* allow more time. Keith Henson
I felt the same, but by the time I saw your original post, it was
too late to comment. However, your filing is so elegantly
Machiavellian, I just had to respond to it and especially the
bits I like :-)
[nice neat tidy reasoning snipped: betcha Whyte ignores it all
and allows the deposition to go ahead. Ho hum, more hilarious
transcripts...]
> II. MOTION TO MODIFY INJUNCTION
> Defendant also request the court consider modifying the
> injunction issued by this Court against the defendant to
> remove the issue of trade secret in the light of new material
> supplied in the accompanying sealed affidavit. As part of the
> pendant legal action against defendant, plaintiffs disclosed
> certain items. Among those were copies of the masked versions
> NOTs filed with the copyright office and available to anyone
> who asks for a copy.
Nice development. This is reading like a short story. Lawyers and
netizens alike scurry on to the next paragraph to see where this
is leading us...
> Defendant immediately noticed that close to 50% of the
> letters are visible. English has a redundancy of about 50%,
> and so, defendant believed, that the text could be recovered
> with the help of some computer programs and a dictionary.
About now, the smart ones are thinking "what's he up to?". The
rest of us are smirking at the idea of "decoding" the masked
copy.
> Missing from the NOTs series posted world wide about
> May 6 by "Vorlon" were NOTs Series 23 and 53. NOTs 23 was
> shorter, so defendant picked NOTs 23 as a test. Defendant's
> only access to NOTs 23 in any form, electronic or printed, is
> solely to the masked printed copy *provided by the plaintiff.*
"My assistant will now blindfold me while I load the rifle". See!
I cannot see my hand before my face..."
> Recovering the full text, or something close to the
> full text, proved possible from the masked version.
What, no fanfares? Nice bit of understatement...
>Defendant
> does not know if the recovered NOTs 23 contains trade secret
> material or not. (The recovered version makes no more sense
> then other Scientology material defendant has seen.)
*snigger*
> If
> plaintiff decides recovered version does not contain trade
> secret material, defendant intends to post fair use excerpts
> of defendant's recovered version of NOTs 23 in the context of
> discussing the recovery methodology.
Of course. And what a nice piece of academic study that will be!
Sorry, did you say those were *your* Sekrit Skripchers? Too bad,
it's all Fair Use in love and war, y'know...
>If plaintiff decides the
> material does expose whatever trade secrets are in NOTs 23,
> then *none* of the NOTs which were filed with the copyright
> office contain trade secrets because the *plaintiff* made them
> available to the public and any one with minimal computer
> skills and a little persistence can recover the text,
> especially an interested and motivated competitor.
And....touche!
> Perhaps there is a fundamental problem caused by the
> Copyright Office masking rules for registering copyright which
> makes "double dipping" trade secret and copyright of English
> text material effectively impossible.
Dig, dig.
> This problem may be
> beyond the control of plaintiff, defendant, and the Courts.
Ho hum, too bad, eh?
Keith, I hope you win these motions, but even if you don't,
thanks for the entertainment!
--
ObDenial: I am not Arthur Stevens of Crawley.
ObURLS:
Beginners: http://www.tiac.net/users/modemac/cos.html
In-depth: http://www.cybercom.net/~rnewman/scientology/home.html
Harassment: http://www.cybercom.net/~rnewman/scientology/harass/timeline-95.html
Fools, losers, and mugs: http://www.scientology.org
SP4, GGBC, KBM, Unsalvageable PTS/SP #12
Child molesters! Join Scientology and grope with impunity!
IN MEMORIAM: Richard Collins, John Buchanan, Noah Lottick anon.penet.fi,
rema...@utopia.hacktic.nl, victims of the criminal cult of Scientology.
William Barwell
In article <01bbac7d$6beca160$6b91f926@kismet_4>,
Maybe he just spent too much time in the same room as McShane and Kobrin?
Pope Charles
SubGenius Pope Of Houston
Slack!
Ex Mudder
hkhe...@netcom.com (Keith Henson) wrote:
>Ex Mudder (dke...@best.com) wrote:
>: hkhe...@netcom.com (Keith Henson) wrote:
>
>: p/m
>
>: Comments:
>: 1) I reccomend you delete the last last line. Its a bit "slap in
>: the face" I kinda doubt the Judge will appreciate it. But see if you
>: can refer to it subtly in the main body.
>: 2) Not quite sure what to say about this, but you might want to
>: change to less loaded words. I swear, this is the FIRST time I have
>: EVER seen a court document gloat at me.
>
>On advice from several people I toned it down a little. Thanks to
>all of you, and next time I *will* allow more time. Keith Henson
>
>H. Keith Henson
>P.O. Box 60012
>Palo Alto, CA 94306
>(415) 325-7533
>(415) 520-3458 (pager)
>
>pro se
<snip>
>
>Dated September 26, 1996 Respectfully submitted,
>
>
> H. Keith Henson
> pro se
How very politely you folded those trade secrets until they were all
corners and shoved them up Church's posterior.
Who wants to bet they try for a contempt of court charge against
Keith?.
Keith Henson
: <snip>
: >
: >Dated September 26, 1996 Respectfully submitted,
: >
: >
: > H. Keith Henson
: > pro se
: How very politely you folded those trade secrets until they were all
: corners and shoved them up Church's posterior.
: Who wants to bet they try for a contempt of court charge against
: Keith?.
Hey, how are they going to do that? After all, *they* gave me the silly
masked versions without sealing them or anything. If I happen to have
gnarly SP powers which let me read them through the mask, how am I in
contempt for reading something *they* gave me? Note that I did not post
what I decoded out of respect for the court. Of course, anyone else
could do the same, but that is not *my* problem. :-) Keith Henson
Keith Henson
Here is Hogan's/cos response to my letter of the 17th. There will be a
expidited hearing on this matter Oct.4. Suggestions welcome, but
remember, I don't mind *losing* this point. I might even offer to write
the order--something like this:
A citizen has what he clamis is evidence of criminal activity by a
notorious cult in his possession. At the request of the criminal cult, a
Federal Judge enjoins this citizen to the effect that the citizen cannot
provide this evidence of criminal activity to the appropriate law
enforcement agency.
Now, that would be an order worthy of framing! Keith Henson
Thomas R. Hogan, SBN 042048
LAW OFFICES OF THOMAS R. HOGAN
60 South Market Street, Suite 1125
San Jose, California 95113-2332
(408) 292-7600
Roger M. Milgrim
William M. Hart
James W. Kennedy
PAUL, HASTINGS, JANOFSKY & WALKER
399 Park Avenue, 31st Floor
New York, New York 10022-4697
(212) 318-6000
Helena K. Kobrin, SBN 152546
7629 Fulton Avenue
North Hollywood, California 91605
(213) 960-1933
Eric M. Lieberman
RABINOWITZ, BOUDIN, STANDARD,
KRINSKY & LIEBERMAN, P.C.,
740 Broadway - Fifth Floor
New York, New York 10003
(212) 254-1111
Attorneys for Plaintiffs
RELIGIOUS TECHNOLOGY CENTER
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
RELIGIOUS TECHNOLOGY CENTER, ) Case No. C-96-20271 RMW EAI
a California non-profit corporation, )
) EXPEDITED MOTION TO CLARIFY THAT
Plaintiff, ) THE EXISTING PRELIMINARY
) INJUNCTION PROHIBITS DEFENDANT
v. ) FROM DISTRIBUTING TO THE FDA
) A COPY OF NOTs 34 IN ITS
KEITH HENSON, an individual, ) SUBSTANTIAL ENTIRETY
)
Defendant. ) Date: October 4, 1996
) Time: 10:00 a.m.
Hon. Ronald M. Whyte
^LTO DEFENDANT H. KEITH HENSON:[K
PLEASE TAKE NOTICE that on Friday October 4, 1996, at 10:00 a.m., or
as soon thereafter as this matter may be heard in the courtroom of the
Hon. Ronald M. Whyte, United States District Judge, located at 280 South
First Street, San Jose, California, plaintiff Religious Technology Center
("RTC") will, and hereby does, move for an order clarifying the
preliminary injunction already in place in this case to state explicitly
that H. Keith Henson ("Henson") is enjoined from reproducing and
distributing to the Federal Drug Administration ("FDA") a copy of NOTs 34
in its substantial entirety.
CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7-10(b)
Counsel hereby certifies that RTC informed Henson of the nature of
its expedited motion by telephone conference held on September 24, 1996
and that the parties have conferred concerning the relief sought by RTC
and have been unable to resolve the matter themselves.
STATEMENT OF FACTS
On September 17, 1996 Henson sent two e-mail messages to RTC's
counsel Thommas Hogan,[K stating that "ten days from the date of this
letter I will deliver a copy of the criminal instruction manual known
as NOTs 34 to the FDA." Hogan Decl. Ex. A. These messages were
simultaneously posted by Henson on "alt.religion.scientology," the
public Internet discussion group to which RTC's copyrighted and trade
secret works have been previously posted. Hogan Decl. Ex. B.
Henson invited RTC to "obtain an order from the court forbidding me
to disclose" NOTs 34 or to "wait and seek contempt charges against
me." In a September 23 telephone conversation with Mr. Hogan, Henson
rejected RTC's suggestion that he make his allegations to the FDA
without submitting a copy of NOTs 34 and permit RTC to respond to any
request that might be forthcoming from the agency concerning Henson's
complaints. Henson further agreed to refrain from distributing NOTs
34 to the FDA until October 5, 1996 pending the October 4, 1996
hearing on RTC's motion. Hogan Decl. Ex. C.
There is thus an imminent threat that Henson will violate RTC's
intellectual property rights in the immediate future. Once a complete
copy of NOTs 34 is filed with the FDA, any member of the public may be
able to view and obtain a copy of that confidential, unpublished
document and further distribute it to the public. Moreover, Henson's
professed motive for filing NOTs 34 with the FDA -- to expose the
Church of Scientology's illegal practice of medicine -- is bogus.
Indeed, the very cases upon which Henson bases his allegation of
criminality conclusively hold that the First Amendment prohibits the
FDA from evaluating statements made by the Church of Scientology in a
religious context as to the healing powers of auditing. See United
States v. Article or Device, 333 F. Supp. 357, 363 (D.D.C. 1971),
order modified on appeal in light of constitutional concerns, No.
71-2062 (unreported) (Mar. 1, 1973)(Hogan Decl. Ex. D); Church of
Scientology Flag Service Org., Inc. v. City of Clearwater, 2 F.3d 1514
(11th Cir. 1993), cert. denied, 115 S. Ct. 54 (1994).
Taken together, Henson's inverse interpretation of these
judicial rulings and the publication of his intent to file NOTs 34
with the FDA, demonstrate that Henson's sole purpose is to create an
"end run" around this Court's injunction by filing the document in a
public forum from which others can copy and further distribute it.
Such conduct, which has become a familiar tactic of those seeking to
vitiate RTC's intellectual property rights, should not be tolerated.
MEMORANDUM OF POINTS AND AUTHORITIES
I. HENSON'S DISTRIBUTION OF NOTs 34 TO THE FDA WOULD INFRINGE
RTC'S EXCLUSIVE RIGHTS IN THAT UNPUBLISHED WORK
This Court has already found for purposes of issuing a preliminary
injunction that NOTs 34 is a properly registered unpublished,
confidential copyrighted work belonging to RTC. Preliminary
Injunction Order 1. The Court has also concluded that plaintiff has
demonstrated "a fair chance of prevailing on the merits of its claim
that . . . absent a permanent injunction that defendant may publish,
or participate in the publication of, [NOTs 34 and other unpublished]
documents in their entirety." Id.
By reproducing and distributing a copy of NOTs 34 to the FDA,
Henson will engage in conduct that violates RTC's exclusive right to
reproduce and distribute its copyrighted works. 17 U.S.C. 106(1),
(3). See Religious Technology Center v. NETCOM On-Line Communication
Servs., Inc., 923 F. Supp. 1231, 1240 (N.D. Cal. 1995) ("NETCOM")
(citing Feist Publications, Inc. v. Rural Telephone Service Co., 499
U.S. 340, 361-63 (1991)). That Henson may be filing only a single
copy of NOTs 34 in its entirety does not change this result. See Sony
Corp. v. Universal City Studios, Inc., 464 U.S. 417, 463 (1984)
(Blackmun J., dissenting on other grounds) ("there can be no question
that under the Act the making of even a single unauthorized copy is
prohibited"); H.R. Rep. No. 94-1476 61 (1976), reprinted in 1976
U.S.C.C.A.N. 5659, 5675 ("The references to `copies or phonorecords,'
although in the plural, are intended here and throughout the bill to
include the singular"). Cf. Walt Disney Co. v. Powell, 897 F.2d 565,
569 n.7 (D.C. Cir. 1990) (noting that under Copyright Act's statutory
damages provision "an infringer will be liable for a single statutory
award whether it makes one copy of a copyrighted [work] or one
thousand") (quotations omitted). The finding that a single copy
constitutes an infringement is particularly important where, as here,
such filing would permit third parties to copy the document and
further distribute it to the public. Cf. RCA Records v. All-Fast
Systems, Inc., 594 F. Supp. 335, 337 (S.D.N.Y. 1984) (operators of
duplicating machine which permitted individuals to make a single copy
of cassette tapes liable for contributory infringement).
II. HENSON'S PROPOSED FILING IS NOT PROTECTED BY THE FAIR USE
DOCTRINE
In his prior motions to the Court, Henson sought "to modify
the preliminary injunction entered against him to allow him to
`communicat[e] . . . with law enforcement agents about criminal
matters found in [NOTs 34].'" The Court refused to modify the
injunction, noting that "[f]air use of that document is permitted
under the preliminary injunction as originally issued. Therefore, the
court does not believe that defendant is prohibited from making
appropriate communication with regulatory or law enforcement agencies
about his concerns." Aug. 5, 1996 Op. and Order at 6 (emphasis
added). As we demonstrate below, submission of a copy of NOTs 34 in
its entirety is not an "appropriate communication" within the meaning
of the Court's opinion and thus cannot be considered fair use either
under the existing injunction or under any interpretation of the fair
use doctrine.
The proper framework for analysis of Henson's conduct is set
forth in this Court's September 22, 1995 opinion in NETCOM. The Court
there issued a preliminary injunction prohibiting defendant Erlich
from "all unauthorized reproduction, transmission, and publication" of
numerous works, including NOTs 34. 923 F. Supp. at 1265. Although
the Court's injunction permitted the defendant to engage in fair use
of the works, "[w]ith respect to unpublished materials [including NOTs
34], the amount of copied material must comprise only a very small
percentage of the copyrighted works both from a quantitative and a
qualitative standpoint." Id. at 1266 (emphasis added). By his own
admission, Henson seeks to distribute the entirety of NOTs 34 to the
FDA and on that basis alone his conduct must be seen as falling
outside of the protected boundaries of fair use. Moreover, the four
statutory fair use factors, viewed both individually and in
conjunction with one another, weigh against a finding of fair use.
A. Purpose and Character of the Use
The first fair use factor looks to the purpose and character
of defendant's use, including in particular the defendant's conduct.
NETCOM, 923 F. Supp. at 1242-44. There can be little doubt that
Henson is using the filing of NOTs 34 with the FDA as a means of
circumventing the preliminary injunction against "directly or
indirectly . . . publishing, reproducing, [or] distributing" NOTs 34.
Preliminary Injunction at p.2 (emphasis added). By filing that
document in a forum from which it can be freely inspected and copied,
see footnote 2, supra, and by publicly advertising that he is going to
place the document in that forum with the obvious intention of
notifying others where to obtain a copy, Henson is seeking to
accomplish indirectly what he cannot accomplish directly: the
widespread publication and dissemination of a complete, unaltered copy
of one of RTC's unpublished copyrighted scriptures. Such a use of
RTC's copyrighted work is per se non-transformative and thus is not
entitled to fair use protection. See NETCOM, 923 F. Supp. at 1243
(use of a copyrighted work is transformative only where it "adds
something new, with a further purpose or different character, altering
the first with new expression, meaning or message") (quotation
omitted).
Nor can Henson cloak himself in the protections of the fair
use doctrine by making a bald assertion that he intends to bring the
criminal practice of medicine to the FDA's attention. As the very
cases upon which Henson bases his allegation of criminality make
clear, in a religious context the Church of Scientology is free to
make representations about the potential value and benefits of
auditing, included statements about the healing powers of auditing.
United States v. Article or Device, 333 F. Supp. at 363. Were the FDA
to review the spiritual claims by the Church in this exclusively
religious context, it would violate the First Amendment's
Establishment Clause. See Founding Church of Scientology v. United
States, 409 F.2d 1146, 1156 (D.C. Cir.), cert. denied, 396 U.S. 963
(1969) ("a finding that the seized [Scientology] literature
misrepresents the benefits from auditing is [the equivalent of] a
finding that their religious doctrines are false"). In this regard,
it is significant that the FDA subsequently released the written
materials and e-meters it had previously seized from the Church in the
Article or Device case and expressly stated that "the devices and
literature have been brought into compliance with the law." Letter
from FDA Compliance Officer dated December 14, 1973, Hogan Decl. Ex.
E. Given Henson's frivolous interpretation of these decisions, it
flies in the face of reason to credit his purported motives for filing
a complete copy of NOTs with the FDA.
Finally, the manner in which Henson acquired NOTs 34 tilts
the first fair use factor even further in RTC's favor. In NETCOM, the
Court concluded that copies of RTC's unpublished works included NOTs
34 that had been acquired by defendant Erlich over the Internet or
anonymously through the mail did "not negate an inference that he
received those copies in an improper manner. Erlich's copies of
[these] works were more likely unauthorized than not." Id. at 1245.
Similarly, in this case Henson testified that he acquired NOTs 34 from
the Internet after reading the temporary restraining order in the Ward
case and the Court's September 22, 1995 opinion in the NETCOM case,
thereby familiarizing himself with RTC's intellectual property claims
and the illicit sources of the unpublished works at issue in those
cases. See Henson Depo. 125-131, Hogan Decl. Ex. G.
B. Nature of the Copyrighted Work
There is no dispute in this case that NOTs 34 is an
unpublished work with respect to which only extremely limited
quotations can be made under the fair use doctrine per the existing
injunction in this case. Indeed, in NETCOM, this Court held that the
second fair use factor weighed "heavily" in RTC's favor with respect
to the unpublished Advanced Technology works including NOTs 34. 923
F. Supp. at 1246. Precisely the same analysis is applicable here.
C. Amount and Substantiality of the Work Used
This factor also weighs very heavily in RTC's favor. Henson
candidly admits that he will submit 100% of the NOTs 34 issue to the
FDA. See Hogan Decl., Exs. A, C. Such wholesale copying has been
condemned as infringement by numerous courts and commentators. See,
e.g., Marcus v. Rowley, 695 F.2d 1171, 1176 (9th Cir 1983) ("wholesale
copying of copyrighted material precludes application of the fair use
doctrine"); Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 756 (9th
Cir. 1978), cert. denied, 439 U.S. 1132 (1979) ("virtually complete or
almost verbatim copying" precludes fair use even if other factors
point to a contrary result). See also 3 Melville B. Nimmer & David
Nimmer, Nimmer on Copyright 13.05[D][1] at 13-225 to 13-226 (1996)
(characterizing as "a reasonable limitation on fair use" cases holding
that "the defense of fair use is never available to immunize copying
that results in similarity that is . . . virtually complete or almost
verbatim"). In NETCOM, this Court concluded that defendant Erlich's
copying of "all or almost all of many of the works, which were
predominantly short documents of less than three pages," tilted the
third factor "heavily in plaintiffs' favor, especially as to the
unpublished works, where the amount of acceptable copying is even
lower." 923 F. Supp. at 1247 (footnote omitted). The same conclusion
is manifestly applicable here.
Nor is there any merit to the argument that submission of
a complete copy of NOTs 34 is reasonable for the purpose of informing
the FDA of allegedly criminal conduct. Even were the Court to credit
Henson's motives, which are highly questionable given his public
advertisement of the filing, Henson's constitutional right to petition
government does not include a right to engage in copyright
infringement. See WPOW, Inc. v. MRLJ Enters., 584 F.Supp. 132, 136-38
(D.D.C. 1984) (defendant radio station committed copyright
infringement by including plaintiff's engineering report in
defendant's application to FCC; court ordered impoundment of
infringing portion of application.) Because Henson has "never
adequately explain[ed] why it [is] essential for him to copy [NOTs 34]
verbatim," NETCOM, 923 F. Supp. at 1247 n.17, his fair use claim must
be rejected.
D. Effect on the Potential
Market for the Work and Equitable Balancing of All Factors
The fourth fair use factor, the impact of the copying on
the potential market for the copyrighted work "must always be judged
in conjunction with the other three criteria." Marcus, 695 F.2d at
1177 (quotations omitted). Professor Nimmer has framed the inquiry as
"whether unrestricted and widespread conduct of the sort engaged in by
the defendant (whether in fact engaged in by the defendant or by
others) would result in a substantially adverse impact on the
potential market for or value of the plaintiff's present work." 3
Nimmer, supra 13.05[A][4] at 13-186 (footnotes omitted) (emphasis
added).
Here, were individuals permitted to file RTC's unpublished
works with government agencies for the purpose of making them
available to the public without fear of legal sanction, the market for
those works could be seriously compromised. Cf. NETCOM, 923 F. Supp.
at 1249 (noting that if distribution of works on the Internet "were to
become widespread, it could potentially have an effect on the market
for plaintiffs' works"). Indeed, depositing even a single copy with a
government agency, with the potential for further distribution,
consitutes an infringement. See 3 Nimmer, supra 13.05[E][4][c] at
13-251 (characterizing Williams & Wilkins v. United States, 487 F.2d
1345 (Ct. Cl. 1973), aff'd by an equally divided Court, 420 U.S. 376
(1975), which permitted government to disseminate copyrighted journal
articles, as "the Dred Scott decision of copyright law"). However,
even assuming arguendo that this factor favors Henson, taken together,
there can be no finding of fair use because all of the remaining fair
use factors so strongly favor RTC's position. Indeed, in NETCOM, the
Court entered an injunction against Erlich where the second and third
factors strongly favored RTC, but the first and fourth factors favored
the defendant. It follows a fortiori that Henson's fair use arguments
must be rejected here where the first three factors weigh so heavily
in RTC's favor. //// ////
III.
AN INJUNCTION PROHIBITING
HENSON'S PROPOSED FILING IS NECESSARY
TO PRESERVE THE STATUS
QUO
An additional basis, totally apart from protecting RTC's
copyrights, for enjoining Henson from filing NOTs 34 with the FDA is
that it would vitiate RTC's claim, currently under review by the
Court, that the information and processes contained in NOTs 34 are
protected by trade secret law as well as copyright law. RTC did not
initially seek an injunction against Henson on trade secret grounds
with respect to NOTs 34 because, out of an abundance of caution, that
document was not then included within the preliminary injunction in
RTC v. Erlich, No. C-95-20091. Since that time, however, RTC has moved
the Court to reconsider its ruling with respect to NOTs 34 and the
other unpublished Advanced Technology works at issue in that case.
That motion is currently sub judice and the Court has indicated that a
ruling on the preliminary injunctions in effect in all three related
cases will be issued shortly. See RTC v. Henson, Op. and Order of
Aug. 5, 1996, at 7-8; RTC v. Ward, Op. and Order of Aug. 5, 1996, at
4.
Henson's filing of NOTs 34 with the FDA in a manner that
makes the document freely available for copying by the public would
undermine the status quo by effectively precluding RTC from obtaining
what would otherwise be a proper trade secret injunction against one
or more defendants in these cases. On this basis alone, the Court
should enjoin Henson's from filing NOTs 34 with the FDA until it has
issued its trade secret rulings in the related cases.
CONCLUSION
For all the foregoing reasons, RTC respectfully requests
that the Court issue an order clarifying that Henson is enjoined under
the preliminary injunction already in place in this case from
reproducing and distributing to the FDA a copy of NOTs 34 in its
substantial entirety.
Dated: September 27, 1996
Respectfully submitted,
LAW OFFICES OF THOMAS R. HOGAN
By:
Thomas R. Hogan
HELENA K. KOBRIN
PAUL, HASTINGS, JANOFSKY
& WALKER
Roger M. Milgrim
William M. Hart
James W. Kennedy
RABINOWITZ, BOUDIN, STANDARD,
KRINSKY & LIEBERMAN, P.C.,
Eric M. Lieberman
Attorneys for Plaintif
RELIGIOUS TECHNOLOGY CENTER
Ex Mudder
How interesting. This article makes extensive reference to RTC vs
NETCOM, et al. May I reccomend that you see if MoFo would be
interested in helping you?
p/m
Mike O'Connor
In article <hkhensonD...@netcom.com>, hkhe...@netcom.com (Keith
Henson) wrote:
> [The cult claims that] Once a complete
> copy of NOTs 34 is filed with the FDA, any member of the public may be
> able to view and obtain a copy of that confidential, unpublished
> document and further distribute it to the public.
Their whole argument seems to be based on this. That it is a trick to make
an "end run" and publicly publish NOTS 34.
Can't the FDA be asked to hold the information confidential? After all, the
purpose of sending them a copy is to show the FDA the criminal nature of
the document, not to publish it to the public. If they keep it
confidential, the arguments the cult makes here do not apply. -Mike IANAL
David Lesher
You might parallel your attempt to inform the FDA with
the recent Tobacco battles. They started when someone leaked
Tobacco's own Sekert Scriptures to the public.
--
A host is a host from coast to coast.................wb8foz@nrk.com
& no one will talk to a host that's close...........(v)301 56 LINUX
Unless the host (that isn't close).........................pob 1433
is busy, hung or dead........vr vr vr vr.................20915-1433
Keith Henson
Grady Ward (gr...@netcom.com) wrote:
: I think the fundamental reason under law that the expedited motion
: by the cult fails is that with the repeated postings of the NOTs
: including number 34 and the recent public disclosure in Sweden
: documented by Zenon, that according to preliminary rulings by
: Judges Whyte, Brinkema, and Kane that these materials have
: already lost their trade secret status, if indeed they ever had
: any.
Yeah, NOTs 34 was old business even which I grepped it out of the
news spool at netcom. And then there is the fact that anyone with
a little persistance can de-mask it from a source the cult made
public--as I did with #23.
: The criminal cult has obstructed my discovery seeking to
: document what, if any, safeguards that the "trade secret" material
: has had since its inception. Of course since the "parishioner"
: is actually given the essence of the "trade secret" the cult has
: a *much* more rigorous burden to prove that is took appropriate
: pecautions with each and every "parishioner" since the 1950's.
: As far as copyright, it is clear that the de minimus copying
: of a document for the purpose of reporting a crime transcends
: the small disruption of the criminal money making machine of
: the cult that this single copy represents.
: I don't know how October 4, 1996 is going to go in the court of
: Judge Whyte, but it ought to be interesting. I am currently
: planning to attend telephonically, although I may dip into
: the deposition fund for $100 in order to attend personally
: (I do like those lunches at Original Joes in San Jose).
Come on down. It is my turn to spring for lunch.
: I would also like to see the face and demeanor of Judge Whyte
: as he makes his ruling or more likely puts it under a long
: submission as he had with some other motions.
The cult won't stand for this because I told them that the next
day I will send the FDA a copy of NOTs 34. Judge Whyte has to
give me a direct order about giving a copy to the FDA or it gets
done. Either way is ok by me.
: Make sure you respond to their Expedited Motion (serving the
: criminal cult and the court) as soon as possible in order to
: get the response into the public record that may be
: examined by the Ninth Circuit if you choose to appeal to
: them in case of an adverse ruling in the court of Judge Whyte,
Hmm. That's right. I have to put my appeal arguments on the
record in order to bring them up in argument to the Ninth. This
might be a bit of a problem, since for publicity reasons I would
rather Judge Whyte ruled for the cult. Well, given the record
from the letter to Judge Whyte on, I think I have all the
arguments in there somewhere.
: As you may know, interlocutory ruling in the manner of
: injunctions may be reviewed by the Ninth Circuit if appropriate
: notice of appeal is made to the District Court (ten days
: is the usual time limit to give a notice of appeal).
: I would research and document each and every public posting of
: NOTs (including 34) since your injunction, especially the
: recent lodging of the NOTs as a publicly inspectable document
: in Sweden.
I think the cult will argue that law enforcement should not get
a copy even if everyone else in the world has one. Frankly, given
the level of interest in enforcing the law against a powerful cult
they are *way* overreacting--to my advantage. If they never said
anything, a copy of NOTs 34 would be ignored in a file folder in
some FDA agent's desk. (It is not that anyone is going to do a
FOIA request for something *this* easy to get outside the government.)
But making a "Federal case" out of it might eventually spark some
interest. :-)
: I don't have a copy of Nimmer on Copyright but there are plenty
: of fair use exceptions for public purpose copying, especially
: since you intend no commercial gain and especially since your
: report to the FDA is clearly intended to save persons lives that
: may actually believe in the criminal lies of the criminal cult.
: Obviously the "religious freedom" argument is bogus since you
: are not disputing whether the "parishioner" has a "spiritual"
: cure but you are concerned with the physical, secular, well-being
: of the "parishioner" and how the criminal cult represents these
: "cures."
How many have lost their lives needlessly because they were "audited"
when they had serious medical problems? Hundreds at least.
: Frankly I am jealous of you, Keith because it looks like
: you may be able to go before the Ninth Circuit with the
: criminal cults frivolous arguments before I will. Congrats!
My attention was much diverted in the last two months by moving so
I had to do *something* to remain "upstat." If it happens that I
get an early chance at the Ninth, well, I think most people will
recognize that you still outrank me in the Suppressive Persons
Brigade.
Keith Henson
Neal Hamel
On Sun, 29 Sep 1996 01:43:30 GMT, dke...@best.com (Ex Mudder) wrote:
>
> How very politely you folded those trade secrets until they were all
>corners and shoved them up Church's posterior.
Is this the reappearance of the oragami butt plug?
-Neal H.
Ex Mudder
>
> Nor can Henson cloak himself in the protections of the fair
>use doctrine by making a bald assertion that he intends to bring the
>criminal practice of medicine to the FDA's attention. As the very
>cases upon which Henson bases his allegation of criminality make
>clear, in a religious context the Church of Scientology is free to
>make representations about the potential value and benefits of
>auditing, included statements about the healing powers of auditing.
>United States v. Article or Device, 333 F. Supp. at 363. Were the FDA
>to review the spiritual claims by the Church in this exclusively
>religious context, it would violate the First Amendment's
>Establishment Clause. See Founding Church of Scientology v. United
>States, 409 F.2d 1146, 1156 (D.C. Cir.), cert. denied, 396 U.S. 963
>(1969) ("a finding that the seized [Scientology] literature
>misrepresents the benefits from auditing is [the equivalent of] a
>finding that their religious doctrines are false"). In this regard,
>it is significant that the FDA subsequently released the written
>materials and e-meters it had previously seized from the Church in the
>Article or Device case and expressly stated that "the devices and
>literature have been brought into compliance with the law." Letter
>from FDA Compliance Officer dated December 14, 1973, Hogan Decl. Ex.
>E. Given Henson's frivolous interpretation of these decisions, it
>flies in the face of reason to credit his purported motives for filing
>a complete copy of NOTs with the FDA.
I'm not exactly sure how to word this.
This claim of medical benifits is a) only available after paying
singifigant amounts of money to the cult (20-100k?) AND is offered at
a large hourly rate (anyone know how much). This is not an
"exclusively religious context." This is medical fraud.
Remember the Swedish filing "RTC derives substatial profits from
these documets"
>
> This factor also weighs very heavily in RTC's favor. Henson
>candidly admits that he will submit 100% of the NOTs 34 issue to the
>FDA. See Hogan Decl., Exs. A, C. Such wholesale copying has been
>condemned as infringement by numerous courts and commentators. See,
>e.g., Marcus v. Rowley, 695 F.2d 1171, 1176 (9th Cir 1983) ("wholesale
>copying of copyrighted material precludes application of the fair use
>doctrine"); Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 756 (9th
>Cir. 1978), cert. denied, 439 U.S. 1132 (1979) ("virtually complete or
>almost verbatim copying" precludes fair use even if other factors
>point to a contrary result). See also 3 Melville B. Nimmer & David
>Nimmer, Nimmer on Copyright 13.05[D][1] at 13-225 to 13-226 (1996)
>(characterizing as "a reasonable limitation on fair use" cases holding
>that "the defense of fair use is never available to immunize copying
>that results in similarity that is . . . virtually complete or almost
>verbatim"). In NETCOM, this Court concluded that defendant Erlich's
>copying of "all or almost all of many of the works, which were
>predominantly short documents of less than three pages," tilted the
>third factor "heavily in plaintiffs' favor, especially as to the
>unpublished works, where the amount of acceptable copying is even
>lower." 923 F. Supp. at 1247 (footnote omitted). The same conclusion
>is manifestly applicable here.
So what are you supposed to do? "I have proof that the Cof$ is
engaging in Medical fraud. However, as the proof is unpublished trade
secrets, I can not give them to you, nor do I know where they will be
found."
Also, there were some references to this not being in violation of
anything. Fine. Give the FDA the prrof and let them decide.
Keith Henson
Neal Hamel (smok...@ix.netcom.com) wrote:
Well, it *is* known as the "Spread the cheeks" religion. Keith Henson
Keith A. Cochran
-----BEGIN PGP SIGNED MESSAGE-----
In article <hkhensonD...@netcom.com>,
Keith Henson <hkhe...@netcom.com> wrote:
>Here is Hogan's/cos response to my letter of the 17th. There will be a
>expidited hearing on this matter Oct.4. Suggestions welcome, but
>remember, I don't mind *losing* this point. I might even offer to write
>the order--something like this:
>
>A citizen has what he clamis is evidence of criminal activity by a
>notorious cult in his possession. At the request of the criminal cult, a
>Federal Judge enjoins this citizen to the effect that the citizen cannot
>provide this evidence of criminal activity to the appropriate law
>enforcement agency.
>
>Now, that would be an order worthy of framing! Keith Henson
I'll spring for the framing costs, whichever way the wind blows.
[Liberal snipping throughout]
>Helena K. Kobrin, SBN 152546
>7629 Fulton Avenue
>North Hollywood, California 91605
>(213) 960-1933
Note: The 'ho got a copy of this.
> There is thus an imminent threat that Henson will violate RTC's
>intellectual property rights in the immediate future. Once a complete
>copy of NOTs 34 is filed with the FDA, any member of the public may be
>able to view and obtain a copy of that confidential, unpublished
>document and further distribute it to the public.
Hogan's blowing smoke out his ass, as usual. All the cult would have
to do is file a lawsuit against the FDA forbidding them from reprinting
NOTS 34...
> Moreover, Henson's
>professed motive for filing NOTs 34 with the FDA -- to expose the
>Church of Scientology's illegal practice of medicine -- is bogus.
Oh really?
NOTS 34:
_THE SEQUENCE FOR HANDLING A PHYSICAL CONDITION_
There is a definite sequence for handling a physical condition. All
steps must be done in this sequence to fully handle the condition:
1. The item.
2. The body part.
3. Illness (of the body part).
And on and on and on. Nowhere in there do I see anything about going to
see a doctor to handle an illness.
Indeed, the very fact that NOTS 34 talks about BT's thinking that
they are "dust" causing allergies says that the cult thinks they can
cure illness. Remember, all the claims in Scumatology are backed up
with _Scientific Evidence_, or so they claim.
> B. Nature of the Copyrighted Work
>
> There is no dispute in this case that NOTs 34 is an
>unpublished work with respect to which only extremely limited
>quotations can be made under the fair use doctrine per the existing
>injunction in this case.
Bend over and take another baseball bat up your hole, 'ho. Here is
your fellow partner in crime telling the courts that he realize that
"fair use" applies to NOTS 34 and the rest of your "unpublished,
copyrighted, trade secret, trademarked, your head will explode if you
read this" tripe.
>III.
> AN INJUNCTION PROHIBITING
>HENSON'S PROPOSED FILING IS NECESSARY
>TO PRESERVE THE STATUS QUO
Translation: You can't let Henson show the FDA that we're promoting
false medical claims again.
--.Sig and PGP Block follow
^L
OBURL:http://www.cybercom.net/~rnewman/scientology/home.html
"We must build an atomic blaster!"
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Ted Mayett
On Sun, 29 Sep 1996 18:32:23 GMT, hkhe...@netcom.com (Keith Henson)
wrote:
>Grady Ward (gr...@netcom.com) wrote:
>
>: Frankly I am jealous of you, Keith because it looks like
>: you may be able to go before the Ninth Circuit with the
>: criminal cults frivolous arguments before I will. Congrats!
>
>My attention was much diverted in the last two months by moving so
>I had to do *something* to remain "upstat." If it happens that I
>get an early chance at the Ninth, well, I think most people will
>recognize that you still outrank me in the Suppressive Persons
>Brigade.
>
>Keith Henson
I don't think it works that way. Whoever gets to the Ninth Circuit
first has top ranking in the Suppressive Persons Brigade.
People may say otherwise to make the runner-up feel better. But in
their hearts, what will they be saying in their hearts.
Thanks to both of you for the lessons in law and the display of
courage and brilliance. I am most delightfully humbled in your
presence.
Ted Mayett
Scientology(tm) sells Freedom for $360,000.00.
Large downpayments and seasonal sales can reduce
this price by 30%. There is always a special sale
going on. Ask before you buy.
Ted Mayett
On Sun, 29 Sep 1996 10:30:07 GMT, hkhe...@netcom.com (Keith Henson)
wrote:
>Here is Hogan's/cos response to my letter of the 17th. There will be a
> Henson's filing of NOTs 34 with the FDA in a manner that
>makes the document freely available for copying by the public would
>undermine the status quo by effectively precluding RTC from obtaining
>what would otherwise be a proper trade secret injunction against one
>or more defendants in these cases. On this basis alone, the Court
>should enjoin Henson's from filing NOTs 34 with the FDA until it has
>issued its trade secret rulings in the related cases.
>
Clear Baby, whippersnapper, Duncan, *you*, and all you other AOL and
internet clams. How can you be proud of this stupidity.
With some patience and skill anything posted to the internet can be
found again. You know this is a fact, yet you support this stupidity.
And you support it by suckering in new raw meat to buy stuff.
Doesn't it make you feel kind of stupid?
When I see you in the streets, understand why I have no respect for
you. I think you are incredibly stupid. I don't think you care
anymore. This stuff has become more important than auditing.
Do a mutiny. Put an end to this stuff. This is not scientology.
Why do you tolerate it?
I have trouble believing that you are so stupid as to think that this
has any value. Mutiny. There is no other way.
>Attorneys for Plaintif
>RELIGIOUS TECHNOLOGY CENTER
>
RTC Something to be proud of.
jrubin
Be careful Keith. If 'NOTS' doesn't make any sense, then it can't
be a 'handbook for criminal activity'. Well, I guess you can argue
that it makes sense to the initiated.
Josh
jru...@bix.com
Keith Henson
jrubin (jru...@bix.com) wrote:
: Be careful Keith. If 'NOTS' doesn't make any sense, then it can't
: be a 'handbook for criminal activity'. Well, I guess you can argue
: that it makes sense to the initiated.
: Josh
Josh, only a few of them, particularly #34 and two others discuss "curing
illness." I just spent some time demasking #23, which was not posted by
Vorlon. (There is one other and a few pages missing, or so I understand.)
NOTs 23 is about getting imaginary cooties to bug off, but not just any
cooties, ones which have become stuck to each other. If you don't buy
into the imaginary cooties, well, according to the expert (Dennis) you
don't have any, so it makes sense that this stuff is gibberish.
Other than the fact that the whole thing is a scam, most of Scientology
is just stupid rather than criminal. Keith Henson
Keith A. Cochran
-----BEGIN PGP SIGNED MESSAGE-----
In article <324ef55b...@nntp.best.com>,
Ex Mudder <dke...@best.com> wrote:
[The cult whines because Keith Henson plans to send NOTS34 to the FDA
as an example of their illegal medicals claims...]
>I'm not exactly sure how to word this.
You're a member of TheKeith[tm]. You'll find a way.
>This claim of medical benifits is a) only available after paying
>singifigant amounts of money to the cult (20-100k?) AND is offered at
>a large hourly rate (anyone know how much).
- ---Begin Article Fragment---
From: av...@FreeNet.Carleton.CA (Martin G. V. Hunt)
Subject: ARS FAQ beta
Message-ID: <DLK5s...@freenet.carleton.ca>
Date: Mon, 22 Jan 1996 01:07:26 GMT
3.6 How much does Scientology cost? Here are the prices for Scientology's
therapy from an10...@anon.penet.fi (The Leveller):
The current (conservative) total cost for the whole bridge to OT9 readiness
is estimated at $315,000 - $330,000. Yes, that's basically a third of a
million dollars. Auditing hours are calculated on the basis of an average
case. It _could_ cost a lot more. Read on for the full price breakdown.
These prices are taken directly from the latest Flag price list (Autumn
'94) and, in the case of OT8, the Freewinds donation rate list.
Processing Intensives Cost per Total
Step Required Intensive Cost
or Course (IAS)
Life Repair 2 x 12.5 hr $5,600 $11,200
Purification RD ----------- $2,560 $2,560
TRs & Objectives 2 x 12.5 hr $5,600 $11,200
Scn Drug Rundown 2 x 12.5 hr $5,600 $11,200
ARC Straightwire 2 x 12.5 hr $5,600 $11,200
Grade 0 3 x 12.5 hr $5,600 $16,800
Grade 1 2 x 12.5 hr $5,600 $11,200
Grade 2 2 x 12.5 hr $5,600 $11,200
Grade 3 2 x 12.5 hr $5,600 $11,200
Grade 4 2 x 12.5 hr $5,600 $11,200
New Era Dianetics 3 x 12.5 hr $5,600 $16,800
Clear Certainty RD 1 x 5 hr $2,800 $2,800
SUB-TOTAL TO CLEAR $128,560
**Solo Course Part 1 ----------- $1,500 $1,500
*OT Preparations 2 x 12.5 hr $3,300 $6,600
**Solo Course Part 2 ----------- $1,500 $1,500
*OT Eligibility 2 x 12.5 hr $3,300 $6,600
*OT I ----------- $1,500 $1,500
*OT II ----------- $3,000 $3,000
*OT III ----------- $5,100 $5,100
OT IV ?2 x 12.5 hr $6,500 $13,000
OT V ?2 x 12.5 hr $7,400 $14,800
OT VI ----------- $10,240 $10,240
OT VII ----------- $3,500 $3,500
OT VII C/Sing
(per 6 months) over 2 years $1,280 $5,120
OT VIII ----------- $10,000 $10,000
OT VIII auditing ?2 x 12.5 hr $7,400 $14,800
TOTAL BILL FROM RAW MEAT TO OT VIII $225,820
Step/Course/ Intensives Cost per Total
Materials Required Intensive Cost
required or Course (IAS)
To OT VIII (with mass discounts) $200,000
Saint Hill Special
Briefing Course ------------ $25,600
*Briefing Course
materials (including
30% discount when
all bought at once
- - if you can afford to)------------ $18,390
SHSBC Total $43,990
ALTERNATIVE: Lower "Levels" and Specialist Training
Courses. (see below for price breakdown) $56,000
Key to Life and
Life Orientation
Courses ------------ $11,500 $11,500
L10 min. 2 x 12.5 hrs $10,000 $20,000
L11 min. 2 x 12.5 hrs $10,000 $20,000
L12 min. 2 x 12.5 hrs $10,000 $20,000
REVISED TOTAL - NOW READY FOR OT IX (if/when) $314,490 - $326,500
Let's just say $315K - 330K
Lower Bridge "Levels" and "Specialist" training
if taken instead of Saint Hill Special Briefing Course
Yearly IAS membership,
say seven years at $300 per annum
(or Lifetime membership) $2,100
Mark Super VII E-meter $3,780
Student Hat Course $960
* The Study Tapes $425
New Hubbard Professional TR Course $2,400
* Clay Table Processing Picture Book $100
* Dianetics 55! Book $40
* Technical Dictionary $90
* PRO TR Course Lectures (on cassette) $240
Hubbard Professional Upper Indoc TR Course $1,000
* Freedom Congress Lectures (on cassette) $590
Academy Level 0 Course $2,400
* Level 0 Lectures (on cassette) $240
* Self Analysis Book $18
[Full Set of Tech Volumes] $2,025
Academy Level I Course $2,400
* Level I Lectures (on cassette) $375
* Problems of Work Book $18
Academy Level II Course $2,400
* Level II Lectures (on cassette) $590
* Fundamentals of Thought Book $18
Academy Level III Course $2,400
* Level III Lectures (on cassette) $240
* Scientology 0-8 Book $18
Academy Level IV Course $2,400
* Level IV Lectures (on cassette) $240
* Handbook for Pre-Clears Book $40
* Advance Procedures & Axioms Book $40
Academy Level IV Internship $1,600
Class V Hubbard New Era Dianetics Course $3,600
* NED Lectures (on cassette) $180
* Dianetics Book $21
Class V NED Auditor Internship $1,600
Hubbard Class V Graduate Auditor Course $3,600
* Class V Graduate Auditor Lectures $300
* Science of Survival Book $52
* Case Remedies Book $40
* The Troubleshooter $700
Class V Graduate Auditor Internship $1,600
Sub Total $40,880
- ----End Article Fragment----
>This is not an
>"exclusively religious context." This is medical fraud.
Um, not necessarily. it _might_ be a "religious context" if they had
stuck with "anonymous big win" stories. The Bible contains these also.
Instead, they decided to go with a _specific series of steps_ designed
to _handle physical illness_.
>Remember the Swedish filing "RTC derives substatial profits from
>these documets"
hehehe. The cult really needs to stop saying stupid things.
>So what are you supposed to do? "I have proof that the Cof$ is
>engaging in Medical fraud. However, as the proof is unpublished trade
>secrets, I can not give them to you, nor do I know where they will be
>found."
My GnarlySPPowers[tm] tell me that regardless of the outcome of the
meeting with Whyte, Henson, and the cult, the FDA will very shortly
have a complete copy of NOTS34 (and possibly the rest of the series).
My first guess is that these will come anonymously from somewhere in
the Nederlands...
>Also, there were some references to this not being in violation of
>anything. Fine. Give the FDA the prrof and let them decide.
They can't do that. Despite the fact that they have lost the bridge
already, they must continue to fight to preserve "the tek". LWrong
said so.
--.Sig and PGP Block follow visit http://www.dimensional.com/~janda/
^L
OBURL:http://www.cybercom.net/~rnewman/scientology/home.html
"Look! More Martians!"
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Stuart P. Derby
(quoting the brief filed by CoS attorney Hogan)
: STATEMENT OF FACTS
:
: On September 17, 1996 Henson sent two e-mail messages to RTC's
: counsel Thommas Hogan,[K stating that "ten days from the date of this
: letter I will deliver a copy of the criminal instruction manual known
: as NOTs 34 to the FDA." Hogan Decl. Ex. A. These messages were
===========================^^^^^^^^^^^^^^^^^^
: simultaneously posted by Henson on "alt.religion.scientology," the
: public Internet discussion group to which RTC's copyrighted and trade
: secret works have been previously posted. Hogan Decl. Ex. B.
============================================^^^^^^^^^^^^^^^^^^
[ snip ]
: C. Amount and Substantiality of the Work Used
:
: This factor also weighs very heavily in RTC's favor. Henson
: candidly admits that he will submit 100% of the NOTs 34 issue to the
: FDA. See Hogan Decl., Exs. A, C. Such wholesale copying has been
: condemned as infringement by numerous courts and commentators. See,
: e.g., Marcus v. Rowley, 695 F.2d 1171, 1176 (9th Cir 1983) ("wholesale
: copying of copyrighted material precludes application of the fair use
: doctrine"); Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 756 (9th
: Cir. 1978), cert. denied, 439 U.S. 1132 (1979) ("virtually complete or
: almost verbatim copying" precludes fair use even if other factors
: point to a contrary result). See also 3 Melville B. Nimmer & David
: Nimmer, Nimmer on Copyright 13.05[D][1] at 13-225 to 13-226 (1996)
: (characterizing as "a reasonable limitation on fair use" cases holding
: that "the defense of fair use is never available to immunize copying
: that results in similarity that is . . . virtually complete or almost
: verbatim").
(The following discussion is based on the theory that exhibits A & B
contain verbatim copies of Keith's e-mail and post. If not, never mind.)
Interesting. RTC is arguing that 100% copying is never permitted
and yet I presume that exhibits A & B which they copied and filed
with the court are 100% verbatim copies of the copyrighted work of
Keith Henson. (For those not familiar with U.S. law, a work is copyrighted
as soon as it is "fixed in a tangible medium of expression", including
electronic media, i.e. is somehow recorded). Under RTC's theory,
Keith would have 3 months to registers those works and file an
infringement claim for statutory damages. See material at the
Copyright Office's web-site:
ftp://ftp.loc.gov/pub/copyright/circs/circ01.html#cr
Foot meet bullet. Bullet meet foot. What's that you say? You already know
each other?
[p & m]
-Stu
--
"Madman! Wouldst attempt the impossible?! For no being made of matter
can ever enter a system that is naught but the flux and swirl of
alphanumerical elements, discontinuous integer configurations,
the abstract stuff of digits!" - from the Cyberiad, by Stanislaw Lem
William Barwell
In article <52nhgc$9...@nova.dimensional.com>,
>>expidited hearing on this matter Oct.4. Suggestions welcome, but
>>remember, I don't mind *losing* this point. I might even offer to write
>>the order--something like this:
****************** Deleted ******************
>
>> Moreover, Henson's
>>professed motive for filing NOTs 34 with the FDA -- to expose the
>>Church of Scientology's illegal practice of medicine -- is bogus.
>
>
>Bend over and take another baseball bat up your hole, 'ho. Here is
>your fellow partner in crime telling the courts that he realize that
>"fair use" applies to NOTS 34 and the rest of your "unpublished,
>copyrighted, trade secret, trademarked, your head will explode if you
>read this" tripe.
>
If somehow, they could stop Henson from sending this on to the FDA, I
will do it myself. I will let Henson do his thing, but in the end, teh
FDA will see a complaint filed.
The fact is, that they sued Henson over NOTS 34 shows they very well claim
it as theirs. It's all on file in court, no dodging that issue.
You cannot runNots without an E-meter and NOTS 34 thus contrevenes teh
FDA's order to Scientology not to present teh E-meter as being able to
affect cures.
They have been sneeringly contravening a valid court order for yeras,
knowingly so. The numerous "wins" claiming healing from Scientology
'technology' is more proof that the cult knowingly claims to be able to
cure ilnesses with the E-meter.
Nots 34 is simply one document from NOTS that lays the basic claims
for being able to cure, how it works, and the fact they intend to calim
this and do it, knowling full well that there is a valid legal order not
to do this.
The FDA might as well be asked to investigate "purification rundown" while
they are at it.
Before the cult kills anybody or something stupid like that.
If Whyte prevents Keith from doing anything, It is still going to happen.
So now it is merely a matter of harassing Keith Henson at best.
If Keith can't do it, it will still happen.
Meanwhile folks, let's check those idiot Clam mags for "wins" claiming
healing.
Mike O'Connor
In article <52sfkg$k...@Starbase.NeoSoft.COM>, wbar...@Starbase.NeoSoft.COM
(William Barwell) wrote:
[...]
> Meanwhile folks, let's check those idiot Clam mags for "wins" claiming
> healing.
NOTS 50 tells auditors how to handle drug cases through E-Meter auditing.
This rundown includes an outline of three specific case histories.
Case 1 mentions a person who was close to being crazy and was placed in an
institution. Running the NOTS "_turned_the_case_sane_".
Case 2 is about a person who took LSD many, many times. During metered
auditing, "...drugs read heavily..." and through NOTS they made "some
headway".
Case 3 concerns another very heavy LSD user who also used alcohol and other
illegal drugs. Seems the person had trouble even walking or speaking
clearly and the "medicos" considered him "incurable". After NOTS, his
"speech went back to normal" and another result was "less numb, more
sensation".
NOTS 50 is an FDA must-read. -Mike
Keith Henson
Sorry this is such a nasty mess. My scanner makes a lot of errors when it
is working from fax. I fixed some, but just don't have the time to fix
the rest of them.
Keith Henson
UNIThD STAThS DISTRICT COURT
NORTH RN DISTRICT OF CALIFORNIA
RELIGIOUS ThCHNOLOCY C TER, ) C e No. C-96-20271RMW
a California non-profit eozporation, )
) PLAINTIFF'S OPPOSITION TO
Plaintiff; ) DEFENDANT'S MOTION TO QUASH
) SUBPOENA AND MOTION TO
V. ) MQDIFY PRELIMINARY
) INJUNCT ON
H. KEITH H NSON, an individual, Date: October 4, 1996
)
De ndanL ) TimQ: 10:00 .m.
) Hon. Ronald M. whyte
INT OI)UCTION AND STATEMENT OF ISSUES
In two consolidated motions filed with this Court on September
27, 1996, defendant H. Keith Henson ("Henson' ) scek to quash a third
party subpoena issued to him in the related cas of Religieus T
chviolo C nter V Ward Case No.96-20207 RMW and to modify the
preliminar injunction against him to eliminate any protection based
on the California Uniform Trade Secrets Act. Thc basis for this,
Henson's forth attempt to modify the preliminary ir junction in as
many months, is that Henson claims to have succeeded in
reconstructing an entire issue of the NOTs series ("NOTs 23") from the
masked version filed by RTC with the Copyright Office in support of
it6 legistration application. RTC provided a masked copy to Henson on
July 26, 1996 pursuant o the mandatory disclosure obligations of the
Local Rules. Henson asserts that 1'with the help of some computer
programs and a dictionary he has been able to "recover the full text,
or something close to the full text" of that NQTs issue. Motion at
2-3. Accordin to Henson, the trade secret component of the
preliminary injunction must now be dissolved because RTC filed the
masked copies with the Copyright Office. Ii at 2.
Henson's motion is fundamentally flawed both as to the facts
and the law, Henson's basic premise is that the masked copies at the
Copyright Office are available for public scrutiny. They are not, as
the rules and regulations of the Copyright Office, and the case law
from the Ninth Circuit and this Court which intcrprct them show:
public access to deposited works in the manner Henson describes is
prohibited. However, Henson admits that he copied one of the enjoined
works and has attempted to ascertain the trade secret contained in
that work. And Henson acknowledges that NOTs
[footnote]
As the court is aware Henson flied a motion to modify the prelimiinjunction to allow him to comunurncate with the FDA about the
contents of NOTs 34, and to permit him to make three fair use postings
to the Internet. The Court has denied both of these motions. RTC V.
Henson, August 5, 1996 ()p. and Order at 2,6-1. The Court also has
under submission Henson's motion to modify the injunction to permit
him 'to responsibly exercise his First Amendment rights. ' Id. at 6.
[end footnote]
23 has never previously posted to the Internet, Id at Thus Henshas openly engaged in copyright infringement and violated both the
copyright and trade secret aspects of the April 12, 19% preliminary
injunction.
ARGUMENT
I THERE IS NO BASIS TO MODIFY THE PRELIMINARY INJUNCTION BASED
ON HENSON'S "RECONSTRUCTION" OF NOTs 23 AND THE ALLEGED P AVAILABILITY OF MASKED COPIES OF NOTs AT THE COPYRIGHT OFFICE
Henson's motion to modify the trade secret portion of thepreliminary injunction is based on this erroneous premise; that the
masked copies of the NOTs issues filed by RTC with the Copyright
Office in support of its registration application are 'available to
anyone who asks for a copy' Motion at 2 In fact, in the absence of
written authorization from the copyright holder or a court order, 37 C
F R. 201.2(d)(2Xi) & (iii , arequest for a deposit copy will be
granted by the Copyri ht Offlce only when-.
The Cpyright Office recieves a written request from an attorney on
behalf of either the plaintiff or defendant in connection with
litigation, actual or prospective, involving the copyrighted work. The
following information must be included in such a request: (1) the
names of all the parties involved and the nature of the controversy ;
(2) th name of the court in which the actual case is pending or, in
the case of a prospective proceeding, a full statement of the facts of
the controversy in which the copyrighed work is involved; and (3)
satisfactory assurance that the requested reoroduction will be used
only in connection with the specified litigation.
37 C.F.R 2Ol2(d)(2)( ).
Beyond the plain language of this regulation, the narrow
construction to be afforded to section 201 .2(d)(2)(ii) is recognized
in Atari Corp. v. Ninttendo ofAnierica Inc , :2d
-------------------------------
Hcnson's contempt ofthe preliminary injunction will be the subject of
a separate motion by RTC.
The authority for this reguLation is found in Section 706 of the
Copyright Act, which provides that '[c)opies or reproductions of
deposited articles retained wider the control of the Copyright Office
shall be authorized or furnished only under the conditions specified
by the CopyrigPit Office regulations. 17 U.S C. 706(b) (erriphasis
added). ----------------------------------
$32 (Fed Cir. 1992) Interpreting and applying Ninth Circuit law, the
court concluded that Atari had improperly acquired a copy of
Nintendo's computer sofiware program by falsely stating to th
Copyright Office that Atari was a defendant in c e pending in the
Northern Di nct of California. Atari then used this copy of the
program to "reverse engineer" its own computer program which permitted
Atari video game cartridges to be used on Ninten garne
console. Id at 836
Atari's reproduction of a singic copy obtained fro n the
Copyright Office under false pretenses was held an act of
infringernent. Id. at 842 ("Reproduction of an unauthorized copy froi
the Copyright Office violates 17 U S,C 106(l) "). See Bateman v,
Mnemonics, Inc., 79 F.3d 1532, l539 40 n.18 (11th Cir. 1996) (citAtari Games with
ipproval); 3 Melvilic B Nimmcr & David Niminer, Nimmer on Copyright
13.05[1)][4J at 13-235 to 13-236 (1996) ("Nimmer ) (same)
Nor can individuals examine masked copyrighted works and
thereby acquire sufficient information to "reconstruct" unmaskcd
version ofthc works.
All completed records and indexes relating to a registration or to a
recocded document and all articIcs deposited in connection with
completed registration and retained under the control of the Copyright
Office1 are Open to public inspection See 17 U.S C 705. Before being
permittcd to inspect any deposit, howcver, the requester must (1) show
proper identification, preferably including a photograph and current
addr ss, and ( ) complete and sign a "Request for Inspection of
Copyright Deposit" (Form C-8) indicating agreement not to copy or
deface the material to be inspected. Requesters needing to make
limited notes during the inspeetion may do so only on the form
provided for that purpose by the Cerbfication and Documents staff
which will review all notes before requesters leave the inspection
area and retain those notes that constitute prohibited copying
Compendium of Copyright Office Practice 1902 Ol (emphasis in
original). The Compendium is the definitive manual of thc Copyright
Office admimstration practices, prepared by th Copyright Office based
on the statute and applicable regulations under 37 C.F.R. As this
Court stated in its opinion in Atari Games, 'it is beyond practical
human capability to reverse engineer the deposit copy
----------------------
The court in Atari Games also held that the "intermediate copies of
the program" made by Atari to accomplish the reverse engineering
process constituted distinct acts of copyright infringemeni. 975 F.2d
at 842. We discuss that portion of the court's opinion in Point II,
post.
------------------------
materials based solely upon the limited type public inspection
permitted by the Copyright Office on its Atari Games Corp V. NinofAmericaInc. 18 U.S PQ.2d 1935, 1991 WL 57304 at *6 .D. Cal. 1991)
(cmphasis added, quotations nd ellipses omitted), affd, 975 F.2d g32
(Fed. Cir. 1992). Plainly, the computer-aided reverse engineering that
Henson claims to have done with NOTs 23 woul4 not have been possible
under the Guidelines.
Henson's claim that the masked copies on file in the
Copyright Office somehow expose the secret processes and information
to public scrutiny is simply wrong. Henson's latest motion to modify
the preliminary injunction should be rejected.
II. HENSON'S RECONSTRUCTION OF NOTs 23 IS A CLEAR VIOLATION OF THE
COPYRIGHT ACT AND THE PRELIMINARY INJUNCTION
Putting aside the questionable validity of Henson's claim that
he reconstructed a virtually complete copy of NOTs 23 from thc masked
copy provided to him in disclosure, his motion admits that he engaged
in enjoined copyright infriengement and trade secret misappropriation.
A single act of copying can constitute an infringement. See, e.g.,
Atari Ga es, 975 F 2d at 840 ("A singie copy i5 5ufficientto support a
claim of copyright inffingement "); 2 Nimmer, .oi [G] at 8-26 &
n.72 (Copyright Act "reaches the inaking of a single copy"). This rule
of liability is applicable whether the copying at issue is the end
product of the infringer's actions or an intermediate step to
legitimate activity. WaJ r Urn" rsi 602 F.24 859, 863-864 (9th
Cir. 1979) Walt Disney Productio V. Filmation Associates, 62
F.Supp. 871, 875-876 (C.D. Cal. 1986), cited in &ga Erners. Ltd v
Accolade, inc., 977 F.2d 1510, 1518(9th Cir. 1992). See also 3 Nimmer,
-------------------------------------------
April 12, 1 96 prelimina y it junction prohibits Hennon from
"directly or lnCtirectly in whole or in part ... reproducing . - the
Exhibit B Works, of any of them, in any media now known or hereafter
developed in any time, place or ....... ." and from engaging in the
unauthorized sclosure, or di 1ay, of the Ex ibit B works, or pottions
thereof...' or 'engaging in the unauthorized solicitation an d'or
acquisition, of the Exhibit B works, or portions thereof...7 Paragraph
4 of the injunctidn prohibits Henson from "directly or indirectly...
altering any reproduction, copy, facsimile, excer 7 or derivative of
an y work of L. Ron ubbiird Lli t i iii defendant's possession,
custody or con roI." 13.05fD][4] at 13-232Y
-------------------------------------
Henson manifestly cannot use masked NOTs 23, a docutnent
received soley by viztue of his status as the defendant in this
litigation-free from the strictures of the preliminary injunction--to
recreate what purports to be an unredacted version and then bootstrap
his own improper conduct into a colorable argumenfing the
preliminary injunction. Arari Games makes this point plain.
Henson's conduct here missuses the documents RTC disclosed to him,
just as it infringes them 21
III. HEN SON'S MOTION TO QLIASH THE DEPOSITION SUBPOENA IS
MERIThESS
Henson has also movcd to quash his deposition noticed by RTC
in RTC v. Ward. It should first be noted that he has moved to quash in
the wrong case. As a non-lawyer Henson is undoubtedly unaware that,
absent Ward's stipulation, Henson's deposition testimony in his case
cannot be used in RTC v Ward. RTC is prepared to stipulate that the
deposition of Henson rnay be used in RTC v. Ward, if both H on and
Ward (who attended Henson's deposition) will also stipulate. If not,
RTC must depose Henson as to the issues raised in his deposition in
this case to have the benefit of his testimony in RTC V Ward
Insofar as Henson's motion may be read as asking relief from
his being further deposed in RTC v. Henson, the complete answer is
that RTC would not seek to redepose him on any matters
---------------------------------------
Nor can Henson liken his conduct to "revtsse. engineering," which the
court in Sega found on the facts presented there to be t ir In Sega,
the defendant lawfully acquired authorized, "comm i ial1y v4jl bl
copies" of pl tiffs computer program and madc interirn copies of the
programs "object code" as a means of accessing the non-co yrightable
elements in the progr 977 F.2d at 1514 The court held that "where
disassembly is the only way to gain access to the ideas and
flinctional eleinenb t:mbodied i'i.a copy ghted computer program and
whcrc ther i a legitimate reason for seeking such access,
disassembly is a ir use of the copyrighted work Id at 1527-28. The
"legitimate reason" identified by the court in Sega was the defendanfs
desire to access the non-copyrigh blt ernents of tl program in order
to makc its own video game car ridges compatible with Sega's produets
Id. at 1520.
Given Henson's missuse of these materials and to avoid fliture disputes
over how documents produced in discovery can be used, RTC urges the
Court to direct Henson to meet and confer with RTC to negotiate an
appropriate protective order, and failing that, to direct the parties
to appear before Magistrate Judge Infante to agree on the terms of
such an order.
-------------------------
previously cover , but naturally reserves the right to seek to depose
him as to other matters, such as events that have occurred since his
first deposition
CONCLUSION
For all the foregoing reasons, RTC respeetfiuly requests that
the Court deny Henson's motion to quash and to modify the preliminary
injunction RTC also requests that the Court expressly incorporate any
"reconstructed" copies of the NOTs issues created by Henson within the
scope of the existing preliminary injunction.
Dated: tober 1996 Respectfii fly hmittcd
LAW ()FFI ESOFT}IOMAS R HOGAN
Thoma R Hogan HELENA KOBRIN
PAUL, HASTINGS, JANOFSKY & WALKER Roger M Mugrim William M H rt JaW Kennedy RABINOWITZ BOUDIN, STANDARD KRINSKY & LIEBERMAN, p.C ,
Eric M Lieberman
Pla uff RELIGIOUS TEChNOLOGY CENTER
Zenon Panoussis
[Hogan wrote a bunch of crap, amounting to the statement that
the masked version of NOT 23 is not available to Keith or anybody
else from the copyright office except under special circumstances
and that the RTC therefore have not revealed their "treade secret"
by depositing a masked copy with that office]
Fine. But on September 2, 1996 the RTC deposited a masked copy
of all NOTs, including NOT 23, with the primary court in Stockolm,
whereby that masked copy became public. The RTC did not even motion
for the sealing of the document to the public; still less was it
sealed ex oficio. I know of one member of the public that received
(and had to pay for) a copy of the masked version as a result of
a general request for all the documents on file. Isn't that then
the RTC itself blowing its secret?
Z
---
oracle@everywhere: The ephemeral source of the eternal truth...
Dave Bird---St Hippo of Augustine
>This is sort of out of date, Aug. 2, but I just got it a few hours ago.
>
>Today's hearing should be reported by about Monday in **BJ**.
>
>Keith Henson
Dear Keith, [Posted and Mailed],
I'm not a lawyer or able to give legal advice but what I suggest,
subject to your own judgement and discretion, you might do is
write to the FDA in the following terms:
"Dear Sirs,
I wish to bring to your attention certain documents
issued by the Church of Scientology which I believe
violate the terms of Judge Gessel's order (date, #)
because they give instructions on how to use the
product called an E-Meter in unlicensed medicine.
The document called NOTs 23 says.....
[and give a FAIR USE summary of what it's about
quoting perhaps one paragraph].
Scientology claim in a current case against me (court, #)
that this is copyright and I may not send it to you in full.
You can get a copy from the court, and you must act
as you think fit concerning its copyright status.
I am also concerned about a document called
NOTSxx about [phrase describing subject matter --
no details of contents]
and NOTSyy about [similarly].
CoS have claimed these are trade secrets and,
though there is a preliminary ruling against this,
it may ultimately be upheld.
You can get.....................trade secret status.
I BELIEVE THTSE DOCUMENTS DESCRIBE CRIMINAL ACTIVITY,
AND YOU HAVE A PUBLIC DUTY TO GET COPIES FROM
THE COURT AND MAKE A DETERMINATION ON THIS.
PLEASE LET ME KNOW WHAT ACTION YOU TAKE. Yrs, etc."
It may be that you expected more out of the court
in terms of positive permissions, but it seems
clear you won't get it. Put an onus on the FDA
to take action -- and chase it up via elected
representatives and via the media -- and see
what happens.
--
Regards, Woof Woof, Glug Glug--
X E M U * Who Drowned theJUDGe's Dog ?
s p 4 \ |\ answers on ( alt.religion.scientology
/~~~~~~~ @----, and on page (/x/clam/faq/woofglug.html
-;'^';,_,-;^; : : :http://www.demon.co.uk/castle/x/clam/index.html
_____________________________________*****_<--server has changed___
OT8 Cognition:"Source is the 8th Dynamic"[LRon Hubbard is God]BWAAH!
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Keith Henson
This is sort of out of date, Aug. 2, but I just got it a few hours ago.
Today's hearing should be reported by about Monday in **BJ**.
Keith Henson
1 PAGES 1-13
2 IN THE UNITED STATES DISTRICT COURT
3 FOR THE NORTHERN DISTRICT OF CALIFORNIA
4 BEFORE THE HONORABLE RONALD M. WHYTE, JUDGE
5
6 RELIGIOUS TECHNOLOGY CENTER, )
A CALIFORNIA NON-PROFIT )
7 ORGANIZATION, )
)
8 PLAINTIFF, ) CASE NO. C-96-20271 RMW
)
9 VS. )
)
10 H. KEITH HENSON, )
)
11 DEFENDANT. )
_____________________________)
12
FRIDAY, AUGUST 2, 1996
13 SAN JOSE, CALIFORNIA
14
REPORTER'S TRANSCRIPT OF PROCEEDINGS
15
APPEARANCES
16
FOR THE PLAINTIFF LAW OFFICES OF THOMAS R. HOGAN
17 THOMAS R. HOGAN, ATTORNEY AT LAW
60 SOUTH MARKET STREET, SUITE 1125
18 SAN JOSE, CALIFORNIA 95113
19
FOR THE DEFENDANT H. KEITH HENSON, IN PROPRIA PERSONA
20 P.O. BOX 60012
PALO ALTO, CALIFORNIA 94306
21
22 REPORTED BY LEE-ANNE SHORTRIDGE
OFFICIAL COURT REPORTER #9595
23
24 APPEARANCES CONTINUED ON NEXT PAGE
25 COMPUTERIZED TRANSCRIPTION BY STENOCAT
1
LEE-ANNE SHORTRIDGE, OFFICIAL COURT REPORTER, USDC
1 FOR THE PLAINTIFF LAW OFFICES OF HELENA K. KOBRIN
HELENA K. KOBRIN, ATTORNEY AT LAW
2 7629 FULTON AVENUE
NORTH HOLLYWOOD, CALIFORNIA 91605.
3
4 PAUL, HASTINGS, JANOFSKY & WALKER
ROGER M. MILGRIM, ATTORNEY AT LAW
5 JAMES W. KENNEDY, ATTORNEY AT LAW
399 PARK AVENUE, 31ST FLOOR
6 NEW YORK, NEW YORK 10022
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LEE-ANNE S
1 PAGES 1-13
2 IN THE UNITED STATES DISTRICT COURT
3 FOR THE NORTHERN DISTRICT OF CALIFORNIA
4 BEFORE THE HONORABLE RONALD M.DGE
5
1 PAGES 1-13
2 IN THE UNITED STATES DISTRICT COURT
3 FOR THE NORTHERN DISTRICT OF CALIFORNIA
4 BEFORE THE HONORABLE RONALD M. WHYTE, JUDGE
5
6 RELIGIOUS TECHNOLOGY CENTER, )
A CALIFORNIA NON-PROFIT )
7 ORGANIZATION, )
)
8 PLAINTIFF, ) CASE NO. C-96-20271 RMW
)
9 VS. )
)
10 H. KEITH HENSON, )
)
11 DEFENDANT. )
_____________________________)
12
FRIDAY, AUGUST 2, 1996
13 SAN JOSE, CALIFORNIA
14
REPORTER'S TRANSCRIPT OF PROCEEDINGS
15
APPEARANCES
16
FOR THE PLAINTIFF LAW OFFICES OF THOMAS R. HOGAN
17 THOMAS R. HOGAN, ATTORNEY AT LAW
60 SOUTH MARKET STREET, SUITE 1125
18 SAN JOSE, CALIFORNIA 95113
19
FOR THE DEFENDANT H. KEITH HENSON, IN PROPRIA PERSONA
20 P.O. BOX 60012
PALO ALTO, CALIFORNIA 94306
21
22 REPORTED BY LEE-ANNE SHORTRIDGE
OFFICIAL COURT REPORTER #9595
23
24 APPEARANCES CONTINUED ON NEXT PAGE
25 COMPUTERIZED TRANSCRIPTION BY STENOCAT
1
LEE-ANNE SHORTRIDGE, OFFICIAL COURT REPORTER, USDC
1 FOR THE PLAINTIFF LAW OFFICES OF HELENA K. KOBRIN
HELENA K. KOBRIN, ATTORNEY AT LAW
2 7629 FULTON AVENUE
NORTH HOLLYWOOD, CALIFORNIA 91605.
3
4 PAUL, HASTINGS, JANOFSKY & WALKER
ROGER M. MILGRIM, ATTORNEY AT LAW
5 JAMES W. KENNEDY, ATTORNEY AT LAW
399 PARK AVENUE, 31ST FLOOR
6 NEW YORK, NEW YORK 10022
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LEE-ANNE SHORTRIDGE, OFFICIAL COURT REPORTER, USDC
1 AUGUST 2, 1996
2 THE CLERK: CALLING CASE C-96-20271, RELIGIOUS
3 TECHNOLOGY CENTER VERSUS KEITH HENSON, ON FOR PLAINTIFF'S MOTION
4 TO DISMISS COUNTERCLAIMS FOR FAILURE TO STATE A CLAIM AND LACK
5 OF SUBJECT MATTER JURISDICTION, DEFENDANT'S MOTION FOR SUMMARY
6 JUDGMENT ON CRIMINALITY, MODIFY PRELIMINARY INJUNCTION,
7 EXPEDITED DISCOVERY AND FILE AMICUS CURIAE.
8 THE COURT: ALL RIGHT. YOU WANT TO ANNOUNCE YOUR
9 APPEARANCE, MR. HENSON?
10 MR. HENSON: KEITH HENSON, PRO PER.
11 THE COURT: OKAY. MR. HENSON, TO A CERTAIN EXTENT,
12 SOME OF THE COMMENTS I MADE TO MR. WARD APPLY TO YOUR CASE.
13 WITH RESPECT TO THE COUNTERCLAIMS THAT YOU HAVE
14 BROUGHT, I DON'T THINK YOU CAN BASE A CIVIL ACTION ON SECTION
15 241 OF TITLE 18. AND YOUR OTHER CLAIMS, AGAIN, REALLY LOOKING
16 AT THEM FROM AN OVERVIEW STANDPOINT, IT SEEMS LIKE WHAT YOU'RE,
17 IN ESSENCE, SAYING IS PLAINTIFFS HAVE BEEN MALICIOUS IN THE
18 PROSECUTION OF THIS CASE AND IN THINGS THAT ARE A LITTLE BIT
19 BEYOND THIS CASE.
20 MR. HENSON: WELL, WELL BEYOND THIS CASE.
21 THE COURT: TO THE EXTENT THEY DEAL WITH THIS CASE
22 AND WHAT THEY'RE DOING IN CONNECTION WITH THIS CASE, THAT REALLY
23 WOULD BE WHAT'S CALLED A MALICIOUS PROSECUTION ACTION THAT HAS
24 TO AWAIT A FAVORABLE DETERMINATION OF THIS CASE IN YOUR FAVOR.
25 WITH RESPECT TO INFLICTION OF EMOTIONAL DISTRESS OR
3
LEE-ANNE SHORTRIDGE, OFFICIAL COURT REPORTER, USDC
1 INVASION OF PRIVACY, THOSE TYPES OF CLAIMS, WHICH SEEM TO BE
2 KIND OF WHAT YOU'RE TALKING ABOUT, IT REALLY SEEMS TO ME THAT
3 THOSE ARE STATE CLAIMS, AND ALTHOUGH THEY DO ARISE OUT OF
4 R.T.C.'S ALLEGED, OR R.T.C.'S ALLEGED DESIRE TO, FROM YOUR
5 STANDPOINT, STIFLE --
6 MR. HENSON: CRITICISM.
7 THE COURT: YEAH, SUPPRESS CRITICISM, THAT REALLY IS
8 A SEPARATE SUBJECT MATTER FROM THE QUESTION OF ARE R.T.C.'S
9 DOCUMENTS ENTITLED TO COPYRIGHT PROTECTION AND ARE THEY ENTITLED
10 TO TRADE SECRET PROTECTION? AND IF THEY'RE ENTITLED TO EACH,
11 HAVE YOU DONE ANYTHING TO VIOLATE EACH OF THOSE PROTECTIONS?
12 THOSE SEEM TO ME TO BE SEPARATE ISSUES. I'M NOT IN
13 ANY WAY SUGGESTING THAT YOUR OTHER CLAIMS DON'T HAVE MERIT, BUT
14 I DON'T THINK THEY'RE FEDERAL CLAIMS THAT SHOULD BE BROUGHT IN
15 THIS ACTION.
16 MR. HENSON: I BELIEVE THAT I CAN SHOW A SUFFICIENT
17 CONNECTION TO THIS. WITH RESPECT TO R.T.C.'S ACTIONS IN
18 PARTICULAR, THEY'RE ADMITTING CANCELLING POSTINGS ON THE
19 INTERNET THAT BASICALLY VIOLATE FEDERAL LAW THAT I CAN CERTAINLY
20 BRING AT LEAST THE RICO MATTER IN, ATTACH THIS CASE TO A RICO
21 MATTER.
22 THE COURT: AGAIN, AS I SAID WITH MR. WARD, IF YOU
23 WANT TO MAKE A MOTION TO AMEND YOUR COUNTERCLAIM THAT YOU HAVE
24 NOT TODAY MADE --
25 MR. HENSON: I FOLLOW MR. WARD AND I UNDERSTAND THE
4
LEE-ANNE SHORTRIDGE, OFFICIAL COURT REPORTER, USDC
1 MECHANICANISM FOR DOING THAT NOW. THANK YOU VERY MUCH.
2 THE COURT: ALL RIGHT. WITH RESPECT TO YOUR REQUEST
3 FOR A DETERMINATION OF CRIMINALITY, THE ONE DOCUMENT THAT YOU'VE
4 SPECIFICALLY REFERRED TO, THE ONLY ONE YOU'VE SPECIFICALLY
5 REFERRED TO, IS NOTS 34.
6 MR. HENSON: TO REFER TO THE OTHER ONES, I'D HAVE TO
7 VIOLATE THE INJUNCTION.
8 THE COURT: BUT LET ME GO FURTHER. NOTS 34 IS NOT
9 SOMETHING THAT, UNDER THE CURRENT INJUNCTION, IS PROTECTED
10 BECAUSE IT'S AN ALLEGED TRADE SECRET. YOU'RE ALLOWED TO MAKE
11 FAIR USE OF NOTS 34, AND --
12 MR. HENSON: SPECIFICALLY, CAN I TAKE A COPY OF IT
13 TO THE F.D.A.?
14 THE COURT: WELL, I CAN'T GIVE YOU LEGAL ADVICE, BUT
15 CERTAINLY YOU CAN MAKE FAIR USE OF THAT DOCUMENT, WHICH MIGHT,
16 IF YOU DID IT PROPERLY, INCLUDE MAKING SOME COMPLAINT TO A
17 FEDERAL AGENCY OR CRIMINAL PROSECUTION AUTHORITY IF YOU DID IT
18 IN A PROPER WAY AND FELT IT WAS APPROPRIATE.
19 I DON'T THINK -- BUT WHAT YOU'RE REALLY ASKING THIS
20 COURT FOR IS KIND OF AN ADVISORY OPINION, AND YOU'RE ALSO ASKING
21 FOR SOMETHING THAT I JUST DON'T THINK THIS COURT IS IN A
22 POSITION TO DO WITH RESPECT TO MAKING A DETERMINATION. I MEAN,
23 NOTS 34 WASN'T EVEN IN EXISTANCE AT THE TIME OF JUDGE GESELES'
24 DECISION.
25 MR. HENSON: I CERTAINLY AGREE WITH THAT, YOUR
5
LEE-ANNE SHORTRIDGE, OFFICIAL COURT REPORTER, USDC
1 HONOR, BUT CERTAINLY JUDGE GESELES' DECISION PUT THE CHURCH OF
2 SCIENTOLOGY AND ALL OF ITS BRANCHES UNDER CERTAIN RESTRICTIONS,
3 AND IT IS MY BELIEF THAT IN A READING OF NOTS 34, YOU WOULD FIND
4 THAT THOSE RESTRICTIONS ARE VIOLATED. I'VE READ BOTH OF THEM
5 VERY CAREFULLY AND I CAN ANALYZE IT FOR YOU IF YOU WISH.
6 THE COURT: WELL --
7 MR. HENSON: IN OTHER WORDS, AN INJUNCTION SHOULD
8 PREVENT, A COURT ORDER OF THAT NATURE SHOULD PREVENT THEM FROM
9 DOING THINGS IN THE FUTURE, AND THE FACT THAT NOTS 34 POST-DATED
10 THE JUDGE, THE TIME OF JUDGE GESELES' DECISION AND THE FACT THAT
11 R.T.C. CLAIMS TO BE A DIFFERENT PIECE OF SCIENTOLOGY THAN THE
12 ONE THAT HE GAVE IT AGAINST, I THINK STILL MAKES IT APPLICABLE.
13 THE COURT: YEAH, BUT JUDGE GESELES' DECISION WAS
14 FAIRLY NARROW IN WHAT IT SPECIFICALLY PROHIBITED THEM FROM
15 DOING, AND IT DEALT, IN LARGE PART, WITH A PRODUCT.
16 MR. HENSON: IT ALSO DEALT IN THE MATTER OF CLAIMS
17 THAT THEY WERE FORBIDDEN TO MAKE.
18 THE COURT: OKAY. WITH RESPECT TO YOUR REQUEST FOR
19 FILING AN AMICUS BRIEF, NUMBER ONE, YOU NEED TO MAKE THAT IN THE
20 CASE IN WHICH YOU ARE REQUESTING TO FILE IT.
21 IN OTHER WORDS, IF YOU WANT TO FILE AN AMICUS BRIEF
22 IN THE WARD CASE OR THE ERLICH CASE, YOU'VE GOT TO MAKE THAT
23 REQUEST IN THAT CASE, NOT THIS ONE.
24 AND SECONDLY, THE PROCESS FOR REQUESTING LEAVE TO
25 FILE AN AMICUS BRIEF NORMALLY IS TO SUBMIT THE BRIEF AND ASK THE
6
LEE-ANNE SHORTRIDGE, OFFICIAL COURT REPORTER, USDC
1 COURT TO CONSIDER IT.
2 MR. HENSON: YOUR HONOR, MY BRIEF IN THAT PARTICULAR
3 CASE WOULD BE THE LETTER WHICH I LONG AGO SUBMITTED TO THE COURT
4 EVEN BEFORE THIS CASE. I SUBMITTED IT IN THE WARD CASE AND IT
5 WAS THE LETTER INCLUDING THE QUOTED NOTS.
6 THE COURT: YEAH. LET ME JUST SAY AGAIN FOR
7 EVERYBODY, I GET MAIL BY THE VOLUME ON THIS. I CANNOT CONSIDER
8 MAIL THAT IS SENT TO ME IN CONNECTION WITH THIS CASE. I'VE GOT
9 TO MAKE SURE I OPERATE ON A STRICT LEGAL PRINCIPAL SO EVERYBODY
10 KNOWS WHAT'S BEING CONSIDERED, AND THAT IS TO CONSIDER ANYTHING
11 THAT IS PROPERLY FILED THAT'S IN FRONT OF ME.
12 MR. HENSON: OKAY.
13 THE COURT: SO IF YOU WANT TO -- ALL I'M SAYING IS
14 IF YOU WANT TO FILE AN AMICUS BRIEF IN WARD'S CASE, WHAT YOU DO
15 IS FILE A REQUEST IN THAT CASE SETTING FORTH WHAT YOU WANT THE
16 COURT TO CONSIDER AS PART OF AN AMICUS BRIEF, AND THE COURT
17 MAKES A DECISION. THE PARTIES IN THAT CASE HAVE A RIGHT TO SAY
18 "YEAH, I THINK IT WILL BE HELPFUL" OR "I THINK IT WOULDN'T BE."
19 MR. HENSON: I SUPPOSE SINCE IT IS -- SINCE, IF I
20 REFILE THE LETTER THAT I ORIGINALLY WROTE YOU AS AN AMICUS BRIEF
21 AND SINCE IT QUOTES NOTS 34, I SUPPOSE I SHOULD FILE IT UNDER
22 SEAL.
23 THE COURT: I THINK THAT WOULD PROBABLY BE AN
24 APPROPRIATE THING TO DO WITHOUT LOOKING BACK AT WHAT IT IS.
25 MR. HENSON: OKAY. THANK YOU.
7
LEE-ANNE SHORTRIDGE, OFFICIAL COURT REPORTER, USDC
1 THE COURT: WITH RESPECT TO THE TRADE SECRET ASPECT
2 OF YOUR CLAIM, I'M IN THE SAME POSITION THAT I WILL BE ISSUING
3 AN ORDER IN EACH OF YOUR CASES AFTER I -- THERE ARE SOME ISSUES,
4 AS MR. MILGRAM HAS POINTED OUT, THAT ARE INDIVIDUALIZED TO THE
5 CASES, BUT THERE'S A LOT THAT OVERLAP, AND I'M BASICALLY GOING
6 TO BE DEALING WITH ALL THOSE ESSENTIALL AT THE SAME TIME, AND SO
7 THAT DECISION WILL BE MADE WHEN THE DECISION IS MADE.
8 OKAY. ANYTHING ELSE THAT YOU WANTED TO SPEAK TO?
9 MR. HENSON: THE MODIFICATION WITH THE F.D.A. THEN
10 IS ESSENTIALLY COVERED BY YOUR EARLIER DISCUSSION OF THAT?
11 THE COURT: YEAH. BASICALLY WHAT YOU'VE INDICATED
12 TO ME IS A CONCERN ABOUT WHAT YOU DO WITH RESPECT TO THAT
13 DOCUMENT, AND I'M JUST POINTING OUT TO YOU THAT THAT DOCUMENT
14 IS, YOU'RE ALLOWED TO MAKE FAIR USE OF THAT DOCUMENT.
15 I THINK IF YOU HAVE SOME QUESTION AS TO WHAT FAIR
16 USE IS THAT YOU OUGHT TO GET SOME LEGAL ADVICE. I'M NOT IN A
17 POSITION TO GIVE YOU AN ADVISORY OPINION. IN FACT, I'M
18 PRECLUDED BY LAW FROM DOING THAT.
19 BUT YOU CAN MAKE FAIR USE OF THAT DOCUMENT. AND SO
20 THEREFORE, I DON'T FEEL THAT, FOR THAT GIVEN REASON, THE
21 MODIFICATION OF THE PRELIMINARY INJUNCTION IS NECESSARY. THERE
22 MAY BE OTHER REASONS THAT IT'S GOING TO BE MODIFIED, BUT NOT FOR
23 THAT ONE.
24 MR. HENSON: THERE ARE AT LEAST TWO OTHERS. I'VE
25 NOT READ THEM MYSELF BECAUSE I'M UNDER THE INJUNCTION, BUT THERE
8
LEE-ANNE SHORTRIDGE, OFFICIAL COURT REPORTER, USDC
1 ARE AT LEAST TWO OTHER PIECES OF NOTS WHICH HAVE BEEN, SOMEBODY
2 ELSE TOLD ME THAT THOSE, IN ADDITION, CONTAINED MATERIAL WHICH
3 IS, WHICH MAKES MEDICAL CLAIMS IN IT, AND THAT TOO SHOULD GO TO
4 THE F.D.A. I DON'T -- 26, I THINK, WAS ONE OF THEM, BUT I'M NOT
5 SURE WHAT THE OTHER WAS. THERE MAY HAVE BEEN TWO OTHERS.
6 THE MAJORITY OF THE NOTS I'M NOT EVEN SLIGHTLY
7 INTERESTED IN BECAUSE IT'S MORE BORING THAN IT IS ANYTHING ELSE.
8 I'M SURE YOU'VE HAD ENOUGH OF IT BY NOW.
9 BUT THOSE PARTICULAR ONES I'M STILL UNDER THE
10 INJUNCTION WITH RESPECT TO THE TRADE SECRET ANGLE, SO
11 EFFECTIVELY I'M PROHIBITED FROM REPORTING WHAT I BELIEVE TO BE
12 CRIMINAL ACTIVITY TO THE APPROPRIATE LAW ENFORCEMENT AGENCY AS
13 LONG AS THE CHURCH OF SCIENTOLOGY CALLS IT A TRADE SECRET.
14 THE COURT: THERE'S CERTAINLY NOTHING THAT PREVENTS
15 YOU FROM GOING TO AN AGENCY AND SAYING, "I HAVEN'T SEEN THESE,
16 BUT MY UNDERSTANDING IS THIS AND I THINK IT'S CRIMINAL." YOU
17 CAN MAKE WHATEVER REPORT YOU FEEL IS APPROPRIATE.
18 MR. HENSON: WITHOUT PROVIDING THEM WITH SAMPLES,
19 WITHOUT AN EXAMPLE?
20 THE COURT: THAT WOULD BE UP TO THEM TO DO WHAT THEY
21 WANT.
22 MR. HENSON: I SEE. THANK YOU, YOUR HONOR.
23 THE COURT: OKAY. MR. MILGRIM, ANY COMMENTS?
24 MR. MILGRIM: YES, THANK YOU, SIR.
25 I THINK THERE'S A BEGUILING SIMPLICITY TO THE ORDER
9
LEE-ANNE SHORTRIDGE, OFFICIAL COURT REPORTER, USDC
1 IN TERMS OF LODGING DOCUMENTS WHICH ARE CURRENTLY THE SUBJECT OF
2 TRADE SECRET CLAIMS WITH A FEDERAL AGENCY WHERE THEY'RE
3 AVAILABLE TO ANY PERSON.
4 I THINK YOUR HONOR'S VIRTUALLY FINAL REMARKS WERE
5 THAT AS A CITIZEN, AND WE SUBSCRIBE TO THIS, WE HAVE NO
6 OBJECTION WHATSOEVER TO MR. HENSON, MR. WARD OR ANY OTHER
7 PERSON, IF THEY BELIEVE THAT THERE IS SOME IMPROPRIETY
8 INVOLVED WITH SCIENTOLOGY, TO REPORT IT TO ANY AGENCY. AND IN
9 THIS CASE, MR. HENSON BELIEVES THAT THERE IS AN IMPROPRIETY
10 REGARDING THE F.D.A.
11 BUT I THINK THE WAY THAT YOU DESCRIBED TO HIM AS ONE
12 WAY TO DO IT, FOR EXAMPLE, FOR THE DOCUMENT THAT HE HAS NOT
13 SEEN --
14 THE COURT: I DIDN'T DESCRIBE ANY WAY FOR HIM TO DO
15 IT.
16 MR. MILGRIM: WELL, I BELIEVE YOU INDICATED, AND WE
17 DO NOT DISAGREE, THAT HE HAS A RIGHT TO WRITE TO THE F.D.A. AND
18 SAY "I'M INFORMED THAT THERE'S A NOTS ISSUE, PERHAPS IT'S 26,
19 WHICH MAY HAVE SOME IMPROPER MEDICAL ASPECTS TO IT AND I WOULD
20 URGE THAT YOU LOOK INTO IT."
21 THE PROBLEM THAT I HAVE WITH NOTS 34 IS THAT, FIRST
22 OF ALL, WE DO MAINTAIN IN THE ACTION AGAINST MR. HENSON, MR.
23 WARD AND MR. ERLICH THAT IT IS A TRADE SECRET, AND WHILE IT'S
24 BEEN PRELIMINARILY RULED THAT IT IS NOT, WE MAINTAIN THAT UNDER
25 THE GENERALLY KNOWN STANDARD, IT INDEED IS.
10
LEE-ANNE SHORTRIDGE, OFFICIAL COURT REPORTER, USDC
1 AND I REALIZE THAT THAT'S AN ISSUE THAT YOU'RE
2 WRESTLING WITH, YOUR HONOR, BUT IF I MAY MAKE THIS COMMENT? IT
3 CERTAINLY WOULD BE IMPROPER, I THINK, FOR ANY DEFENDANT CHARGED
4 NOT TO COPY PUBLISHED OR DISTRIBUTE A COPYRIGHTED WORK TO DO SO
5 BY INDIRECTION, AND THE LODGING OF A DOCUMENT IN A PUBLIC FILE,
6 THE LODGING OF THE DOCUMENT ITSELF, SEEMS TO ME TO BE ALMOST A
7 CERTAIN PRESCRIPTION FOR THAT DOCUMENT TO BE BROADCAST AND
8 COPIED, NOT BY THE F.D.A., THAT'S NOT THE CONCERN, BUT THERE ARE
9 CONFIDENTIALITY PROVISIONS IN THE F.D.A. RULES THAT ARE NOT
10 BEING ADDRESSED HERE, AND HE'S SUGGESTING SUBMISSION.
11 NOW WHAT IF, AFTER THAT SUBMISSION, MR. HENSON OR
12 OTHER PEOPLE, AS HAS BEEN THE INVARIABLE PRACTICE, ANNOUNCE ON
13 THE INTERNET THAT "IF YOU WISH TO HAVE ACCESS TO NOTS 34, JUST
14 VISIT THE F.D.A."
15 THE COURT: WELL, LET ME STOP YOU. I DON'T KNOW
16 WHETHER YOU'RE REALLY ADDRESSING YOUR COMMENT TO ME OR TO HIM.
17 WHAT I SAID WAS IN A PROPER WAY. I THINK IF SOMEONE
18 FELT THAT THERE WAS SOMETHING CRIMINAL IN A COPYRIGHT PROTECTED
19 MATERIAL, THERE WOULD BE A WAY THAT THAT PERSON COULD PROPERLY,
20 UNDER THE FAIR USE DOCTRINE, MAKE THAT COMPLAINT TO THE PROPER
21 AGENCY OR INVESTIGATORY AUTHORITY WITHOUT VIOLATING THE FAIR USE
22 DOCTRINE.
23 BUT TO TELL SOMEBODY HOW TO DO THAT, ONE, I WOULDN'T
24 KNOW WHAT TO TELL THEM AS I SIT HERE NOW BECAUSE I WOULD HAVE TO
25 THINK IT THROUGH AND DO SOME RESEARCH, BUT IT JUST STRIKES ME
11
LEE-ANNE SHORTRIDGE, OFFICIAL COURT REPORTER, USDC
1 THAT, DONE IN A PROPER WAY, IT MAKES LOGICAL SENSE THAT YOU
2 COULD MAKE THAT COMPLAINT TO THE PROPER AGENCY. THAT'S ALL I'M
3 SAYING.
4 MR. MILGRIM: WELL --
5 THE COURT: AND I DOUBT YOU DISAGREE WITH THAT, BUT
6 IF YOU DO, TELL ME.
7 MR. MILGRIM: I AGREE WITH YOU ENTIRELY, AND I GUESS
8 I SURELY CAN'T ASK YOU TO RENDER AN ADVISORY OPINION FOR OR
9 AGAINST, SO I FULLY UNDERSTAND THE BIND THAT WE'RE IN.
10 BUT I'D LIKE TO BE AS CLEAR AS I CAN BE ON THE
11 RECORD THAT WERE THE DOCUMENT IN ITS ENTIRETY LODGED, THERE'S NO
12 NEED -- MR. HENSON'S READING OF JUDGE GESELES' OPINION
13 OVERLOOKED THE CRITICAL ELEMENT WHICH THE NINTH CIRCUIT, EXCUSE
14 ME, THE D.C. CIRCUIT FOCUSSED ON, WHICH IS IN THE RELIGIOUS
15 CONTEXT, THE DESCRIPTIONS OF E-METER, THE USE OF AN E-METER WITH
16 AN APPROPRIATE LABELING, WHICH, AS MR. MCSHANE'S DECLARATIONS
17 HAVE MADE CLEAR, HAS BEEN INVARIABLY USED FOR OVER 25 YEARS IS
18 BEYOND THE SCRUTINY OF A SECULAR AUTHORITY.
19 PUTTING THAT ASIDE, PUTTING THE MERITS ASIDE, THAT
20 IS FOR MR. HENSON TO WRESTLE WITH AND TO DETERMINE WHETHER HE
21 STILL BELIEVES THAT THERE'S SOME IMPROPRIETY.
22 BUT WHAT WE WANT TO BE CLEAR ABOUT ON THE RECORD IS
23 THAT AN INDIRECT MAKING AVAILABLE OF A COPYRIGHTED WORK FOR
24 COPYING, AND WE BELIEVE THAT'S THE PURPOSE, BECAUSE HIS CONCERN
25 COULD BE FULLY MET BY A COMMUNICATION WITH THE F.D.A. WHICH DID
12
LEE-ANNE SHORTRIDGE, OFFICIAL COURT REPORTER, USDC
1 NOT INVOLVE LODGING A DOCUMENT THAT IS DEEMED TO BE RELIGIOUS,
2 SECRET, UNPUBLISHED AND COPYRIGHTED, HE COULD ACCOMPLISH
3 EVERYTHING WITHOUT DOING THAT.
4 WE WANT TO BE CLEAR ON THE RECORD THAT WE WOULD
5 CONSIDER THAT A FLAGRANT VIOLATION OF THE INJUNCTION IN EFFECT.
6 THE COURT: ALL RIGHT. THANK YOU.
7 MR. HENSON: YOUR HONOR, I WOULD BE GLAD TO TAKE
8 ADVICE FROM THIS SQUAD OF LAWYERS THAT THEY HAVE AS TO JUST HOW
9 I COULD PROVIDE THIS TO THE F.D.A. AND STILL SAY INSIDE THE
10 INJUNCTION.
11 MR. MILGRIM: THAT'S FINE. WE'LL WORK WITH HIM.
12 THE COURT: OKAY. ALL RIGHT.
13 (PROCEEDINGS CONCLUDED.)
14
15
16
17
18
19
20
21
22
23
24
25
13
LEE-ANNE SHORTRIDGE, OFFICIAL COURT REPORTER, USDC
1 STATE OF CALIFORNIA )
) SS.
2 COUNTY OF SANTA CLARA )
3
4 I, THE UNDERSIGNED, A CERTIFIED SHORTHAND REPORTER OF
5 THE STATE OF CALIFORNIA, HEREBY CERTIFY THAT THE ABOVE
6 PROCEEDINGS WERE HELD AT THE TIME AND PLACE HEREIN STATED; THAT
7 THE STATEMENTS BY COUNSEL, THE COURT AND OTHER PARTIES WERE
8 REPORTED BY ME, A CERTIFIED SHORTHAND REPORTER AND DISINTERESTED
9 PERSON, AND WERE THEREAFTER TRANSCRIBED UNDER MY DIRECTION INTO
10 TYPEWRITING, AND THAT THE FOREGOING IS A FULL, COMPLETE AND TRUE
11 RECORD OF SAID PROCEEDINGS.
12
13 I FURTHER CERTIFY THAT I AM NOT OF COUNSEL OR ATTORNEY
14 FOR EITHER OR ANY OF THE PARTIES IN THE FOREGOING PROCEEDINGS
15 AND CAPTION NAMED, NOR AM I IN ANY WAY INTERESTED IN THE OUTCOME
16 OF THE CAUSE NAMED IN SAID CAPTION.
17
18 IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND THIS
19 4TH DAY OF OCTOBER 1996.
20
21
22
23 ______________________________
LEE-ANNE SHORTRIDGE, CSR #9595
24
25
LEE-ANNE SHORTRIDGE, OFFICIAL COURT REPORTER, USDC
Keith Henson
Here is a better version. Still a few glitches, many thanks to the person
who fixed it up. (speak up if you want credit. :-) ) Keith Henson
> UNITED STATES DISTRICT COURT
>NORTHERN DISTRICT OF CALIFORNIA
>RELIGIOUS TECHNOLOGY CENTER, ) Case No. C-96-20271RMW
>a California non-profit corporation, )
> ) PLAINTIFF'S OPPOSITION TO
> Plaintiff; ) DEFENDANT'S MOTION TO QUASH
> ) SUBPOENA AND MOTION TO
> V. ) MQDIFY PRELIMINARY
> ) INJUNCT ON
>H. KEITH HENSON, an individual, Date: October 4, 1996
>)
> Defendant ) TimQ: 10:00 .m.
> ) Hon. Ronald M. whyte
>INTRODUCTION AND STATEMENT OF ISSUES
>
> In two consolidated motions filed with this Court on September
>27, 1996, defendant H. Keith Henson ("Henson' ) seeks to squash a third
>party subpoena issued to him in the related case of Religious
>Technology Center VS Ward Case No.96-20207 RMW and to modify the
>preliminary injunction against him to eliminate any protection based
>on the California Uniform Trade Secrets Act. Thc basis for this,
>Henson's forth attempt to modify the preliminary injunction in as
>many months, is that Henson claims to have succeeded in
>reconstructing an entire issue of the NOTs series ("NOTs 23") from the
>masked version filed by RTC with the Copyright Office in support of
>it6 legistration application. RTC provided a masked copy to Henson on
>July 26, 1996 pursuant to the mandatory disclosure obligations of the
>Local Rules. Henson asserts that with the help of some computer
>programs and a dictionary he has been able to "recover the full text,
>or something close to the full text" of that NOTs issue. Motion at
>2-3. According to Henson, the trade secret component of the
>preliminary injunction must now be dissolved because RTC filed the
>masked copies with the Copyright Office. Ii at 2.
>
> Henson's motion is fundamentally flawed both as to the facts
>and the law, Henson's basic premise is that the masked copies at the
>Copyright Office are available for public scrutiny. They are not, as
>the rules and regulations of the Copyright Office, and the case law
>from the Ninth Circuit and this Court which interpect them show:
>public access to deposited works in the manner Henson describes is
>prohibited. However, Henson admits that he copied one of the enjoined
>works and has attempted to ascertain the trade secret contained in
>that work. And Henson acknowledges that NOTs
>
>[footnote]
>
>As the court is aware Henson filed a motion to modify the preliminary injunction
> to allow him to communicate with the FDA about the
>contents of NOTs 34, and to permit him to make three fair use postings
>to the Internet. The Court has denied both of these motions. RTC V.
>Henson, August 5, 1996 ()p. and Order at 2,6-1. The Court also has
>under submission Henson's motion to modify the injunction to permit
>him 'to responsibly exercise his First Amendment rights. ' Id. at 6.
>
>[end footnote]
>
>23 has never previously posted to the Internet, Id at Thus Henson openly engaged
> in copyright infringement and violated both the
>copyright and trade secret aspects of the April 12, 19% preliminary injunction.
>
>ARGUMENT
>
>I THERE IS NO BASIS TO MODIFY THE PRELIMINARY INJUNCTION BASED
> ON HENSON'S "RECONSTRUCTION" OF NOTs 23 AND THE ALLEGED
> AVAILABILITY OF MASKED COPIES OF NOTs AT THE COPYRIGHT OFFICE
>
>Henson's motion to modify the trade secret portion of the preliminary injunction is based
> on this erroneous premise; that the
>masked copies of the NOTs issues filed by RTC with the Copyright
>Office in support of its registration application are 'available to
>anyone who asks for a copy' Motion at 2 In fact, in the absence of
>written authorization from the copyright holder or a court order, 37 C
>F R. 201.2(d)(2Xi) & (iii , a request for a deposit copy will be
>granted by the Copyright Office only when
>The Copyright Office recieves a written request from an attorney on
>behalf of either the plaintiff or defendant in connection with
>litigation, actual or prospective, involving the copyrighted work. The
>following information must be included in such a request: (1) the
>names of all the parties involved and the nature of the controversy ;
>(2) the name of the court in which the actual case is pending or, in
>the case of a prospective proceeding, a full statement of the facts of
>the controversy in which the copyrighed work is involved; and (3)
>satisfactory assurance that the requested reproduction will be used
>only in connection with the specified litigation.
>
>
>37 C.F.R 2Ol2(d)(2)( ).
>
> Beyond the plain language of this regulation, the narrow
>construction to be afforded to section 201 .2(d)(2)(ii) is recognized
>in Atari Corp. v. Nintendo of America Inc , :2d
>
>-------------------------------
>
>Henson's contempt of the preliminary injunction will be the subject of
>a separate motion by RTC.
>
>
>The authority for this reguLation is found in Section 706 of the
>Copyright Act, which provides that '[c)opies or reproductions of
>deposited articles retained under the control of the Copyright Office
>shall be authorized or furnished only under the conditions specified
>by the Copyright Office regulations. 17 U.S C. 706(b) (emphasis
>added). ----------------------------------
>
> $32 (Fed Cir. 1992) Interpreting and applying Ninth Circuit law, the
>court concluded that Atari had improperly acquired a copy of
>Nintendo's computer sofiware program by falsely stating to the
>Copyright Office that Atari was a defendant in a case pending in the
>Northern District of California. Atari then used this copy of the
>program to "reverse engineer" its own computer program which permitted
>Atari video game cartridges to be used on Nintendo game
>console. Id at 836
>
> Atari's reproduction of a single copy obtained from the
>Copyright Office under false pretenses was held an act of
>infringernent. Id. at 842 ("Reproduction of an unauthorized copy from
>the Copyright Office violates 17 U S,C 106(l) "). See Bateman v,
>Mnemonics, Inc., 79 F.3d 1532, l539 40 n.18 (11th Cir. 1996) (citAtari Games with
> ipproval); 3 Melvilic B Nimmcr & David Niminer, Nimmer on Copyright
>13.05[1)][4J at 13-235 to 13-236 (1996) ("Nimmer ) (same)
>
> Nor can individuals examine masked copyrighted works and
>thereby acquire sufficient information to "reconstruct" unmasked
>version of the works.
>
>All completed records and indexes relating to a registration or to a
>recorded document and all articIes deposited in connection with
>completed registration and retained under the control of the Copyright
>Office1 are Open to public inspection See 17 U.S C 705. Before being
>permitted to inspect any deposit, however, the requester must (1) show
>proper identification, preferably including a photograph and current
>address, and (2) complete and sign a "Request for Inspection of
>Copyright Deposit" (Form C-8) indicating agreement not to copy or
>deface the material to be inspected. Requesters needing to make
>limited notes during the inspection may do so only on the form
>provided for that purpose by the Certification and Documents staff
>which will review all notes before requesters leave the inspection
>area and retain those notes that constitute prohibited copying
>
>Compendium of Copyright Office Practice 1902 Ol (emphasis in
>original). The Compendium is the definitive manual of thc Copyright
>Office admimstration practices, prepared by the Copyright Office based
>on the statute and applicable regulations under 37 C.F.R. As this
>Court stated in its opinion in Atari Games, 'it is beyond practical
>human capability to reverse engineer the deposit copy
>
> ----------------------
>
>
>The court in Atari Games also held that the "intermediate copies of
>the program" made by Atari to accomplish the reverse engineering
>process constituted distinct acts of copyright infringement. 975 F.2d
>at 842. We discuss that portion of the court's opinion in Point II,
>post.
>
>------------------------
>
>
>materials based solely upon the limited type public inspection
>permitted by the Copyright Office on its Atari Games Corp V. NinofAmericaInc.
> 18 U.S PQ.2d 1935, 1991 WL 57304 at *6 .D. Cal. 1991)
>(emphasis added, quotations and ellipses omitted), affd, 975 F.2d g32
>(Fed. Cir. 1992). Plainly, the computer-aided reverse engineering that
>Henson claims to have done with NOTs 23 would not have been possible
>under the Guidelines.
>
> Henson's claim that the masked copies on file in the
>Copyright Office somehow expose the secret processes and information
>to public scrutiny is simply wrong. Henson's latest motion to modify
>the preliminary injunction should be rejected.
>
>II. HENSON'S RECONSTRUCTION OF NOTs 23 IS A CLEAR VIOLATION OF THE
> COPYRIGHT ACT AND THE PRELIMINARY INJUNCTION
>
> Putting aside the questionable validity of Henson's claim that
>he reconstructed a virtually complete copy of NOTs 23 from the masked
>copy provided to him in disclosure, his motion admits that he engaged
>in enjoined copyright infringement and trade secret misappropriation.
>A single act of copying can constitute an infringement. See, e.g.,
>Atari Ga es, 975 F 2d at 840 ("A single copy is sufficient to support a
>claim of copyright infringement "); 2 Nimmer, .oi [G] at 8-26 &
>n.72 (Copyright Act "reaches the making of a single copy"). This rule
>of liability is applicable whether the copying at issue is the end
>product of the infringer's actions or an intermediate step to
>legitimate activity. WaJ r Urn" rsi 602 F.24 859, 863-864 (9th
>Cir. 1979) Walt Disney Productio V. Filmation Associates, 62
>F.Supp. 871, 875-876 (C.D. Cal. 1986), cited in &ga Erners. Ltd v
>Accolade, inc., 977 F.2d 1510, 1518(9th Cir. 1992). See also 3 Nimmer,
>
>-------------------------------------------
>
> April 12, 1 96 preliminary injunction prohibits Henson from
>"directly or lndirectly in whole or in part ... reproducing . - the
>Exhibit B Works, of any of them, in any media now known or hereafter
>developed in any time, place or ....... ." and from engaging in the
>unauthorized disclosure, or dispay, of the Exibit B works, or portions
>thereof...' or 'engaging in the unauthorized solicitation and or
>acquisition, of the Exhibit B works, or portions thereof...7 Paragraph
>4 of the injunction prohibits Henson from "directly or indirectly...
>altering any reproduction, copy, facsimile, excerpt or derivative of
>any work of L. Ron Hubbard in defendant's possession,
>custody or controI." 13.05fD][4] at 13-232Y
>
>-------------------------------------
>
> Henson manifestly cannot use masked NOTs 23, a docutnent
>received soley by virtue of his status as the defendant in this
>litigation-free from the strictures of the preliminary injunction--to
>recreate what purports to be an unredacted version and then bootstrap
>his own improper conduct into a colorable argument for modfying the
>preliminary injunction. Arari Games makes this point plain.
>
>Henson's conduct here missuses the documents RTC disclosed to him,
>just as it infringes them 21
>
>III. HENSON'S MOTION TO QLIASH THE DEPOSITION SUBPOENA IS
> MERITLESS
>
> Henson has also moved to quash his deposition noticed by RTC
>in RTC v. Ward. It should first be noted that he has moved to quash in
>the wrong case. As a non-lawyer Henson is undoubtedly unaware that,
>absent Ward's stipulation, Henson's deposition testimony in his case
>cannot be used in RTC v Ward. RTC is prepared to stipulate that the
>deposition of Henson rnay be used in RTC v. Ward, if both Henson and
>Ward (who attended Henson's deposition) will also stipulate. If not,
>RTC must depose Henson as to the issues raised in his deposition in
>this case to have the benefit of his testimony in RTC V Ward
>
> Insofar as Henson's motion may be read as asking relief from
>his being further deposed in RTC v. Henson, the complete answer is
>that RTC would not seek to redepose him on any matters
>
>---------------------------------------
>
>Nor can Henson liken his conduct to "reverse engineering," which the
>court in Sega found on the facts presented there to be true. In Sega,
>the defendant lawfully acquired authorized, "comm i ial1y v4jl bl
>copies" of plantiffs computer program and made interirn copies of the
>programs "object code" as a means of accessing the non-copyrightable
>elements in the program 977 F.2d at 1514 The court held that "where
>disassembly is the only way to gain access to the ideas and
>functional elements embodied in a copyrighted computer program and
>where there is a legitimate reason for seeking such access,
>disassembly is fair use of the copyrighted work Id at 1527-28. The
>"legitimate reason" identified by the court in Sega was the defendanfs
>desire to access the non-copyrighted elements of the program in order
>to make its own video game cartridges compatible with Sega's products
>Id. at 1520.
>
>
>Given Henson's missuse of these materials and to avoid future disputes
>over how documents produced in discovery can be used, RTC urges the
>Court to direct Henson to meet and confer with RTC to negotiate an
>appropriate protective order, and failing that, to direct the parties
>to appear before Magistrate Judge Infante to agree on the terms of
>such an order.
>
>-------------------------
>
>previously cover , but naturally reserves the right to seek to depose
>him as to other matters, such as events that have occurred since his
>first deposition
>
>CONCLUSION
>
> For all the foregoing reasons, RTC respeetfiuly requests that
>the Court deny Henson's motion to quash and to modify the preliminary
>injunction RTC also requests that the Court expressly incorporate any
>"reconstructed" copies of the NOTs issues created by Henson within the
>scope of the existing preliminary injunction.
>
>Dated: October 1996 Respectfully submitted
> LAW OFFICES OF THOMAS R. HOGAN
>
>
>
> Thoma R Hogan HELENA KOBRIN
>
>PAUL, HASTINGS, JANOFSKY & WALKER Roger M Mugrim William M H rt
>JaW Kennedy RABINOWITZ BOUDIN, STANDARD KRINSKY & LIEBERMAN, p.C ,
>Eric M Lieberman
>
> Plantiff RELIGIOUS TECHNOLOGY CENTER
>
Keith Henson
Here is the draft version of my reply the judge let me file. It has to be
in Friday. I *greatly* appreciate the comments and suggestion the a.r.s
crew does on my legal filings. It is late around midnight Tue, so there
is time for me to get a bunch of your comments before I have to do a final
version and file it Friday. Keith Henson
--------
H. Keith Henson
P.O.Box 60012
Palo Alto, CA 94306
(415) 325-7533
pro se
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
RELIGIOUS TECHNOLOGY CENTER, a ) Case No. C-96-20271RMW
California non-profit corporation, )
Plaintiff, ) DEFENDANTS'S REPLY TO
) PLAINTIFF'S OPPOSITION TO
v. ) SUBPOENA AND MOTION TO
) DEFENDANT'S MOTION TO
) QUASH AND MODIFY
H. KEITH HENSON, an individual, ) PRELIMINARY INJUNCTION
Defendant. )
____________________________________
In the October 4, 1996 hearing on these matters,
defendant was given an opportunity by the Court to reply to the
issues raised by plaintiff in opposition to defendant's motions
if filed by Oct 11, 1996.
Re the matter of quashing an additional deposition of
defendant, this was determined to depend on Grady Ward
permitting the previous deposition of defendant to be used in
his case.
Defendant agreed to give notice to the Court if
defendant decides to supply the FDA with a copy of NOTs 34,
which defendant believes to contains evidence of criminal
activity.
On the remaining issue, that of removing trade secret
issues from the preliminary injunction, plaintiff's filling
shamelessly tries to confuse the trade secret issue with
arguments about copyright. It should be noted that the Atari
case cited by plaintiff was *not* about trade secret.
While defendant intends to attack the plaintiff's
ownership of the copyrights and thus their very standing to
bring this action before the Court, defendant has no
disagreement that the NOTs material copyrighted is owned by
*someone*, and that other than fair use, or in the name of the
public good, the copyrights should be respected.
However, unlike copyright, trade secret depends on
something being kept *secret*, i.e., not available to potential
competitors. RTC's description of the process by which a person
can obtain a copy of the masked version of the NOTs material
essentially supports defendants claim that anyone can get them
from the Copyright Office. In doing so, a potential competitor
or member of the public might have to claim their request was
"in connection with litigation, actual or prospective, involving
the copyrighted work," but that is not much of a burden,
considering that Helena Kobrin has threatened everyone on the
Internet (at least 30 million people) with legal action in
connection with these works. If the plaintiff wishes to pursue
this argument, defendant is sure someone would be willing to
show by demonstration that defendant is correct on the point of
the masked versions being easy to obtain.
In addition, plaintiff has placed these documents in open
court files both in the US and internationally and distributed
them to defendants--without any protective orders in place. At
the October 4 hearing, Mr. Milgrim mentioned that plaintiffs
would supply defendant with access to the unmasked text, and
that therefore defendant had no reason to unmask them. At this
point, defendant does not see a reason to agree to such a
protective order; the Court can determine how well the
defendant's version of NOTs 23 matches the plaintiff's, and the
rest of the NOTs issues are posted frequently. However, the
unmasking of NOTs 23 was not done to read the material, only to
show that it *could be done* by "competitors," thus invalidating
the arguments that the trade secret has been kept secret. [It
might be noted that defendant is an engineer and programmer, and
tends to use those skills even in legal work. In those fields,
*demonstrating* something is considered much more definitive
than relying on argument or precedent. Not that it matters, but
while defendant used a computer and a dictionary to unmask NOTs
23, it could have been done by a dedicated competitor using only
a dictionary.]
RTC concludes:
"Thus Henson openly engaged in copyright infringement and
violated both the copyright and trade secret aspects of the
April 12, 1996 preliminary injunction."
And in a footnote states:
"Henson's contempt of the preliminary injunction will be
the subject of a separate motion by RTC."
Defendant would appreciate the Court holding plaintiff to
their stated intention rather than permitting them to continue
making threats.
Assuming plaintiff files this motion, the Court may wish
to note the contributory acts of the plaintiff in this matter,
plus the fact that the purported copyright violations were done
entirely within the defendant's efforts to defend himself and
filed under seal.
Defendant prays that the Court discard all arguments
against defendant's motion made by plaintiff on the basis of
copyright and rule on the basis of the NOTs 23 demonstration in
favor of the defendant's request to remove references to trade
secrets from the defendant's injunction.
Dated: October 11, 1996 Respectfully submitted
Ex Mudder
Just a general comment: this seems to be written as prose, not
legalese. I think the judge would like it more if it had numerous
numbered subsections, lots of latin, specific counterclaims, etc.
This of it as MST3King the Clam filing.
hkhe...@netcom.com (Keith Henson) wrote:
Ex Mudder / Dke...@best.com
Earthlink, aka SpamLink, is the AOL of ISP's
Scientologist owned and operated - 100% standard Tech
Ex Mudder
I MST3K'd this document. Sorry for the length. Just string my
additions together, add a header and footer, and you've got a reply.
I guess I really should mail as well as post this, as the spam has
returned.
hkhe...@netcom.com (Keith Henson) wrote:
The defendant, as a pro per litigant, was given unsolicted masked
copies of the defendants trade secrets.
>> Henson asserts that with the help of some computer
>>programs and a dictionary he has been able to "recover the full text,
>>or something close to the full text" of that NOTs issue. Motion at
Having a backgound in computers and information theories, the
Defendant observed that the full text of these documents could be
ascertained from the masked versions, as the subject matter is
generally known and the author was a man of limited vocabulary..
>
>>2-3. According to Henson, the trade secret component of the
>
>>preliminary injunction must now be dissolved because RTC filed the
>
>>masked copies with the Copyright Office. Ii at 2.
>>
>> Henson's motion is fundamentally flawed both as to the facts
>>and the law, Henson's basic premise is that the masked copies at the
>>Copyright Office are available for public scrutiny. They are not, as
>>the rules and regulations of the Copyright Office, and the case law
>>from the Ninth Circuit and this Court which interpect them show:
>>public access to deposited works in the manner Henson describes is
>>prohibited.
Given the Plaintiff's obsession about the secrecy of the contents
of these documents, and the extreme lengths it has gone to prevent the
distribution of these documents, their filing of the entire contents
with a public office is to be questioned, particularly in light of
their opposition to the Defendants desire to do the same.
Plaintiff has a history of sueing, or threatening to sue, any
critics or competitors that come to their notice. Satisfying the
conditions to receive these masked versions simply involves provoking
the Plaintiff to sue a person over copyright infringement, at which
time they will be handed, as per the manditory disclosure obligations
of the Local rules, at which time the parties can, with the help of a
dictionary, discover the protected trade secrets.
In fact, Council for the Plaintiff, one Helena K. Kobrin, has
threatened to sue almost everyone, singly or collectively, on the
internet.
>>
>>37 C.F.R 2Ol2(d)(2)( ).
>>
>> Beyond the plain language of this regulation, the narrow
>>construction to be afforded to section 201 .2(d)(2)(ii) is recognized
>>in Atari Corp. v. Nintendo of America Inc , :2d
>>
>>-------------------------------
>>
>>Henson's contempt of the preliminary injunction will be the subject of
>>a separate motion by RTC.
>>
The defendent wishes to enjoin the Plaintiff to cease making legal
threats, and would like to apply for sanctions against Plaintiff for
continuing to threaten additional complaints in court documents, but
never actually doing do.
>>
>>The authority for this reguLation is found in Section 706 of the
>>Copyright Act, which provides that '[c)opies or reproductions of
>
>>deposited articles retained under the control of the Copyright Office
>
>>shall be authorized or furnished only under the conditions specified
>>by the Copyright Office regulations. 17 U.S C. 706(b) (emphasis
>>added). ----------------------------------
>>
>> $32 (Fed Cir. 1992) Interpreting and applying Ninth Circuit law, the
>>court concluded that Atari had improperly acquired a copy of
>>Nintendo's computer sofiware program by falsely stating to the
>>Copyright Office that Atari was a defendant in a case pending in the
>>Northern District of California. Atari then used this copy of the
>>program to "reverse engineer" its own computer program which permitted
>>Atari video game cartridges to be used on Nintendo game
>>console. Id at 836
>>
>> Atari's reproduction of a single copy obtained from the
>>Copyright Office under false pretenses was held an act of
>>infringernent. Id. at 842 ("Reproduction of an unauthorized copy from
>>the Copyright Office violates 17 U S,C 106(l) "). See Bateman v,
>>Mnemonics, Inc., 79 F.3d 1532, l539 40 n.18 (11th Cir. 1996) (citAtari Games with
>> ipproval); 3 Melvilic B Nimmcr & David Niminer, Nimmer on Copyright
>>13.05[1)][4J at 13-235 to 13-236 (1996) ("Nimmer ) (same)
>>
Plaintiff's use of Atari vs. Nintendo is completely irrelevant to
the motion, as it does not involve trade secrets. In addition,
Plaintif's claim that "reverse engineering is simply not possible" is
in clear denial of both reality and of the copy submitted under seal.
It is also immaterial, as there is a signifigant difference between
prose and computer code.
Defendant wished to express his appreciation for Plaintif's
explanation of how the Copyright Office works, as it simplifies
matters for others to legally obtain these masked copies.
>>II. HENSON'S RECONSTRUCTION OF NOTs 23 IS A CLEAR VIOLATION OF THE
>> COPYRIGHT ACT AND THE PRELIMINARY INJUNCTION
>>
As for argument II of Plaintif's motion, it is irrelevant to the
Defendant's motion. Defendant is not seeking to modify the Copyright
provisions of the court order, but rather the Trade secret status,
which is not addressed. Perhaps Plaintif meant this section to be
filed in their afrementioned "seperate motion," alleging further
copyright violations by Defendant.
In regards to the Henson deposition in III, in court RTC and Henson
agreed that a second depsition covering the same subjects would be
unnecessary.
>> Insofar as Henson's motion may be read as asking relief from
>>his being further deposed in RTC v. Henson, the complete answer is
>>that RTC would not seek to redepose him on any matters
>>
>>---------------------------------------
>>
>>Nor can Henson liken his conduct to "reverse engineering," which the
>
>>court in Sega found on the facts presented there to be true. In Sega,
>
>>the defendant lawfully acquired authorized, "comm i ial1y v4jl bl
>
>>copies" of plantiffs computer program and made interirn copies of the
>>programs "object code" as a means of accessing the non-copyrightable
>>elements in the program 977 F.2d at 1514 The court held that "where
>>disassembly is the only way to gain access to the ideas and
>>functional elements embodied in a copyrighted computer program and
>>where there is a legitimate reason for seeking such access,
>>disassembly is fair use of the copyrighted work Id at 1527-28. The
>>"legitimate reason" identified by the court in Sega was the defendanfs
>>desire to access the non-copyrighted elements of the program in order
>>to make its own video game cartridges compatible with Sega's products
>>Id. at 1520.
>>
Plaintiff's discussion of Sega in a footnote seems to support
Defendants motion. Under sega, the use of a computer to "reverse
engineer" information from copyrighted materials is defined as fair
use, and using masked materials in a copyright case would certainly
qualify as a "legitimate reason." Defendant would also observe
that this footnote can also be used to defend againt the allgations
raised in II.
>>
>>Given Henson's missuse of these materials and to avoid future disputes
>>over how documents produced in discovery can be used, RTC urges the
>>Court to direct Henson to meet and confer with RTC to negotiate an
>>appropriate protective order, and failing that, to direct the parties
>>to appear before Magistrate Judge Infante to agree on the terms of
>>such an order.
>>
>>-------------------------
>>
>
>>previously cover , but naturally reserves the right to seek to depose
>
>>him as to other matters, such as events that have occurred since his
>>first deposition
>>
>>CONCLUSION
>>
>> For all the foregoing reasons, RTC respeetfiuly requests that
>>the Court deny Henson's motion to quash and to modify the preliminary
>>injunction RTC also requests that the Court expressly incorporate any
>>"reconstructed" copies of the NOTs issues created by Henson within the
>>scope of the existing preliminary injunction.
>>
Conclusion: As Plaintiff has not even addressed the trade secrets
issue, and in fact provides instructions as to how someone could
obtain these trade secrets from the Copyright office, not to mention
the fact that these documents are pulically available from multiple
locations in Sweden, supports Defendant's request to modify the
preliminary injunction.
>
>>Dated: October 1996 Respectfully submitted
>
>> LAW OFFICES OF THOMAS R. HOGAN
>>
>>
>>
>> Thoma R Hogan HELENA KOBRIN
>>
>
>>PAUL, HASTINGS, JANOFSKY & WALKER Roger M Mugrim William M H rt
>
>>JaW Kennedy RABINOWITZ BOUDIN, STANDARD KRINSKY & LIEBERMAN, p.C ,
>>Eric M Lieberman
>>
>> Plantiff RELIGIOUS TECHNOLOGY CENTER
>>
>
>
Ex Mudder / Dke...@best.com
Dave Bird---St Hippo of Augustine
>something being kept *secret*, i.e., not available to potential
>competitors. RTC's description of the process by which a person
>can obtain a copy of the masked version of the NOTs material
>essentially supports defendants claim that anyone can get them
>from the Copyright Office. In doing so, a potential competitor
>or member of the public might have to claim their request was
>considering that Helena Kobrin has threatened everyone on the
>Internet (at least 30 million people) with legal action in
>connection with these works. If the plaintiff wishes to pursue
>this argument, defendant is sure someone would be willing to
>show by demonstration that defendant is correct on the point of
>the masked versions being easy to obtain.
Dear Keith,
Be careful. The requirement is EITHER that the documents do
not get into outsiders' hands OR that, on each of these times
whether they are few or many, the outsider is under a contract
obligation not to make general circulation of the secret material.
That's the case whenever masked versions are given out by the
copyright office (however often), and it is true when you are
given copy for use only in your case -- NOT for publication.
Rather, I would argue that through their own carelessness over
a long period this material has gotten into general circulation
through many people prior to your case and not acting in concert
with you. Perhaps you should call some prominent FreeZoners
to testify "yes, I saw the NOTs materials in general circulation
around the FreeZone 'X' years ago." That, IMO, would blow their
trade scerts claim out of the water; on masked copies, I think
the plaintiffs are right in law.
[P&M].
--
Regards, Woof Woof, Glug Glug--
X E M U * Who Drowned theJUDGe's Dog ?
s p 4 \ |\ answers on ( alt.religion.scientology
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