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Subject: RTC v Netcom - Amend TRO
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Date: Mon, 27 Feb 1995 21:30:28 +0000
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                        UNITED STATES DISTRICT COURT
    
                      NORTHERN DISTRICT OF CALIFORNIA
    
    
    RELIGIONS TECHNOLOGY CENTER, a
    California non-profit corporation;
    and BRIDGE PUBLICATIONS, INC., a
    California non-profit corporation,  No. C-95-20091-RMW
    
                   Plaintiffs,
    
         v.                             AMENDED TEMPORARY 
                                        RESTRAINING ORDER
    
    NETCOM ON-LINE COMMUNICATION
    SERVICES, INC., a Delaware
    corporation; DENNIS ERLICH, an
    individual; and TOM KLEMESRUD, an
    individual, dba CLEARWOOD DATA
    SERVICES,
    
                   Defendants.        


     On February 10, 1995, this court issued a temporary 
restraining order ("TRO")against defendants Dennis Erlich 
("Erlich"), Netcom On-Line Communication Services, Inc.
("Netcom"), and Tom Klemesrud ("Klemesrud").  At a hearing to 
show cause why a preliminary injunction should not be issued held on
February 21, 1995, the court dissolved the temporary restraining order
as to defendants Netcom and Klemesrud and denied plaintiffs'
request for a preliminary injunction against them.  As to those 
defendants the plaintiffs have not established a sufficient continuing
threat of irreparable harm or a probability of success
on the merits.  Further, the threat of harm to those defendants 
and the public outweighs any further threat of harm to plaintiffs,
particularly in light of the seizure order and the continuing TRO
against defendant Erlich.

     The TRO, as modified below, remains in effect as to 
defendant Erlich pending the court's decision on whether to issue a
preliminary injunction as to him and good cause supports continuing
that TRO.  Plaintiffs have raised serious legal questions and the
balance of hardships tips sharply in plaintiffs' favor in that the 
hardship to defendant Erlich, if the temporary restraining order set
forth below is granted, is outweighed by the potential hardship to
plaintiffs if it is not granted.  The court has ordered plaintiffs to
provide by February 24, 1995, an inventory of the items seized and the

basis for claiming that each is copyrighted or protected as a trade
secret.  Defendant Erlich has been given until March 3,
1995, to respond.  The court will then determine whether the 
TRO, or a modification of it, will be converted into a preliminary
injunction pending trial or further order of the court.

     The court amends the existing TRO to read as follows:

     Defendant Dennis Erlich and his agents, servants, and 
employees, all persons acting or purporting to act under his
authority, direction or control, and all persons acting in concert
or in participation with any of them who receive notice of this 
order, shall be and are restrained and enjoined pending further court
order:

     1.   From all unauthorized reproduction, transmission, and 
publication of any of the works of L. Ron Hubbard that are protected
under the Copyright Act of 1976, as
     codified in its amended form at 17 U.S.C. S 101 et seq.  
Such works are found, for the purposes of this order only, to be those
works identified in exhibit A to the complaint.

          a.   Unauthorized reproduction, transmission, or 
publication includes placement of a copyrighted work into a computer's
hard drive or other storage  device; "browsing" the text of a
copyrighted work resident on another computer through on-screen
examination; scanning a copyrighted work into a digital file;
"uploading" a digital file containing a copyrighted work from the
          computer to a bulletin board system or other server; 
"downloading" a digitized file containing a copyrighted work from a
bulletin board system or other server to the computer; and "quoting" a
copyrighted work that is cited in an on-line message in sending,
responding to or forwarding that message.

          b.   Nothing in this paragraph shall be construed to 
prohibit fair use of such works, as set forth in 17 U.S.C.  107 and 
interpreted by applicable case law. 
          Fair use of the copyrighted material for the purposes 
of this order includes use of the copyrighted work for the purpose of
criticism, news reporting, teaching, scholarship, and research but
does not include: 

(1) use of the material for a commercial purpose where the user stands
to profit from exploitation of the copyrighted material without paying
the customary price or giving the usual consideration or use that
would have a significant effect on the potential market value of the
copyrighted work; (2) use which fulfills the demand for the
          original work; or (3) use of the heart of the work no 
more of a work may be taken than is necessary to make any accompanying
comment understandable. 

     2.   From disclosing, displaying or reproducing, or 
causing to be disclosed, displayed or reproduced, any of L. Ron
Hubbard's unpublished, confidential copyrighted works which are found
to be, for the purposes of this order only, those works identified in
exhibit B to the complaint; and

     3.   From destroying, altering, or concealing, or removing 
from the district in which defendant Erlich resides, any reproduction,
copy, facsimile, excerpt or derivative, of any work of L. Ron Hubbard
that has not been seized, or any remaining copies of work that
was seized, and that is in defendant Erlich's possession, 
custody, or control.  No further seizure shall take place without
prior court approval.

     The bond in this matter in the amount of $25,000 shall 
remain in place.  A condition of this TRO is that plaintiffs' counsel
safely retain in their possession any seized items turned
over to them by the marshal or the law officer pursuant to the 
seizure order.

Dated:   2/23/95
                                                 /s/
                              RONALD M. WHYTE
                       United States District Judge


Copy of this order was mailed on February 23, 1995 to:

Andrew H. Wilson
Wilson, Ryan & Campilongo 
115 Sansome Street 4th Fl 
San Francisco, CA 94104

Thomas M. Small
Jamet A. Kobrin
Small, Larkin & Kidde
10940 Wilshire Blvd #1800
Los Angeles, CA 90024-3945

Helena K. Kobrin
7629 Fulton Avenue
North Hollywood, CA 91605

Richard Allen Horning
Horning, Janin & Harvey
555 Montgomery St. #720
San Francisco, CA 94111-2574

Dennis Erlich
1614 South Central Avenue
Glendale, CA 91204

Randolf J. Rice
Barbara R. Shufro
Melissa A. Burke
Pillsbury, Madison & Sutra
Ten Almaden Blvd.
San Jose, CA 95113-2226