Subject: Amended Complaint + Grady Date: Sat, 4 Mar 1995 06:06:29 +0000 Plaintiffs Religio
From: tom.klemesrud@support.com (tom.klemesrud)
Subject: Amended Complaint & Grady
Date: Sat, 4 Mar 1995 06:06:29 +0000
Lines: 717
Plaintiffs Religious Technology Center ("RTC") and Bridge
Publications, Inc. ("BPI") allege as follows:
INTRODUCTORY AVERMENTS
1. Defendant Dennis Erlich ("Erlich") has been engaged in
extensive and continuing infringement of copyrights and
misappropriation of trade secrets belonging to plaintiffs. Erlich has
been posting plaintiffs' proprietary materials onto the international
computer network known as the Internet ("the Internet") without
authorization from plaintiffs and continues to do so despite several
warnings from plaintiffs to cease and desist his activities in
violation of their rights, even after a temporary restraining order
had been issued by the Court. Erlich has stated that "[n]o local
government or court in the US has the power to tell me otherwise."
(Exhibit J.) Erlich's access to the Internet is achieved through two
service providers which act as Erlich's gateway to pass his unlawful
copies onto the Internet, where they may potentially be recopied by
millions of users who are able to access the Internet. Defendant
Netcom OnLine Communication Services, Inc. ("Netcom") provides the
computer facilities through which Erlich obtains access to the
Internet for his unauthorized copies. Defendant Tom Klemesrud, dba
Clearwood Data Services ("Klemesrud") is a subscriber to Netcom's
services and, through a Bulletin Board System which Klemesrud
maintains, acts as the link between Erlich and Netcom, thereby
facilitating Erlich's infringements and misappropriations to reach
the Internet and, in effect, recopying and publishing the
unauthorized copies posted by Erlich. Klemesrud and Netcom also make
copies of the infringing materials and store those copies on disks in
their own systems for periods of several days. Both Klemesrud and
Netcom have refused to cease and desist from providing entree onto
the Internet for Erlich's infringements and thereby contributing to
these infringements, in the face of multiple warnings to cease and
desist.
JURISDICTION AND VENUE
2. Subject matter jurisdiction of this action exists pursuant to 28
U.S.C. 1331 and 1338(a) and (b) in that this is an action for
copyright infringement under 17 U.S.C. 501 joined with a claim for
unfair competition through trade secrets misappropriation. In
addition, this court has pendent jurisdiction over the trade secrets
misappropriation claim alleged herein, as an unfair competition claim
that arises out of the same transactions and occurrences.
3. Venue is proper in this District pursuant to 28 U.S.C. 1391(b)
in that events or omissions giving rise to the claims occurred in
this district and one of the defendants is deemed to reside in this
judicial district.
THE PARTIES
4. RTC is, and was at all times relevant herein, a California
non-profit religious corporation having its principal office in the
City of Los Angeles, County of Los Angeles, State of California.
5. BPI is, and was at all times relevant therein, a California
non-profit religious corporation having its principal office in the
City of Los Angeles, County of Los Angeles, Stateof California.
6. Plaintiffs are informed and believe, and on that basis allege,
that defendant Netcom is a Delaware corporation having its principal
place of business in the City of San Jose, County of Santa Clara,
State of California.
7. Plaintiffs are informed and believe, and on that basis allege,
that defendant Erlich is a resident of the City of Glendale, County
of Los Angeles, State of California.
8. Plaintiffs are informed and believe, and on that basis allege,
that defendant Klemesrud, is a resident of the City of North
Hollywood, County of Los Angeles, State of California.
GENERAL ALLEGATIONS
A.The Copyrighted Published and Unpublished Works of L. Ron Hubbard
9. L. Ron Hubbard, a United States citizen who died in 1986, was a
world-renowned philosopher and the prolific author of numerous
original works on applied religious philosophy and spiritual healing
technology, including training materials and course manuals of the
Scientology religion (hereinafter the "Religion") of which Mr.
Hubbard was the founder. Certain of Mr. Hubbard's original written
and recorded works have been published and made generally available,
while others have not. Among the unpublished works is a body of
special works, hereinafter sometimes referred to as the "Advanced
Technology materials," which contains confidential and proprietary
information ("the Advanced Technology") constituting trade secrets.
10. A list of the published literary works (hereinafter the
"Published Literary Works") that were created by Mr. Hubbard and are
relevant to this action is attached hereto as Exhibit "A" showing the
titles of the works along with the numbers and dates of the
applicable United States copyright registrations. Copies of the
Published Literary Works are not attached in view of their bulk, but
will be available separately.
11. A list of the unpublished literary works (hereinafter the
"Unpublished Confidential Works") that were created by Mr. Hubbard
and are relevant to this action is attached as Exhibit "B" showing
the titles of the works along with the numbers and dates of the
applicable United States copyright registrations. Copies of the
Unpublished Confidential Works are not attached in view of their bulk
and confidentiality, but redacted copies will be made available
separately.
12. After the filing of the original complaint, a Writ of Seizure
was issued by the Court and executed at the premises of defendant
Erlich. Attached hereto as Exhibit A-1 is a compilation of several
lists containing the different categories of published literary works
found during the course of the seizure (hereinafter included in the
"Published Literary Works," unless the context indicates otherwise),
which were created by Mr. Hubbard and are relevant to this action,
showing the titles of the works along with the numbers and dates of
the applicable United States copyright registrations. Copies of the
documents in these lists have been filed with thecourt previously.
13. Attached hereto as Exhibit B-1 is a list of the unpublished
literary works found during the course of the seizure (hereinafter
included in the "Unpublished Confidential Works," unless the context
indicates otherwise), which were created by Mr. Hubbard and are
relevant to this action, showing the titles of the works along with
the numbers and dates of the applicable United States copyright
registrations. Copies of the Seized Unpublished Confidential Works
are not attached in view of their bulk and confidentiality, but
redacted copies will be made available separately.
14. Initially, L. Ron Hubbard owned all rights in his literary
works, both published and unpublished, and all rights in the Advanced
Technology, and granted licenses to others under his rights,
including the right to publish the Published Literary Works and the
right to use and license the use of the Advanced Technology, with the
obligation to protect the confidentiality of the Advanced Technology
and the Advanced Technology materials.
15. In 1982, L. Ron Hubbard assigned to plaintiff RTC his entire
right, title and interest (apart from copyrights) in and to the
Advanced Technology, including all rights to use and to license the
use of the Advanced Technology in the United States. This assignment
includes the obligation to protect the confidentiality of the
Advanced Technology and enforce the obligation of confidentiality of
all those who have received disclosures of the Advanced Technology.
A true and correct copy of this assignment is annexed as Exhibit C to
this Complaint.
16. Following Mr. Hubbard's death in 1986, ownership of the
copyrights in the Published Literary Works and the Unpublished
Confidential Works passed to his Estate, which granted to RTC, on
September 17, 1987, an exclusive license in the copyrights pertaining
to the Unpublished Confidential Works, with the right and obligation
to enforce all the copyrights in those works. A true and correct
copy of this License Agreement is annexed to this complaint as
Exhibit D.
17. In 1989, the assets of the Estate of L. Ron Hubbard, including
the copyrights pertaining to the Literary Works and the Unpublished
Confidential Works, were distributed to Author's Family Trust-B ("the
Trust"), and in 1993, the assets of the Trust were distributed to
Church of Spiritual Technology, a California nonprofit religious
corporation ("CST") which now is the owner of the copyrights in the
Published Literary Works and the Unpublished Confidential Works.
While the copyrights in these works were held by the Trust, the
Trustee entered into an exclusive license agreement with BPI
(hereinafter $'the Literary Agreement") which granted to BPI, inter
alia, the exclusive right to print, publish and sell the Published
Literary Works, and to make and publish compilations and derivative
works of and from the Published Literary Works, and to enforce all
rights in the Published Literary Works. A true and correct copy of
the Literary Agreement is attached hereto as Exhibit E.
18. In an agreement dated November 29, 1993, CST assumed and
affirmed the Trust's September 17, 1987, license to RTC regarding all
copyrights pertaining to the Unpublished Confidential Works with the
right and obligation to enforce all the copyrights in these works. A
true and correct copy of that Assignment and Assumption agreement is
attached as Exhibit F. In an agreement dated November 29, 1993, CST
also assumed and affirmed the Literary Agreement with BPI. A true
and correct copy of that Assignment and Assumption agreement is
attached as Exhibit G.
19. The Published Literary Works and the Unpublished Confidential
Works were wholly original with Mr. Hubbard and are copyrightable
subject matter under the laws of the United States. Mr. Hubbard and
his successors and licensees have complied in all respects with the
copyright laws of the United States, secured the exclusive rights in
and to the copyrights in the works, and received from the Register of
Copyrights Certificates of Registration of these copyrights.
Attached hereto as Exhibit H are true and correct copies of the
Certificates of Registration for the items listed in Exhibits A-1 and
B-1 are not included here in light of their bulk, but will be made
available separately.
20. The Advanced Technology contained in the Unpublished
Confidential Works is of immense value to plaintiffs, who have taken
and continue to take substantial measures to protect the
confidentiality of the Advanced Technology. These measures include,
inter alia, the numbering of all copies of the materials containing
Advanced Technology; locking all such materials in locked cabinets or
safes when not in use; logging of the materials upon each use;
electronically connecting the materials to the cabinets in which they
are stored and to the tables on which they are used and monitoring of
those connections by security computers and alarm systems; issuing
photo-identity cards to those who are authorized to access the
materials; separating the Advanced Technology course rooms from all
other parts of the organization; locking the doors of the Advanced
Technology course rooms at all times and magnetically locking them
while materials are moving between a file cabinet and the table where
they will be used; and posting security personnel at all times. RTC
derives independent economic value from the Advanced Technology,
which is not generally known to the public or to others who can
obtain economic value from its disclosure or use.
B. Defendants' Violations of Plaintiffs' Rights
21. Defendants have been infringing plaintiffs' copyrights in the
Published Literary Works (Exhibits A and A-1) and the Unpublished
Confidential Works (Exhibit B and B-1) by reproducing each of those
works electronically and publishing the works on the Internet, or by
loading them into their computers, or by making photographic copies
thereof, all without any authorization from the plaintiffs.
22. Plaintiffs are informed and believe, and on that basis allege,
that Netcom operates one or more computer facilities which constitute
sites on the Internet, an international network of computers which
was created in or about 1969 in the United States as a network to
link four sites conducting research for the United States Department
of Defense. The number of sites has grown exponentially since that
time. In or about 1987, the National Science Foundation sponsored
so-called "backbone" connections which now connect several hundred
thousand sites on the Internet.
23. Access to the Internet can be obtained in one of two general
ways. "Full" Internetaccess allows the user to connect to other
computers on the Internet, transfer files, use library catalogs, and
do other related tasks. Some networks only offer limited access to
the Internet, such as only allowing the transfer of electronic mail
to and from the Internet. Plaintiffs are informed and believe, and
on that basis allege, that defendant Netcom provides such "full"
access to the Internet to its subscribers in exchange for a monthly
fee.
24. During the time the Internet was growing, a number of other
regional networks developed, each with its own administrative and
operating policies and its own connections to the "backbone." One of
these networks, known as the "UUCP network" or "Usenet," grew as
operators using the Unix operating system began to communicate with
each other. The Usenet now provides information and a forum for
electronic discussions on various topics.
25. The computers which constitute the Usenet maintain well over ten
thousand (10,000) individual news groups which allow individual users
to "post" messages which can then be read by other users of the
Usenet. Plaintiffs are informed and believe, and on that basis
allege, that Netcom provides its subscribers access to the
information contained in the Usenet as follows:
a. when subscribers to Netcom, whether they be individuals or other
computer networks, post messages to Usenet newsgroups from Netcom's
computer, the messages transmit to every other computer on the
Internet which subscribe to the concerned newsgroup. Each such
message contains addresses identifying the news group to which it
pertains, the sender of the message, and the access provider which
sent it out to the Internet. Subscribers to other access providers
on the Internet send similar messages which are also distributed to
every computer on the Internet which subscribes to the concerned
Usenet newsgroup;
b. Each access provider on the Internet which subscribes to Usenet
newsgroups, including Netcom, copies messages which are addressed to
newsgroups that they subscribe to, to a semi-permanent computer
storage medium. once copied, each user of Netcom has access to read
these messages and may, in turn, copy the messages to their own
computer. Plaintiffs are informed and believe, and on that basis
allege, that Netcom maintains copies of each such Usenet message for
fourteen (14) days after which it is automatically erased to make
room for new messages.
26. Plaintiffs are informed and believe, and on that basis allege,
that Klemesrud operates what is known as a Bulletin Board System
("BBS"). Generally, a BBS is a single computer which allows a number
of subscribers, in exchange for a fee, to telephone that computer and
to send and retrieve messages and other information to be passed
among the other users of each BBS. Each message is stored on the
hard drive of the BBS computer for some period of time. Plaintiffs
are informed and believe, and on that basis allege, that some BBS's,
including the BBS operated b Klemesrud, also provide limited access
to the Internet, usually through a full Internet access provider,
such as Netcom.
27. Erlich is a former Scientologist who became a parishioner of the
Religion in or about 1968 and served in various capacities in
Churches of Scientology in the United Statesbetween 1968 and about
1982. While a parishioner and staff member of the Religion, Erlich
received Scientology ministerial training to enable him to provide
ministerial counselling services, known as "auditing," and received
access t a wide variety of written materials pertaining to the
Religion and its services and training, including the Published
Literary Materials and the Unpublished Confidential Materials.
28. Erlich left the Religion in or about 1982, and subsequently has
been engaged in activities hostile to the Religion. Among those
activities are the unauthorized copying of the Published Literary
Works and the Unpublished Confidential Works, and the unauthorized
copying of those materials by publication of those copies on the
Internet, downloading of the materials from the Internet, uploading
of the materials onto Erlich's computer, or making of hard copies.
29. No one has access to the Unpublished Confidential Works without
permission or unless they were obtained through illicit means. Erlich
could only have obtained copies of these materials through his own
theft, or by having received stolen property from another.
30. Plaintiffs are informed and believe, and on that basis allege,
that defendant Netcom is engaged in the business of providing full
access to others to the Internet in exchange for the payment of fees.
Plaintiffs are further informed and believe, and on that basis
allege, that Netcom maintains and operates one or more computer
facilities in this judicial district through which customers are
electronically connected to the Internet and are able to send and
receive electronic messages that pass through the Internet to others,
and to access Usenet postings stored in Netcom's semi-permanent
computer storage medium.
31. Plaintiffs are informed and believe, and on that basis allege,
that Defendant Klemesrud is engaged in the business of operating a
BBS for subscribers, for fees, and for that purpose maintains and
operates one or more computer facilities that, among other things,
provide access to the Internet through Netcom's computer facility, to
which Klemesrud is a subscriber and for which service Klemesrud pays
Netcom a fee.
32. Plaintiffs are informed and believe, and on that basis allege,
that, during the past approximately six months or less, Erlich has,
without authorization, reproduced the Unpublished Confidential Works
listed in Exhibit "B" in which the exclusive rights under copyrights
are owned by RTC, and has, without authorization, electronically
published copies of these works in violation of the copyrights of
RTC, even after issuance of a Temporary Restraining order prohibiting
him from making such copies.
33. Plaintiffs are informed and believe, and on that basis allege,
that, during the past approximately six months or less, Erlich has,
without authorization, reproduced the Published Literary Works listed
in Exhibits A and A-1, in which the exclusive rights under copyrights
are owned by BPI, and has, without authorization, electronically
published copies of these works in violation of the copyrights of
BPI.
34. Plaintiffs are informed and believe, and on that basis allege,
that the infringing acts of Erlich alleged in paragraphs 32 and 33 of
this Complaint, and each such infringing act,were performed through
and with the assistance of the computer facilities of Klemesrud and
Netcom, and of each of them, as follows:
a. Erlich, using his personal computer, connected that computer to
Klemesrud's BBS computer using communications software and caused
copies of the Published Literary Works and the Unpublished
Confidential Works (collectively "the Works") to be published,
without authorization, on the BBS computer maintained by Klemesrud;
b. Erlich addressed each of the copies of the Works he copied to
Klemesrud's
BBS computer to be sent to a specific Usenet news group, or public
discussion group, called "alt.religion.scientology";
c. Klemesrud's BBS computer, after receiving and storing for some
period of time the copies of the Works sent to it from Erlich,
created additional copies of the works and sent these copies to
Netcom's computer;
d. Netcom's computer, after receiving and storing for some period of
time the copies of the Works sent to it from Klemesrud's BBS
computer, then distributed copies of the Works worldwide on the
Internet; and
e. Netcom's computer also maintained copies of the Works for
approximately twelve (12) days, thereby assisting Erlich in his
attempts to distribute unauthorized copies of the Works.
35. Plaintiffs are informed and believe, and on that basis allege
that, as a result of the foregoing, Erlich, Klemesrud and Netcom,
and each of them, thus have reproduced and published plaintiffs'
works listed in Exhibits A and B, and each such work, without the
authorization of plaintiffs. In this manner, Erlich, Klemesrud and
Netcom have infringed, and Klemesrud and Netcom have contributorily
infringed, plaintiffs' copyrights.
36. Plaintiffs have objected repeatedly to the actions of Erlich,
Klemesrud and Netcom, as aforesaid, have informed each of them that
their actions constitute copyright infringement and trade secret
misappropriation, and have demanded that they cease and desist from
further infringement, misappropriation, and contributory
infringement. True and correct copies of selected letters from
plaintiffs' counsel to defendants are attached hereto as Exhibit "I."
37. Erlich has refused to cease and desist from his infringement,
and has responded to plaintiffs' letters with further unauthorized
reproduction and publication in violation of plaintiffs' copyrights.
Erlich also has made defiant responses to plaintiffs claiming the
right to violate plaintiffs' rights. He has said no local government
or court in the U.S. has the power to tell him otherwise. True and
correct copies of Erlich's responses are attached hereto as Exhibit
"J".
38. Even though Klemesrud and Netcom have specifically been informed
of Erlich's repeated intentional postings, and have been requested to
assist in compelling Erlich to cease suchpostings, they have refused
to do so, even after Erlich's violation of a court order, and have
further refused to cease and desist from receiving, copying,
transmitting and publishing Erlich's unauthorized copies of
plaintiffs' copyrighted works. True and correct copies of
Klemesrud's and Netcom's responses are attached hereto as Exhibits
"K" and "L" respectively.
39. All copying and publication by Erlich of the Works listed in
Exhibits A and A-1 and B and B-1 have been unauthorized and
constitute willful copyright infringement.
40. On February 25, 1995, an individual named Grady Ward, who
accesses the Usenet and Internet directly through Netcom's system,
copied to the alt.religion.scientology newsgroup, and on one of those
occasions also to the comp.org.eff.talk newsgroup, copies of
plaintiffs' copyrighted, unpublished, confidential works known as "OT
III." On February 27, 1995, plaintiffs brought Mr. Ward's violation
of plaintiffs' copyrights and trade secret rights to the attention of
Netcom and demanded that Netcom take action to terminate Mr. Ward's
access. Netcom has failed to take any action to prevent Mr. Ward from
engaging in such violations of plaintiffs' rights.
41. All copying and publication by Klemesrud and Netcom of the Works
transmitted to their facilities at the direction of Erlich after
they received notice of plaintiffs' rights and the continuing
violation of those rights by Erlich constitute willful copyright
infringement.
FIRST CLAIM FOR RELIEF
(Copyright Infringement of Published Literary Works,
17 U.S.C. 101 et seq.,
Against All Defendants by BPI)
42. BPI incorporates by reference the allegations contained in
paragraphs 2 through 31 above as though set forth fully herein.
43. The Published Literary Works are protected under the Copyright
Act of 1909, 17 U.S.C. 1 et seq. (repealed), and the Copyright
Act of 1976, 17 U.S.C. 101 et seq., as amended.
44. The foregoing acts of defendants violate BPI's exclusive rights
to use, publish and display the Published Literary Works, listed in
Exhibit A hereto, all in violation of BPI's exclusive copyrights
under 17 U.S.C. 106. Such acts constitute copyright infringement
under 17 U.S.C. 501 and have contributed to infringement by others.
45. Unless restrained, defendants will continue the acts complained
of herein, to BPI's irreparable injury.
46. Defendants' unlawful acts set forth above constitute willful
copyright infringement under 17 U.S.C. 504.
47. As a direct and proximate result of the foregoing acts of
defendant, BPI hassuffered damages in an amount which cannot now be
ascertained but that is capable of proof at trial.
48. In the alternative, BPI seeks statutory damages from defendants
under 17 U.S.C. 504(c)(1) and (2) for such infringement of BPI's
copyrights in the Published Literary Works, in the amount of $100,000
for each such work.
SECOND CLAIM FOR RELIEF
(Copyright Infringement of Unpublished Confidential Works
17 U.S.C. 101 et seq.
Against All Defendants by RTC)
49. RTC incorporates by reference the allegations contained in
paragraphs 2 through 31 above as though set forth fully herein.
50. The Unpublished Confidential Works are protected under the
Copyright Act of 1909, 17 U.S.C. 1 et seq. (repealed), and the
Copyright Act of 1976, 17 U.S.C. 101 et seq.
51. The foregoing acts of defendants violate RTC's exclusive rights
to reproduce, publish and display the Unpublished Confidential Works,
listed in Exhibit B hereto, all in violation of RTC's exclusive
copyrights under 17 U.S.C. 106. Such acts constitute copyright
infringement under 17 U.S.C. 501 and have contributed to
infringement by others.
52. Unless restrained, defendants will continue the acts complained
of herein, to RTC's irreparable injury.
53. Defendants' unlawful acts set forth above constitute willful
copyright infringement under 17 U.S.C. 504.
54. As a direct and proximate result of the foregoing acts of
defendant, RTC has suffered damages in an amount which cannot now be
ascertained or computed but that is capable of proof at trial.
55. In the alternative, RTC seeks statutory damages from defendants
under 17 U.S.C. 504(c)(1) and (2) for infringement of RTC's
copyrights in the Unpublished Confidential Works, in the amount of
$100,000 for such work.
THIRD CLAIM FOR RELIEF
(Misappropriation of Trade Secrets,
Against Erlich by RTC)
56. RTC incorporates by reference the allegations in paragraphs 2
through 31 above as though set forth fully herein.
57. Erlich was employed between 1975 and 1982 as a member of the
staff of the Church of Scientology Flag Service organization
("Flag"). Prior to working for Flag, Erlich was a parishioner of
another advanced Church of Scientology known as Church of Scientology
Advanced Organization of Los Angeles ("AOLA"). Flag is licensed by
RTC for the use of the Advanced Technology in accordance with Church
doctrine, with disclosure strictly limited to its staff and
parishioners who are qualified according to religious tenets, to
receive these materials, and who undertake the obligation to
maintain their confidentiality. All staff members of Flag, including
Erlich, were and are required to agree to be bound by all
administrative and ecclesiastical policies of the Church of
Scientology, which require that all Advanced Technology materials be
kept confidential at all times and that each person who receives a
disclosure of any of the Advanced Technology materials agree not to
disclose the Advanced Technology to anyone not authorized to receive
it.
58. At various times from 1968 through 1982, Erlich received
Scientology ministerial training to enable him to provide ministerial
counselling services, known within the Churches of Scientology as
"auditing," to the Church's parishioners. During this training and
as a staff member of Flag, Erlich studied, acknowledged, and agreed
to be bound by the policy requiring extreme security precautions to
be taken with regard to the Advanced Technology materials and the
requirement of agreeing to maintain the confidentiality and the
security of the Advanced Technology materials before being permitted
access to the Advanced Technology.
59. As a staff member of Flag, Erlich agreed that he would protect
and maintain confidential all information contained in the Advanced
Technology that was disclosed to him. As a result of his
acceptance of those confidentiality obligations, confidential
information contained in the Advanced Technology materials and
constituting trade secrets, including the Unpublished Confidential
Works, was disclosed to Erlich. Such information was of a highly
confidential and proprietary nature, and Erlich received the
information in trust and confidence.
60. RTC is a member of the group of entities for whose benefit the
contracts, policies, and rules of Flag are created and maintained.
61. Erlich left the Religion in or about 1982 and has subsequently
been engaged in various activities hostile to the Religion. Upon
leaving the Religion, Erlich lost any rights and privileges he had
acquired as a scientology minister and any right to hold himself out
as such.
62. By his acts, as aforesaid, Erlich has disclosed, without
authorization, confidential, trade secrets information constituting
portions of the Advanced Technology that are contained in the
Unpublished Confidential Works listed in Exhibit B hereto, in
violation of his longstanding obligations to maintain and protect the
secrecy of that information.
63. Erlich's acts, as aforesaid, were done with full knowledge that
the Unpublished Confidential Works contained confidential trade
secrets information, and with intent to publicize that confidential
information.
64. By his acts, as aforesaid, Erlich has misappropriated RTC's
trade secrets in violation of RTC's rights under California law,
California Civil Code 3426.1 et sea.
65. Unless restrained by this Court, Erlich will continue the acts
complained of herein, and RTC will incur (and is currently incurring)
irreparable injury, for which there is no adequate remedy at law.
66. As a direct and proximate result of the foregoing acts of
Erlich, RTC has suffered damages in an amount which cannot now be
ascertained but that is capable of proof at trial.
67. Plaintiff RTC is informed and believes, and on that basis
alleges, that, in committing the foregoing acts, Erlich acted with
fraud, oppression and malice, thereby entitling plaintiff to punitive
damages in an amount not less that $500,000.
WHEREFORE, plaintiffs pray for the entry of judgment against
defendants as follows:
1. ON THE FIRST CLAIM FOR RELIEF:
(a) For an award of damages to BPI against defendants, and each of
them according to proof at trial, and for all gains, profits and
advantages derived by defendants by their infringement of the
copyrights of BPI in the Published Literary Works;
(b) For an award of statutory damages to BPI under 17 U.S.C.
504(c)(1) of $20,000.00 for each of the Published Literary Works
infringed by defendants Klemesrud and Netcom and, in addition, an
award of statutory damages to BPI of $100,000.00 for each of the
Published Literary Works infringed by Erlich, pursuant to 17 U.S.C.
504(c)(2);
(c) For an order that defendants, and each of them, and all of
their officers, agents, employees, partners and attorneys, and all
persons in active concert or participation with them having notice of
this order, be enjoined, during the pendency of this action, and
permanently thereafter, from making or publishing, or causing to be
made or published, any unauthorized reproductions of the Published
Literary Works including, without limitation, transmitting or loading
of any of them into, or down-loading any copies of them from, any
computer, database, information service, electronic bulletin board
service or network; and that defendants, and each of them, be
required to remove from the Internet, Netcom's computer facilities,
Klemesrud's computer facilities, and any other computer facility,
database, information service, bulletin board service, or network, or
other medium, all copies of the Published Literary Works which
defendants, or any of them, have loaded or caused to be loaded; and
d) For an award of BPI's attorneys' fees and costs pursuant to 17
U.S.C. 505.
2. ON THE SECOND CLAIM FOR RELIEF:
(a) For an award of damages to RTC against defendants, and each of
them according to proof at trial, and for all gains, profits and
advantages derived by defendants by their infringement of the
copyrights of RTC in the Unpublished Confidential Works;
(b) For an award of statutory damages to RTC under 17 U.S.C.
504(c)(1) of $20,000.00 for infringement of the copyrights in the
Unpublished Confidential Works by defendants Klemesrud and Netcom
and, in addition, an award of statutory damages to RTC of $100,000.00
for each of the Unpublished Confidential Works infringed by Erlich,
pursuant to 17 U.S.C. 504(c)(2);
(c) For an order that defendants, and each of them,and all of their
officers, agents, employees, partners and attorneys, and all persons
in active concert or participation with them having notice of this
order, be enjoined, during the pendency of this action and
permanently thereafter, from making or publishing, or causing to be
made or published, any unauthorized reproductions of the Unpublished
Confidential Works, including, without limitation, the transmitting
or loading of any of them onto, or downloading any copies of them
from, any computer, database, information service, electronic
bulletin board service or network, and that defendants, and each of
them, be required to remove from the Netcom's computer facilities,
and Klemesrud's computer facilities, and any other computer facility
database, information service, bulletin board service, or network, or
other medium, all copies of the Unpublished Confidential Works which
defendants, or any of them loaded, or caused to be loaded; and
(d) For an award of RTC's attorneys' fees and costs pursuant to 17
U.S.C. 505.
3. ON THE THIRD CLAIM FOR RELIEF:
(a) For an order that Erlich, and all his agents, employees,
partners and attorneys, and all persons in active concert or
participation with them having notice of this Order, be enjoined,
during the pendency of this action and permanently thereafter, from
further unauthorized disclosure of any of the Unpublished
Confidential Works or any of the Advanced Technology, and
specifically from transmitting or otherwise loading of any of the
Advanced Technology materials onto the Netcom's computer facilities,
or Klemesrud's Computer facilities, or any computer, database
information service, electronic bulletin board service or network, or
other medium;
(b) For an order directing Erlich, and his agents, employees,
partners and attorneys, and all persons in active concert or
participation with them having notice of this Order, to return
immediately to counsel of record herein for plaintiff Religious
Technology Center all documents in their possession, custody or
control that contain any of the Advanced Technology;
(c) For an order enjoining Erlich and his agents, employees,
partners and attorneys, and all persons in active concert of
participation with them having notice of this Order, from filing with
the Court, except under seal, and from otherwise disclosing, any
documents that contain any of the Advanced Technology;
(d) For compensatory damages according to proof at trial; and
(e) For punitive damages in an amount to be determined at trial.
4. For such other and further relief as this Court deems just and
proper.
DATED: March 3, 1995 Andrew H. Wilson
WILSON, RYAN & CAMPILONGO
Thomas M. Small
Janet A. Kobrin
SMALL, LARKIN & KIDDE
-and-
Helena K. Kobrin
Attorneys for Plaintiffs
RELIGIOUS TECHNOLOGY CENTER
and BRIDGE PUBLICATIONS, INC.
E-Mail Fredric L. Rice / The Skeptic Tank