Unbiased columnism # 3
Settlement talks: to want a pie and eat it
Stockholm, Tuesday, 26 May 1998
Note: This is the UC that has been missing; it wasn't written on
time and got very close to not being written at all. It's
about Tuesday 26 May and the settlement discussions that
took place in court. It's a mixed issue: part of it is
written by Zenon, and part by Karin. The main reason for
that is that most of the day Zenon was in a closed courtroom,
while Karin was closed in in a smoking room.
This court case is the main one in RTC vs Panoussis. It deals with the question whether Zenon has infringed upon Scientology's, or rather, RTC's copyright of L. Ron Hubbard's text when he had the OTs on his homepage and posted the NOTS. This case will be heard by three judges; one of them has been concerning himself with it for one year and a half already.
Zenon:
I had met the entire scientology delegation the day
before, on my TRO case, and I had taken the opportunity to
ask McShane what he thought about a possible settlement; our
meeting is described in UC #2. So on Tuesday, when the
"main" case was opened and the chairman asked in a rather
imperative tone if there was any possibility that the
parties could reach a settlement, I was in position to raise
my shoulders and say that yes, I proposed that yesterday,
but RTC seems quite unwilling. Magnusson said that my
conditions were utterly unreasonable.
The chairman was not prepared to dismiss the matter that
easily and I, on my part, was not prepared to let
Magnusson call me unreasonable. I turned the tables and said
that I will listen to any settlement proposal that RTC might
want to put forward. This opened for formal settlement
discussions, that the court was not only prepared to assist,
but actually very eager to see come through.
Settlement discussions are not part of the court
proceedings, so they are not open to the public unless both
parties agree they should be. RTC did not agree and the
courtroom was cleared. The judge that has handled the case
during the 1,5 year preparation was to handle the settlement
talks as well.
Karin:
This was the weirdest day of all. The public was let
into the courtroom and, almost immediately afterwards,
requested to vacate it. This happened a couple of times, to
the point where everybody in the audience started to feel a
bit dizzy and believed they were being trained in order to
take the part of the puppets you'll find in weather boxes.
In. Out. Sunshine. Rain. In. Sun. Out. Thunder.
Zenon's face reflected many changes in the weather.
Whenever there was a break in the negotiations, or when the
judges wanted to speak with each party separately, he joined
us in the smoking room and attempted to briefly explain how
things stood. Rain. Sun. Unsettled, mainly.
Zenon:
Being the plaintiff, RTC was first to be subjected to
pressure from the court to settle. I don't know what they
were told, but they looked less than happy when they left
the courtroom and I entered it for my one-to-one discussion
with the judge. I guess I looked less than happy myself
after it.
The point of the court was that both parties had
something to lose by insisting on a ruling, that both
parties could gain something by settling and that the main
characteristic of a settlement is that it leaves both
parties dissatisfied, albeit less dissatisfied than what
they risk to be if the case comes to a ruling. I have to
admit they are right on this.
I put forward the same proposal I had given McShane the
previous day (incidentally the same one I put forward last
year): RTC admits that the OTs and NOTS are open to fair use
and I admit copyright infringement, pay damages and treat
the OTs and NOTS with the same amount of respect (in the
copyright sense) that I treat any other text with. I was
confronted with RTC's counterproposal: that I admit infringement
and they let me off damages and legal costs.
I explained that (1) I didn't publish the disputed texts
in order to avoid paying damages because if that had been my
goal, I would have abstained from publishing them in the
first place and (2) given the fact that I am basically
broke, I won't be paying any damages or legal costs anyway,
so there's nothing in for me in RTC's proposal.
There was evidently a hope for a settlement on both
sides, but not a basis for it. So the court brought us
together, face to face with each-other and with all three
judges. Let's argue.
We did. The chairman took the initiative, "took" as in
"categorically refused to let anyone else have it". Both
Magnusson and myself were quite prone to escalate arguments
into dead-ends, so the chairman wouldn't let us argue with
each-other, but rather take over and apply pressure to both
sides to decrease their demands.
Karin:
As time progressed, the critics in the smoking room
became increasingly nervous. Joe Harrington was having his
birthday. Somebody started singing him a birthday song and
before he knew it, he was treated to anniversary songs in
Swedish, Danish, Dutch and English. Whenever the door would
open, we would expectantly turn our eyes, hoping it was
Zenon.
The Scientologists in the corridor were increasingly
nervous, too. There was much pacing. Hardly anybody spoke,
let alone sang. Some lawyers leafed through papers. Most
Scientologists simply sat or paced, eyes vacantly staring
into space. Then again, they are trained to stare hard. So
perhaps they were practising Training Routines while we were
practising birthday songs.
I went out a couple of times and mingled with the
Scientologists. All refused to even acknowledge my presence
-- except Cowboy Boots, that is, who tried to strike up a
conversation about my t-shirt. Church of Euthanasia. Yes,
ordered via the net. I expected him to flinch at the word
'net', but he didn't. I jotted down the url for him.
Spaink waiting... and waiting.... and waiting.
Zenon:
At some point, RTC in the person of McShane accepted in
principle that they could concede certain limited use by the
public of the OTs and NOTS. The discussion turned into how
that could be put into an agreement between RTC and me, that
would be binding for RTC towards the public. At that moment
everything looked bright: if we agreed in essence, putting
the agreement on paper should pose no problem. I was naive,
and so was the court: RTC had no intention to give away
anything at all.
Karin:
Zenon entered the smoking room, fuming without the aide
of a Camel. 'Guess what,' he said. 'They will allow fair
use. But to me only!'. And before he'd taken three puffs
of a freshly lighted cigarette he would be ordered back in
again.
'We're this close to an agreement,' he would say. Or:
'Fuck, they are redefining terms again!' And once, during
a slightly longer break: 'I simply don't understand. McShane
seems prepared to accept the current settlement terms, the
court is obviously pressing him to accept, and yet he
doesn't. It is as if something were holding him back. And he
knows he will lose the case in as far as their claim that
this is unpublished material is concerned.'
'Perhaps it's not something that is holding him back, but
somebody,' I conjectured. 'He anwers to Miscavage. And
RTC's license with CST binds him to sue under all
circumstances. Perhaps he'd like to strike a deal with you
but simply cannot.'
'I'll ask him,' said Zenon, and left the smoking room
again, this time to talk with McShane in the corridor,
without any judges present.
Ten minutes later, I could no longer wait. I went out as
well.
And found Zenon in the corridor, surrounded by
Scientologists. I joined them. McShane was standing face to
face with Zenon, upper body bent towards him, shoulders
hunched, looking terribly red in the face. He was angry,
arrogantly angry. 'Bullshit,' he said, in a most derogatory
tone, 'bullshit.' 'But why do you think I'm doing this?'
Zenon asked. 'Why do you think all of us are doing this? Do
you really believe that we do this just to harass you?'
McShane threw me a sideways glance and returned his gaze at
Zenon. My presence there obviously confirmed his beliefs
that yes, there was this major conspiracy against
Scientology going on and that we were partaking in it.
'Bullshit!' he repeated. 'It is to harass us. That is your
only motive,' and for one moment I truly believed he was
going to spit on the court's carpet. He spoke as if Z was
vermin, a despicable entity, an irritating insect that
needed to be trampled and crushed and utterly wiped out, and
as if he, and he alone, had the power to do so. Yet his
facial expression and his posture belied him. McShane was
arrogant, no doubt about it, but very unsettled as well.
It turned out that the question Zenon had posed to
McShane was: 'Is there anybody else you need to consult on
this settlement matter? Do you need anybody's permission to
sign an agreement?'
'You're looking at the man,' McShane had proudly answered
(thereby, and that is rather interesting, belying both
Vorn's and Small's testimony of the following day).
'Then what is the reason why you don't?' Z had continued.
And that is when McShane had exploded.
Before they could finish their argument, Zenon was called
back in. Five minutes later, McShane followed suit.
What was keeping McShane from agreeing to a settlement,
we later decided, was L. Ron Hubbard. Elron had said that
OTs and NOTS are to be considered unpublished, and so they
shall be. You cannot argue with source, and you must obey
the Tech.
Zenon:
For every formulation proposed by me or the court,
Magnusson would have an objection and introduce a new
reservation. At first they would accept that "the material"
could be subject to fair use. Then "fair use" was not any
normal fair use. Next, they would accept that individuals
are allowed to make copies for personal use, but only if the
original used to make the copy was legal. "Legal", as it
turned out, was to be defined by RTC, probably as "RTC's own copies only", their standard claim being that all copies not
in their own possession - even the ones in this same
Stockholm court that are being lent out on a daily basis -
are illegal by definition. Then "personal use" had to be re-defined
to mean strictly personal use, so that the normal right to
spread a personal use copy to family and friends would be
excluded. Consequently, a copy for personal use could not be
used as an original to another copy for personal use. In
short, RTC was only prepared to allow the public to make
copies of originals that are not available, and such copies
could be used for nothing more than their original could be
used for.
I was under just as severe a pressure from the court as
the RTC was, so I went along and accepted many more
limitations to my original proposal than I would ever have
been happy with. Yet that didn't help. Every time I went
along with yet another limitation, Magnusson put forward yet
another reservation. At the end, when I exploded and refused
to discuss settlements any more, RTC's proposal of a
settlement agreement stood as follows:
Panoussis admits copyright infringement.
RTC accepts every use of the material that is legal.
Taste this. They accept every use that is legal. As if they
had any alternative to accepting legal use. They keep their
position that no use whatsoever is legal, and then "accept" the
rest - i.e. nothing. And they expect me to sign an agreement that would
constitute a statement on my part that it is up to RTC to
accept legal use or not, and that we should all be grateful to
them that they do. In practice they were asking me to sign
an admission that they stand above the law, but are so
generous as to concede to abide by it anyway. End of
settlement talks.
Yet, I don't think they were satisfied with the outcome.
McShane looked really pressed during the talks. At times he
looked like somebody between a hard place and a rock, just
short of being in agony, in all contrast to what you would
expect from a high OT representative of the almighty RTC, in
court against a lowly copyright terrorist. He looked as if
he thought that both his alternatives - settle and not
settle - were equally bad, and he was anyway forced to take
the predestined road to self-destruction.
At 13.54 the settlement talks broke down definitely and
the normal hearing of the case was resumed. The public was
let in, Magnusson made his opening statement. At 16.45 it
was my turn, and I had no idea where to begin; I was as
badly prepared as one can be. Thanks to the delay the
settlement talks brought about, I was able to postpone my
opening statement to the next day. Had it not been for this,
I'd have been in very deep shit.
We left court and bought binders. A lot of them. And started
sorting out the paperwork.
Unbiased columnism is a series of court reports on the proceedings of Scientology versus Zenon Panoussis. This series covers the May 22,1998 - June 3, 1998 sessions:
- Preparations: preparing for court;
- Which material?: the alleged violation of Zenon's Temporary Restraining Order;
- To want to eat a pie and have it: the first day of the main case starts with settlement negotations;
- (Next:) Brochures with a bite: does RTC own the copyrights, and are these 'unpublished texts' spread to a limited circle as RTC claims?;
- You know you're being sued by CoS when...: lots of witnesses are being heard, amongst them people from RTC and CST;
- Questioning McShane: Zenon questions RTC president McShane;
- Final pleas: the last day. RTC asks for an unprecedented amount in legal costs: circa 1 million US dollar.
Unbiased columnism continues. The next series (seven articles) was published in Jan 2002, and starts with Poor guy vs mulinational cult.
Copyright Karin Spaink.
This text is offered for private use only. Any
other use requires the author's written permission.
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