Unbiased columnism # 1.3

Settlement talks: to want a pie and eat it

Stockholm, Tuesday, 26 May 1998

[Previous installment: ‘The material’, or: ‘NOTS? Which NOTS?’ Note: This is a mixed issue: part of it is written by Zenon, and part by Karin. The main reason for that is that most of the day Zenon was in a closed courtroom doing settlement talks, while Karin was closed in in a smoking room.]

This court case is the main one in RTC vs Panoussis. It deals with the question whether Zenon has infringed upon Scientology’s, or rather, RTC’s copyright of L. Ron Hubbard’s text when he had the OTs on his homepage and posted the NOTS. This case will be heard by three judges; one of them has been concerning himself with it for one year and a half already.

Zenon:

I had met the entire scientology delegation the day before, on my TRO case, and I had taken the opportunity to ask McShane what he thought about a possible settlement; our meeting is described in UC #2. So on Tuesday, when the “main” case was opened and the chairman asked in a rather imperative tone if there was any possibility that the parties could reach a settlement, I was in position to raise my shoulders and say that yes, I proposed that yesterday, but RTC seems quite unwilling. Magnusson said that my conditions were utterly unreasonable.

The chairman was not prepared to dismiss the matter that easily and I, on my part, was not prepared to let Magnusson call me unreasonable. I turned the tables and said that I will listen to any settlement proposal that RTC might want to put forward. This opened for formal settlement discussions, that the court was not only prepared to assist, but actually very eager to see come through.

Settlement discussions are not part of the court proceedings, so they are not open to the public unless both parties agree they should be. RTC did not agree and the courtroom was cleared. The judge that has handled the case during the 1,5 year preparation was to handle the settlement talks as well.

Karin:

This was the weirdest day of all. The public was let into the courtroom and, almost immediately afterward, requested to vacate it. This happened a couple of times, to the point where everybody in the audience started to feel a bit dizzy and believed they were being trained in order to take the part of the puppets you’ll find in weather boxes. In. Out. Sunshine. Rain. In. Sun. Out. Thunder.

Zenon’s face reflected the many changes in the weather. Whenever there was a break in the negotiations, or when the judges wanted to speak with each party separately, he joined us in the smoking room and attempted to briefly explain how things stood. Rain. Sun. Unsettled, mainly.

Zenon:

Being the plaintiff, RTC was first to be subjected to pressure from the court to settle. I don’t know what they were told, but they looked less than happy when they left the courtroom and I entered it for my one-to-one discussion with the judge. I guess I looked less than happy myself after it.

The point of the court was that both parties had something to lose by insisting on a ruling, that both parties could gain something by settling and that the main characteristic of a settlement is that it leaves both parties dissatisfied, albeit less dissatisfied than what they risk to be if the case comes to a ruling. I have to admit they are right on this.

I put forward the same proposal I had given McShane the previous day (incidentally the same one I put forward last year): RTC admits that the OTs and NOTS are open to fair use and I admit copyright infringement, pay damages and treat the OTs and NOTS with the same amount of respect (in the copyright sense) that I treat any other text with. I was confronted with RTC’s counterproposal: that I admit infringement and they let me off damages and legal costs.

I explained that (1) I didn’t publish the disputed texts in order to avoid paying damages because if that had been my goal, I would have abstained from publishing them in the first place and (2) given the fact that I am basically broke, I won’t be paying any damages or legal costs anyway, so there’s nothing in for me in RTC’s proposal.

There was evidently a hope for a settlement on both sides, but not a basis for it. So the court brought us together, face to face with each-other and with all three judges. Let’s argue.

We did. The chairman took the initiative, “took” as in “categorically refused to let anyone else have it”. Both Magnusson and myself were quite prone to escalate arguments into dead-ends, so the chairman wouldn’t let us argue with each-other, but rather take over and apply pressure to both sides to decrease their demands.

Karin:

As time progressed, the critics in the smoking room became increasingly nervous. Joe Harrington was having his birthday. Somebody started singing him a birthday song and before he knew it, he was treated to anniversary songs in Swedish, Danish, Dutch and English. Whenever the door would open, we would expectantly turn our eyes, hoping it was Zenon.

The Scientologists in the corridor were increasingly nervous, too. There was much pacing. Hardly anybody spoke, let alone sang. Some lawyers leafed through papers. Most Scientologists simply sat or paced, eyes vacantly staring into space. Then again, they are trained to stare hard. So perhaps they were practising Training Routines while we were practising birthday songs.

I went out a couple of times and mingled with the Scientologists. All refused to even acknowledge my presence — except Cowboy Boots, that is, who tried to strike up a conversation about my t-shirt. Church of Euthanasia. Yes, ordered via the net. I expected him to flinch at the word ‘net’, but he didn’t. I jotted down the url for him.

Zenon:

At some point, RTC in the person of McShane accepted in principle that they could concede certain limited use by the public of the OTs and NOTS. The discussion turned into how that could be put into an agreement between RTC and me, that would be binding for RTC towards the public. At that moment everything looked bright: if we agreed in essence, putting the agreement on paper should pose no problem. I was naive, and so was the court: RTC had no intention to give away anything at all.

Karin:

Zenon entered the smoking room, fuming without the aide of a Camel. ‘Guess what,’ he said. ‘They will allow fair use. But to me only!’ And before he’d taken three puffs of a freshly lighted cigarette he would be ordered back in again.

‘We’re this close to an agreement,’ he would say. Or: ‘Fuck, they are redefining terms again!’ And once, during a slightly longer break: ‘I simply don’t understand. McShane seems prepared to accept the current settlement terms, the court is obviously pressing him to accept, and yet he doesn’t. It is as if something were holding him back. And he knows he will lose the case in as far as their claim that this is unpublished material is concerned.’

‘Perhaps it’s not something that is holding him back, but somebody,’ I conjectured. ‘He anwers to Miscavage. And RTC’s license with CST binds him to sue under all circumstances. Perhaps he’d like to strike a deal with you but simply cannot.’

‘I’ll ask him,’ said Zenon, and left the smoking room again, this time to talk with McShane in the corridor, without any judges present.

Ten minutes later, I could no longer wait. I went out as well.

And found Zenon in the corridor, surrounded by Scientologists. I joined them. McShane was standing face to face with Zenon, upper body bent towards him, shoulders hunched, looking terribly red in the face. He was angry, arrogantly angry. ‘Bullshit,’ he said, in a most derogatory tone, ‘bullshit.’ ‘But why do you think I’m doing this?’ Zenon asked. ‘Why do you think all of us are doing this? Do you really believe that we do this just to harass you?’ McShane threw me a sideways glance and returned his gaze at Zenon. My presence there obviously confirmed his beliefs that yes, there was this major conspiracy against Scientology going on and that we were partaking in it. ‘Bullshit!’ he repeated. ‘It is to harass us. That is your only motive,’ and for one moment I truly believed he was going to spit on the court’s carpet. He spoke as if Z was vermin, a despicable entity, an irritating insect that needed to be trampled and crushed and utterly wiped out, and as if he, and he alone, had the power to do so. Yet his facial expression and his posture belied him. McShane was arrogant, no doubt about it, but very unsettled as well.

It turned out that the question Zenon had posed to McShane was: ‘Is there anybody else you need to consult on this settlement matter? Do you need anybody’s permission to sign an agreement?’

‘You’re looking at the man,’ McShane had proudly answered (thereby, and that is rather interesting, belying both Vorn’s and Small’s testimony of the following day).

‘Then what is the reason why you don’t?’ Z had continued. And that is when McShane had exploded.

Before they could finish their argument, Zenon was called back in. Five minutes later, McShane followed suit.

What was keeping McShane from agreeing to a settlement, we later decided, was L. Ron Hubbard. Elron had said that OTs and NOTS are to be considered unpublished, and so they shall be. You cannot argue with source, and you must obey the Tech.

Zenon:

For every formulation proposed by me or the court, Magnusson would have an objection and introduce a new reservation. At first they would accept that “the material” could be subject to fair use. Then “fair use” was not any normal fair use. Next, they would accept that individuals are allowed to make copies for personal use, but only if the original used to make the copy was legal. “Legal”, as it turned out, was to be defined by RTC, probably as “RTC’s own copies only”, their standard claim being that all copies not in their own possession – even the ones in this same Stockholm court that are being lent out on a daily basis – are illegal by definition. Then “personal use” had to be re-defined to mean strictly personal use, so that the normal right to spread a personal use copy to family and friends would be excluded. Consequently, a copy for personal use could not be used as an original to another copy for personal use. In short, RTC was only prepared to allow the public to make copies of originals that are not available, and such copies could be used for nothing more than their original could be used for.

I was under just as severe a pressure from the court as the RTC was, so I went along and accepted many more limitations to my original proposal than I would ever have been happy with. Yet that didn’t help. Every time I went along with yet another limitation, Magnusson put forward yet another reservation. At the end, when I exploded and refused to discuss settlements any more, RTC’s proposal of a settlement agreement stood as follows:


Panoussis admits copyright infringement.
RTC accepts every use of the material that is legal.

Taste this. They accept every use that is legal. As if they had any alternative to accepting legal use. They keep their position that no use whatsoever is legal, and then “accept” the rest – i.e. nothing. And they expect me to sign an agreement that would constitute a statement on my part that it is up to RTC to accept legal use or not, and that we should all be grateful to them that they do. In practice they were asking me to sign an admission that they stand above the law, but are so generous as to concede to abide by it anyway. End of settlement talks.

Yet, I don’t think they were satisfied with the outcome. McShane looked really pressed during the talks. At times he looked like somebody between a hard place and a rock, just short of being in agony, in all contrast to what you would expect from a high OT representative of the almighty RTC, in court against a lowly copyright terrorist. He looked as if he thought that both his alternatives – settle and not settle – were equally bad, and he was anyway forced to take the predestined road to self-destruction.

At 13.54 the settlement talks broke down definitely and the normal hearing of the case was resumed. The public was let in, Magnusson made his opening statement. At 16.45 it was my turn, and I had no idea where to begin; I was as badly prepared as one can be. Thanks to the delay the settlement talks brought about, I was able to postpone my opening statement to the next day. Had it not been for this, I’d have been in very deep shit.

We left court and bought binders. A lot of them. And started sorting out the paperwork.

[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: Brochures with a bite.]


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