Unbiased columnism # 4
Brochures with a bite
[This court case - the main case in the many Scientology vs Panoussis series - deals with copyright infringement. Did Zenon violate RTC's rights when he had OT2 and OT3 on his homepage, and did he post the NOTS? Day one of this case was mainly spent discussing settlements.]
Stockholm, Wednesday, 27 May 1998
9:15. Yesterday, Magnusson hadn't finished his opening statements -- in which you state your position -- and is allowed to continue. He doesn't take long and speaks only about OT2, OT3 and the NOTS, the authenticity of which will be proved later on, amongst others during the hearing of witnesses. "You can't use witnesses to put forward new statements in a case like this," the president of the court reminds him; "You can only use them to prove a previously stated argument." Hmm. Anyway, Magnusson states, the most important proof has already been filed: the registration number copies. These prove the authenticity of the NOTS and testify to the fact that they are copyrightable: only material that has a certain amount of originality ("value", or "dignity" in Swedish law: meaning, they must be distinctive, creative, testify to a personal style or something) can be registered, Magnusson explains. And yes, the OTs and NOTS therefore must have met this necessary level of originality. "Excuse me," Zenon interrupts. "will you please state which material was filed with the Registration Office? Were those masked or unmasked OTs and NOTS?" Zenon asks. "Masked," Magnusson replies. Exit argument. Who on earth can judge the level of originality of a masked text?
OT2 & 3 and the NOTS are a recurring subject. Magnusson mentions that Zenon had copies of the OT/NOTS on his disks -- but which version, Zenon wants to know? To which NOTS were they compared? Attachment 37? 24? 126?
Zenon starts his opening statement. How can something that is on the net end up on his disks? Where did he get this stuff in the first place? He lectures about e-mail, Usenet, the Web, about downloading, browsers, urls, hyperlinks, headers. He speaks a couple of sentences and then waits for the judges to finish their notes before he continues. Smart. This is a verbal case; files are assumed to be used for referral only, and the judges will base their decision upon their assessment of what they are told. [Also, he later explains me, the judges asked him twice or thrice to please slow down.]
"I found OT2 and OT3 on the Web," he explains. "There were lots of copies." He mentions the case in Holland which triggered him: RTC sued over OT2 and 3 and lost the suit: the Dutch court in March 1996 allowed my mixture of summary, comments, notes and quotes. "This same file that RTC sued somebody else over, is now by the way being claimed as copyrighted by themselves in this case," he remarks, referring of course to file 143 of attachment 126. Magnusson uneasily shifts in his chair.
Zenon proceeds with his historical outline, argument and position. The announcement of his homepage, the ensuing Kobrinogram, his provocative tone, the aggression RTC had displayed against ISPs, their cancel messages, their demands that providers terminate users' accounts, how what he is doing is in sync with what others on the net are doing, how he has always been totally open about who he was, what he did, why, and even told them how they could stop him. A Swedish Scientology member who is sitting two rows behind me makes derogatory noises. "Psah. Pfah!"
Now, can OT2 and 3 as included in the Fishman Affidavit, be considered to be quotes? The originals, McShane has at one point testified in cross-examination, total to 300 and 200 pages respectively. The Fishman OT2 and OT3 quotes may be huge, but not in proportion to the total amount of text. The Fishman Affidavit contains no more than 7 or 8 percent of the total number of pages. And yes, there are many questions surrounding the authenticity of OTs/NOTS: RTC has the habit of claiming everything to be theirs. Including, in this case, dialect versions of NOTS (Swedish chef, Jamaican, Nuyorikan); my rendering and criticism of Hubbard; cut-up, mixed and reshuffled versions of NOTS. It would appear that whenever a Hubbard phrase shows up in any text, no matter whose, RTC claims the copyright to the wholeof this text.
Zenon refers to documents and attachments quite often. The nasty bit is that he will often use Magnusson's own filed stuff in order to make a point for himself: he's using Magnusson's material against RTC. And something else becomes clear. The judges need to look up most of the document Zenon refers to. They are not very familiar with the files. Magnusson has simply been spamming the court and his own virtual flood of files has prevented the judges from preparing well. And they don't like it.
Coffee break.
Zenon discusses September 1996, when he filed a NOTS pack at Riksdagen (the Swedish parliament) and the Administrative Section of the court -- which is how the NOTS became publicly accessible in Sweden. He gave a copy to parliament because he wanted to instigate a discussion about CoS and the NOTS, he states. Since he gave only one copy to parliament, which can be considered to be a 'limited circle', he did not publish or distribute these NOTS, he argues.
Why he handed over a copy to the Administrativa Avdelningen -- the Administrative Section -- is a more delicate matter. They had one already, which was not given them by himself but which ended up being there as a result of the procedure he was involved in. Administrative sections of courts file stuff. That's what they are for. At one point, Zenon himself was sent a copy retrieved from the Administrative Section -- somebody had ordered a copy and had requested that it be sent to him. Anybody can get one, for just a small administrative fee. Later, when the Administrative Court's own copy was stolen by a Scientologist, Thierry Duchaunac, Zenon provided them with a fresh pack: the copies he himself was given.
Time to discuss the OTS, the NOTS and the beliefs of Scientology itself. Zenon delves into it, making snide remarks about Hubbard's career as a science fiction writer, about the 'gains' and 'wins' CoS promises; about Thetans; about the need to inform the public beforehand about which tenets of belief they will be supposed to subscribe to, once a member. "It is a matter of consumer's rights, in a way."
McShane gets very nervous and slips Magnusson a note. Magnusson immediately interrupts. "We're not here to discuss Scientology's merits and also, I'm afraid that Panoussis is trying to disclose some of the secret materials right now." "I'm not quoting, just saying something about them," Zenon retorts, but the judges agree that Scientology's character is not to be judged today.
Next issue: the rights to the texts. There is this spaghetti-structure which becomes a Gargantuan, Gordian knot. The structure is self-referring, seems to be licensing rights years after they have already licensed them to others while not having retrieved them; dates and years do not match, and some documents are signed one year yet refer in the body of the text to dates years ahead. (McShane quickly gets up to whisper something to Magnusson again.) Magnusson speaks up; there is a short discussion and much leafing through documents.
"I am only trying to show you that these rights and licenses are not as clear-cut as RTC and Magnusson say they are, and I would like to show this by using their own documents." I do believe that at one point he states that one of the documents handed in carrying RTC's or CST's or Starkey's signature to be a forgery: the word "förfalskning" is being used quite often. McShane quickly confers with Magnusson. McShane's face is red with anger. He sits down again. Everybody looks at documents, files and folders. McShane goes over to Magnusson once more. "Are we all talking about the same document?" the president wishes to know. Magnusson speaks: all this talk about forgery amounts to character assassination. The president renders a speech. He wants to know whether Zenon has referred to this matter previously in his briefs; if not, he is bringing up new issues, which is not allowed. Also, the president insist, we're not adhering to schedule and he is not, repeat: not going to sit here until eight o'clock in the evening.
Lunch break.
Zenon goes through his previous briefs in a hurry, and does indeed find some previous references to forgery or fakes. We smoke, talk with a journalist in training, smoke, eat a sandwich, smoke, drink coffee, smoke; and the hour is gone. Time flies when you're having fun.
The critics having lunch
13:00. Zenon will not let go. He takes up the issue once more by referring to David Mayo. Hubbard wasn't the only one to write NOTS; some of them have been written by Mayo only, some of them were written by the both of them, others by Elron only. Can RTC claim copyright to all of them? Did CST have the right to license those? There's rights residing with CSC too. How about those?
The court needs to decide on whether this is or is not going to be part of this lawsuit. They wish to confer amongst themselves; we go out and smoke.
14:00. Next. Can these documents - OTs and NOTS - be considered to be published? Now, that is a question. Material is considered to be 'published' once it gets spread beyond the 'inner' or 'limited' circle of people in the immediate surroundings of the author. CoS argues that they have only spread the OTs/NOTS within a "limited circle", and that they thus cannot be considered to have been 'published', that is: distributed to the public.
Then again, Zenon argues, these same materials are in Saint Hill, in Clearwater, in Flag, in other places; CoS itself claims that thousands and thousands of people have read and studied them. Zenon had filed an attachment (three CoS ad brochures and two magazines) that claim that many have studied -- and all can study -- the NOTS. "Why don't you come to Flag and improve your life? Study New OT5 at Flag!" one says. This brochure is sent to all CoS-members. All are 'invited' to come and study OT5. "You can come to Flag clear and go home OT!" states another leaflet. CoS-magazine 'Source' has a price-list for OTs and NOTS, broken down into membership prices and non-membership prices. He points at the completions list. So many people passed OT2, so many OT3; so many passed NOTS this or NOTS that. Some of these successful students are from the US, others from Canada or Europe. Elsewhere it says: "We produce more than one thousand OTs per year!" Or: "Advanced Org LA is really booming! So many Class VIII Auditors produced!" Or: "Become an OT3!" They say they 'make' a thousand OTs per year as well. If the audience CoS here states it caters to does not constitute more than a 'limited circle', Zenon continues, then what the fuck does?-- Nice touch, Zenon, to throw their own promotion material back at them.
[Zenon couldn't find his copy of 'Source', so he goes over to the bench and borrows the court's, and shows it to them, standing there and reading aloud. After a couple of minutes, they invite him to try the overhead projector. Don't work, of course. You need transparent sheets for them, not glossy paper. So Magnusson goes up to the bench as well.]
Meanwhile, Scientology claims that Zenon has distributed to more than a limited circle by handing them in to parliament, which consists of 349 people only. Aren't those two arguments contradicting one another? You can't have your cake and eat it, is what he says.
And RTC claims damages. But haven't high Dutch CoS-members stated that their members would never ever take material from the net instead of from their own church? So, they wouldn't sell less, would they? So, why claim damages?
Break. In session, and in ARC as well I assume. McShane hated this last bit.
After the break. The first witness is going to be heard. It's Ms Alexandersson again, who testified in Monday's court case too. Same testimony, same comparison, same nutty NOTS; it's just that we have different judges, and a different court case.
This time however she will be prepared. She will know about the cut-up NOTS and know that RTC has claimed my article as theirs.
17:00. Zenon enters the smoking room. "We finally agreed upon one thing," he says. "RTC has by now admitted that attachment 126 is for perhaps 85% scrambled text and that the rest is Borkified versions." He starts lighting his cigarette. The intercom ding-dongs an announcement: Zenon is called back into the courtroom. He sighs, drops his cigarette, and goes back in again.
Later on, we get the full story. The notary -- who had been comparing the Nutty NOTS to material RTC claims is original NOTS -- was meticulous beyond boring. Even the court tried to rush her. At one point Zenon proposed that she would simply state how many pages (out of 700) were similar, defining 'similar' as in allowing for five or six places where different spelling or interpunction was used. Even this didn't speed Alexandersson's snail pace.
After tedious and boring hours -- Zenon almost fell asleep -- RTC is finally prepared to admit that, considering the perl'ed NOTS and my article, 180 out of 200 files in Attachment 126 are scrambled NOTS. RTC also admitted that no scrambled and relocated portion of paragraphs is longer than three, at most four sentences. Then again, they maintained that they had copyright over the scrambled NOTS. And they insisted that this copyright had been infringed upon.
Wow. These guys are crazy, and want to make copyright jump through every hoop.
Five minutes later, we are allowed to re-enter as well.
Magnusson and Zenon are arguing. The president sometimes intervenes. Suddenly, it is visible what a lawsuit is all about: two warring parties who need someone else to settle their fight. Magnusson and Zenon can not, will not, agree upon anything. This case is exemplary.
They even argue about the amount time each party needs, will take or may have. RTC has lots of witnesses they want to call, for instance the bailiff, who is supposed to testify as to what he found on a diskette of Zenon's. They argue about what was on his hard disk and this diskette. The diskette was used to copy something on from Zenon's hard disk and was then compared, and found to be similar to attachment 37 -- alleged NOTS.
The court, to Zenon: "Can you accept that the material on this diskette was the same as attachment 37?" Zenon: "No. The stuff on my hard disk is attachment 37. It is not another instance, it is the same material: the print came from that file., I printed it for my own personal use. Now, I know what was on my hard disk, I know what is in attachment 37, and I will gladly admit that those are indeed the same. We don't need a witness for that. But if RTC wants to bring in this diskette -- who am I to know what they might have done with it?" RTC wants the witness to be heard anyway. The court sighs.
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;
- Brochures with a bite: does RTC own the copyrights, and are these 'unpublished texts' spread to a limited circle as RTC claims?;
- (Next:) 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.
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