Copyright 1996 Shelley Thomson; all rights reserved.
Mail, articles and comment may be directed to sthomson@netcom.com. Netiquette will be observed with all communication, except for the following: harassing or threatening mail will be posted to the net immediately.
Table of Contents for Biased Journalism.
The Religious Technology Center [an arm of the church] obtained a Temporary Restraining Order against Ward and were granted discovery. Ward received a detailed discovery request; his tart reply is below (item 6).
It is not difficult to guess that the deposition may have proved an 'unprofitable chat' from the Plaintiff's point of view.
At this point we were graced with a BULLETIN from Netizen Ward:
Date: Mon, 08 Apr 1996 19:49:41 -0700 From: Grady Ward <grady@northcoast.com>Subject: Re: deposition
Brutal, but interesting. Boy I was beginning to believe their case after eight hours of solid question and answer... but I came through all right. Now they want to do a full day tomorrow, but I only agreed to nine hours, so it may have to be brought before Magistrate Infante tomorrow after an hour and a half.
The entire audio can be downloaded from my web site. http://www.northcoast.com/~grady/Welcome.html
Grady
(end Bulletin)
Some interesting events led up to it. The Plaintiff had asked to examine some of Grady's office equipment, including his shredder and his scanner. On Friday the church offered to save Ward some trouble by inspecting these items at his house. He declined the offer, but agreed to meet a small delegation at the airport in Arcata to show them the requested items.
The meeting did not happen as planned. Grady Ward told our correspondent:
GW: I spoke on speakerphone with Hogan, McShane, and Kobrin Friday morning. BJ: I thought you were delivering some things to Hogan in person? the shredder, scanner, etc. -- what happened with this? GW: They decided at the last minute not to fly up when they realized most of the responses were "none" and the only material I have is indices from free_agent newsreader and other rather random stuff. I think they were wetting their pants hoping to get even a single admission of copyright or trade secret violation in order to drop all the other allegations and ask the judge for summary judgement. Without this, we are having to go to trial, whenever that will be. And I will be getting in *my* discovery and interrogatories, in that event. Hogan threatened several times to go before Magistrate Judge Edward Infante with my refusal pursuant to E.C.P.A., but I told him I welcome all opportunities to have a judge present in dealing with them. A telephone conversation took place on Friday instead of the planned inspection. This is Ward's account: GW: What happened today was rather interesting. It was like a minideposition. Hogan and Kobrin and McShane talked to me on a speakerphone for about 45 minutes. Hogan wouldn't take the answers as I had written them. He would say questions that assumed facts not in evidence such as "Are you saying that you got rid of the OT documents so that you don't have them now?" or "What exactly was your response after you posted the OTIII documents?" My answers were insistent that the answers were correct as they stood. He would repeat the "admission built into the question" over and over, again and again. I would repeat over and over again and again. "Do you understand, "none"? Kobrin would pipe in with a legal opinion that since I wasn't under oath I could say whatever I wanted. Uh huh. Thanks for the taste of what I going to get from the criminal cult Monday. But then I will be recording it for immortality on the net. Use your argumentation, your fallacies, your browbeating. Make it good. Judge Whyte will love to hear you disobey him. Grady [end] Ward's answer to the discovery request is published later in this issue. Readers will note that it contains a list of names of persons whose correspondence Ward is asked to furnish to RTC. Ward declined, citing the Electronic Communications Privacy Act.
He was being sued.
The documents consist in large part of boilerplate recycled from the Erlich, Ward and Lerma cases. There are signs that it was prepared in haste. The new paperwork, specific to Henson, apparently takes up some 50 pages.
The package is too long to quote here. What we will do instead is to quote and comment upon interesting passages. At the end we will publish the entire text of the Verified Complaint.
Henson's crimes were so extensive, and the situation so dire that the church [in the person of Religious Technology Center, holder of the Hubbard copyrights, henceforth known as "RTC"] requested permission to file an expanded request for a Temporary Restraining Order, Injunction and Expedited DIscovery. The rules limit such filings to five pages; RTC asked leave to file twenty-two pages. Such requests are routinely granted.
In the last episode, net citizen Henson wrote a letter to Judge Ronald Whyte, who had just granted the church a TRO and discovery against Grady Ward. In the letter Henson quoted the full text of one of the NOTS documents. On March 29 Henson attended the hearing for the Grady Ward case and asked whether the Judge considered Ward's TRO to apply to Henson. Was Henson in contempt of court? He was told that he was not a defendant. On March 30 he posted the letter, including NOTs 34, to alt.religion. scientology. Church attorney Helena Kobrin quickly sent him an indignant email message.
Henson "flagrantly rebuffed the cease and desist letter..." the RTC attorneys complained.
"Mr. Henson told Mrs. Kobrin that he was "going to put it a little nicer than Grady [Ward] would, but you can take your demand, fold it till it is all corners, and stick it where 'the Sun don't shine'."Henson promptly posted this email to the net."He then said he was again asking for NOTs or any other Scientology 'AT' [Advanced Technology] materials, acquired by legal, or illegal means, further announcing his intention to "post this material in the public interest." (McShane Dec. 6 7, and Ex. H to Complaint and Ex. 3.)
The arguments the church used to obtain a Temporary Restraining Order, Order for Expedited Discovery and so forth rely upon claims of copyright infringement and trade secret misappropriation. Judge Whyte earlier ruled that the trade secret issue was inapplicable. THe church does not raise this issue against Henson with respect to the six published NOTs (although it reserves the right to do so later), but with respect to the 46 unpublished NOTs. It asks for a restraining order to prevent their publication by Henson, his servants, agents, attorneys, etc..
In the Ex Parte Application for Temporary Restraining Order, RTC stated:
"This application is necessitated by the imminent and credible threat of defendant Keith Henson to post or to cause to be posted to the Internet, hundreds of pages of heretofore unpublished, copyrighted, confidential materials of plaintiff Religious Technology Center (RTC), known as New Era Dianetics for Operating Thetans, or "NOTs" materials, which are maintained as trade secrets. (1) The NOTs materials are a series of 55 separate works (e.g., NOTs Series 1, 2, etc.). The trade secret status of these works was recognized in Bridge Publications. Inc.. et al. v. Vien, 827 F.Supp. 629, 633 (S.D.Cal. 1993).--We read on with interest, but the RTC attorneys never actually explained why the trade secret issue should be looked at differently in Henson's case. With reference to trade secrets, the plaintiff argues on the one hand that without immediate judicial relief, RTC will suffer "extreme and irreversible harm," to wit, the loss of its intellectual property rights. Judge Whyte has already ruled, in effect, that when the NOTS were posted to the net they lost their trade secret status."While the majority of the works within the NOTs Series have never appeared on the Internet, six of these works were posted without authorization on the Internet by Dennis Erlich, the defendant in the related case of Religious Technology Center v. Netcom On-Line Comm. Servs.. Inc., 1995 U.S. Dist. Lexis 16184 (ND. Cal. Sept.22, 1995) ("Netcomt"). In that case, Judge Whyte preliminarily enjoined Erlich from further copyright infringements of those six NOTs Works at issue there, but declined to enjoin Erlich under the California Uniform Trade Secrets Act as to those Works in part because of their limited posting to the Internet.
"While Netcom and other cases have preliminarily ruled that when trade secret materials have been posted onto the Internet, the owner cannot move for relief under the trade secret laws, plaintiff continues to contest those rulings on the ground that they do not correctly reflect the factual and legal consequences of such rulings. The situation which has arisen recently, and which exists in this case is entirely different."
But later on, in the Request for Temporary Restraining Order and Expedited Discovery, the church wrote: "Of the 55 separate works comprising the NOTs Series, at least 49 have never even arguably been made public. [McShane Declaration] Whether, in fact, the fleeting presence of the six that have been posted on the Internet divested them of trade secret status is a matter that has been ruled adversely to the plaintiff...[RTC v. Netcom, September 22, 1995] The ruling invited the plaintiff to reapply, and they did. "A hearing on the alternate test for the preliminary injunction is set for May 24, 1996 at which time plaintiff intends to demonstrate that there is a serious question going to the merits on the issue of whether, in fact, the postings terminated the trade secrecy of the six NOTs works posted by Dennis Erlich."
RTC intends to try to persuade the Judge to change his ruling and attach trade secret status to the published NOTs. Roger Milgrim, author of a famous text on intellectual property rights, was presumably added to the RTC side of the case for this purpose.
We concluded that in charging Henson with trade secret violations the church was trying to have its cake and eat it too. If Henson, by merely posting the NOTs, could have destroyed their trade secret status, then his letter could not have destroyed RTC's rights to NOTs 34 because it had already been posted to the net. In fact, it had been posted multiple times and was on alt. religion.scientology at the time this article was being written.
If postings to the net are ephemeral and do not affect the status of trade secrets, Henson's posting of the NOTs document could not have injured the plaintiff's property rights.
The church takes its intellectual property rights seriously. Plaintiffs said: [Ex Parte Application for TRO & Expedited Discovery]
"RTC derives substantial revenue from the delivery by its limited group of licensees to select parishioners of services utilizing Mr. Hubbard's unpublished literary works containing the Advanced Technology. (McShane Dec., 6 20.) The informational content of the works also derives independent economic value, actual and potential, from not being generally known to other persons who can obtain economic value from their disclosure or use. Plaintiff and its predecessors have taken in the past, and continue to take, extraordinary efforts to protect and maintain the confidentiality and secrecy of the Advanced Technology, carefully limiting physical access to the materials."The works in question in this case, known as New Era Dianetics for Operating Thetans, or "NOTs" materials, have never left the custody of RTC, its predecessors or authorized licensees except through a theft in Denmark in 1983, for which one of the co-conspirators was arrested, tried and convicted. (McShane Dec., 6 36.) In the past, competing churches have been set up to use those stolen works to deliver competitive services, and other groups exist today which are interested in similarly exploiting these works. Wd., 6 37.) Because the defendant's activities at issue here now jeopardize if not threaten to destroy plaintiffs valuable intellectual property rights, there could be no demonstrably greater need for immediate injunctive relief."
--We read this passage several times. The expressions "competing churches" and "competitive services" bothered us. Should an organization be allowed to establish a monopoly under cover of a tax exemption? We tried out "First Church of Chevron, Inc." How far could this hypothetical entity go in suppressing rival filling stations? Could it claim the Sacred Pump Ceremony as a religious rite, even though money is required before a parishioner can receive service? We resolved to read Roger Milgrim's book on trade secrets, hoping to understand more about this fascinating subject.
The church does not quite accuse Henson of acting in concert with Grady Ward, but comes very close in the following passage:
"Henson also suggested that he was not acting in concert or participation with Ward. His protestation rings hollow, however, in light of his involvement with Ward in other activities, such as a trip to the Church of Scientology in San Francisco to harass the Church and its members. (McShane Dec., 6 9.)" [Ex Parte Application for TRO and Order to Show Cause Re: Preliminary Injunction]
With respect to copyright infringement, in the Ex Parte Request for Temporary Restraining Order, etc., RTC attorneys stated
"The RTC copyright that Henson has infringed has been registered as part of a collection under 37 C.F.R. [few bits lost in scanner] 202.03(b)(3)(B). Each of the separate works included in such a collection is protected individually and has been infringed by defendant's wholesale reproductions and/or transmissions.[citation] Likewise, Henson's copying, and threat to post, the entirety of the NOTs series is infringement, not fair use."
The first part of this passage is confusing. Do the Plaintiffs mean to imply that Henson's publication of one NOTs document is a simultaneous infringement of the remaining 54? The question is important, because when it comes to asking for damages RTC is requesting $100,000 per incident. Further, Henson has apparently published only one of the NOTs: RTC attorneys imply that he has engaged in wholesale copying and/or transmissions of the entire group of NOTs.
We wondered whether the RTC had evidence to support the suggestion, or whether Henson is merely a generic suspect in the search for the anonymous posters of church documents to the net.
We noted that RTC attorneys once again avoided discussing the issue Henson raised in his letter to Judge Whye. Henson stated that NOTs 34 consituted a series of instructions in unlawful activity. The document, which he quoted in full, describes how to use an e-meter to cure physical illnesses and prevent their return. Henson believes that the use of an e-meter for this purpose constitutes practicing medicine without a license; he argues that because the document is an instruction in a criminal act, the public interest allows its disclosure. When he solicited NOTs, he limited his request to documents which showed criminal or fraudulent activity.
The issue of the content of NOTs 34 is not addressed by RTC attorneys. Instead, Henson is charged with deliberately and wilfully attempting to destroy the property rights of the Plaintiff. Relief is asked for with reference to the entire NOTs collection. We surmised that the church may have other controversial documents among the NOTs.
RTC requests an injunction against Keith Henson, and all his agents, servants, employees (etc.), of essentially the same form as the requested injunction against Grady Ward. Tucked away near the end is the provision that Henson must turn over to the Plaintiffs not only any copies of the Works that he may have, but "all articles in any media, electronic or otherwise, by means of which such copies may be reproduced."
Taken literally, as we assume it is intended, this includes Henson's computer, printer, scanner, system backup tapes, floppy disks, and assorted software.
Damages are requested in the sum of $100,000 per infraction, plus legal fees (in the course of a trial this figure may become very large) and other relief as the Court may decide.
H. Keith Henson 799 Coffey Ct. San Jose, CA 95123 408-521-0614 (beeper) Case No. C 96-20271 RPA Hon. Ronald M. Whyte, Federal Judge Northern District of California San Jose, CA 95113 Hand delivered, April 8, 1996Dear Judge Whyte:
Please excuse the use of a letter instead of the proper form, but I want to give everyone the maximum time to adjust schedules.
I request that you recuse yourself from this case.
It is not for improper behavior or prejudice, but because (as stated in several places in the RTC's filing) you and your clerk have been involved, at least as witnesses, in the events which led up to this lawsuit.
I am not well versed in the law, but I am nearly certain that it is improper for a Judge or his clerk to be called as a witness at a trial over which he is presiding.
I am willing for the TRO hearing to be held at the time set if that is convenient for another Judge, or the TRO hearing may pushed back up to one week, and I will consider myself to be bound by the TRO until the hearing.
Thank you very much for your consideration of this matter,
Very Truly Yours,
H. Keith Henson
cc by email to Helena Kobrin (hkk@netcom.com)
Posted
[So much for accelerated discovery, our observer said dryly. It is likely that the Judge will recuse himself, and a new hearing date may be set.]
Thomas R. Hogan, SBN 042048
LAW OFFICES OF THOMAS R. HOGAN
60 South Market Street, Suite 1125
San Jose, CA 95113-2332
(408) 292-7600
Roger M. Milgrim
William M. Hart
PAUL, HASTINGS, JANOFSKY & WALKER
399 Park Avenue Thirty-first floor
New York, New York 10022-4697
(212) 318-6000
Helena K. Kobrin, SBN 152546
7629 Fulton Avenue
North Hollywood, CA 91605
(213) 960-1933
Attorneys for Plaintiff
RELIGIOUS TECHNOLOGY CENTER
UNITED STATES DISTRICT COURT
~ ~ ~ I flflA
RELIGIOUS TECHNOLOGY CENTER,~ ) ~ j', ' I nr~
California non-profit corporation,
Plaintiff, ) VERIFIED COMPLAINT FOR
) INJUNCTIVE RELIEF AND DAMAGES
) FOR: (1) COPYRIGHT
V. ) INFRINGEMENT; AND (2) TRADE
) SECRET MISAPPROPRIATION (CAL
H. KEITH HENSON, an individual, ) CIV. CODE ' 3426.1)
)
Defendant. )
)
)
ORIGINAL
FILED
APR ()4 1996
RiCHA~D W. WIEK~NG
CLERK US. DISTRICT COURT
NOR i~~flN ~DiSTRiCT OF CALIFORNIA
SAN JOSE
Plaintiff Religious Technology Center ("RTC") alleges as follows:
INTRODUCTORY AVERMENTS
1. Defendant H. Keith Henson ("Henson") has engaged in a
scheme of infringing certain copyrights and misappropriating certain
trade secrets belonging to plaintiff. Henson has posted portions of
plaintiff's proprietary materials onto the international computer
network known as the Internet without authorization from plaintiff
and continues to do so despite warnings from plaintiff to cease and
desist from his activities in violation of plaintiff's rights.
Recent Internet postings by Henson indicate that he is now
threatening and poised to engage in massive violations of plaintiff's
proprietary rights, is publicly soliciting assistance to do so, and
threatens impending copyright infringement and trade secret
misappropriation of a host of works which have been judicially
recognized as trade secrets and have not previously been posted to
the Internet by Henson or anyone else. The need for injunctive relief
as to such threatened unlawful undertaking is therefore critical.
JURISDICTION AND VENUE
2. Subject matter jurisdiction of this action exists
pursuant to 28 U.S.C. '' 1331 and 1338(a) and (b) and 28 U.S.C. '
2201(a) in that this is an action for declaratory relief as to
copyright infringement and for copyright infringement under 17 U.S.C.
' 501. This court has pendent jurisdiction over the trade secret
misappropriation claims alleged herein, as unfair competition claims
that arise out of the same transactions and occurrences.
3. Venue is proper in this District pursuant to 28 U.S.C.
' 1391(b) in that events or omissions giving rise to the claims
occurred in this district and the defendant resides in this judicial
district.
THE PARTIES
4. Plaintiff RTC is, and was at all times relevant
herein, a California non-profit religious corporation having its
principal office in the City of Los Angeles, County of Los Angeles,
State of California.
5. Plaintiff is informed and believes, and on that basis
alleges, that defendant Henson is a citizen and resident of the City
of San Jose, County of Santa Clara, State of California.
GENERAL AVERMENTS
A. The Copyrighted Unpublished Works of L. Ron Hubbard
6. L. Ron Hubbard, a United States citizen who died in
1986, was a world-renowned philosopher and the prolific author
of numerous original works on applied religious philosophy and
spiritual healing technology, including training materials and
course manuals of the Scientology religion (hereinafter the
"Religion") of which Mr. Hubbard was the founder. Certain of
Mr. Hubbard's original written and recorded works have been
published and made generally available, while others have not.
Among the unpublished works is a body of special works,
sometimes referred to as "Advanced Technology materials,"
which contains confidential and proprietary information
("the Advanced Technology") constituting trade secrets (the
"Works").
7. Lists of the Works that were created by Mr. Hubbard
and are relevant to this action are attached as Exhibits A and
B, showing the titles of the works along with the numbers and
dates of the applicable United States copyright registrations.
Due to the imminence of the harm now threatened by defendant's
acts with respect to the Exhibit B Works (which, except for
six out of the 55 works, have never been the subject of any
postings on the Internet), and in order to seek immediate
judicial relief, RTC has not pleaded every Work which
defendant may be threatening to infringe. RTC therefore
reserves the right to amend this Complaint to add additional
Works, and/or to add additional claims and/or parties at a
later date and as a result of further factual developments
and discovery.
8. In 1982, L. Ron Hubbard assigned to plaintiff RTC his
entire right, title and interest (apart from copyrights) in
and to the Advanced Technology, including all rights to use
and to license the use of the Advanced Technology in the
United States. This assignment includes the obligation to
protect the confidentiality of the Advanced Technology. A
true and correct copy of this assignment is annexed as
Exhibit C to this Complaint.
9. Following Mr. Hubbard's death in 1986, ownership of the
copyrights in the Works passed to his Estate, which granted
to plaintiff RTC, on September 17, 1987, an exclusive license
in the copyrights pertaining to the Works, with the right and
obligation to enforce all the copyrights in those works. A
true and correct copy of this License Agreement is annexed
to this complaint as Exhibit D.
10. All of the assets of the Estate of L. Ron Hubbard,
including the copyrights pertaining to the Works, were
distributed in 1993. The successor in interest to the
copyrights affirmed RTC's September 17, 1987 copyright
license. A true and correct copy of this Assignment and
Assumption is annexed to this complaint as Exhibit E.
11. The Works were wholly original with Mr. Hubbard and
are copyrightable subject matter under the laws of the
United States. Mr. Hubbard and his successors and licensees
have complied in all respects with the copyright laws of the
United States, have secured the exclusive rights in and to
the copyrights in the Works, and have received from the
Register of Copyrights Certificates of Registration of these
copyrights. Attached hereto as Exhibit F are true and correct
copies of the Certificate of Registration for the Works listed
in Exhibits A and B.
12. The Advanced Technology contained in the Works is of
immense value to plaintiff, which has taken in the past, and
continues to take, extraordinary measures to protect the
confidentiality of the Advanced Technology. Physical access
to the materials has always been limited and carefully
monitored and the materials made available only to a limited
group of people for limited purposes. The efforts used to
maintain such secrecy have always been more than reasonable
under the circumstances including, but not limited to, storage
in locked cabinets in locked rooms with access permitted only
to select Scientology parishioners who have met stringent
requirements, transport of any portion of the materials only
in locked briefcases, the presence of security personnel and
the execution of written confidentiality agreements.
13. RTC derives independent economic value, actual and
potential, from the Advanced Technology, which is secret and
of considerable value. RTC receives from the advanced Churches
of Scientology which are licensed by RTC to use the Advanced
Technology licensing fees equal to six (6) percent of the
income received for delivery of Advanced Technology services.
These licensing fees provide substantial financial support
for RTC's operations.
B. Defendant's Violations of Plaintiffs Rights
14. On March 29, 1996, this Court, the Honorable Ronald M.
Whyte, United States District Judge, presiding, stated that
he would issue a preliminary injunction against the defendant
in the case encaptioned Religious Technology Center v. Grady
Ward, and assigned case number 96-20207 RMW (the "Ward case").
That injunction was issued by the Court on April 1, 1996, in
response, inter alia, to plaintiffs showing that the defendant
in the Ward case had made postings of RTC's copyrighted and
trade secret material, was threatening additional postings of
a similar, unlawful nature, and had solicited public
assistance in that enterprise by soliciting copies of
plaintiff's proprietary materials from anyone in possession
thereof. The Court announced in open court that a preliminary
injunction would issue in a proceeding at which defendant
Henson was present. Henson--with no prior relationship
whatsoever to either RTC or Scientology--thereupon set out to
duplicate the very conduct that justified the injunction
against the defendant in the Ward case, justifying his
conduct and intended conduct on the grounds that the Court's
order did not apply to his own actions, and that in his view,
the plaintiff is not entitled to exercise the very
intellectual property rights underlying the preliminary
injunction issued in the Ward case.
15. On or about March 30, 1996, Henson infringed RTC's
copyrights in the Work listed in Exhibit A by reproducing
this Work in its entirety and by electronically displaying
or distributing it on the Internet. Henson titled his
electronic display or posting, "An Open Letter to Judge
Whyte," and stated in the posting that he had read, in its
entirety, the Temporary Restraining Order issued by
this Court on March 21, 1996 in the Ward case against Grady
Ward, "his officers, agents, servants, employees, and
attorneys, and to those persons in active concert or
participation with him." A true and correct copy of the
Temporary Restraining Order is attached hereto as Exhibit G.
The Temporary Restraining Order plainly prohibited the
displaying or distribution on the Internet of a series of
plaintiff's Works, including the Work displayed by Henson.
In that posting, he also solicited copies of the Exhibit B
Works to be sent to him.
16. On March 30, 1996, counsel for RTC notified Henson,
via electronic mail, that he had violated RTC's copyright
and trade secret rights and the Court's Temporary Restraining
Order by posting the Exhibit A Work and soliciting the Exhibit
B Works, and demanded that Henson "cease and desist from any
and all further posting, reproduction, display, distribution,
solicitation or acquisition" of the Work or any of the
Advanced Technology works of the Scientology religion.
17. Henson responded to RTC's notice and cease and desist
demand by:
a. Telling RTC's counsel that she could "take your demand,
fold it till it is all corners, and stick it where 'the Sun
don't shine.'
b. Reposting the Work identified in Exhibit A on the
Internet;
c. Soliciting additional copies of the Exhibit B Works
"acquired by legal, or *illegal* means" from any and all
readers on the Internet;
d. Threatening to post some or all of these Works to the
Internet.
A true and correct copy of Mr. Henson's communication to
counsel is attached hereto as Exhibit H.
18. No one has access to the Works without permission from
plaintiff or unless they were obtained through illicit means.
As the only way the Exhibit A and B Works have ever left
authorized possession was through theft, Henson could only
have obtained copies of these materials by having received
stolen property or the fruits thereof from another.
19. Plaintiff is informed and believes, and on that basis
alleges, that Henson has copied and/or induced others to copy
and has wrongfully acquired and now threatens to and intends
imminently to post to the Internet the Works listed in
Exhibit B hereto, in whole or in part, thereby causing
serious, irreparable harm to RTC's copyright and trade
secret rights, if not immediately restrained from doing so.
The prayer for interlocutory relief below relates to the
Works in Exhibit B only.
20. As a result of the foregoing, Henson has reproduced,
displayed, and distributed RTC's Work listed on Exhibit A,
all without the authorization of plaintiff. Henson has
thereby infringed RTC's copyrights to the Exhibit A Work and,
on information and belief, is threatening to misappropriate
RTC's trade secrets and to infringe its copyrights in the
Exhibit B Works.
21. Plaintiff is informed and believes, and on that basis
alleges, that at all times relevant herein, Henson knew or
had reason to know that the Works listed on Exhibits A and B
had been acquired under circumstances giving rise to a duty
to maintain their secrecy.
22. Plaintiff is informed and believes, and on that basis
alleges that, at all times relevant herein, Henson knew or had
reason to know that the Works listed in Exhibit B had been
acquired from or through a person who owed a duty to plaintiff
to maintain their secrecy.
23. Plaintiff is informed and believes, and on that basis
alleges that, at all times relevant herein, Henson knew or had
reason to know that the Works listed in Exhibit B had been
obtained through improper means.
24. All copying and actual or attempted acquisition of the
Works listed in Exhibits A and B has been unauthorized and
constitutes or threatens copyright infringement and trade
secret misappropriation, and the electronic display or
distribution of the Work listed in Exhibit A has been
unauthorized and constitutes wilful copyright infringement.
25. Upon information and belief, defendant has caused
and/or induced others to participate in the aforesaid and
threatened infringements and violations of plaintiffs rights,
has provided the means and instrumentalities for doing so,
has actively participated in the aforesaid and threatened
infringements and violations, has the right, opportunity and
means to supervise and control such activities and has
exercised the same to plaintiffs severe detriment, and will
continue to do so and has derived and will derive direct and
indirect benefits from all of the foregoing activities, which
defendant has engaged in knowingly, wilfully and with the
intent to injure plaintiff and irreparably impair its rights.
26. Unless restrained by this Court, defendant will continue
to engage in the acts complained of herein and will carry out
the threatened acts complained of herein, and RTC will incur
irreparable injury, for which there is no adequate remedy at
law.
27. As a direct and proximate result of the foregoing acts
of defendant, plaintiff has suffered and will suffer damages
in an amount which cannot now be ascertained or computed.
FIRST CLAIM FOR RELIEF
(Declaratory Judgment of Copyright Infringement
17 U.S.C. ' 101 et seq. and 28 U.S.C. ' 2201(a))
28. Plaintiff incorporates by reference the allegations
contained in paragraphs 1 through 27 above as though set forth
fully herein.
29. The Works are protected under the Copyright Act of 1976,
17 U.S.C. '' 101 et seq.
30. An actual case or controversy has arisen in which
plaintiff contends that defendant has recently solicited and
engaged in making unauthorized copies of RTC's copyrighted,
unpublished Works and has also been threatening the posting of
the Works listed in Exhibit B hereto, which threat is real,
imminent, and likely to be carried out.
31. In light of defendant's pattern of behavior and his
current activities, plaintiff contends defendant intends
imminently to engage in massive infringements of RTC's
copyrighted, unpublished Works listed in Exhibit B hereto and
that, based upon the facts relevant hereto, plaintiff
entertains a real and reasonable apprehension of infringement.
32. The acts, including the threatened acts set forth in
paragraphs 1, 15, 17, 19, and 25 above are imminent and do
and will infringe RTC's exclusive rights, inter alia to
publish, reproduce, display, and distribute the unpublished
Works listed in Exhibit B hereto, all in violation of RTC's
exclusive copyrights under 17 U.S.C. ' 106. Such acts
constitute copyright infringement under 17 U.S.C. ' 501; and
wilful copyright infringement under 17 U.S.C. ' 504.
33. RTC seeks, pursuant to Rule 57 of the Federal Rules of
Civil Procedure, a declaratory judgment that defendant has
no right to engage in any such reproduction, distribution,
display or other exploitation, by any means, of RTC's
copyrighted unpublished Works set forth in Exhibit B, that
plaintiff never authorized defendant to do so, but instead,
repeatedly notified defendant that such acts would constitute,
inter alia copyright infringement and that such acts,
separately and together, constitute wilful copyright
infringement of the Works set forth in Exhibit B pursuant to
17 U.S.C. '501, et seq.
SECOND CLAIM FOR RELIEF
(Copyright Infringement of Unpublished Works
17 U.S.C. '' 101 et seq.)
34. Plaintiff incorporates by reference the allegations
contained in paragraphs 1 through 27 and 29 through 33 above
as though set forth fully herein.
35. The foregoing acts of defendant, as undertaken and
threatened, infringe plaintiffs exclusive rights, inter alia,
to publish, reproduce, distribute and display the Works listed
in Exhibits A and B hereto, all in violation of plaintiffs ]
exclusive copyrights under 17 U.S.C. ' 106. Such acts
constitute copyright infringement under 17 U.S.C. ' 501 and
have contributed to infringement by others.
36. Defendant's unlawful acts set forth above constitute
wilful copyright infringement under 17 U.S.C. ' 504.
THIRD CLAIM FOR RELIEF
(Misappropriation of Trade Secrets)
37. Plaintiff incorporates by reference the allegations in
paragraphs 1 through 27 above as though set forth fully
herein.
38. By his aforesaid acts, defendant has wrongfully
acquired, or is about to, and threatens imminently to
disclose, all without authorization, confidential, trade
secret information constituting portions of the Advanced
Technology that are contained in the Works listed in Exhibit
B hereto.
39. Defendant's acts, as undertaken and threatened, as
aforesaid, were and are done with full knowledge that the
Works contain confidential trade secrets information, and
with intent to destroy that property interest in
confidential information.
40. By his aforesaid acts as undertaken and threatened,
defendant has misappropriated and threatens to further
misappropriate RTC's trade secrets in violation of RTC's
rights under California law, California Civil Code '
3426.1 et seq.
WHEREFORE, plaintiff prays for the entry of judgment against
defendant as follows:
1. ON THE FIRST CLAIM FOR RELIEF:
For a declaratory judgment in favor of RTC and against
defendant that any publication, reproduction, derivation,
distribution, display or performance of the Exhibit B Works
by defendant constitutes copyright infringement, entitling
RTC, inter alia to temporary, preliminary and permanent
injunctive relief, to actual damages, a disgorgement of
profits, and in lieu of such monetary remedies, should
plaintiff so elect, for statutory damages for wilful
infringement.
2. ON THE FIRST AND SECOND CLAIMS FOR RELIEF:
(a) For an order that defendant and all of his agents,
servants, employees, partners, privies and attorneys, and all
persons acting or purporting to act under his authority,
direction or control, and all persons in active concert or
participation with him, or acting on his behalf, having
advance notice of this order, be enjoined from directly or
indirectly, in whole or in part, publishing, reproducing,
distributing, performing, or creating derivative works based
upon, during the pendency of this action, the Exhibit B Works,
or any of them, and permanently thereafter, any of the
copyrighted works of L. Ron Hubbard including, but not limited
to, the Works identified in Exhibits A and/or B, in any media
now known or hereafter developed in any time, place or
fashion, and in particular, from engaging in any such acts
in, on, or in connection with any computer, database,
information service, electronic bulletin board service,
network, storage facility, or archives, or other electronic
or computer device, service, network or facility, including,
without limitation, the transmitting or loading of any such
materials onto, or downloading any copies thereof from any
such device, service, network or facility and that all such
copies which defendant, his agents, servants, employees,
partners, privies, and attorneys and those in active concert
or participation with them have caused to be copied or copied
onto any such device, service, network, or facility be
removed;
3. ON THE SECOND CLAIM FOR RELIEF:
(a) For an order impounding all copies made or used in
violation of RTC's exclusive rights, and of all plates, molds,
matrices, masters, tapes, film negatives, or other articles
in any media, electronic or otherwise, by means of which
such copies may be reproduced including but not limited to
all such copies and articles located in any so-called
"off-site" storage areas, electronic or otherwise;
(b) For an award of plaintiff's attorneys' fees and costs
pursuant to 17 U.S.C. '505.
(c) For an award of damages to plaintiff against defendant,
according to proof at trial, and for all gains, profits and
advantages directly or indirectly derived by defendant from
his infringement of the copyrights of plaintiff in the Works;
or in lieu thereof, should plaintiff so elect, for an award
of statutory damages to plaintiff under 17 U.S~C. ' 504(c)
(l) of $100,000.00 for each of the Works infringed by
defendant, pursuant to 17 U.S.C. ' 504(c)(2); and
4. ON THE THIRD CLAIM FOR RELIEF;
(a) For an order that defendant and all of his agents,
servants, employees, partners, privies and attorneys, and all
persons acting or purporting to act under his authority,
direction or control, and all persons in active concert or
participation with him, or acting on his behalf, having
advance notice of this order, be enjoined:
(1) directly or indirectly, from engaging in the further
unauthorized disclosure, or display of the Exhibit B
Works (excluding only NOTs series 1, 24, 34, 35 and
42, which are also the subject of other pending
litigation), during the pendency of this action, and
permanently of the Exhibit B Works, or portions
thereof, and specifically from disclosing, displaying,
transmitting or otherwise loading any of those Works,
or portions thereof, in any media now known or
hereafter developed in any time, place or fashion, or
onto any computer, database, information service,
electronic bulletin board service, network, storage
facility, or archives, or other electronic or
computer device, service, network or facility and that all such
copies which defendant, his agents, servants, employees,
partners, privies, and attorneys and those in active concert
or participation with them have caused to be copied or copied
onto any such device, service, network, or facility be removed;
(2) directly or indirectly, from engaging in the further
unauthorized solicitation and/or acquirement, during the
pendency of this action and permanently of the Exhibit B,
and specifically from soliciting, acquiring, seeking to
acquire, or otherwise downloading any of the Exhibit B
Works, or portions thereof, from any media now known or
hereafter developed in any time, place or fashion, or
from any computer, database, information service,
electronic bulletin board service, network, storage
facility, or archives, or other electronic or
computer device, service, network or facility and that
all such copies which defendant, his agents, servants,
employees, partners, privies, and attorneys and those in
active concert or participation with them have caused to
be copied or copied from any such device, service, network,
or facility be removed;
(b) For an order directing defendant, and all of his agents,
servants, employees, partners, privies and attorneys, and all
persons acting or purporting to act under his authority,
direction or control, and all persons in active concert or
participation with him, or acting on his behalf, having
advance notice of this order, to return immediately to counsel
of record herein for plaintiff Religious Technology Center all
documents in their possession, custody or control (including
but not limited to those documents located in any so-called
"off-site" storage facility, electronic or otherwise) that
contain any of the Advanced Technology; and
(c) For an award of attorney fees under California Civil
Code ' 3426.4.
5. ON THE FIRST, SECOND, AND THIRD CLAIMS FOR RELIEF:
For an order that defendant and all of his agents, servants,
employees, partners, privies and attorneys, and all persons
acting or purporting to act under his authority, direction
or control, and all persons in active concert or participation
with him, or acting on his behalf, having advance notice of
this order, be enjoined from:
(a) directly or indirectly destroying, altering or
concealing, or in any way disposing of, any reproduction,
copy, facsimile, excerpt, or derivative of any work of L. Ron
Hubbard that is in defendant's possession, custody or control,
in whole or in part, including, but not limited to, those
materials located in any so-called "off-site" storage areas,
electronic or otherwise, or otherwise despoiling or causing
the despoliation, or alteration of any evidence, in whole or
in part, in any form, place or media relating to defendant's
conduct complained of in this action; and
(b) causing or inducing any other person to engage in any of
the foregoing prohibited acts; and,
(c) filing with the Court, except under seal, any documents
that contain any of the Advanced Technology.
6. For such other and further relief as this Court deems just and
proper.
DATED: April 4, 1996
Thomas R. Hogan
LAW OFFICES OF THOMAS R. HOGAN
Roger M. Milgrim
William M. Hart
PAUL, HASTINGS, JANOFSKY
& WALKER
-and-
Helena Kobrin
Attorneys for Plaintiff
RELIGIOUS TECHNOLOGY CENTER
Shelley Thomson 236 Stanford S/C, Suite 142 Palo Alto, CA 94304 Hon. Ronald M. Whyte, Federal Judge Northern District of California San Jose, CA April 4, 1996 No. C 96-20207 RMW Hand Delivered Letter to Judge WhyteDear Judge Whyte:
I am the publisher of Biased Journalism, a news/humor magazine covering issues of interest to citizens of cyberspace. Among other events the Journal has covered a series of hearings now taking place in your courtroom.
I was shocked to see my name on the list of documents demanded by Plaintiffs from Mr. Ward. The relevant selection from the Notice of Deposition of Defendant Grady Ward and Request for Production of Documents And Things is the following:
13. Any and all documents relating to communications with the following individuals relating to the Advanced Technology:Biased Journalism has carried many stories about scientology. As a journalist, I strongly protest the inclusion of my name on this list. The exposure of my private communication would have an extreme chilling effect upon my ability to gather and publish news. It is an infringement of my rights under the First Amendment. Moreover, it might expose third parties to harm.a. Alex DeJoode
b. Dennis Erlich
c. Steven Fishman
d. Johan Helsingius
e. Jeff Jacobsen
f. Keith Henson
g. Tom Klemesrud
h. Arnaldo Lerma
i. Peter Mante
j. Ron Neuman
k. Robert Penny
l. Felipe Rodriquez
m. Karin Spaink
n. Shelly Thomson
o. David Touretzky
p. Lawrence Wollersheim
With reference to the Electronic Communications Privacy Act (section 2700-2707 of Title 18 USC), it is my understanding that lawful access to stored electronic communications requires a warrant or a court order.
Even if the ECPA were disregarded, I suggest to Your Honor that the right to privacy of Mr. Ward's correspondents should be protected. I believe that at minimum, Plaintiffs should be required to show cause for their request for each person's correspondence individually.
I request such a hearing on my own behalf, so that I may explain to the court why my correspondence with Grady Ward should not be delivered to the Plaintiffs.
Sincerely yours,The Judge has not replied.Shelley Thomson
publisher, Biased Journalism