This is Brian Harman's account of the June 23, 1995 hearing before Judge Whyte in San Jose

This is Brian Harman's account of the June 23, 1995 hearing
before Judge Whyte in San Jose Federal Court.  Dennis Erlich
sent a series of followup replies to this message, annotating some
of Brian's text.  Rather than file those replies separately, I have
intercut them into Brian's text below in this manner:

--- Reply by Dennis Erlich:

   text text text...
   
--- End of Erlich Reply

Newsgroups: alt.religion.scientology
Subject: Federal Court Hearing Synopsis, 6/24/95
Message-ID: <1995Jun24.025121.46911@miavx1>
From: bpharmon@miavx1.acs.muohio.edu (Raskolnikov)
Date: 24 Jun 95 02:51:21 -0500
Organization: Miami University
Lines: 285

I just came back from the Federal Court Hearing in San Jose 
today, so I'll try to give a synopsis.  This is just a 
hack job for those who were not there, so please feel free
to post your own accounts and correct any errors I make.

First, the game players, as near as I can remember 
from my scribbly notes:

For the Prosecution (CSC/RTC) there were the usual
suspects:  Helena Kobrin, Janet Kobrin, Tom Small, 
and at least two other lawyers I did not recognize
(Ableson and Moxon?). Kobrin, et. al had a few aides 
to pass notes.

Big Surprise:  the (in)famous Earl Cooley was the main 
attorney for the Church today.  He was quite dramatic, 
and often strayed into emotionally charged language, 
referring to the defense's positions as "a fantasy 
construction."  More on this later.

Several Scientologists were present in the courtroom, 
including Jeff Quiros, Warren McShane, and at a few
others.  As a side note, I sat in the same row as Jeff,
and there were at least four other scientologists hanging
around him at any given time (all were women -- odd?).
I'm pretty sure that they were scientologhists as Jeff 
kept whispering things in their ears, and they all ung 
out with Jeff, et. al after the hearing.

All five of these Sci's (including Jeff) wore very nice suits
that were black and white (some gray, but generally no color).
Is that some kind of OSA uniform?

For the Defense: Dennis was there, as were representatives for
Netcom (Randy Rice and ?), Kelmesrud (Dan Leipold and ?), and 
Dennis Erlich (Carla Oakley and Harold McElhinny).  There were 
several of the SP crew there, but I'll let everyone pipe up on 
their own (i'm a bit leery of posting people's names w/o asking 
first.)

The Plaintiffs had some trouble making their case today. 
they had a lot of ground to cover, and the Judge set time
limits on both the plaintiffs and the defense to present their
arguments (1 1/2 hours apeice?)  Cooley basically ran himself 
out of time with his dramatic arguing and somewhat exagerrated
characterizations.  They spent so much time insisting that netcom
and Klemesrud had knowingly assisted in copyright infringement 
(and in violating trade secrets, depending on their shifting 
argument) That they had a mere 1 1/2 minutes left to argue for
holding Dennis Erlich in contempt of court (on three counts).
There was some confusion, as their simultaneous claims of 
violation of trade secrets and copyright infringement
were muddled several times (primarily by Cooley).  

Cooley also raised an objection towards the end, to which 
Judge Whyte responded with "I don't follow your reasoning."
Cooley piped down after that.  (more later, see part two.)

The plaintiffs did raise some interesting points, which I'll
try to paraphrase below.

The Defense, in my opinion, did a much better job.  They 
did not run out of time, and the arguments were clear
and concise.  They also had a splendid closing argument, which
I'll do my best to present in part two.  They also seemed 
more prepared to answer Judge Whyte's directed questions.

But hey, I'm biased.


There were a number of motions submitted today, here's a list 
taken from Dennis's post, msg id <9506201120.0FXDJ01@support.com>:

-----typos mine----

[from the sceinos]

        1)  Motion for Preliminary Injunction against me and 
            resinstatement of TRO (PI?) against tom and Netcom.
        
        2)  Motion for sanctions against Carla Oakley of MoFo for
            including LA Times, St. Pete Times, Forbes Mag, et. al.,
            articles describing the OT3 Wall-o-fire, in one of her
            unsealed filings.
 
        3)  Several motions for finding me in contempt for postings, 
            etc., since the raid.

[From MoFo]

        1)  Motion to vacate Writ of Seizure and return all materials
            confiscated to me.  Would include personal items such as 
            bank statement, demo tape of my songs and 2 rolls of film
            taken of every nook and cranny of my house during the 
            raid.  (the pictures used in the KSW issue).

        2)  Motion to lift Temporary Restraining Order and restore my
            Constitutionally guaranteed rights to comment and 
            criticize the church  for which I was ordained a 
            minister, using the materials I was trained on.

        3)  Raise the bond that the sceinos had to submit to carry of[f]
            the raid from $25000 to $100000.


[From Klemesrud]

        1)  Motion to dismiss?

[From Netcom]

        1)  Motion to dismiss.

-------end excerpt-----

Randy Rice for Netcom was supposed to go first but he stepped aside
to let the plaintiffs fs speak first.  He felt his argument was clear
enough, and he'd rather rebut the sceinos instead. (paraphrased)

Earl Cooley stepped up to the plate and made his argument that Netcom 
and Klemesrud should not be dismissed from the case because: (paraphrased)

1) Netcom was notified of copyright violations and they did nothing in 
this case, while in any other cases involvng software they were very quick to 
delete those materials.  He accused netcom of being inconsistent.

2) Netcom and Klemesrud store these copyrighted materials on their
"hard drives" while they are on Support.com's and netcom.com's 
news system.  Netcom even extends their storage time to eleven days,
longer than the usual three [??] on the usenet system.  Copying these
materials onto their hard drives is in itself a copyright infringement
commited by netcom and support.com, just as if someone photocopied a whole
book.

3) the plaintiffs no longer want 'pre-screening' of materials for 
copyrighted writings, instead they want support.com and netcom to
delete and messages the church claims violates their copyright.  
They consider this a reasonable solution to protect their copyright
from unathorized publishing.

4) Also referred to defendent's complaints of censorship and 
eliminating their ability to do business as a "parade of imaginary
horrbiles" [to quote].    

At this point, Janet Kobrin stepping in to 'flesh out' Cooley's
arguments with technical definitions of infringemnet and to
argue court precedents that support [?] the Church's position.
Much of her argument was a restating of Cooley's rather dramatic
introduction, but included more detail.  One new point she did make
was that copyright infringement does not require knowledge of what
you are doing, nor is it an excuse [is this true?].  The argument
was made that Erlich reproduced entire copyrighted works from larger
compilations, so he cannot claim that he only excerpted 'part' of 
copyrighted book.  Rather, it is the coprights on the individual
works and not the compliations that were violated.

After her, Tom Small [plaintiff atty] argued against Fair Use
as a defense for netcom, Klemesrud, and Erlich.  He changed the 
argument from one of copyright issues to one of trade secrets, and 
then tried to mix the two.  He said that the materials posted by 
Mr. Erlich were both copyrighted and unpublished trade secrets of 
the church.  There is such thing as fair use of trade secrets, he
argued, and that any infringement of trade secrets is unacceptable.
Mr. Small also claimed that Dennis published 'bootlegged' or 
unauthorized copies of this material, rather than simply excerpting
from a legitimate copy of said material.  There is no such thing 
as fair use of a bootlegged copy of copyrighted works, according
to Mr. Small.  [do they know how Erlich got this stuff?]


---------now netcom jumps in---------

Randy Rice, attorney for netcom then presented arguments to
rebut the plantiffs and in favor of dismissal.  To paraphrase:

1) Netcom cannot be expected to deal with copyright infringement
without some way of verifying that these materials are ideed copyrighted.

    For example, if i am a sysop and someone posts "A Tale of Two Cities"
    on my system, a publisher can easily provide me with an original copy
    to prove that they own copyright to this material, and that this is a  
    clear case of copyright infringement.  RTC/COS did no such thing, and 
    flatly refused to supply Klemesrud and Netcom with originals so that they
    could determine if such infingement occured.

    In the software case, it is very easy to see who owns the copyrights to a
    pirated copy placed on someone's system, as one can easily compare a 
    pirated copy of "windows' with a legitmate copy and see that both say 
    (c) Microsoft 198_, and that the priated copy is the same one law abiding
    citizens buy in stores.  

    Netcom had no such way to verify that RTC/COS held the copyrights, and 
    that Dennis was infringing them.  Therefore, they cannot be expected to 
    run about deleting posts just because RTC says so.

2)  The plaintiffs have repeatedly changed their position.

     Before the case, they wanted netcom to yank support.com,
     effectively eliminating service to 500 users who had nothing
     to do with the case. 

     Now they claim that all they want is Netcom to delete all posts
     that the RTC claims infringes on their copyrights and publishes
     their trade secrets.

3)  Every single site, and every single user is as "guilty" as Netcom.

     If netcom is guilty of copyright infringement simply for storing a
     Newsfeed on a disk for a short time, then every USENET site in the 
     world is equally guilty of that crime.   

4)  Free speech issues:  Dennis is clearly involved in controversy with 
    the church, and Netcom feels an obligation to defend Erlich's free
    speech rights to criticize the church.  Why should they pull the plug
    on a user, and a system, simply because the Church claims that he has
    raided their intellecutal property , particularly since the Church refused to 
    demostrate to netcom that they indeed held the copyrights?  Netcom feels 
    that such a controversial issue is clearly a free speech matter, and is not 
    as straightforward as situation with pirated software.
    
--- Reply by Dennis Erlich:

    Also Rice pointed out that Netcom would be placed in a 
    position of liability if it yanked someone's account 
    just because that person's enemies *claimed* a violation 
    occurred where none could be proven to their satisfaction.

    They could get sued by Tom or me.
   
--- End of Erlich Reply

-------and now, Klemesrud----


Next Dan Leipold took the reins, and argued in favor of dismissal. 
His arguments were (paraphrased):

1) Klemesrud's system is automated: he does not have control over 
what gets put on his hard drive.  He is merely leasing the use of his
machine/software to other users who are responsibile for it's use.

     For example, If i photocopy all of dianetics on a xerox machine 
     at copy shop (that is _I_ do it, not the shop staff) then I am
     guilty for any infringement. The copy shop merely leased the 
     machine to me, for about $0.10 a page.  (just like some ISPs
     charge by the KB or the bandwidth.)

     [this same argument works for netcom] 

2)  The RTC/COS is engaging in a weird argument:

         How can you have a trade secret and a copyright violation?

         Which is it?


         Judge Whyte tried to get a solid answer form Leipold as to what the 
         legal obligation of an ISP was.  Leipold compared ISPs to a video tape
         manufacturer, where CBS can't sue sony for making a video tape used
         to pirate tv shows, rather they sue person who pirated the shows.

3) Quotes from the plaintiffs initial complaint which states that netcom and
   klemesrud did nothing:

     That is, they did not engage in copyright infringement, they simply 
     failed to do anything about it when the church complained.

     But now the lawyers for RTC claim that netcom and klemesrud _are_
     guilty of intringement, as they "copied the materials onto their
     hardrive and made them available to other users for a fee"  

     In english, their newsfeed is stored on a disk drive rather
     than simply 'storing it in ram.'

     According to Leipold, the CHurch is changing it's argument in the 
     middle of the hearings.  [i agree]



Next, Cooley showed up again to give a dose of amusing metaphors and
hyperbole, but I'll continue that in Part Two.....

Brian Harmon
Sf, CA
KoX.

---------
Article 80450 of alt.religion.scientology:
Newsgroups: alt.religion.scientology
Subject: Federal Court hearing, part twp
Message-ID: <1995Jun24.050022.46913@miavx1>
From: bpharmon@miavx1.acs.muohio.edu (Raskolnikov)
Date: 24 Jun 95 05:00:22 -0500
Organization: Miami University
Lines: 263

My hack job of reviewing the court hearing, part two.....


After Leipold said his peace, Cooley took the stand again.


Cooley claimed that he had to deal with this "fantasy construction"
set up by the defesne.   He said that "the case law is very clear, 
and that there is no room for 'I Don't Know'" and that "Loading 
of copyrighted materials into computer memory is a direct infringement
of copyright."  [Nevermind that RTC and HK, et. al refused to prove
copyright to netcom or klemesrud].

He characterized the arguments of Rice and Leipold as "devil made
me do it" arguments, where someone was helpless to stop a subscriber
who was clearly abusing their system. [right, and nevermind that he 
twisted what they said a bit].  He also mentioned Grady Ward by name,
and accused the anonymous and pseudonymous posters to ARS of trying
to impose anarchy on the net by repeatedly reposting copyrighted
"trade secrets" of the church and thereby make a mockery of the 
church's rights.  [Demonizing ARS critics seems to be a big
schtick for him, could he be woody? ;)]

--- Reply by Dennis Erlich:

    He said Grady and I had public discussions that amounted to a
    conspiracy to flood Internet with their trade secrets.  It 
    was an serious accusation which I absolutely deny.
    
--- End of Erlich reply

He also accussed Klemesrud of stalling because he [klem] insisted that
the original copyrighted materials be sent to him by US mail. 
That way, argued Cooley, the articles would have expired off of 
Klemesrud's NEWSfeed and he would no longer be able to compare
them to the originals, and voila'! no infringement. 

[Cooley seems to imply that Klemesrud, Erlich, and Netcom are all in 
 cahoots to rape the intellectual property and "trade secrets" of the 
 church. Is that because they're all SPs?]

Cooley also raised the issue that Erlich posted materials after the
TRO was in place.

[as an aside, it was often hard to tell which of their motions the
 plaintiffs were talking about at any given time, as they often
 floated bewteen going after Klemesrud, Netcom, and then Erlich
 all in one thought.  Cooley was particualrly fond of this.]

--- Reply by Dennis Erlich:

    That's because he had no clue about Internet and the
    operations of providers or participants.  He was constantly
    passed notes, which he would spout in his staccato, blustery
    "style" at the court as if there were cameras on him.
   
--- End of Erlich Reply

Judge Whyte asked Cooley if netcom, Klemesrud, and Erlich are simply
supposed to take the RTC's word for it that an infringement has
occurred.  Cooley replied that they should trust the plaintiff's
atornney's in that matter. [in essence,  yes.]

Cooley also raised the issue of a "Non-Discolsure Agreement" signed 
[allegedly] by Elrich, promising not to reveal the secrets of
scientology [the OT materials, i guess].  Cooley also stated that 
19-20 coyrighted and unpublished "trade secrets" of the church
were found on Mr. Erlich's computers, that he posted parts of 19 of 
these 20 materials, and that 14 of these were posted verbatim. [true?]
the text of the agreement was shown to the court, but i could not 
see it from where I was.

Cooley was no arguing that Erlich had not only violated the copyrights
of the church, but that he had also reneged on his non-disclosure 
agreement.  

Cooley claimed that Erlich violated the TRO three times, and therefore
should be held in contempt.  One was a post made after the TRO was modified, 
the second was a signed declaration verfiying that a chruch document was 
genuine, and the third [i think] was an interview where he mentioned Xenu and 
H-bombs [incident II].  [note, Cooley didn't list these, i got them from the 
defense's rebuttal.]

Cooley started repeating himself, again saying that removing users was 
not necessary, merely that the Church wanted netcom and Klemesrud to delete
messages they say violated their copyright. [methinks they're trying to 
change their argument.]

At this point, there was a ten minute recess.  Cooley and co. had used up so 
much of their time that they had about two minutes remaining to argue 
for holding Dennis in contempt.  The defense, OTOH, still had loads of time.

-----after the recess----[ps, my notes go way downhill here, perhaps a more
                          diligent person can fill in more.]      

Cooley sat down and let Carla Oakley [rep. Erlich] take the stand
to argue against holding Dennis in contempt of court, and to rebut
some of what Cooley and others had said.  to paraphrase again:

--- Reply by Dennis Erlich:

    No, Daniel.  Carla's argument was the copyright and trade
    secret matter were insufficient to justify the TRO
    (injunctive relief) sought by the plaintiffs.  That the Writ 
    of Seizure didn't comply with the conditions of law for that 
    serious remedy. That the balance of hardship weighed too heavily 
    on me.  That my research materials should be returned. That the
    scienos didn't have the likelihood of prevailing and that the trade
    secrets didn't meet the criteria.
   
--- End of Erlich Reply

1) Freedom of speech arguments:

     The TRO was preventing Dennis from exercising his first amendment
     rights by telling what he could and could not talk about.

     [Holding him in contempt for mentioning Xenu and volcanoes in an
      interview would be a good example]

2) Arguments against income loss for the church or irreperable 
   harm caused by Dennis.
      
      RTC/COS made the argument that Dennis's publishing of
      OT materials undercuts the church's business and casues
      'irreperable harm to the church' [i don't quite get this argument.]

      Not so, says Oakley.   Even when Dennis posts these 
      materials to the net, he is not removing the services the
      church provides, nor is he passing the church's methods and
      tech as his own.  This argument, that the defendant is 
      causing unnacceptable loss of income for the church is wrong,
      as he is not competeing with the church per se.

      The Church has won cases in the past against splinter group[s]
      by using this type of 'unfair competition' argument. It does 
      not, however, apply here.

3)  the Church's unpublished documents are not trade secrets.

      Unlike a real trade secret, the church does not have any idea how 
      many people have access to their trade secrets.

      Many of these "trade secrets" have been published and publicly
      desseminated on the 'net. [not by dennis that is. Also, does 
      putting this stuff together for OT levels constitute 'publishing'
      the material? Has the church unwittingly published their trade secrets?] 
                   
      Also, these some of these 'trade secrets' are a matter of public
      record, such as the Fishman declaration [has OT stuff in it.]

      If these are trade secrets, why are so many people allowed to access
      them?  -- they are not kept under strict lock and key --

      If these are trade secrets, why do you _sell_ them to your church 
      members?  [does coke sell its formula to employees?]

--- Reply by Dennis Erlich:

    She made the point that the elaborate sham of security
    precautions the cult presented to the judge in their filings
    was only in place in 3 of the 10 locations where the courses 
    are available for sale by the cult.
   
--- End of Erlich Reply

4) Copyright Claims:  What about forgery?

      Some of the usenet postings placed before Erlich did not 
      look right. Dennis claims not to recognize them as his
      [they're missing headers and the like, tag lines are weird.]
      If some of these postings by Dennis were forged, how can he 
      be held liable for the infringements in those forged postings?


Other arguments were made for fair use, that Dennis was not "scooping"
scientology as a breakaway church would, but i couldn't hear too well
and i was running out of steam.  Someone will have to cover this better than
me but i did jot down some key issues:
 
Dennis recieved many of these materials from the 'net, where they
had already been published [anonymously].  Apparently, they
were mailed to him by anonymous sources. [true/false?]

--- Reply by Dennis Erlich:

    The class 8 tape, NOTs 24.  It could have actually been the 
    cult that sent them to me, knowing I would make them public 
    and fall into their trap.
   
--- End of Erlich Reply

The OT materials used by Erlich in his criticism of the church are
largely "informative" in nature rather than "creative."  That is, the 
exact information in the "infromative" work is not copyrighted, but the
actual work is.  [you can quote all the definitions you like w/o violating 
copyrights, but if you photocopy whole pages and use that, you are.]  On the 
other hand, 'creative' refers to things like poetry where the precise
wording is protected [that is, you cannot quote all of _Leaves of Grass_, even
if you do not photocopy them.  I may have misunderstood this concept.]

Therefore, Dennis use of copyrighted materials is not an infringement
because these materials are largely 'infromative.'  It was more like he 
was quoting from the dictionary than plagarizing Walt Whitman.

The US TV network CBS was allowed to air an expose of the meat packing 
industry "even though trade secrets *might* be revealed" on this show.
[i think someone else made this point.  also, does anyone know the 
case number and year of this?]


----after Oakley, Cooley wanted to try again....---

Earl Cooley wasted another 30 secs making a fairly scattered argument about
the dictionary.  I didn't take notes on it.

Oakley made some more points [some listed above] and then Cooley
used up the rest of the time briefly reiterating his points.

---after that,  Harold McElhinny stepped in to finish up.---

McElhinny's arguments were about the motion to hold Dennis Erlich in 
contempt of court for three violations of his TRO.  he dealt with them 
in reverse order, but I'll go thru them in order instead. 
To sum up the incidents and the arguments:

1) Posting after the TRO was in effect 

    This occured before Erlich had counsel, and he [apparently]
    misunderstood what was meant when he was told that the 
    TRO had been 'modified.' Assuming that things were all right,
    he posted another message to ARS.  He was informed of his error,
    and that he was in violation [i presume] of the TRO.  He promptly
    canceled that message and had Homer Wilson Smith cancel as best as
    possible to stop propagation.  

    In short, Dennis was not certain of what his rights were, he goofed, 
    and then cleaned up after himself in good faith.  [hardly an action 
    worhty of contempt, we hope.]

2)  Erlich signed a declaration that a church document was indeed genuine.
    [i have no context, can anyone help me out?]

    He did _publish_ anything, he just signed a peice of paper saying,
    "yes, that's the real McCoy."

--- Reply by Dennis Erlich:

    I verified some documents that Gerry Armstrong wanted to file
    in his bankruptcy case with a declaration.

    Gerry Armstrong is the bravest soul I know.  He's the one who
    opened the histor of the Phatguy to scrutiny in the first
    place.  And he did it frtom the depths of C-orgdom.  It was a
    HUGE risk.  His life has been in peril since.

    If anyone ever deserved support, it was/is Gerry.
   
--- End of Erlich Reply

3)  In an interview, Dennis referred to Xenu, 75 million years ago, and 
    something baout thetans being blown up in large volcanoes on teegeeack
    [earth] by that nasty Xenu. [beliefs of church, these are otiii tidbits 
    referring to incident ii.]
 
--- Reply by Dennis Erlich:

    This was The Net interview, aired on BBC in May.
   
--- End of Erlich Reply

      McElhinny started to quote from a published St.. Petersburg times article
      that said the very same things Dennis did, when suddenly Cooley lept up
      and objected.  It was hard to tell what Cooley's argument was, as he 
      floated between accusing McElhinny of trying a publicity stunt to smear
      scientologists to objecting that they were trade secrets.   When asked by 
      the Judge if this article contained trade secrets, Cooley hemmed and hawed
      [started to say yes?] but eventually said that that was not his objection,
      rather that it was a stunt so that other nasty newspaper artiles could be 
      published to offend the religious sensibilities of scientologists. [??? in short,
      he weaseled out of that once he realized he stepped in goo.]       

      When he was all done, Judge Whyte responded that he did not understand 
      what Cooley was all upset about [my words, not his].  Cooley got rather 
      quiet after that, and let McElhinny continue.

      After quoting the St. Petersburg times article, he then went on and quoted
      the same information in a Time magazine expose of the cult from 1991. 
     
--- Reply by Dennis Erlich:

    Did you notice all the scienos turning blue, squirming and
    farting during Harold's surprise?
   
--- End of Erlich Reply

      The argument was, if these articles are not a violation of trade secrets
      and/or copyright, then how can the court hold Dennis in contempt for saying 
      the same thing they did??? [heck, he could have read the article to them!]
     

-----------------Closing statements by McElhinny------------

These were amazing.  I'll try and properly reconstruct what he said..

When he [McElhinny] reads Scientoloy scritpures, it's complete gibberish to him.
However, his religion was taught to him in latin, which would be complete
gibberish to a scientologist or any non-Catholic.  

That doesn't matter, however.  What matters in religion is _belief_.  That is 
what transforms 'gibberish' into sacred scripture.  The plaintiffs are arguing
about words, and about trade secrets, and about copyrights, but it is belief
that really brings value to religion.  

Dennis Erlich believes very strongly that fraud is occuring in the church.  So 
much so that he would characterize it not as a church, but as a cult.  It is this 
deeply-held belief that compels him to educate the world about COS, and to prevent
people from falling prey to this cult.  

it may be a battle of words for the church, but for Dennis it is a battle of belief.  

------------

How was that?

--- Reply by Dennis Erlich:

    Damn good, Brian!
   
--- End of Erlich Reply

Well, this is the end of my little hack, hope you liked it.

Brian Harmon
SF, CA
Kox.