“The material”, or: “NOTS? Which NOTS?”
Stockholm, Monday, 25 May 1998
[Previous installment: Zenon does research.] And of course, during the weekend, both of us worked less than we wanted (and needed) to. There were friends to see, places to go, sleep to catch up with. I did some work on a play I’m supposed to have finished by the end of the month, Zenon did some work on the computer we would need so badly in the upcoming week.
On Monday morning we left early. Or at least tried to. There was no free taxi to be found in the whole of Stockholm, it would appear: Z was on the phone for almost half an hour and then finally decided that he would try to find one on the street. It was a quarter to nine by then; the court session was to start at 9:30, traffic was still busy and we needed to buy extension electricity cables for our gear.
9:20. We arrive and dump & connect some of our stuff in the courtroom which then needs to be cleared of anything human, so that the judge can make a proper entrance. We walk through the corridor, to the smoking room, passing some people who stand there, talking. A couple of steps removed from them, standing apart from the rest, is McShame, president of RTC, the plaintiffs. I recognise him immediately: he was present at my lawsuit. He recognises us, too, without missing a beat. We pass him and look him in the face. He looks straight back at us and says, dead-pan voice, only slightly rising his tone while uttering the last syllable: “Panoussis…. Spaink….” We should have acknowledged him by saying “McShane…” using this same flat tone, but we didn’t.
Court opens. There are seven Scientologists who flock together on one side of the courtroom. Lots of dark suits. The only one who stands out is McShane himself, the only one in a light grey suit and the only one who doesn’t wear glasses. Next to him is one of Magnusson’s colleagues; he is to act as interpreter. Tarja Vulto is there: Swedish OSA. Immediately behind the lawyer/translator is an American wearing cowboy boots, a four-day stubble and a partially opened shirt, who will often lean forward when something interesting occurs, in order to catch the translator’s words as he relays them to McShane. (We will later learn that this is hired lawyer William Hart.) There is a small man with a rodent appearance: short dark hair; Swedish. Another man: blond, nearly bald, Swedish. And another American dark hair, striking tie. Plus me, since the power outlet is on that side of the room.
There are two people who take seats in what would become the critic’s section of the audience. Later, more people join them. Bid (Birgitta Dagnell), Swedish a.r.s.-regular and former Scientology member –; Anti-Cult, a.r.s.-regular and also from Sweden; Karsten, from the Dialog Centre in Copenhagen (which provides information about cults and offer support to former cult members and their families — “I thought you were a CoS-goon,” he later tells me); and, much to our surprise and delight, Joe Harrington from the US. And us, from the Netherlands. Oooh! This was turning out to be an international suppressive convention.
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both Scientology critics
When we re-enter the courtroom, the judge is sitting there. As it turns out, Ingrid Forsström is indeed presiding the court. She carries a formal, severe and most attentive expression on her face. Her attitude makes it overtly clear that she is not going to buy anything from anybody. (Especially not a bridge.) She wants information; she wants it to be presented to her in a precise, concise and clear-cut manner; she wants answers, and she is not to be toyed with. (Somehow she is the personification of what I have always imagined Judge Brinkema to be like.) The clerk is the man we had met earlier, last Friday, while we were going through the sealed documents. He smiles at us.
This case concerns itself whether or not Z has violated the Temporary Restraining Order he was subjected to in1996, for instance when he handed in copies of the NOTS to parliament, to the administrative court, and to the Court of Appeals. Magnusson stipulates that Z has violated the TRO. Z maintains he hasn’t; that besides, it is most unclear to which materials the term “the materials” the TRO bar him from publishing exactly refer to, and moreover that he hasn’t published these NOTS after getting the TRO, but just provided the three institutes mentioned with copies. The case is a semi-penal one: while the alleged copyright infringement is a civil case, violating a TRO is not, but it could cost Z 50.000 crowns.
The judge asks Magnusson a great deal of questions. Magnusson may be well versed in law (although Z believes he isn’t), but he surely isn’t endowed with the gift of the gab. He stutters, he hesitates, he sometimes cringes when asked to give a clarification — and the judge wanted a lot of them –, he flushes when being rebuked or proven wrong, needs to look up stuff in his files and binders almost continuously, and generally does not strike one as being very effective or convincing. His definition of presenting a coherent and motivated argument seems to be to refer to documents, to mention dates and numbers, and to subsequently start leafing through files. Magnusson refers to postings, to Z’s statements on the net, and to his generally ‘provocative’ behaviour.
While the judge is directing her questions at Magnusson, the lawyer/translator has an easy job. When he does whisper something in McShane’s ear, McShane never looks at him but keeps staring right in front of himself, nodding slowly. His face is devoid of all expression.
The judge now turns her attention towards Z. He needs to explain a lot about the net: the difference between e-mail and postings; that the name of the sender of e-mail or postings cannot be taken at face-value, because anybody can put any name there; that therefore, one needs to scrutinise the headers of postings and e-mail; that even these can be faked and that therefore a more solid proof of authorship, such as an ISP log, is needed when accusations are brought before court; and that whatever somebody says on the net does not automatically reflect on their actual behaviour, be it past, present or future, because words and acts are two separate things and that moreover, everybody has the right to lie or to not do what they said they would do.
10:30. Break. We — by now ‘we’ is Anti-Cult, Karsten, Z, a journalist and me — make a dash for the smoking room. When we open the door, we discover the little room to be crammed with Scientologists and their lawyers. We enter. You want a smoke or you don’t, eh, and all of us are heavy addicts. Immediately, the plaintiff and their representatives clear the room. (Could they only clear the planet as easily!) “All of you running away, for only two SP’s?” Z teases them.
10:45. It’s Z’s turn to present his arguments. While Scientology refers to all materials — the NOTS he posted to a.r.s. and got the TRO over, the NOTS-pack he handed over to parliament, the NOTS-pack filed at the administrative court, the NOTS-pack sealed by the Court of Appeals (Attachment 126) — simply as “the NOTS” or “the material” and has identified each and every of these packs to be their copyrighted material, Z argues that these purportedly identical packs (which, in RTC vs Panoussis, are each referred to by their file attachment number) do, as a matter of fact, differ. Some even differ widely. The translator/lawyer tries to keep track of Z’s argument, jotting down file numbers, and goes cabalistic on McShane. I see notes such as:
or
McShane seems a tad upset. The lawyer/translator is by now slightly raising his voice. Instead of staring in front of him as per usual, McShane looks straight at Z.
Z postulates that it is impossible to determine exactly which materials are “the” materials, since the various packs differ. What makes such a determination even more difficult is that Scientology appears to be claiming everything to be theirs, as long as there are a few recognisable Hubbard-sentences in it,s I catch McShane making an ugly face towards Z.
12:00. Another break. Bid and Joe join us when we have lunch.
Shortly after lunch, there’s a typical May-25th scene. The issue at stake is the masked NOTS. Magnusson maintains that they are identical to attachment 24, 37 and 126. The judge poses Magnusson a question (sorry, didn’t catch that. My Swedish is too bad). Magnusson hesitates, is silent for a while, and then proceeds to give a short answer. “How do you know?” Z interrupts. “Yes,” the judge says, redirecting her stern and unwavering gaze at Magnusson, “how do you know?”
13:30. The notary who made a comparison between “the material”, in this case, the purportedly original NOTS, and file attachment 126, and then claimed the latter material was the same as the former and thus copyrighted by RTC, is called in as a witness.
Since this part of today’s session is surely dealing with actual quotes taken from “the material”, the doors will close and the audience is requested to vacate the room. Magnusson, McShane, the translator/lawyer, Z and the court are the only ones allowed to hear what Birgitta Alexandersson, the notary, has to relay.
We leave. As it turns out, we have the smoking room to ourselves; it will remain ours in the days to follow. The Scientologists either hang around in the corridors or sit in the court’s cafeteria. We wait. Karsten entertains us with myriad stories, Joe explains why he dislikes big cities, we make lot of ARSCC and Prozac jokes and wait. Oh and we smoke, of course.
A break during the closed hearing allows Z a smoke and him and me a short conference. The notary/witness claims to have made a random selection, in this way arriving at seven NOTS from attachment 126, which she then proceeded to compare to RTC’s purportedly “originals”, and found that yes, they were the same. I have seen attachment 126 and know what is amiss with it. Attachment 126 is most certainly not an original NOTS pack.
We’re only allowed back in the court room after two hours, perhaps three, of closed hearing. As it turns out, Z was able to challenge the notary statement. Many, if not most, of the NOTS included in attachment 126 are, erm, let me put it this way, mocked up. There are Borkified versions of purportedly original NOTS. (Yes, RTC claimed these to be their own.) There are Soul-Bro’ified versions of purportedly original NOTS. (Yes, RTC claimed these to be their own.) There are cut-up and re-montaged versions of purportedly original NOTS. (Yes, RTC claimed these to be their own.)
I myself have seen at least ten versions of NOTS 1, each one different, all of them making no sense, not even in the Hubbardian meaning of the word, because the order of paragraphs, the order of sentences and sometimes even parts of sentences have been completely reshuffled. (Hmmm. Didn’t Alice end a courtcase in which the prosecutor demanded that her head be cut off, simply by calling her opponents ‘a deck of cards’?) Yes, RTC claimed these montaged version of NOTS 1 to be their own. “Look,” they had said during the closed session, “this sentence here” (pointing at a file included in attachment 126) “is exactly the same as this sentence there” (pointing at a purportedly original NOTS 1). At this point, everybody — the notary/witness, the lawyer/translator, Magnusson, McShane, Zenon — had gathered around the judge’s table and were leaning over her shoulder. “But the sentence preceding it and the sentence following it, are not the same as in your supposed original,” Zenon pointed out. “Yeah but well…” McShane said, “those sentences appear elsewhere in the same scrambled NOTS.”
They even claimed (as we found out last Friday), copyright to one of my articles. In the list the notary had provided Magnusson and the court with, it says: “File Attachment 126, no. 143, OT III Course”. This file 126/143 was however most certainly not the original OT3 course but my summary of and comment on OT3, the one that has been on my homepage ever since February 1996. “But it contains Hubbard quotes,” McShane said. “Quotes,” Z repeated. “They are even ascribed to Hubbard. But the copyright of this article, of the entire article itself, resides with Karin Spaink. It even says so at the end. It’s not copyrighted by RTC but by her.” “But we’re suing her over that,” McShane argued. “Until now, you’ve lost,” Z kindly reminded him, “and the Dutch court has approved of this article and has stated that it is not to be considered a copyright infringement.”
[I wonder whether I should sue RTC over falsely claiming copyright over something I wrote.]
16:00 or so. Scientology was to call another witness — a Scientology-member who was going to state that Z had handed out copies of the NOTS on the street — but RTC by now decides that they will drop this witness. Perhaps they were afraid Z would grill him about which NOTS Z allegedly handed out. Or perhaps they were scared that Z would ask the witness to explain how he ascertained that these NOTS were original. (Z was really looking forward to the witness saying: “well, my superiors told me”.) Or perhaps this Scientology member had by now defected. You never know. Shit happens.
Time for both parties’ final plea.
Magnusson is first. By now McShane is getting a sentence-by-sentence translation and is far more interested than he was earlier this morning; he even sits askance in his chair to not miss a word. The cowboy-boots man listens closely as well. Magnusson is as eloquent as usual, that is: not. Z listens attentively, sometimes making a note or asking for a clarification.
Zenon’s turn. He argues. Calmly. He speaks. Rather fluently. He talks again about the net and about the NOTS — “the NOTS? Which ‘the’ NOTS?” — and argues that giving a copy of the NOTS — any NOTS — to parliament doesn’t equal publishing or distributing it, and so on and so forth; he uses a certain amount of rhetoric, but presents his arguments in a concise, and it would seem convincing way. Then again, I’m prejudiced.
The court wraps up. How much will each party request as for legal costs if they win, she wants to know. “30.000 kronor,” Magnusson says; which translates to plm. 4000 US$, a very small amount compared to what RTC has requested in the US in similar cases, although for Swedish courts, it’s much in cases like these. The court asks Z how much he requests. “Erm, some copies, and phone calls, and other stuff…. let me see…. Well, 500 kronor.” (Equals 70 US$.)
He’s not in it for the money, that’s for sure.
The court adjourns. Verdict due on June 8th.
17:30. We’re outside the courtroom. I’m disconnecting (now don’t you take me wrong. There were just so many plugs to undo: Z’computer, mine, an MD recorder, a microphone, extension cables) and repacking the gear. McShane walks by, and Z asks whether he could have a word with him. (He’d asked earlier, during lunch. “Of course,” McShane had answered.) “Public or private?” Z asks. “I don’t care,” McShane answers. They go to the next couch and sit down.
Z restates his previous proposal. If RTC would admit to the NOTS having been legally published — and thereby subject them to all the privileges, rules and exceptions to copyright law, not just the ones they like; meaning: granting the right to individuals to keep and make copies for their private use, and allow the right to quote — he would gladly admit to having committed copyright infringement. He is prepared to pay a symbolical tort for this infringement and both parties will pay their own legal costs. McShane flatly refuses. “But take a pragmatic point of view,” Z says. “By accepting such a settlement, you could bow out graciously while you still have room to move and even claim — you do value your public image, that much I know — that I have committed copyright infringement. You may even get some money out of me.”
“But if you do not accept, this will happen. I might lose part of tomorrow’s case. You might lose part of tomorrow’s case. Nobody knows. It is not up to us. But what I will surely win is the court stating that the NOTS have been legally published. You might even lose more than that. Now of course you will appeal this part of the decision anyway, even if it is the only part you lose, and perhaps then you can undo it. But meanwhile, people are in their full right when they abide by this ruling. They will start quoting. They will have legal copies. They will start quoting more. And there’s nothing you can do about it.”
“And if you win this whole case, you’re perhaps even worse off. People will get angry over my losing this case, and I predict that more havoc will ensue.”
“Now, if you yourself, of your own free will, without the court forcing you, grant others this right, you will re-earn some of the respect you’ve lost, prevent another stage of escalation, and earn yourself some peace. What do you say?” [All this is my summary. Don’t bind Z to this.]
Again, McShane refuses. “What do you win if you do continue?” Z insists. “There’s no money to be gotten out of me. I’m broke. I will not pay you. I cannot even pay you.”
McShane refuses. Scientology has basic tenets of belief, and keeping the NOTS secret is part of that, he explains. “But apart from the fact that they are being spread via the net and that secrecy has already been broken, if it ever existed, and apart from the fact that by now this secrecy has become legally void — there’s copies from parliament, from the court that everybody can request; as a matter of fact, one member of today’s court audience bought a copy of a NOTS pack here today — you will only get yourself more adulterated copies if you do not admit to your NOTS having been published and putting out an original version yourself. Everybody will attempt to post everything they can get their hands on, they will claim it’s yours, and you have no way to control that,” Z argued. [Perhaps they want adulterated copies floating around, I tend to think. That way only RTC, and Scientology, can exert this hold over their followers and are able to disavow anything else somebody else claims to be an original OT or NOTS.]
“And it will remain a sport to find them and publish them on the net and you will never rid yourself of this struggle. Don’t you realise that by being so rigid, you create your own opposition? I’m offering you a way out of that. The more you fight, the more opposition you create.”
I join them. Z explains to McShane that he had stumbled upon my homepages, had found this fight regarding the Fishman Affidavit interesting, read up, and had decided to join. Out of which sprung this case, which has by now already resulted in open copies of NOTS in court and in parliament. McShane seemed to disbelieve this. It can’t have been an accident that Z started his homepage; there must have been more to it than that. I explain that there wasn’t; nor was there in my case; there was nothing except Scientology’s own utter rudeness which had gotten me into this net fight.
We argue a bit more. And then leave.
Karsten, Bid, Joe, Z and I go for a drink. Then we have another one. It turns into dinner. Joe can’t get enough of this image of Zenon all by himself fighting RTC and have them all worked up and nervous and … and … At twelve, we get back home, get our asses into bed and fall asleep.
Erratum:
Previously I wrote, concerning my recently acquired status as biträde, that I was presented with a TRO regarding my disclosure of whatever I learned during my study of the closed files: “the first thing that officially happened to me while in Sweden was that the court presented me with a Temporary Restraining Order”. That was a Restraining Order, not a Temporary one.
[Unbiased columnism is a series of seven court reports on the proceedings of Scientology versus Zenon Panoussis. This series covers the May 22,1998 – June 3, 1998 sessions. Next: To want to eat a pie and have it.]