IN THE UNITED STATES COURT OF APPEAL FOR THE NINTH CIRCUIT Circuit No. 94 - 55575 ____________________________________________ BRIDGE PUBLICATIONS, INC., RELIGIOUS TECHNOLOGY CENTER, AND CHURCH OF SCIENTOLOGY INTERNATIONAL, Plaintiffs-Appellees, -against- ENID VIEN, Defendant-Appellant, and DOES, 1 through 20, inclusive, Defendant ___________________________________________ APPELLANT ENID VIEN'S OPENING BRIEF [CORRECTED TO COMPLY WITH BRIEFING RULES] ___________________________________________ TOBY L. PLEVIN ATTORNEY AT LAW 10700 SANTA MONICA BLVD SUITE 4-300 LOS ANGELES CA 90025 (310) 788-8660 COUNSEL FOR APPELLANT CORPORATE DISCLOSURE STATEMENT Appellant Enid Vien is not a corporation and is not an officer, director or employee of any entity that is a party to this case. DATED: JULY 22, 1994 _______________________ Toby L. Plevin Attorney for Enid Vien TABLE OF CONTENTS STATEMENT OF JURISDICTION 1 ISSUES FOR REVIEW 1 STATEMENT OF THE CASE 2 ARGUMENT 5 I. INTRODUCTION AND STANDARD OF REVIEW 5 II. FACTS 9 III. THE ESTABLISHMENT CLAUSE PROHIBITS THE IMPOSITION OF A PERMANENT INJUNCTION AGAINST THE USE OF COPYRIGHTED SCRIPTURES AND RELIGIOUS RITUALS EVEN IF THE RITUALS ARE TREATED AS TRADE SECRETS 11 IV. THE INJUNCTION AND AWARD OF DAMAGES GREATLY VIOLATE THE APPELLANT'S FREE EXERCISE AND ARE NOT WARRANTED UNDER THE LEAST RESTRICTIVE MEANS TEST 16 A. The Burdens on Free Exercise Imposed by the Court are Substantial 20 V. THE RELIGIOUS FREEDOM RESTORATION ACT MANDATES THE APPLICATION OF THE APPLICATION OF THE COMPELLING INTEREST AND LEAST RESTRICTIVE MEANS TEST TO THE AWARD AND INJUNCTION IN THIS CASE 24 VI. THE ADVANCED TECHNOLOGY IS RELIGIOUS DOCTRINE WHICH IS NOT SUBJECT TO TRADE SECRET PROTECTION BECAUSE IT IS NOT EMBRACED BY CALIFORNIA'S TRADE SECRET LEGISLATION AND IS NOT SECRET. 26 A. Religious Doctrine is Not a Trade Secret 26 B. The "Trade Secrets" in the Advanced Technology Have Been Repeatedly Reported in Print, in Broadcast Media, and Described in Public Court Files 30 VII. DEFENDANT ENID VIEN'S USE OF THE COPYRIGHTED WORKS IS SUBJECT TO THE FAIR USE DOCTRINE 32 VIII. CONCLUSION 34 STATEMENT OF RELATED CASE............................... 35 TABLE OF AUTHORITIES CASES PAGES Church of Scientology of California v. Commissioner, 83 T.C. 381 (1984. . . . . . . . . . . 27 Church of Scientology v. Fishman, et al. Circuit No. 94-55443 32 Church of Scientology v. United States et al., CV902042 JMD, USDC, Central District, California 27 Church of Spiritual Technology v. United States, U.S.Ct. Clms. No. 581-881, 6/29/92 27 Committee for Public Education v. Nyquist, 412 U.S. 56 (1973) 15 Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) 6 Employment Division v. Smith, 4940 S. 872 (1990) 24 Epperson v. Arkansas, S.Ct. 260 22 L.Ed.2d 234 14 Harper & Rowe Publishers, Inc. v. National Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985) 6 Kiryas Joel Village School District v. Grumet, 94 Daily Journal DAR 8517 decided June 27, 1994 12, 15 Larkin v. Grendel's Den, 459 U.S. 116, 103 S.Ct. 505, 24 L.Ed.2d 297 (1982) 15 Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed. 31 11, 12 Lynch v. Donnelly, 403 U.S. 688, 104 S.Ct. 1355 12 CASES (cont.) PAGES March v. Alabama, 326 U.S. 501, 60 S.Ct. 276, 90 L.Ed. 265 (1946) 6 NAACP v. Button, 371 U.S. 415 (1963) 6 New Era Publications, International v. Henry Holt & Co., 873 F.2d 576 (2d Cir. 1989) 33 Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 400 (1969) 13, 16 Pullman-Standard v. Swint, 456 U.S. 273 (1982). . . . . . . . . . . . . . . . . . . .9 Religious Technology Center v. Scott, (9th Cir. 1989) 869 F.2d 1306 28 Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372 21 Sherbert v. Verner, 374 U.S. 398 (1963) 15-16, 24 Sony Corp. v Universal City Studios, Inc., 464 U.S. 415, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) 21-22 Torasco v. Watkins, 367 U.S. 488, 81 S.Ct. 1680 (1961) 18 United Christian Scientists v. Christian Science Board of Directors, First Church of Christ, Scientist, (D.C. Cir. 1987) 829 F.2d 1152 6, 12, 13-14, 18, 19 United States v. Spock, (1st Cir. 1969) 416 F.162 6 United States v. United States Gypsum Co. 336 U.S. 364, 394-395. . . . . . . . . . . . . . . . . . .9 //// CASES (cont.) PAGES Watson v. Jones, 13 Wall. 676, 20 L.Ed. 666 (1872) 21 Wisconsin v. Yoder, 406 U.S. 205 (1972) 15-16, 17, 24 Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679 13 STATUTES Religious Freedom Restoration Act, 42 USC Section 2000bb, et seq. 24-26 California Civil Code, Section 3426.1 26 TREATISES Nimmer, On Copyright, 81.10, 1-63 5-6 Tribe, Constitutional Law (1978) 711 6-7 STATEMENT OF JURISDICTION Jurisdiction in the United States District Court was based on a federal question arising under the copyright laws of the United States. Plaintiffs/Appellants motion for summary judgement and permanent injunction was granted and final judgement was entered on October 1, 1993. The notice of appeal was filed on October 26, 1993 and is therefore this appeal is timely under Federal Rule of Appellate Procedure 4. ISSUES FOR REVIEW 1. Can religious doctrine be the subject of trade secret legislation and enforcement? 2. Where written works and sound recordings are the scriptures of a religious doctrine and are copyrighted under 17 U.S.C.§201(d) and where such works describe rituals of such group which are claimed to be trade secrets under state law, and where the holder of such copyrights and trade secrets is a tax- exempt church which refuses to license the use of such materials to a dissident sect on religious grounds, does the court ordered confiscation of unauthorized copies of such materials (which effectively prevents a minister's religious practice, study, counseling and teaching of religious doctrine) violate the minister's free exercise rights and impermissibly entangle the United States in the enforcement of religious doctrine? 3. Under these circumstances, does the imposition of an injunction against the use of unauthorized copies of the materials and a prohibition against the Appellant's teaching of the doctrines which are claimed to be trade secrets and an award of statutory penalties for the past use of such materials impermissibly violate Appellant's rights of free exercise under the First Amendment and unconstitutionally entangle the United States government in the enforcement of religious doctrine? 4. Is Appellant's unauthorized use of the copyrighted materials under the circumstances described above fair use? 5. Was summary judgement properly granted finding that all the Advanced Technology of Scientology are trade secrets? 6. Does the imposition of a damage award and injunction under the circumstances described in issue statements 1, 2 and 3, above, violate the Religious Freedom Restoration Act, 42 U.S.C.§2000bb et seq.? STATEMENT OF THE CASE The scriptures of Scientology are the writings and recorded words of L. Ron Hubbard, its founder. For the purposes of this action, it is undisputed that Hubbard conveyed whatever interests he had in those materials to the Appellees (hereinafter "Scientology"). All of these materials are copyrighted written or sound recordings. Other parts of the scriptures (specifically, all that is referred to as the Advanced Technology), are also claimed to be trade secrets protected under California law. The Scientology organization has admitted that, as a matter of religious doctrine, they refuse to sell to the appellant, Enid Vien, or her parishioners, authorized copies of these materials or to license her to use or teach those religious procedures which they claim to be trade secrets because neither she nor they are members of the Church of Scientology. In 1982, Ms. Vien, a former member and minister of the Church of Scientology, broke away from the Church of Scientology and established her own church under the name of Dynamism which adhered to the scriptures and doctrines of Scientology. She proceeded to teach and counsel using Scientology scripture and religious rituals. These are taught and used with adherents in a series of courses and counselling levels each of which uses certain of the written works of scripture, including those rituals which have been deemed below to constitute protected trade secrets. Vien Declaration 6, Record vol 1 at 58. Although the Scientology organization would no longer permit her access to authorized copies, Ms. Vien had copies which she used for herself and her parishioners. These were copied on occasion by her parishioners for use in their religious studies and rituals. On October 6, 1992, the Church of Scientology International, Religious Technology Center of the Church of Scientology, and Bridge Publications, Inc., a division of the Church of Scientology, filed the complaint in this action against Enid Vien alleging numerous violations of Scientology copyrights and asserting various state law claims. The district court granted a temporary restraining order and ordered Vien to turn over to Scientology all her unauthorized copies of the copyrighted works and trade secret materials. Thereafter, the district court entered a preliminary injunction against Ms. Vien's using or making unauthorized copies or teaching any of the Advanced Technology sic trade secrets. The Plaintiffs below, Appellees herein, later moved for summary judgement and permanent injunction which were both granted. Final judgement, including damage awards for the prior use of materials was entered on October 1, 1993 and a timely Notice of Appeal was filed. After the enactment of the Religious Freedom Restoration Act, 42 U.S.C. §§2000bb et seq., Appellant filed a Motion to Vacate under Federal Rule of Civil Procedure 60(b). Record at pp. 496. The district court refused to entertain that motion. The facts relevant to this appeal are few and undisputed; it is the application of the law to the facts that is disputed. The central facts are these: 1. The materials in issue (the copyrighted writings, sound recordings and trade secrets) are the scriptures of the Church of Scientology and of the breakaway church, Dynamism, established by Enid Vien. Vien Declaration, Record, Vol. 1 at 57 - 59. 2. These materials are necessary to the study and teaching of doctrine in Dynamism and to the religious counseling of its adherents. Vien Declaration, Record Vol. 1 at 57-59. 3. As a matter of their religious doctrine, the Appellees will not permit Ms. Vien or her parishioners to purchase authorized copies of the scriptures or to be licensed to utilized the religious procedures described in the Advanced Technology. Plaintiffs' Responses to Defendant's Second Set of Interrogatories, Record, Vol. 3 at 544-547. 5. As a result of the injunctive relief, requiring inter alia Ms. Vien to turn over the unauthorized copies of the copyrighted materials and religious doctrines which are alleged to be trade secrets, Appellant Vien can not pursue her own study of these materials and her free exercise is thus impaired. Furthermore, any person who wishes to follow the Scientology/Dynamism religious path must study with the Church of Scientology rather than of a competing church if they so choose. ARGUMENT I. INTRODUCTION AND STANDARD OF REVIEW Both courts and academicians have explored at length the conundrum posed by Nimmer: "The First Amendment tells us that 'Congress shall make no law abridging freedom or speech, or the press.' Does not the Copyright Act fly directly at the face of that command?" Nimmer On Copyright 81.10 1- 63 Historically, this tension has focussed on the speech clauses and has been resolved in favor of copyright, e.g. Harper & Rowe Publishers, Inc., v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed2d 588 (1985) demonstrated this (emphasizing that the Court's decision was a result of the harmony it found between free speech and copyright; that copyright was itself a key element of the free expression of ideas). However, this analysis does not compel a finding of harmony between the enforcement of copyright law and the religion clauses of the First Amendment. Indeed, but for a single Court of Appeals decision condemning the enforcement of copyright which would foreclose religious diversity, see United Christian Scientists v. Christian Science Board of Directors, (D.C. Circuit 1987) 829 F.2d 1152, the tension in the use of copyright enforcement against religious practices presents a clean slate requiring a fresh perspective. It invites the use of the traditional judicial refusal to apply an otherwise constitutional law in a way which achieves an unconstitutional result. See Tribe Constitutional Law (1978) 711. A similar tension arises between the enforcement of trade secret laws where the alleged secrets are religious practices and writings. This case is but one of many in which the Church of Scientology has used the copyright and trade secret legislation to engage the United States government as an ally to deprive a splinter religious group of its free exercise right by depriving it of access to necessary religious texts and to prohibit its use of religious ritual. The Scientology organization has achieved this result by shrouding the issue of free exercise in the language of property rights thus obscuring the extraordinary claim that the use of Scientology religious materials by persons who are not members of the Church of Scientology is a "misappropriation of religion", as argued in Plaintiff's Opposition to Motion to Vacate, p.4 line 1 - 6, Record, Vol. 3 at 568. The concept that one can be found guilty of and punished for the theft of religion is a concept that would arguably be incomprehensible to both the framers of the Constitution and the drafters of copyright and trade secret legislation on which the Appellees rely. Because the use of legislation intended to protect commercial and artistic enterprises in this fashion may be hard to imagine, a hypothetical may be useful in elucidating the problem. Imagine that it is the year 1950. Somewhere in this country a man named Jesus Christ is martyred and his followers establish the Catholic Church. They also copyright the New Testament, develop the secret processes called confessionals and baptisms (claiming that these are trade secrets), and they register the symbol of the cross as a trademark. Eventually, a reform movement begins whose leaders claim that the Catholic Church has departed from its true purpose. Many dissident groups emerge, each of which (1) continues to use the New Testament (although they must use unauthorized photocopies since, as heretics, they are not permitted to buy the Bible from the copyright owner which controls its distribution), (2) continues to use the symbol of the cross, and (3) continues to perform cherished rituals as part of their practice. However, relying on its copyrights, trade secrets and trade marks, the Catholic Church claims that it has been injured by these developments and it obtains a Writ of Seizure under which Catholic priests, accompanied by U.S. Marshals, with guns at their side, break down the door of a private home where a group of Protestants are engaged in prayer. They take the New Testament from the hands of the congregants, they confiscate the cross from the wall, and they depart, leaving behind them a court order prohibiting the practice of confessionals and baptisms. Could there be a more egregious violation of the free exercise clause? In the use of U.S. Marshals to enforce religious hegemony, is there a more horrific example of entanglement in violation of the Establishment clause? And in the aftermath of the enactment of the Religious Freedom Restoration Act, can there be any doubt that Congress loudly and clearly proclaimed that its statutes are not to be misapplied so as to lead to such abridgements of free exercise? Yet this hypothetical is 100% consistent with the prosecution of this action against Reverend Enid Vien and her parishioners. The lower court's decisions present issues of law (the constitutionality of the injunction against religious practices and the imposition of statutory penalties for past practices and whether the religious doctrine can be enforced as a trade secret) which are reviewable de novo on appeal. Eg. United States v. United States Gypsum Co., 333 U.S. 364, 394-395 (1948). With respect to whether the trade secrets are, in fact, secret, a mixed question of law and fact. As to this issue, the appellate court applies the law to the facts to determine whether the legal standards respecting the maintenance of a trade secret has been violated. Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982). II. FACTS Enid Vien joined the Church of Scientology in 1965 and became a minister in 1967. In 1982, as a result of various changes in management policies and the criminal convictions of high ranking church officials, Vien resigned her positions in the church. However, since she felt she had a calling to minister to people's spiritual needs, she wanted to continue her religious counseling and teaching. Vien Declaration 3-4, in Opposition to Motion for Preliminary Injunction, Record at 56- 57. Eventually, Ms. Vien established her own ministry functioning under the name of "Dynamism." When this action commenced her following numbered approximately 50 people including ten ministerial trainees. Vien Declaration, 5 - 6, Opposition to Motion for Preliminary Injunction, Record at 56-57. After her defection from the Church of Scientology, Ms. Vien was no longer eligible to purchase or to otherwise obtain authorized copies of most of the scriptures of Scientology including all of the Advanced Technology (read trade secrets). Indeed, in response to Interrogatories in this action, Scientology admitted that it will not sell or license the materials to defendant because she is not a member of the Church of Scientology studying within its approved centers or ministering under its approved structure. Plaintiffs' Responses to Defendant's Second Set of Interrogatories in Defendant's Opposition to Motion for Permanent Injunction and Exhibit C in Motion to Vacate of Modify Permanent Injunction, Record vol. 3 at 545-546. Thus, she had to use copies she had in her possession, which were occasionally copied by her parishioners for their use. Additionally, she continued to teach the Advanced Technology, notwithstanding their treatment by Appellees as trade secrets, because they are an inherent part of her religious beliefs. Id. This suit was eventually filed claiming copyright and trade secret violations. In using copyright and trade secret protections, the Church of Scientology prevents competition from unorthodox ministers who adhere to Scientology principles in their own way and therefore will not permit them to purchase authorized copies of the confidential copyrighted scriptures and will not license them to use the materials and procedures which are the subject of trade secret protection. In substance, the Church of Scientology is using the United States courts to assure its hegemony over practitioners of Scientology and to prevent derivative groups from gaining adherents among those who study this religious path and the court's orders assure that result. Not only do they substantially impair the religious practices of Appellant both as a worshiper and a minister but also the court's orders tell her parishioners that, if they want to continue their religious study and their participation in the type of sacraments they have chosen, they must leave Enid Vien's Dynamism ministry and become members of the Church of Scientology. III. THE ESTABLISHMENT CLAUSE PROHIBITS THE IMPOSITION OF A PERMANENT INJUNCTION AGAINST THE USE OF COPYRIGHTED SCRIPTURES AND RELIGIOUS RITUALS EVEN IF THE RITUALS ARE TREATED AS TRADE SECRETS. The traditional test in establishment cases first enunciated in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, which seeks, inter alia, to determine whether the statute has an impermissible purpose , has been downplayed in favor of a more flexible analysis that attempts to ascertain: "whether irrespective of government's actual purpose the practice under review conveys a message of endorsement or disapproval. An affirmative answer to either question should render the challenged practice invalid." Lynch v. Donnelly, 403 U.S. 688, 690, 104 S. Ct. 1355, 1368 (Justice O'Connor, concurring). See also Kiryas Joel Village School District v. Grumet, ___U.S. ___ (decided June 27, 1994 (94 Daily Journal D.A.R. 8917). Thus, in analyzing the effect of copyright and trade secret legislation it is not sufficient to dismiss an establishment clause challenge on the grounds that neither the primary purpose or principal effect of the statutes are to convey endorsement or disapproval of one religion or another. The key is whether, in a given instance, it has that effect. Indeed, this approach has an extraordinary provenance. For example, in Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 400 (1969), the Supreme Court stated, "[The] First Amendment enjoins the employment of organs of the government for essentially religious purposes." Id. at 449. And, in Zorach v. Clauson 343 U.S. 306, 72 S.Ct. 679, the Supreme Court stated that government must show: "no partiality to any one [religion] and let each flourish according to the zeal of its adherents and the appeal of its dogma .... The government must be neutral when it comes to competition between sects." Id. at 314, 72 S.Ct. at 684. There can be no greater example of a violation of the principle prohibiting the use of organs of government for a religious purpose than the injunction in this case which, at the behest of the Scientology parties and admittedly in support of their religious precept preventing Scientology followers who are not members of the Church of Scientology but of other churches from using required scriptures and procedures, prohibits Appellant's religious practices, including study, teaching, counseling and ritual. Indeed, this case conjures up specters of the period of the Roman Empire after the Temple in Jerusalem was destroyed during which Jews were prohibited from having copies of or reading from the Torah. The current version of this abridgement of free exercise/establishment clause violation involves the specter of United States marshals, accompanied by members of the Church of Scientology to direct them in choosing the materials to be taken, entering into a house of worship and confiscating religious materials from groups engaged in religious practice. This is, in fact, the statutorily permitted outcome of disallowing the Appellant's claim. Such images bring home the problem with enforcement of these statutes under the second prong of the Lemon test, whether the act or practice has the effect of advancing or inhibiting religion. We turn to Larkin v. Grendel's Den 459 U.S. 116, 103 S.Ct 505, 74 L.Ed 2d 297 (1982). In that case, the Supreme Court struck down a statute conferring on religious organizations a veto power over the award of liquor licenses to establishments within a specified distance of the religious organization where one of the fatal vices of the statute was the appearance of joint exercise of power between a religious organization and the state. The United States Supreme Court stated: "The mere appearance of joint exercise of legislative authority by church and state provides a significant symbolic benefit to religion in the minds of some by reason of the power conferred." Id. at 125-126 103 S.Ct. at 511, 74 L.Ed 2d at 306, quoting Committee for Public Education v. Nyquist 412 U.S. 56 (1973). In the present instance there is no mere "appearance" of joint exercise of power, but, indeed, the actual joint exercise of power: church officials, in the company of U.S Marshals, conducting searches and seizures in private homes and taking possession of religious artifacts. Given the flexible approach toward establishment clause analysis advanced in Kiryas Joel, supra, and particularly embraced by Supreme Court Justice O'Connor, rather than follow "lock-step" the Lemon test, this court can and should look critically both at the Scientology organization's stated religious goals in seeking judicial intervention in the essentially religious matter of the evolution of a religious faith and at the immediate impact of such intervention. As noted above, the Appellees have admitted that their use of the relevant statutes herein is intended to protect and advance their religious purposes and to punish those who they claim have stolen their religion. And, here there is no mere remote threat to religious exercise but a concrete catastrophe to free exercise. If the government can not directly make such a discrimination against the Appellant's religious practice, surely it can not achieve that result by putting blinders on as to the purposes for which the plaintiffs below have used the court as this would allow the use of an organ of government "for essentially religious purposes" in violation of Presbyterian Church, supra, 393 U.S at 449. While it may be appropriate for the government to effectively close down the operations of bootleg publishers and to confiscate bootleg records, Congress never anticipated the use of such enforcement between religious groups under the guise of copyright protection just as surely as the idea is abhorrent to the First Amendment nor can courts achieve the same effect by enforcing local trade secret laws. IV. THE INJUNCTION AND AWARD OF DAMAGES VIOLATE THE APPELLANT'S FREE EXERCISE AND ARE NOT WARRANTED UNDER THE LEAST RESTRICTIVE MEANS TEST. Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder 406 U.S. 205 (1972) are the benchmark cases regarding the free exercise of religion. Under these cases, a burden on free exercise must be justified by a compelling state interest in the regulation of a matter within the state's power. See Sherbert, supra, 374 U.S. at pp.402-403, 10 L.Ed.2d at 969,970. If a party is able to establish the infringement on his right to free exercise, the court must subject the infringement to strict scrutiny. Sherbert, supra 374 U.S. at 406-407. The state must then establish that the infringement is justified by a compelling state interest and the enactment is the least restrictive means to achieve that end. Id. at 406-409, 10 L.Ed.2d at pp.972-973. As to the first part of this assessment, whether there is a sufficiently compelling state interest, Wisconsin v. Yoder instructs that: "The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." 406 U.S. at 215, 92 S.Ct. at 1533. (Emphasis added.) Appellant Enid Vien contends that, while injunctions and damage awards are generally permissible exercises of judicial power, they are not the only means of protecting the interests underlying copyright and trade secret regulation; those interests can be "otherwise served" in the sense described in Wisconsin v. Yoder with a less drastic infringement upon free exercise and, thus, such burdens exceed the least restrictive means standard in this case. Specifically, the governmental interest in advancing business and culture by creating and protecting property interests in written works and trade secrets is adequately protected by allowing the holders of such interests to be the sole distributors of materials and to profit from all sales. Although the statutory schemes anticipate the use of injunctions and statutory damages without constitutional impediment, the governmental goals can be met by less restrictive and intrusive means. Indeed, the penalties associated with infringing use of copyright and trade secret are severe: copyright violations may be the subject of criminal prosecutions. Thus, the imposition of these statutory penalties (particularly where the Church of Scientology has conceded its inability to demonstrate any actual losses) is the exaction of a penalty for practice of religion, an unconstitutional result. See Torasco v. Watkins, 367 U.S. 488, 81 S.Ct. 1680 (1961)(invalidating under the free exercise clause the requirement of a declaration of a belief in God prior to taking public office). The district court refused to look at this issue. Rather, she concluded that, under neutral legislation of general applicability, religious works are entitled to be copyrighted under United Christian Scientists v. Christian Science Board of Directors, First Church of Christ Scientist (D.C. Circuit 1987) 829 F.2d 1152. Therefore, she expressly found that she need not examine this issue nor did she consider that the issuance of an injunction was not the least restrictive means available to protect the government interests behind copyright or trade secret legislation. The cornerstone of the district court's view, repeated in several hearings and orders, was that Appellant's right of free exercise must give way to enforcement of neutral laws of general applicability. See Transcript of Proceedings of April 26, 1993, Record, vol. 4 at 750 lines 15 - 25; Transcript of Proceedings of September 20, 1993, Record vol. 4 at 826, and Memorandum Decision and Order Granting In Part and Denying in part Motion for Summary Judgement, Record, vol. 2 at 455-461. Assuming arguendo that the Church of Scientology can obtain and exploit the property rights created by copyright and trade secret legislation by selling or licensing them upon appropriate terms , nevertheless, that conclusion is not determinative of the present case nor does United Christian Scientists, supra, compel that result. The governmental interest underlying copyright legislation (and trade secret legislation as well) is the encouragement of business, science and culture by protecting proprietary interests in creative endeavors. This goal does not mandate injunctive relief or statutory damages; damages for lost profits would suffice to implement the governmental interest. However, the interests which the Church of Scientology has advanced herein (the twin goals of protecting of its religious contention that only members of that church can use the materials at issue and of preventing competing churches that adhere to Scientology doctrine from using its materials for religious worship and counseling) is not a permissible governmental interest. Thus, the facially neutral laws of copyright and of trade secrets are being used by the Church of Scientology to establish and enforce its hegemony over practitioners of Scientology doctrine and to prevent derivative groups from gaining adherents among those who seek to study this religious path. A. The Burdens On Free Exercise Imposed by the Court Are Substantial While entering a judgment for substantial statutory damages and permanently enjoining Appellant's use of unauthorized materials and procedures, the court acknowledged that these measures would have the effect of requiring Appellant to re- write the scriptures of her religion, obviously a substantial burden on her free exercise of religion. Memorandum Decision and Order, Record, vol. 2 at 454-455 and 463-464; Transcript of Motion Hearing, December 7, 1992, Record, vol. 3 at 555-556. In addition, the court permitted the Appellees to retain the Appellant's copies of religious scriptures that had been turned over to them pursuant to court order. Order, Record, vol. 1, at 237. Thus, Rev. Vien's own further study of doctrine and practices of her religion is rendered impossible since defendant has no authorized copies of necessary texts and plaintiffs refuse to sell them to her. Transcript of Proceedings of April 26, 1993 Record, vol. 4 at 771 line 14 - 774 line 13 and Vien Declaration 5,6 and 8 in Motion to Vacate, Record, vol. 3 at 516. The proposition that Ms. Vien can re-write the scriptures of her faith violates her faith since under the religious teachings of Scientology and Dynamism, L. Ron Hubbard's specific words, in their specific sequences, must be utilized for the principles of the religious counseling and training espoused in those churches to be effective or meaningful. Vien Declaration 3-4, Record vol.1 at 138. Thus, the admonition that Vien could avoid copyright violations by re-writing religious scripture is not merely a significant burden on free exercise but also an unacceptable intrusion of the courts into the doctrinal beliefs of a specific religion in that it adopts the Judeo-Christian approach that permissible variations in expression do not invalidate the text or the rituals that accompany the text. Such intrusiveness is anathema to the separation of church and state which requires that the courts refrain from considering matters of religious doctrine deferring decisions respecting faith made to religious authorities. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 709, 96 S. Ct. 2372, 2380; Watson v. Jones, 13 Wall. 679, 727, 20 L.Ed. 666 (1872). This result can be avoided under copyright precedent. See Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417 (1984). In Sony, the United States Supreme Court acknowledged that the grant of a copyright is the grant of a monopoly privilege. Id at 451. However, such monopolies do not generally have the effect of impermissible impairment of free speech since, inter alia, the words chosen by the copyright holder do not usually have to be exactly duplicated to express the same information. However, in the present context, the precise words are essential to convey the meaning of the doctrine and to perform the rituals associated with the trade secrets. Thus, the district court's analysis and orders prevent the Appellant's adherence to the doctrine she has chosen to follow. This burden on her free exercise is not a necessary result of the government's interest in creating copyright protection; there is no constitutional mandate that such interests be protected or enforced in the manner created by the statutory scheme nor does every copyright holder refuse to make their materials available in authorized form. Rather this infringement of Appellant's first amendment rights is the result of the court's enforcement of the religious doctrine of the Church of Scientology respecting access to these materials and their deeming her as a heretic who can never have such access. Additional infringements of Appellant's right of free exercise are the result of the orders below: 1) By being deprived of the documents which Appellant possessed and which Appellees will not permit her to obtain or retain, Appellant is deprived of her own religious study. See Vien Declaration 8, Motion to Vacate, Record, vol. 3 at 516. 2) Because neither Rev. Vien nor her parishioners can obtain authorized access to confidential religious scriptures and secrets under the permanent injunction unless they join the Church of Scientology, they are being prevented from participating in religious ritual and study. Vien Declaration 8, 10, Williams Declaration, passim; Womack Declaration 3, all in support of Motion to Vacate, Record, vol. 3 at 516-521. The government's action de facto requires that, if they wish to pursue their chosen religious doctrine, they can not choose from among several different churches adhering to that doctrine but must join the Church of Scientology. 3) In this instance, the Appellees opted for statutory damages rather than lost profits because, as they admitted, it would be virtually impossible to show any such losses. Transcript of Proceedings of June 21, 1993, Record, vol. 4 at 779 line 5 -8/ This would have required attempting to find proof that, but for the existence of Ms. Vien's ministry, the parishioners would have chosen to join the Church of Scientology. Under these facts, the damages awarded for each time Rev. Vien taught a particular religious course or provided certain types of counseling using confidential materials rather than for any injury to Appellees does not compensate for losses but are instead nothing more or less than a penalty imposed by the court for the practice of religion. This damage award forced Ms. Vien to file bankruptcy. Vien Declaration 8, Record vol. 3 at 516. V. THE RELIGIOUS FREEDOM RESTORATION ACT MANDATES THE APPLICATION OF THE COMPELLING INTEREST AND LEAST RESTRICTIVE MEANS TEST TO THE AWARD AND INJUNCTION IN THIS CASE. On November 16, 1993, the newly enacted Religious Freedom Restoration Act, 42 U.S.C. §2000bb et seq., became effective. In that Act, Congress (acting with an overwhelming singular voice) decried the result of the Supreme Court decision in Employment Division v. Smith, 494 U.S. 872 (1990) as effectively "eliminat[ing] the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion", §(2)(a)(4). Thus, the stated purpose of the RFRA is: "(b)(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is burdened; and (2) to provide a claim or defense to persons whose religious exercise is burdened by government." RFRA § 2(b). Section 3(a) of the Act emphasizes that a burden on the free exercise of religion is impermissible even if the burden results from a rule of general applicability, i.e. copyright and trade secret laws, except if it is demonstrated that the burden: "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." The RFRA is expressly applicable to all federal and state law whether adopted before or after the enactment of the statute, see RFRA §6(a), and it applies to the actions of any branch of the United States government which necessarily includes the orders and judgements of the courts in private litigation. RFRA §(5)(1). Thus, the protections of the RFRA are applicable to this case. In view of this enactment, the district court's refusal to consider the tremendous invasion of religious liberty effectuated by its orders simply because it found that Rev. Vien received compensation for her services as counselor and minister, see fn.6, supra, can not be affirmed. The district court's refusal to apply both a compelling interest test to the statutes being enforced and a least restrictive means test to the burdens imposed by its orders must be overturned, if not as a matter of constitutional adjudication then as a result of the RFRA. This failure is even more injurious given that all the damages awarded herein were based only a statutory penalty (rather than actual damages or lost profits) for each instance that Appellant provided religious counseling or instruction and, thus, the damage award is a direct burden on religious freedom. The RFRA provides a separate basis for requiring the court to consider whether the government interests served by copyright and trade secret legislation require such burdens as have been imposed or whether those can be adequately met by lesser means in order to preserve the Appellant's free exercise rights. As discussed under the constitutional analyses, above, other means are available to serve the government interest. VI. RELIGIOUS DOCTRINE IS NOT SUBJECT TO TRADE SECRET PROTECTION BECAUSE IT IS NOT EMBRACED BY CALIFORNIA'S TRADE SECRET LEGISLATION AND IS NOT SECRET. A. Religious Doctrine is Not A Trade Secret As discussed, supra, internal Scientology policy dictates that its advanced levels of achievement are kept secret in accordance with religious doctrine. Such use precludes the application of California's trade secret law to scripture and religious procedures since the secret must have independent economic value in trade or commerce. By the Appellees' own arguments, only a person experienced in the doctrines of Scientology can put the Advanced Technology to spiritual use: no one else can make use of it; it has no use in trade or commerce. On this point Vien directs the court to an ex parte application submitted by the Church of Scientology in Rowe v. Church of Scientology L.A.S.C Case No. BC 038995. In opposition to the church's motions for summary judgment in that case, the Rowes had submitted the declaration of an ex-Scientologist regarding the content of some of the Advanced Technology. The Scientology parties sought to seal the declaration stating in substance that the content would be meaningless and would appear ridiculous to non-Scientologists. See Exhibit I to Opposition to Motion for Preliminary Injunction, Excerpts of Record pp. 727-735. The application was denied. Putting aside the statutory objection to plaintiffs' trade secret claim there are, nevertheless, other bases to bar this use, namely, judicial estoppel. In court after court, plaintiffs have fought pitched battles over the years to be considered a religion and fought even more battles against the IRS challenging its refusal to grant them tax exemptions as non-profit organizations. Throughout these battles, plaintiffs have repeatedly claimed that they are not a for profit business but a non-profit religion and therefore should be tax exempt. See e.g. Church of Scientology of California v. Commissioner 83 T.C. 381 (1984) (CSC is the predecessor mother church to plaintiffs' Church of Scientology International); Church of Scientology v. United States et al. CV902042 JMD U.S.D.C. Central District, California), and Church of Spiritual Technology v. United States U.S. Ct. Clms. No. 581-88I, 6/29/92 (discussing extensive history of Scientology litigation for tax exempt status including particularly plaintiffs RTC and CSI). For these plaintiffs to then come into court and seek profit protection for their religious doctrine should not be countenanced. To ignore the history of such litigation is tantamount to inviting abuse of the judicial system and fraud on the courts. One appellate judge, obviously chagrined at the massive amount of judicial resources absorbed by Scientology's unending litigation, has already argued that judicial estoppel be used precisely as discussed herein and on this precise issue. In Religious Technology Center et al. v. Scott 869 F.2d 1306 (9th Cir. 1989), the Ninth Circuit was called upon for a second time to review the issuance of denial of a preliminary injunction in a case similar to this one. Originally pleading that the harm it suffered from unauthorized use of its advanced scriptures was spiritual, RTC amended its pleading after the first interlocutory appeal to add that it suffered economic harm as well. When the district court's second decision on the preliminary injunction was reviewed, the court stated that, the first decision: "(D)etermined that California law did not recognize information as a trade secret unless it conferred an actual economic advantage over competitors . . . . While we expressed doubts about whether the church could allege the competitive market advantage required without raising grave doubts about its claim as a religion and not-for-profit corporation, we did not decide one way or another whether the scriptures could qualify as trade secrets should the church allege and prove economic advantage . . . . Thus [the first decision] did not establish the law of the case on [this question]." In response, Justice Cynthia Hall dissented, urging that the doctrine of judicial estoppel be invoked since it was clear that the church's conduct was: "us[ing] the courts as a laboratory in which to experiment. The doctrine of judicial estoppel was fashioned to prevent just this sort of litigation strategy which plays fast and loose with the judicial process." Id. at 1310-1311. Defendants ask the court to take judicial notice of the numerous lawsuits RTC and CSI have filed against the IRS arising out of the government's denial of their claim to be tax exempt organizations and to send a message that they can not take such inconsistent positions in neighboring courtrooms, and expect the judges to allow such hypocrisy. To do so would make a mockery of the judicial process. As argued in the earlier opposition to the motion for preliminary injunction, defendant Vien contends that California trade secret law does not apply to religious doctrine and she incorporates that argument herein. However, in addition to issues of law there are substantial issues of fact relevant to the trade secret claims that should preclude both the continuance of the preliminary injunction and the grant of summary judgment. B. The "Trade Secrets" Have Been Repeatedly Reported in Print, in Broadcast Media and Described in Public Court Files. In 1986, Houghton Mifflin Company (Boston) published Bigger Secrets by William Poundstone. Chapter 7 is entitled "The Secret Teachings of L. Ron Hubbard" and it devotes a page to the concepts of the OT3 level, part of the Advanced Technology, which Scientology is here trying to suppress. Plevin Declaration 3 and Exhibit B thereto in Opposition to Motion for Summary Judgement, Record, vol. 3 at 664-667. In 1987 another publication, L. Ron Hubbard: Messiah or Madman by Bent Corydon (Lyle Stuart, New York), quoted verbatim from the original Hubbard texts. Plevin Declaration, 4 and Exhibit C thereto in Opposition to Motion for Summary Judgment, Record, vol. 3 at 669-673. A recent declaration of Hana Eltringham Whitfield, demonstrating her firsthand knowledge of the texts due to her extremely high Scientology training prior to her break from the organization (Plevin Declaration, 5 and Exhibit D thereto in Opposition to Motion for Summary Judgment, Record, vol. 3 at 670-681), confirms that the foregoing excerpts are substantially accurate portions of OT3. This declaration was filed in 1992 in a Los Angeles Court. In 1991, Time published an article entitled "Scientology: The Cult of Greed" which identified key parts of OT3. Plevin Declaration, 6 and Exhibit E thereto in Opposition to Motion for Summary Judgment, Record, vol. 3 at 683-684. In 1990, the Los Angeles Times did a six-part series on Scientology containing details of OT3. Plevin Declaration, 7 and Exhibit F thereto, in Opposition to Motion for Summary Judgment, Record, vol. 3 at 686-688. And, in 1988, the St. Petersburg Times published an article describing OT3, which is attached to Ms. Plevin's declaration as Exhibit G in Opposition to Motion for Summary Judgment, Record, vol. 3 at 689-690. In sum, there is a substantial issue of fact regarding whether OT3 is secret which precludes both the continuance of the preliminary injunction and entry of summary judgment. Not only has OT3 been widely discussed but all the Advanced Technology Levels OT1 through OT8 has been filed of record in the Central District of California for more than a year without being sealed as requested by the Scientology organization because the district court concluded that they are not trade secrets. Scientology has appealed that denial and its appeal is currently pending in this Court of Appeals. See Church of Scientology International v. Fishman et al. Circuit No.94-55443. Turning to certain of the Advanced Technology known as the NOTS materials, Appellant Vien asks the Court to take judicial notice of the order in Religious Technology Center et al. v. Scott, et al., U.S.D.C. Case No. CV 85-711 (JI) dismissing the claims of the Appellees herein to ownership of the NOTS materials after they refused to comply with discovery orders relating, inter alia, to proving/disproving Hubbard's authorship of NOTS. Plevin Declaration 9 and Exhibit H thereto in Opposition to Motion for Summary Judgment, Record, vol. 3 at 692-703. With regard to the Advanced Technology procedures known as Power Processes, Appellant Enid Vien contended below that she paid for and studied those materials from a Scientology recruiter in approximately 1962 before she even joined the Church of Scientology at which time they were not secret. It was only later that they were given "secret" status. Vien Decl., 10, in Opposition to Motion for Summary Judgment, Record, vol. 1 at 140. Notwithstanding a substantial conflict of fact on this point, nevertheless, these too, are subject to the court's injunction granted on Appellees' Motion for Summary Adjudication. VII. DEFENDANT ENID VIEN'S USE OF THE COPYRIGHTED WORKS IS SUBJECT TO THE FAIR USE DOCTRINE. In attempting to apply the statutory criteria to Ms. Vien's use of plaintiffs' works, Appellant asks the court to focus on the flexibility of the factors enumerated in section 107 of the Act and the non-exclusive nature of the factors. Such attention is warranted in this action since the fundamental rights at issue warrant maximum protection. The first of the enumerated four factors is: "The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes." In the present instance, Ms. Vien uses the materials exclusively in her religious ministry for the counseling and training of the adherents of Dynamism. She does not sell or distribute any of the material for any other purposes. Vien Declaration 6, Record, vol. 1 at 58. She does not advertise her services nor does she make known publicly that the materials are available for purchase or review. Vien Declaration, Record at pp. 515-518. Over the 10 or so years of her ministry, she has never earned more than $12,000 in one year from the ministry. Thus, she has hardly any impact upon the copyright holders interest. Vien Declaration, Record, vol. 3 at pp. 515-518. Furthermore, Plaintiffs have refused to sell her the documents necessary for her religious practice or to license their use. Such unavailability of the works and issue supports a broader basis for a fair use determination than in the ordinary case. Senate Report 64, Record at 524. If the fair use defense is denied in this instance, the effect will be that the United States government shall have been used by the Church of Scientology to require that adherents of Dynamism join the Church of Scientology if they wish to further their study and counseling in their chosen religious faith. Such an establishment of religion, albeit not intended by the statutory scheme, would render the application of the law of copyright unconstitutional in this instance. VIII. CONCLUSION Based on all the foregoing, Appellant asks this Court to vacate the preliminary injunction and set aside the entry of judgment and award of damages and enter a new and different judgment in Appellant's favor in all respects. DATE:_________________ ______________________________ Toby L. Plevin Attorney for Appellant Enid Vien STATEMENT OF RELATED CASE Church of Scientology International v. Fishman et al, Circuit No. 94-55443. In the within appeal, one of the issues arises from the contention of the Church of Scientology that certain religious materials are trade secrets under California law. An injunction was issued prohibiting the Appellant's future use of those materials and damages were awarded for her past use of those doctrines. In Church of Scientology International v. Fishman, the defendants/appellees filed materials in the district court which include some of the materials alleged to be trade secrets. The Church of Scientology sought a ruling sealing those portions of the court file and the defendants/appellees prevailed below arguing inter alia that the materials are not secret. Thus, although the Vien case involves a number of other issues, both cases have a common question of law, that is, whether the doctrines are trade secrets. Indeed, it would seem that this court could not rule in the one case that the materials are trade secrets and the injunction against Ms. Vien's religious use of the materials should be affirmed while, in the other, permitting the materials to remain unsealed in a court file for all other persons to use. PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) I am a resident of the County of Los Angeles; I am over the age of eighteen years and am not a party to the within entitled action; my business address is 10700 Santa Monica Boulevard, Suite 4300, Westwood, California 90025. On July 22, 1994, I served the following documents described as: Appellant's Opening Brief [Corrected] on the persons set forth herein in the manner indicated on the Service List attached hereto. ___BY MAIL I am fully familiar with my office's mail collection and preparation practices and procedures and I deposited said document(s) in accordance with my office's mail pick-up procedure for delivery on the same day to the U.S. mail with first class postage __BY HAND I personally caused this document to be delivered to the offices of the persons identified on the attached list. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this June 22, 1993, at Los Angeles, California. ___________________________ Toby L. Plevin SERVICE LIST Neil F. Martin (mail only) BROWN, MARTIN, HALLER & MCCLAIN 110 East "C" St. 13th Flr. San Diego, CA 92101 619-238-0999 Thomas M. Small SMALL, LARKIN, KIDDE & GOLANT 10940 Wilshire Blvd. Suite 1800 Los Angeles, CA 90024-3945 310-209-4404 Helen K. Kobrin BOWLES & MOXON 6255 Sunset Blvd. Suite 2000 Hollywood, CA 90028 310-953-3351 The complaint on file herein, see Excerpts of Record, Vol. 4 at page 643 et seq., includes claims for copyright infringement of literary works (First Claim for Relief, 17 U.S.C. §§101 et seq), copyright infringement of a recorded work (Second Claim for Relief, 17. U.S.C, §§ 101 et seq), infringement of exclusive ownership rights in Original Works of Authorship (Third Claim for Relief, California Civil Code §980 (a)(2), misappropriation of Trade Secrets (Fourth Claim for Relief), unfair competition (Fifth Claim for Relief, California Business and Professions Code §§17200 et seq), conversion (Sixth Claim for Relief), and unjust enrichment (Seventh Claim for Relief). The motion papers and exhibits filed in support and opposition to that motion have been included with the Excerpt of the Record even though they were generated subsequent to the entry of judgment, since the material therein is relevant to the effect of the Restoration of Religious Freedom Act and would have otherwise been brought to the attention of the Court. For example, the Sherman Act was held not to apply to the concerted lobbying activities of businessmen, Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc. 365 U.S. 127 (1961) and a trespass statute may not be enforceable against the distribution of religious literature in a company town, March v. Alabama 326 U.S. 501 (1946), 66 S.Ct. 276, 90 L.ED 265. Similarly, a state law against barratry was found to be unenforceable against the NAACP as to its activities in sponsoring litigation against segregation, NAACP v. Button 371 U.S. 415 (1963), and conspiracy laws as held unenforceable against protected political advocacy against the Vietnam War, United States v. Spock (1st Circuit 1969) 416 Fed. 162. By the same token, the enforcement of copyright law, trade secret law and other laws protecting commercial competition so as to enable one religious group to deprive another of text or materials and to enjoin its use of sacred ritual would violate both the free exercise and establishment clauses of the First Amendment and would shatter our belief that this country was founded as an escape from alignment of church and state and its devastating effects on freedom. Yet that is precisely the effect and purpose of the injunction and damages award in the present action. Although the language of the complaint in this action did not specify the religious nature of the works in issue, this was not disputed below. All these works were created by L. Ron Hubbard, the founder of Scientology, as part of the religious tracts and dissertations of Dianetics and Scientology. The Lemon three part test provides: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religions . . .; and finally, the statute must not foster an excessive government entanglement with religion." 403 U.S. at 612-613, 91 S.Ct at 211, 29 L.Ed.2d 29, 42-43. The district court refused to look at this issue. Rather, having determined that under United Christian Scientists v. Christian Science Board of Directors, First Church of Christ Scientist (D.C. Circuit 1987) 829 F.2d 1152, religious works are entitled to be copyrighted, she expressly concluded that she need not examine this issue nor be concerned that the issuance of an injunction was not the least restrictive means available to protect the government interests behind copyright or trade secret legislation. The cornerstone of the district court's view, repeated in several hearings and orders was that free exercise must give way to enforcement of neutral laws of general applicability. See Transcript of Proceedings of April 26, 1993, Record, vol. 4 at 750 lines 15 - 25; Transcript of Proceedings of September 20, 1993, Record vol. 4 at 826, and Memorandum Decision and Order Granting In Part and Denying in part Plaintiff's Motion for Summary Judgement, Record, vol. 2 at 455-461. In United Christian Scientists v. Christian Science Board of Directors, First Church of Christ Scientist, supra, the D.C. Circuit stated: "Government may not convey any message of endorsement or disapproval of religious activity or use its power [or] prestige . . . to control, support, or influence any matter of religious faith." The Christian Science court relied on the standard bearer decisions of establishment clause adjudication. For example: "Government . . . must be neutral in matters of religious theory, doctrine and practice . . . It may not aid, foster or promote one religion or religious theory against another . . . Id. at 1167 citing Epperson v. Arkansas, S.Ct. 266, 270 21 L.Ed 2d 234. Vien acknowledges that in this instance the court refrained from that order, although it was requested in the application for a restraining order and although other courts have issued such orders at the request of the Scientology organization. Indeed, as the record shows, the Church of Scientology, the Mother Church, does, indeed, license them to its subordinate groups. To be sure Appellees will contend that their profitability is not an inconsequential concern. However, it is hard to give credence to that in light of their overwhelming statements to the contrary. And, it is equally difficult to ascribe legal significance to that concern when they have admitted their inability to establish any loss (which would have meant they would have to show that but for the competing church of the Appellant, the parishioners of Dynamism would have chosen to become members of the Church of Scientology), they opted for statutory damages, ie. $500 per infringement. Transcript of Proceedings of April 1, 1993, Record, vol. 4 at 779 lines 5 - 8. The definition of "trade secret" under California Civil Code Section 3426.1 is: "information, including a formula, pattern, compilation, program, device, method, technique or process, that: (1) derives independent economic value, actual or potential, from not being generally known to the public or other persons who can attain economic value from its use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy." In expanding on the purpose of the California law in the Senate Committee Notes, the California Senate stated that the law was intended to broaden the Restatement definition of trade secret which required that the trade secret be "continually used in one's business." The purpose of the enlargement was to protect a plaintiff "who has not yet had an opportunity or acquired the means to put the trade secret to use [in one's own business]." The Church of Spiritual Technology case is a detailed summary of the interrelationship of the plaintiffs herein and is the result of one of Scientology's innumerable battles with the IRS in its efforts to obtain tax exempt status for many of their sub-divisions and the lawsuits against the IRS when such exemptions were not granted. Additionally, the position of Bridge Publications, Inc. within this church structure is examined. Although the Court of Appeals did not follow this recommendation, a review of the several opinions in this action indicates that it was never urged upon the Court by the parties. Additionally, the record at this stage is more complete in demonstrating that necessity of the application of such a rule. Appellant does not contend that the entirety of OT3 has been disclosed through these means. However, the information which constitutes OT3 has been so substantially disclosed that the secret status has been lost. As the foregoing Excerpts from the record show, the central point of OT3 is that it explains how certain spirits called thetans came to be attached to and within human bodies and what those thetans experienced. The statutory language denotes that the factors are not comprehensive. Specifically, section 107 is preceded by the phrase "shall include", and, the term "including" is defined to mean "illustrative", not a limitation. 17 U.S.C. Section 101. See New Era Publications, International v. Henry Holt & Co., 873 F.2d. 576, 588(2d Cir. 1989)(Oakes, Chief Judge, concurring). The discretionary use of a broad range of factors beyond the statute is supported by the Senate report accompanying the act at page 64 thereof. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 / - 39 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 / - 41 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 / - 40 -