Ruling Scientology vs.
providers and Karin Spaink
Summary proceedings, March 12 1996

ruling summary judgement of March 12, 1996,
court case number 96/160:

1. the incorporated religious organization according to foreign law CHURCH OF SPIRITUAL TECHNLOGY, established in Los Angeles, United States of America,
2. the incorporated religious organization according to foreign law RELIGIOUS TECHNOLOGY CENTER, established in Los Angeles, United States of America,
3. the coporate body according to foreign law NEW ERA PUBLICATIONS INTERNATIONAL ApS, established at Copenhagen, Denmark,

attorney mr. R. Laret,
counsel mr. R. Hermans, Amsterdam,

versus:

1. the private company with limited liability DATAWEB B.V., statutory established in 's-Gravenhage (The Hague);
2. the foundation STICHTING XS4ALL, statutory established in Amsterdam;
3. the foundation STICHTING DE DIGITALE STAD, statutory established in Amsterdam;
4. the private company with limited liability CISTRON INTERNET SERVICES B.V., statutory established in Alphen aan den Rijn;
5. the private company with limited liability INTERNET ACCESS EINDHOVEN, statutory established in Eindhoven;
6. the company according to foreign law EURONET INTERNET INC., statutory established in Wilmington, USA, and in Amsterdam;
7. the private company with limited liability PLANET INTERNET B.V., statutory established in Amsterdam;
8. the private company with limited liability B-ART NOORD NEDERLAND B.V., statutory established in The Hague and in Groningen;
9. the private company with limited liability WIREHUB! INTERNET B.V., statutory established in Rotterdam;
10. the foundation STICHTING INTERNET ACCESS, statutory established in Slochteren;
11. the foundation STICHTING TELEBYTE, statutory established in Nijmegen;
12. Ronald Walter VERGEER, acting on behalf of B-ART MIDDEN NEDERLAND B.V. I.O., and residing in The Hague;
13. the partnership under firm LUNATECH RESEARCH, statutory established in Rotterdam;
14. Michael David PENTOWSKI, partner of the defendant sub 13, residing in Rotterdam;
15. Peter Firth MUNRO, partner of the defendant sub 13, residing in Rotterdam;
16. Stefan Mark ARENTZ, partner of the defendant sub 13, residing in Rotterdam;
17. Peter Alexander KAAS, partner of the defendant sub 13, residing in Rotterdam;
18. the partnership under firm SPIRIT INTERACTIEVE DIENSTEN B.V. I.O., statutory established in Rotterdam;
19. the public limited company N.V. ENECO, partner of the defendant sub 18, statutory established in Rotterdam;
20. the private company with limited liability ROTTERDAMS DAGBLAD B.V., partner of the defendant sub 18, statutory established in Rotterdam;
21. the MUNICIPALITY ROTTERDAM (DEVELOPMENT COMPANY ROTTERDAM), partner of the defendant sub 18, residing in Rotterdam;
22. the private company with limited liability METROPOLIS INTERNET B.V., statutory established in Dordrecht;
23. Karin SPAINK, resident of Amsterdam.

defendant sub 7:
attorney mr. W.E. Pors,
counsel mr. J.C.H. van Manen,

defendant sub 8, sub 10 and sub 11 are not represented.

1. The facts

Based on the documents and the discussion on the session of February 26, 1996, the following has been ascertained:

1. Defendants in this procedure are so called Internet access providers (defendants sub 1 up to and including 22) and one user of Internet (defendant sub 23). The Internet is a world-wide computer information network. Internet access providers allow their subscribers to access the Internet. Those who subscribe get access to the information published on Internet and can use different facilities of the Internet, such as the creation of a so-called "homepage". A homepage is a collection of information that is created by the subscriber himself and can be accessed by other users of Internet.

2. Plaintiffs claim that defendants infringe upon the copyrights held by plaintiff sub 1, on certain confidential works by L. Ron Hubbard (deceased in 1986), by publishing, or enabling publication, of texts on Internet. It concerns works concerning the doctrine and activities of the Church of Scientology, founded by L. Ron Hubbard.

The claims
1. Put shortly, plaintiffs require defendants to be ordered to stop all infringement upon the copyrights of plaintiff sub 1, and to keep it so.
2. Plaintiffs also require, with respect to the defendants sub 1 up to and including 22, that, as soon as defendants are notified of the presence of infringing documents on their computer systems or on computer systems that are under their control, they will take steps to see that the documents are removed immediately. Also the plaintiffs require that defendants sub 1 up to and including 22 will disallow the user concerned access to their computer systems. Further they require that defendants sub 1 up to and including 22 will in such cases inform the plaintiffs about the names and addresses of third parties that made these infringing documents public through their computer system, or through computer systems that are under their control.

   
   The justification

   The following justifications have been put forward.

3. This concerns copyright infringement by defendants. Plaintiff sub 1 holds the copyright on several confidential and non-confidential works, created by L. Ron Hubbard, deceased in 1986. Plaintiff sub 2 holds a world-wide (excluding the United States of America) exclusive license with regard to the copyrights and has full powers to maintain those rights. Plaintiff sub 3 holds a world-wide (excluding North- and South-America) right to publish a number of the non-confidential works and has full powers to maintain those rights.
4. In a judicial procedure in the United States in 1993 between Church of Scientology International and Steven Fishman, the latter has submitted a statement, entitled the "Fishman Affidavit". An appendix to said statement contained, without permission of the plaintiffs, a copy of a part of the published, non-confidential work "Ability", as well as a substantial part of the unpublished, confidential works, entitled "Operating Thetan" (named "OT" hereafter) I up to and including VII.
5. Plaintiffs found that the Fishman Affidavit, which contains substantial parts of the OT-works and Ability, have been made public and / or have been multiplied on the Internet. Defendant sub 23, as user, has made the texts public by incorporating them on her homepage. Other users have gained access to said works through defendants 1 up to and including 22. This makes it a publication and / or a multiplication by the users of Internet in the sense of Art. 1 of the Copyright Law of 1912. Defendants sub 1 up to and including 22, the Internet access providers, are infringing by making the works available to third parties through their systems. Contrary to what defendants maintain, the Internet access providers do not have a passive role in the dissemination of information. They publish, or at least encourage publishing. In all cases the Internet access providers have for a long time been aware of the infringement and they co-operate deliberately.
6. In order to prove literal copying of the works, plaintiffs have asked a notary make comparisons between the documents copied from the Internet and the confidential OT-works, OT II and OT III as registered by the American Copyright Office. The notary has, in a statement on February 16, 1996, affirmed that certain parts have been copied literally. Also he concluded by means of this comparison that large parts of the non-confidential work Ability have been copied.
7. Unjustifiably, defendants have submitted that there is no case of infringement, because the Fishman Affidavit would be part of a judicial file in the sense of Art. 11 of the Copyright Law, or because the work has been published by public authorities in the sense of art. 15B of the Copyright Law, or because the text is a rightful quote in the sense of art. 15A of the Copyright Law, or because multiplication of the works is permitted on the grounds of art. 10 EVRM. [European Treaty on Human Rights - art. 10 is about Freedom of Speech - KS]
8. Art. 11 of the Copyright Law pertains only to the verdict itself, which the Fishman Affidavit is not. Art. 15B of the Copyright Law is not applicable because the submission of the affidavit was not a publication in the sense of the law. Also the right to quote according to art 15A is not applicable because quoting is only allowed for works that have been published lawfully, which is not the case here. Also this cannot be defined as quoting because originally a complete version of the Fishman Affidavit was placed on Internet. The intention of defendant sub 23 is clear: to disseminate the OT-works.
9. Finally it is submitted that the EVRM does not affect the Copyright Law. The copyright protection that plaintiffs base their claims upon does not restrict the freedom of speech of the defendants.
10. Defendant sub 23 [that's me - KS] has recently replaced the infringing texts by new texts. This does not change the fact that plaintiffs still have an interest in their claims against the defendants. Defendants have after all not promised to refrain from further infringement.

    
    The defense

    Defendants have plead as follows.

11. The Internet access providers dispute that, even though a subscriber might violate copyright, they are in any way responsible. They only provide the infrastructure for the communication between users and not with the contents of the information that users make available. As has been put forward, the contents of the message is of no concern to them. The role of the Internet access providers cannot be compared with that of publishers, but rather with that of PTT Telecom when transmitting telephone calls or and fax- and data-traffic.
12. There is no multiplication by the Internet access providers as defined in art. 13 of the Copyright Law. The copy is not being made accessible by the Internet access provider, but by the end user. Also the Internet access providers are positively not publishing, as they do not edit, nor add to, the text. The role of the Internet access provider is a passive one.
13. Also there are no wrongful acts being committed against plaintiffs by the Internet access providers by deliberately profiting from infringing the copyright of the rightful owner. They have no influence over the contents of that which is being published or multiplied through a homepage. Also they are not able to control the contents of the traffic that passes through their servers. Moreover, such censorship would violate the rights of subscribers with regards to art. 10 EVRM.
14. Moreover, it is disputed that there is an infringement of any copyright. The only works with respect to which the plaintiffs could make copyright ownership plausible, were the works OT II and OT III and the work Ability. These works have been removed forthwith by defendant sub 23. Said works are currently only available on the net in paraphrased, non-infringing form.
15. Defendant sub 23 pleads, insofar as necessary, on the right to quote as defined in Art. 15A of the Copyright Law, because this concerns an evaluation, announcement and polemic as described in that article. The other requirements for the right to quote have also been met. The OT-works have been published legally, namely by means of publication in a judicial procedure. The work Ability has been published in a book and as such has been published lawfully as well. The quotations are only a minor part of the full text, so that the quotations by defendant sub 23 can not be seen as exploitation of those works.
16. Finally, defendant sub 23 appeals to her right of free speech. Her texts enjoy the particularly high level of protection as defined in art. 10 EVRM. It is of the utmost importance that said texts are shown, as a warning, as those texts are based on the repulsion of the values of a democratic society. In this case the right to free speech prevails above copyright protection, if the latter applies.

3. Conclusion of the dispute

1. For the conclusions in this case it has been assumed that the plaintiffs, or at least one of them, hold the copyright to the works OT I and OT II [this is clearly a mistake; the judge must have meant OT 2 and OT 3 - KS], and also the work Ability.

   
   Defendant sub 23

2. It is a matter of fact that defendant sub 23 until recently had a number of passages from the above mentioned works on her Internet homepage.

   It is also a matter of fact that defendant, when the plaintiffs - after thereto pressed by the defendants - had given a better basis for their copyright claims, has modified her homepage drastically.

   That she now violates the copyright of any of the plaintiffs has not been made plausible. Insofar as she still is quoting literally from protected works, these passages are nothing more than quotes that, considering the context in which they are being used, fall under the exempt ruling of art. 15A of the Copyright Law.

   Plaintiffs may have submitted that with respect to the works OT II and OT III there is no case of lawful publication, but this claim is rejected. It is a fact that (important parts of) these works, within the framework of a judicial procedure in the United States, have been publicly available as part of the Fishman Affidavit for a long period of time. There is no reason to assume that such a deposit cannot be considered to be a publication in the sense of art 15A of the Copyright Law. Whether art. 11 of the Copyright Law is applicable and whether the Fishman Affidavit is part of a judicial ruling does not need an answer.

   The aforementioned implies that the claims against this defendant will be rejected, considering that a real threat that defendant in the future will, eventually, infringe upon plaintiffs' copyrights has not been made plausible.

   
   Defendants sub 1 up to and including 22

3. With respect to defendants sub 1 up to and including 22 it is to be assumed that they do nothing more than to give the opportunity to publication and that, in principle, they can exert no influence over, nor have knowledge of, what the person who gain access to Internet through them, will supply.

   In principle, therefore, there is no reason to hold them responsible for wrongful acts of users, e.g. copyright infringements by third parties.

   A responsibility might be assumed in a situation where it is unequivocally clear that a publication of a user is wrongful and where it can be assumed with reason that such is known to the access provider, for instance because someone has notified the provider of this. In such cases, Internet access providers might be requested to take steps against the user in question.

   In the matter at hand, it has not been made clear by plaintiffs that one of the defendants 1 up to and including 22 should have acted.

   This holds, see above under 3.2, for any action against defendant sub 23 as well.

   Considering this context, there is no reason to grant the primary claims, nor the subsequent secondary claims and more secondary claims.

4. Defendants 8,10 and 11 did not show up. As the other defendants did, the case with respect to the non-present defendants will also be marked as against. In a short suit there is no place to postpone the suit and to order the non-present defendants to appear.

5. This leads to the conclusion that the claims must be rejected. Plaintiffs will, as the party that has been ruled against, be condemned to pay the costs of this suit.

The President:

Rejects the claims.

Condemns the plaintiffs to pay the costs of this suit, up to this moment on the part of defendants sub 8, 10 and 11 assumed to be nil and on the side of defendants sub 1 up to and including 6, 9, and 12 up to and including 23, and also on the side of defendant sub 7 estimated to be fl 2830.- each time, of which f 330.- is recording rights. (*)

Thus ruled by mr A.H. van Delden and pronounced in the public court session of March 12, 1996, in presence of the recorder.

[SIGNATURE VAN DELDEN] [SIGNATURE RECORDER]


translation: Dik T. Winter and Karin Spaink

(*) Explanation: of the 23 defendants, number 8, 10 and 11 (b-Art Noord, Telebyte, Internet Access) will have not been awarded costs because they were not represented in court. Defendant sub 7 (Planet Internet) is mentioned separately because they were not part of the joint defense put forward on behalf of defendants sub 1 - 6, 9, 12 - 23 by Bakker Schut, but had their own lawyers. (and a nice job they did, too!)