Georganiseerd wantrouwen

[Verschenen in de serie ‘Brandende kwesties’ in Vrij Nederland.]

DE OVERHEID VERTROUWT ONS NIET MEER. Burgers moeten steeds uitgebreider worden gecontroleerd: we mochten eens een misstap begaan.

Justitie heeft haar bevoegdheden in de afgelopen jaren fors uitgebreid. Eind 1999 gaf de nationale ombudsman de gemeente Amsterdam ongenadig op haar donder vanwege de massale ‘preventieve aanhoudingen’ die rond de Eurotop van 1997 werden verricht. Er zijn toen zo’n zevenhonderd mensen opgepakt: soms omdat ze demonstreerden, soms omdat ze wilden demonstreren, soms uitsluitend omdat ze groepsgewijs in de stad arriveerden. Te hooi en te gras werd artikel 140 gebruikt: verdenking van lidmaatschap van een criminele organisatie.

De ombudsman achtte de getroffen maatregelen faliekant fout. De juridische grond om mensen vast te houden ontbrak veelal, er was in de meeste gevallen zelfs geen schim van een bewijs, de uitgevaardigde noodbevelen waren onwettelijk, het geboeid afvoeren van demonstranten miste elke grond, de mandaten die burgemeester Patijn aan de politie had gegeven waren veel te ruim. Kortom: de rechtstaat was geschonden.

De reactie van de politici? De wet moest maar worden aangepast, opdat zulke maatregelen voortaan wel legitiem zouden zijn. Zo geschiedde. Nog voordat het EK voetbal in de zomer van 2000 in Nederland neerstreek was de zaak geregeld. Mensen mogen tegenwoordig preventief worden opgepakt en daarna twaalf uur worden vastgehouden op grond van ‘feiten die mogelijk zullen worden gepleegd‘ (toenmalig vice-premier Jorritsma in de Volkskrant, 5 mei 1998). Kansberekening als aanhoudingsgrond, het is een griezelig juridisch novum. Er is weliswaar toestemming van de burgermeester nodig om tot dergelijke ‘bestuurlijke ophoudingen’ over te gaan, maar die moet van diezelfde burgemeesters komen – de Pepers en de Patijns – die eerder zo grif over de grenzen van de rechtstaat heen banjerden.

Alsof we niet al ver gingen: Nederland is het land met de meeste telefoontaps. Zelfs in absolute aantallen tapt Nederland meer telefoons af dan de VS, een land dat toch aanzienlijk meer bewoners heeft dan wij. Die taps nemen bovendien explosief toe. Werden er in 1996 nog 3000 telefoons in Nederland getapt, in 1998 was er sprake van 3000 telefoon- en 7000 GSM-taps. Vorig jaar heeft Nederland een nationaal afluistercentrum in gebruik genomen waar simultaan duizend telefoons (vast en mobiel) kunnen worden afgeluisterd. Het is het grootste centrum in zijn soort van Europa.

Er is amper controle op deze taps. De rechter-commissaris moet het tapbevel weliswaar ondertekenen, maar wanneer er tienduizend bevelen per jaar worden uitgevaardigd – dit jaar wellicht al vijftienduizend, dat wil zeggen: bijna zestig per werkdag- kunnen de rechter-commissarissen niet elk bevel nauwgezet beoordelen voordat ze er een krabbel onder zetten. Het openbaar ministerie legt voorts nimmer verantwoording af over haar tapgedrag. Er worden geen cijfers bekend gemaakt over het aantal taps (de eerder genoemde cijfers zijn per ongeluk naar buiten gekomen), noch over de duur of effectiviteit ervan.

Niemand weet hoe vaak een tap helpt om het bewijs in een strafzaak rond te krijgen. Derhalve kan er nimmer een adequaat, op feiten gebaseerd debat ontstaan over het nut van taps. We weten het simpelweg niet. Wat bijgevolg betekent dat de overheid ons de mogelijkheid ontneemt om een verstandige en publieke afweging te maken tussen enerzijds het kwaad van forse inbreuken op de privacy (vooral op dat van derden: aangezien je een gesprek per definitie nooit alleen voert, wordt ook de privacy van alle contacten van verdachten systematisch geschonden) en anderzijds het goed van opsporing, strafvervolging, rechtshandhaving en veiligheid.

Veiligheid boven al, is het devies, vooral na 11 september, en iedereen zwijgt deemoedig. Ehm, tsja, nou, aanslagen willen we uiteraard voorkomen, en we schorten onze aarzeling op. Bovendien zijn de instrumenten om die aarzeling te toetsen ons nooit toegekend. De overheid kan ons wel controleren, wij hen niet.

Er zijn angstige plannen in de maak: de politie moet binnenkort, zonder enige motivering en verantwoording, overal vrijuit klantgegevens kunnen opvragen. Uw giro- en creditcard nummer, waar u gepind en getankt heeft en wanneer u met wie heeft gebeld – zulke informatie moet voortaan zonder meer worden overlegd zodra de eerste de beste agent erom vraagt. Er hoeft zelfs geen enkele concrete verdenking te bestaan jegens burgers wier gegevens worden opgevraagd. De enige voorgestelde beperking geldt ‘gevoelige informatie zoals godsdienst, ras, seksuele of politieke overtuiging’. Daar moet wel een rechter-commissaris aan te pas komen en dient er een verdenking van een ernstig misdrijf te zijn. Uw zichtbare huidskleur is een beschermd gegeven en uw giroafschriften worden vogelvrij.

Je vraagt je af waar dat eindigt. De overheid lijkt een transparante burger te willen. Waarom weigert zijzelf even transparant zijn? En willen wi­j dat wel, geheel doorzichtig zijn? Hoeveel grondrechten willen we opgeven voor onze veiligheid? En hoeveel kans hebben we om tegen zulke ontwikkelingen te protesteren, wanneer juridische bezwaren slechts leiden tot wetaanpassingen die recht moeten breien wat krom was?

*

WEINIG, WANT OOK IN POLITIEKE ZIN wordt de burger gewantrouwd. Stemmen of pollen we een kant op die een partij niet zint, dan heeft die grofweg twee reacties. De ene is een beteuterd: ‘we hebben onze boodschap niet goed genoeg overgebracht’. De VVD zei zulke dingen tijdens hun neergang bij de afgelopen verkiezingen. Het klinkt als een halve schuldbekentenis, een schroomvallig toegeven van eigen falen, maar met een adder onder het gras. Want wij hebben de schone boodschap bewijsbaar niet goed begrepen.

Dat bestempelt de zich van de VVD afwendende burgers tot schoolkindjes met magere zesminnen, tot brugpiepers die er, ondanks de grootst mogelijke inspanning van de kant van het – uiteraard briljante – docentencorps, niet in zijn geslaagd om de basiscursus burgerschapskunde met een diplomaatje te kunnen afronden Wat ze feitelijk zeggen is dat ze niet doorhadden hoe dom we eigenlijk zijn. Dat ze nog lager op hun hurken moeten zitten om op ons niveau te geraken. Meer Jip- en Janneketaal gebruiken, zoals VVD-voorzitter Bas Eenhoorn het formuleerde.

De andere standaardreactie is vergoelijkend: de kiezers zouden ‘op emotionele gronden’ hebben gestemd. De PvdA legde haar échec zo uit: Melkert had ons niet ‘aangesproken’, hij was ‘te kil overgekomen’. Ook deze vergoelijking pleit de partijen vrij. Zij konden er immers niets aan doen. Wij, de kiezers, waren meegesleurd door onze gevoelens, we waren een beetje ontoerekeningsvatbaar geworden, geeft niks jongens, kan iedereen overkomen, maar rot toch dat zij, de partijen, nu het slachtoffer van onze emotionele roetsjbaan zijn geworden. We waren wel tegen, maar dat was emotioneel. Dus dan telt het niet. Eigenlijk.

Een mal, paradoxaal en ongefundeerd verwijt, alsof emoties niet rationeel kunnen zijn. Emoties spelen ook bij steun voor plannen en stemgedrag waarvan de bewuste politici wel geporteerd zijn. En doet niet vrijwel elke partij tegenwoordig z’n uiterste best om emoties te mobiliseren en ten eigen bate aan te wenden? Weet een politicus trouwens ooit op welke gronden een kiezer hem steunt?

*

MAAR ALLES WORDT ANDERS. Erger, vrees ik. Burgers wantrouwen de politiek en de overheid op hun beurt namelijk ook. En een deel van die burgers heeft op wel heel cynische wijze teruggeslagen: ze hebben zich georganiseerd – nu ja, ‘georganiseerd’ is een groot woord in dit verband – in de LPF en zijn de politiek ingegaan.

En wat doet de LPF, behalve mikpunt vormen van mijn politiek wantrouwen? Elkaar en de buitenwereld met argusogen gadeslaan. Hun eigen bestuur, fractieleden en kiezers wantrouwen.. Argwaan koesteren jegens ‘de’ media. Andere partijen wantrouwen Vraagtekens zetten bij rechters en rechtspraak. De ’emotionele grond’ gebruiken om zichzelf te vergeven en anderen te beschuldigen. En voorts: alles en iedereen in de gaten houden, en zichzelf immer schuldeloos achten.

De overheid heeft school gemaakt. Bestraf derhalve feiten die mogelijk gepleegd zullen gaan worden, luister af wat politici tegen elkaar zeggen, train uzelf in georganiseerd, oncontroleerbaar wantrouwen, en heb argwaan zodra iemand over jouw emoties begint. Wees des overheids dwingeland. Controleer Den Haag. Regeer uzelf!

Freedom of the internet, our new challenge

New medium, same old problems – plus a few new ones

[Essay written for the Yearbook 2001/2002 of the Freedom of the Media office of the Organization for Security and Co-operation in Europe (OSCE / FOM).]

The internet is a medium unlike any other. While it embodies aspects of different more old-fashioned media, it not only combines them but also adds features, inherent to its digital nature. E-mail for instance can be compared with postal mail, but has the capacity to send carbon copies of letters to many people at once, and the added bonuses of (almost) instantaneous delivery and of mail programs automatically archiving all correspondence, making it searchable on top. Internet Relay Chats (IRC), I Seek You (ICQ) and other protocols for chat boxes on the other hand are more comparable to telephones: they allow a realtime conversation with a person or a group and can log that conversation for private perusal. Usenet – the collective newsgroups – resembles a huge public bulletin board, subdivided by subject, where people can post messages which are accessible to everyone, but it is also archived, meaning that the discussions are automatically stored for future reference.

The world wide web (WWW) is best compared to the printed press and the broadcasting media. One person or group is usually responsible for the published content. But unlike the traditional media, web sites are accessible from all over the world, can be browsed by anybody on the planet, and they are usually free. Publishing on the web is not only quicker and cheaper than via traditional printing and broadcasting; it can at any level combine texts with moving images and sound. And while some subjects never get covered by the traditional media – because the designated audience is too small or the material is too vast to be incorporated in an article or a book – the net offers plenty of (cheap) space and web site owners often excel in providing niche information. The information on these myriad web sites is divulged via search engines which, through the creation of huge indices, guarantee that everything becomes retrievable and accessible. The most localised, obscure or specific information is suddenly available to everyone, everywhere.

These shared and new characteristics have brought all known problems pertaining to old technologies into the net, and a few new ones, too. Government censorship and the classical inaccessibility of information to the poorest masses are there, but now we have also the novelty of censorship performed by companies and of violation of privacy by governments on a scale that was previously unheard of and would have been impossible – if only for practical reasons – in the classical communication media.

Filtering as a means to censorship

A measure that many censor-minded countries deploy, is the use of restrictive proxies. A proxy is basically a web server at the Internet Service Provider (ISP) level that fetches all pages requested by the users for them. By keeping local copies of pages that are visited frequently, the proxy is able to serve them faster and with less long-distance traffic. But proxies can also be used to block user requests for sites, based on an automatic check on their name, location and/or content. These restrictive proxies prevent internet users from visiting forbidden sites and, in some instances, are even equipped with a tool that warns the police that someone has tried to access banned material. Singapore uses nationwide proxies in order to prevent access to certain web sites, mostly those discussing religion or politics or depicting sex. 1 Information for the home is seen to be of a less critical nature so censorship of such information is regarded to have not as deleterious an effect. Second, materials for the young are more heavily censored than those for adults. This is an admittedly paternalistic principle of protecting the weaker members of society from the possible harm of the materials in question. [..] Third, materials for public consumption are more heavily censored than those for private consumption. This is a corollary of the second principle as it is assumed that the public includes those who are “weaker.” [..] It should be noted that private consumption of censorship materials is still policed in that those found in private possession of censored materials can be convicted in court. Finally, materials deemed to have artistic and educational merit are less heavily censored.” See Dr. Peng Hwa Ang and Ms. Berlinda Nadarajan, Censorship and Internet: a Singapore Perspective.] This government-imposed ban is not completely efficient: with some technical knowledge, the mandatory proxy can be circumvented. 2

Dubai on the other hand uses a very strict proxy, imposed upon the country in the beginning of 1997. Whenever a net user attempts to visit a site that the government has ruled out, he gets the following message on his screen: “Emirates Internet Control List: access to this site is denied.” 3 This nationwide proxy disallows Dubai citizens from visiting most newsgroups and blocks “selected sites on the Internet which negate local moral values”. 4 The only sure way to circumvent such a proxy, is by dial-up to a provider in a different country, which often is not a viable recourse.

It is not only dubious democracies that restrain the use of the net. Australia does the same, although to a much lesser degree. Citizens can report pages that they deem to be containing ‘explicit nudity’ or to be in ‘poor taste’ to a government authority, which then investigates the page and can order all national ISPs to block access to that particular page via their proxies. Electronic Frontier Australia (EFA), a group that protects and promotes online civil liberties, has complained about the poor accountability of said government authority regarding the handling of such complaints. 5 The United States of America have previously tried to do something similar via their 1995 Communications Decency Act, which prohibited the publishing of “obscene, lewd, lascivious, filthy, or indecent” material on the internet. Fortunately, in 1997 the Supreme Court ruled the CDA to be unconstitutional. 6 it unquestionably silences some speakers whose messages would be entitled to constitutional protection.”]

Germany has tried to block specific material from their citizens as well. In 1995, the magazine Radikal was put online in the Netherlands after it got banned in Germany. 7 In 1996 and 1997, the German government forced German providers to block all pages hosted by that particular Dutch ISP, XS4all, thereby making thousands and thousands of undisputed pages of XS4all’s other users inaccessible as well. Because mirrors of the disputed pages sprang up everywhere, the blockade turned out to be futile and was canceled after a month in both instances.

New attempts at filtering information keep being made. In the USA, publicly funded schools and libraries were at one point obliged to use rating and filtering systems that block content based on sexual content and/or graphical depicting of violence. Many people argued that these filtering systems curtail free speech and block many more pages than they promise to do, 8 and a Virginia library taking precisely that stance successfully fought the Child Online Protection Act (COPA) in court. 9 However, recently a new bill was passed in the USA, again imposing mandatory filtering on schools and libraries that get public funds. 10 This bill is currently being fought too, this time by the ACLU, the American Civil Liberties Union. 11 Undoubtedly, if the ACLU wins, the US Congress will come up with yet another filtering bill.

Since most Eastern-European governments are not yet very familiar with the internet – and since curtailing societies tend to be more aware of and monitor middle-tech communication more effectively than either the high-tech or the low-tech variants, there have been some instances of internet being used as a excellent device to circumvent government censorship. A famous example is B92, the independent Belgrade radio station that was forced off the air in 1999. The Dutch ISP XS4all used a direct cable connection between Belgrade and Amsterdam, inviting people in Belgrade to upload their audio files over the Internet and broadcasting them from Amsterdam over the net in a realtime format that could be listened to or stored. In turn, many Serbs – especially those working at universities and international companies – captured and copied what they heard over the net and distributed these radio programmes via audio cassettes, thus spreading the high-tech internet broadcasts via low-tech means. There wasn’t much that the Milosevic government could do: since B92 digitally broadcasted from the Netherlands, B92 could not be stopped at the source and Yugoslavia lacked the infrastructure to impose proxies upon its citizens.

Whose constitution, whose jurisdiction?

Looking at laws being passed and jurisprudence and practice developing in Western European countries, one can attempt to foresee the future of freedom on the internet. At this moment, the future doesn’t look too bright. While once the internet was regarded as a way to route around censorship, by now, censoring and monitoring authorities are using the net to route around national borders.

For one, we have Echelon: the joint USA/Canada/UK/Australia/New Zealand venture that monitors all digital communications passing the Atlantic, be it via fax, telephone or e-mail. The countries involved have long denied the existence of Echelon, but by now the European Assembly has investigated the rumours and has established its existence. Interestingly, the main complaint of the European Assembly is that the US, through Echelon, could be engaging itself in industrial espionage and thus gain an economic advantage over European companies. The European Assembly hardly complained about the monitoring of European citizens as such. 12 And what is the use of having a constitution safeguarding your right to private communications when it is another government preying on you? Then there is Carnivore: a US based system that intercepts e-mail and checks it automatically for words and terms deemed to be related to terrorism. Nobody knows the scope of Carnivore interceptions, nor is the list of ‘dangerous’ terms public. The only thing known about Carnivore is its unprecedented and massive capacity to monitor and store private communications.

Secondly, various states have tried to curtail citizens’ access to foreign sites because they clash with their national laws, even while those sites are perfectly legal in their country of publication. In France, a group of antiracism activists started a lawsuit against the US provider Yahoo for auctioning Nazi memorabilia on its pages. Yahoo got sued in France for what was perfectly legal within US law and for pages that they served from the US. Nevertheless, Yahoo lost the case: judge Jean-Jacques Gomez, in an appeal ruling issued in November 2000, re-affirmed that Yahoo had to prevent French web surfers from accessing those pages and basically ordered Yahoo to start country-by-country filters. 13

As the UK based organization Internet Freedom wrote about the case: “If courts deem material on Web sites hosted in other countries to be unacceptable to their citizens and block them from viewing it [..] they will have to take into account the mores and legislation of every country. Any number of filtering regimes will have to be initiated to enable them to comply with whatever restrictions and legislation they are faced with. This will make running what are already complex operations an almost impossible task. This case sets a precedent in that a court has decided to apply its national law to a Web site based in another country. The decision challenges the Net as a universal, borderless medium. It paves the way for a Net that will be regulated to the lowest common denominator in order for content providers to avoid the possibility of legal action. A global communications medium now faces the distinct possibility of decisions about what can be placed on it decided by the most reactionary of regimes. Center for Democracy and Technology analyst Ari Schwartz said: ‘If (US Web sites) have to follow 200 country laws, then (they) would have to follow the one that allows the least (freedom of) speech. What if Saudi Arabia said it was concerned about people posting pictures of women with their heads uncovered?'”. 14

After this appeal ruling, Yahoo wisened up and started procedures of its own in the US. In November 2001, a US District Court ruled that the French court order regarding internet content is unenforceable in the US because it violates the First Amendment’s guarantee of free speech. The court granted broad protection to US web sites engaged in constitutionally protected activity, but stated that web site operators may nevertheless for practical reasons decide to comply with conflicting foreign law requirements. It further stated that only treaties and other international legal mechanisms lay the ground for the resolution of conflicts between different legal regimes applicable to the Internet.

But this is precisely what will start happening. The Cybercrime Convention that came into being in November 2001 – and which has been signed by, amongst others, the US, Canada, Japan and many European countries, “formalises the notion of extraterritorial action by a party in one country objecting to content on a Web site based in another country. Article 23 of the convention creates supranational reach for each signatory state. Even if a signatory state’s legal system does not have the procedure to apply a request made by another signatory, under article 27 this is not seen as sufficient grounds to refuse that request. The consequence of this is that signatory states can be forced to act beyond their means and in contradiction to their own legal system.” 15

Meanwhile, in March 2001 a German court had already announced that it would not prosecute Yahoo over a similar complaint filed against it in that country. However, that was not because Germany respects the fact that it has no jurisdiction over foreign sites; the court merely reasoned that “while Germany has some of the strongest laws against hate literature in the world, the German court reportedly recognized Yahoo! as an Internet service provider and, as such, [it] ruled [that] the company should not be held liable for the content of its auction Web sites.” 16

This policy of the courts does not necessarily match that of the country or its federal states, and – as we just saw – the new Cybercrime Conventtion does allow for different local laws being applied on web pages. 17. Comments and criticisms are, amongst others, at www.privacyinternational.org/issues/cybercrime/.] And indeed, in March 2002, the German federal state of Nordrein-Westfalen decided that two right wing extremist sites hosted in the United States – www.stormfront.org and – www.nazi-lauck-nsdapao.com – must be blocked, and ordered some 80 ISPs and universities to block access to those sites. Many computer literate people in Germany fear that this censorship will not stop there:

“Fighting right wing extremist ideologies reaches a broad consensus in Germany; however in this case it is used to gain acceptance for the establishment of a nationwide centralized filtering and blocking system,” wrote a protesting committee. “Future plans contain blocking of content to protect minors, copyrights and consumer rights, including search engines that fail accordance with corresponding national guidelines and laws. Together with corporate partners, Northrhine-Westfalia administration is developing a high capacity filtering system that is currently tested at the university of Dortmund. Intention is to create an architecture with centrally controlled blocking mechanisms that should be installed on gateway machines to the ‘foreign internet’.” 18

The main questions are however not dealt with by filtering. Why should people be prevented from seeing sites like this in the first place? Will racism stop simply because you cannot read hate sites? Is it better to block such sites than to argue their content?

Legal sites and economic profit

While individual internet users are starting to suffer from countries trying to impose their national laws upon one another, a new problem has arisen: upstream providers pulling the plug on ISPs because of legal but disputed material.

All ISPs have an upstream provider, who sells them bandwidth. Companies which provide co-location – either in the form of rented web space or in the form of web servers located there – have upstream providers, too. And upstream providers often have their own upstream providers. Currently, at the top of the chain there is only a handful of US backbone providers, plus one or two single players.

Flashback was both a magazine and a small provider in Sweden. The magazine was known for its freespeech stance. Flashback started its provider services in 1996, just before the big internet craze hit the country. Users got both free web space and a free e-mail address after subscribing to the magazine. Among the more than 50.000 sites hosted on Flashback was one containing Nazi propaganda, carefully phrased so as to not violate Swedish law. That particular page was nevertheless reported to the prosecutor, who after investigation decided that it was indeed well within the boundaries of Swedish law. There simply was no case against Flashback, nor against that user.

In the course of 2000, Björn Fries – an alderman of the Swedish city Karlskrona, and a prominent anti-nazi fighter – started a campaign against Flashback because of this right-wing user page. Flashback insisted on its free speech policy and refused to remove pages that had already been deemed legal. Fries then turned to Flashback’s upstream provider, Air2Net, which in turn was a subsidiary of the us company MCI/Worldcom. Fries managed to rally other downstream providers of both Air2Net and MCI/Worldcom against those pages. Fearing a commercial setback, MCI/Worldcom decided that Flashback had either to pull those pages, or they would pull the plug on both Flashback and on Air2Net, which of course vastly increased the pressure on Flashback. Flashback however kept its stance and was then disconnected: thousands of users suddenly lost their homepages and their e-mail account, simply because a US company didn’t want to lose customers over a disputed but legal page. 19 Flashback tried several other upstream providers, but as it turned out, all of them were dependent upon MCI/Worldcom.

In a case like this, what does your constitutional right to not be censored entail? European national laws allow people their day in court: every citizen is given the opportunity to put his publication before a judge and let the court decide. But here, no court was invoked; actually, the prosecutor had stated that these pages were provocative but solidly within legal limits. It was a US based multinational who decided what you can publish in Sweden and what not.

Something similar happened in The Netherlands. Xtended Internet, a small Dutch provider, hosts a web site which is under attack by Scientology. 20 At the end of 2001, Xtended Internet’s upstream provider, Cignal, received a complaint about that web site. It was from Scientology, claiming copyright infringement on www.xenu.net’s pages. Xtended Internet and the maintainer of www.xenu.net refuted the complaint, but despite that, Xtdended Internet was notified that Cignal’s own upstream provider, the US based company Priority Telecom, had booted Xtended Internet. Again, a whole provider went down over a page that appeared to be perfectly legal. 21

As Paul Wouters of Xtended Internet put it: “We were disconnected even after proving that disconnecting or censoring our customer would violate Dutch case law. We voluntarily agreed to follow the DMCA, 22 so as to make it easier for Cignal to get out of this conflict, even though US law, and thus the DMCA, didn’t apply to us. Yet, Cignal choose the easy way out. Obviously we were not worth the money that Scientology’s lawyers could cost them. And maybe that is what frightens me most. Not that they don’t care about freedom of speech issues, but that they have censored us solely based on commercial reasons. Censorship has become a profitable business and the freedoms that are granted to us by the Dutch constitution are revoked at the stroke of a pen by American corporate lawyers.”

Old media versus new media

In Italy, a remarkable fight developed between ‘traditional’ journalists and internet journalism. Shortly after World War II, in 1948, Italy introduced a national law on the press. According to that law, all published periodicals have to give to the Tribunal (the local district court) the name of an ‘responsible director’, who in turn has to be member of the National Order of Journalists. Registration costs about 200 dollars. Additionally, all periodicals are obliged to print the name and address of their editor and printer.

The National Order of Journalists – which poses quite a powerful body in Italy – was rather suspicious of internet journalism developing, and undertook a lobby for internet publications to be brought under the scope of the existing law. The new law was adopted in April 2001. The NJO lobby forced big portals (such as Kataweb-Repubblica, Rai.it, Supereva, etc) to recognize the digital “journalist profession” and, subsequently, to financially compensate hundreds of people who work as their colleagues, but with less guarantees.

What started as an attempt to extend state subsidies to internet media, basically brought those publications under the 1948 press law. And the new law itself is, as Interlex – an Italian web magazine about law, technology and information – put it, “confused and confusing [..] the law is shameful, its rules absurd”. A strict interpretation of the law defines “every Italian web site geared to transmit information towards the public” as an “editorial product” and subjects it to the regulations of the law. 23

And more fundamentally, the law is impossible to live up to, due to technical flaws, amongst others the obligation to state the name and address of the printer, while there are no printers on the net and people usually do not know on which server their pages are hosted, least of all where that server is physically. Additionally, the law claims jurisdiction over internet publications that are hosted on foreign servers

While it seems unlikely that web sites that are not producing regular news and information will be forced to register, it is highly possible that web sites like Indymedia will, and will have to give the name of a ‘responsible director’ and a ‘printer’. Many people fear that this law will indeed be used to weed out publications that do stand outside the currently accepted frame.

Turkey is currently debating a similar law.

Spain is on the verge of approving one too, in May 2002. The bill for the “Law of Information Society Services and Electronic Commerce” (Ley de Servicios de la Sociedad de la Informacion y de Comercio Electronico, known by its Spanish acronym LSSI) plans to force web sites to register with the government and require web hosting companies to police content by reporting suspected illicit activity. 24 Apart from that, the upcoming law will allow a “competent administrative authority” in government to shut down web sites unilaterally; a power that now requires court approval. In Spain, only a judge can ban printed press editions from the news stands, but under the LSSI, an official could ‘provisionally’ ban the edition of an online publication if it “outrages or could outrage” values protected by the law, while the paper version of the same publication still enjoys constitutional protection. 25

If any such measures would be imposed on other media, people would be outraged. With the net, these kind of measures are often accepted without questioning. Civil liberties organisations fear that limiting internet publication freedoms is only a first step towards curtailing other media; after all, once a measure is accepted in one area, it is difficult to stop it in another.

Conclusion

Seeing the amount of effort that Western countries are taking to filter content on the web, it is only a matter of time before other countries catch up. What we are seeing meanwhile is that more and more countries put internet publications and private communications under greater scrutiny, and pass laws that restrict digital publications more than analogue ones – in part, because they fear the anarchy that the net once was, and in part, because it suddenly has become technologically feasible to do so.

Networked computers allow for novel uses, unthinkable of in the analogue world. They can be used to circumvent censorship and monitoring. But the internet can also be used to scrutinise publications and communication to a degree that goes way beyond Orwell’s wildest imaginations.

Notes:

Show 25 footnotes

  1. “First, materials going into the home are more heavily censored than those going into the corporate world. [..
  2. See Defeating Singapore Internet Censorship – How to.
  3. See George d’Arnaud, Internetbeperkingen in Dubai, November 10 1997, in the newsgroup xsS4all.general, message-ID <34698854.1990690@news.xs4all.nl>. The ensuing discussion proved that it was rather difficult – and took quite some technical knowledge – to circumvent this national censorship rule.
  4. Quote from “New service to censor Internet”, The Gulf Today, January 25 1997.
  5. Electronic Frontiers Australia Inc., Media Release of September 7 2000: Government Net Censorship Reports – Facts or Fallacies?
  6. Amongst others, the CDA limited access to the King James bible, Tarantino film scripts, lyrics by many pop groups, information about safe sex and breast cancer, and pictures of Michelangelo’s David. The Supreme Court’s ruling warned about the CDA’s “obvious chilling effect on free speech [..
  7. Radikal was put online at http://www.XS4all.nl/~tank/radikal/. The index page also contains a brief history of the German efforts to censor these pages. Unfortunately, many links to press releases and newspaper articles do no longer work.
  8. For an overview of the debate regarding mandatory filtering systems, see the compilation provided by the Massachusetts Institute of Technology, and the news and resources provided by the Internet Free Expression Alliance (IFEA)
  9. See Mainstream Loudoun v. Loudoun County Library, November 23, 1998. The COPA is currently being brought to the Supreme Court by the ACLU, on the grounds that it is against the US First Amendment.
  10. US Congress passed the Children’s Internet Protection Act on December 15, 2000. The full text of the act is at IFEA.
  11. Complaint filed in Philadelphia, March 20 2001.
  12. European Parliament resolution on the existence of a global system for the interception of private and commercial communications (ECHELON interception system), (2001/2098(INI)), released on June 9 2001.
  13. or a concise article about the case, see “Court to Yahoo: Use Nazi Filter” in Wired, November 20, 2000.
  14. Dave Amis: “The Net now has a national court: this month it’s French!”, Internet Freedom, January 9 2001.
  15. Dave Amis, op. cit.
  16. Jay Lyman, “German Court Rules Yahoo! Not Liable For Nazi Auctions”, in NewsFactor Network, March 28 2002.
  17. The Cybercrime Convention (Draft convention on cybercrime and explanatory memorandum related thereto) as accepted by the Council of Europe can be found at www.privacyinternational.org/issues/[..
  18. Joint press release from the Chaos Computer Club and ODEM.org. See ODEM.org and and Alexander J. Kleinjung, “Vom DatenHighway auf die Strasse”, in the German edition of C’T, 2002/9.
  19. Flashback is currently up again, but now only as a news agency.
  20. www.xenu.net. While Scientology has repeatedly threatened Andreas Heldal-Lund, the owner of the web site, they have at the same time abstained from undertaking any legal action against him. Instead, Scientology chose to threaten providers hosting the site, and their upstream providers.
  21. The history of Xtended Internet’s contracts and correspondence with Cygnal is documented here.
  22. The DMCA is a US law that deals with digital copyright infringement. Scientology invoked this US law, even while Xtdended Internet is Dutch and the maintainer of ww.xenu.net is Norwegian. Hence, the DMCA doesn’t even apply in this case.
  23. Manlio Cammarata, “Qui succede un ‘quarantotto'”, Interlex, April 4 2001.
  24. Julia Scheeres, “Fears of a Website Inquisition”, in Wired, May 29 2001.
  25. Steve Kettmann, “Spanish Web Law Sparks Debate”, in Wired, May 1 2002.

De ballen in de kerstboom

[Verschenen in De Standaard. Recensie van Gary Taylor: Castration. An abbreviated history of western manhood, uitgeverij Routledge, New York 2000.]

LAAT DE TERM CASTRATIE in gemengd gezelschap vallen en zie hoe alle mannen naar hun kruis grijpen, zo ongeveer als voetballers in het muurtje zich beschermen wanneer de tegenpartij een strafschop neemt.

Dat komt door Freud. Freud – zelf overigens ontdaan van zijn voorhuid, zoals de meeste joden en moslims – verstond onder castratie het verwijderen van de penis, ook al is die praktijk nimmer ergens in zwang is geweest: castratie heeft nooit meer behelsd dan het weghalen van de testikels. (Freudian slip, anyone?) Freud poneerde dat kleine meisjes, de penis van dito jongens ziende, ogenblikkelijk zouden beseffen dat zijzelf een essentieel onderdeel van hun lichaam misten en zichzelf nadien als gecastreerde, en derhalve gemankeerde jongens zouden beschouwen, terwijl jongens omgekeerd het meisje slechts met afgrijzen konden bekijken: hemel, een wond, een gat, een leegte: daar moest iets weggehaald zijn! Of misschien verslond dat-daar-van-haar dit-hier-van-hem wel…

Entrez penisnijd, castratie-angst en vagina dentata.

Niet dat Freud met veel bewijs voor zijn stelling aankwam, of dat zijn theorie in de praktijk aantoonbaar bleek. Kleine meisjes giechelen eerder om jongenspenisjes dan dat ze geschrokken naar zichzelf kijken, terwijl de queeste van jongens en mannen naar kut nu niet echt op grote angst duidt. Maar da’s repressie, argumenteert Freud: zulke dingen zijn zo diep in ons verscholen dat we zelf niet eens beseffen hoezeer ze ons hebben gevormd en nog steeds doordesemen – daarmee zijn stellingen tot hun eigen bewijs bombarderend en zichzelf onaantastbaar makend voor elke kritiek.

Freuds geslaagde coup d’état is vooral interessant omdat ballen er in zijn theorie helemaal niet meer toe doen: hij verschoof alle aandacht naar de penis en de symbolische fallus, terwijl viriliteit, potentie en vruchtbaarheid – en ergo, mannelijkheid – toch werkelijk elders huizen, namelijk in de testikels. Maar deze verschuiving, zo stelt Gary Taylor in zijn geschiedenis van castratie, werd bevorderd door een andere, belangrijker verschuiving: die van voortplanting naar plezier. Een samenleving die seksueel genoegen voorop zet en niet zoveel belang meer hoeft te hechten aan reproductie, sterker, die haar reproductie misschien wel moet beteugelen, hecht van de weeromstuit minder waarde aan testikels en meer aan de penis. Misschien ook was Freud simpelweg bang dat zijn plezier hem ontnomen werd.

Taylor heeft een amusante geschiedenis van castratie geschreven, en baseert zich in tegenstelling tot Freud wel op feiten: antropologie, religie, overleving en geschriften. Dat Taylor wat zwaar op de hand wordt wanneer hij castratie theoretisch tracht te plaatsen, zij hem vergeven. Hij heeft zich immers te meten met een man die de fallus tot epicentrum van de wereld maakte.

*

AFGAANDE OP DE HUIDIGE, schrikachtige reactie van mannen op alleen al het woord zou je niet denken dat castratie ooit een populaire praktijk geweest kan zijn. Toch is dat het geval: eeuwenlang hebben mannen zich vrijwillig laten castreren, overwegend uit religieuze motieven. Het was zelfs een onderwerp waar Jezus in kennelijk prijzende zin met zijn latere evangelisten over sprak: “en er zijn gesnedenen, die zichzelven gesneden hebben, om het Koninkrijk der hemelen” (Mattheus 19:11, statenvertaling). Het oude testament spreekt eveneens meermalen lovend over castraten: “Ook de gesnedenen, die mijne sabbatten houden, en verkiezen wat Mij behaagt, en vasthouden aan mijn verbond, hun zal Ik in mijn huis en binnen mijne muren ene plaats geven, en een beteren naam dan van zonen en dochters; een eeuwigen naam zal Ik hun geven, die niet vergaan zal.” (Jesaja 56:4-5). Zonen of dochters konden deze eunuchen niet meer krijgen, maar god beloofde ze iets beters dan de vergankelijkheid van nageslacht.

De eunuch, aanvankelijk geïmporteerd via slavernij, ontsteeg gaandeweg zijn imago van horigheid. De loyaliteit van de eunuch werd groot geacht. Hij had immers geen familie dan zijn meester: hij was van zijn ouders en land weggeroofd en kon zelf geen nazaten verwekken. Eunuchen bleken doorgaans uiterst trouw en toegewijd, maar er viel in ruil voor hun dienstbaarheid ook heel wat te halen. Meest dienden ze rijke heren en waren zodoende beter af dan de gemiddelde bevolking. Ze namen vaak aanzienlijke posities in: harembewaker, paleisfunctionarissen, secretaris, hofwacht en legerofficier.

Gaandeweg werd de castratie, hen opgelegd door de overwinnaar en bedoeld om hun oude banden door te snijden, beschouwd als een deugd die inherent was aan de fysieke ingreep: castratie werd de voorbode van toewijding en opoffering. Van daaruit was het een kleine stap voor priesters om vrijwillig castratie te ondergaan: het afsnijden van hun testikels bewees dat ze zich volkomen onderwierpen aan hun god en zich voortaan onthielden van wereldlijke verleidingen. Wie van zijn ballen afzag, kwam nader tot god.

Dat christenen in die tijd niet afwijzend tegenover het snijden van mannen stonden, was deels cultuur, deels tactiek. Er waren andere, oudere religies in het Midden- en Nabije Oosten waarin castratie een belangrijke rol speelde: de culten rond Cybele, Ishtar en Attis bijvoorbeeld. Het christendom nam, zoals zovaak, elementen uit het geloof van deze zogenaamde heidenen over en incorporeerde ze in haar eigen leer, in de hoop daarmee de concurrerende religies te paaien en zieltjes voor zichzelf te winnen. Taylor gelezen hebbend, denk je: welbeschouwd zijn de ballen in de kerstboom het ultieme symbool van de internationale annexatie van heidense denkbeelden door de christenen, zowel hun overwinning op de Noord-Europese religies als op die uit het Midden-Oosten zijn erin vervat.

De Byzantijnse keizer Constantijn wettigde de nieuwe religie in 313 na Christus (en sprak zich uit tegen eunuchen: hij achtte ze monstrueus). In 395, anderhalve eeuw na de officiële acceptatie van het christendom was de clerus bezorgd genoeg om Paus Leo I vrijwillige castratie te laten verbieden. Niet dat dat voor de praktijk veel uitmaakte: de Romeinen hadden castratie ook verboden maar importeerden eunuchen gewoon van elders.

De katholieke kerk bleef niettemin lang ambivalent over eunuchen: afwijzing en ophemeling wisselden elkaar rap af. Al in 403 zong de eerste castraat in een kerkkoor; in 1599 trad de eerste castraat tot het pauselijk koor toe, en nog eeuwen nadien zouden jongens ontmand worden om hun engelenstem voor de kerk (en opera) te behouden en op heuse cherubijntjes te lijken. De elfde-eeuwse priester Pierre Abélard geloofde dat hij een betere theoloog was na zijn castratie, en de Engelse bisschop Richard van Bury prees in de veertiende eeuw de vroegere eunuchen om hun “studieuze aard” en hun “liefde voor het boek”. En al die tijd eiste de katholieken van hun priesters dat ze vrijwillig afzagen van seks – maar dan uit keus, niet uit fysiek onvermogen. Het celibaat moest per se mind over matter zijn.

*

HET CURIEUZE IS DAT terwijl castratie dankzij Freud tegenwoordig synoniem is geworden met het toch zo zeldzame verwijderen van de penis, echte castratie aan populariteit wint. Castratie is, zowel in de veeteelt als bij mensen, buiten al het andere – heiligheid, wraak, straf, opoffering, onderwerping – vooraleerst een vorm van geboortebeperking, -planning en -veredeling geweest: jij niet, jij wel; nee, de kudde is al groot genoeg. Werden bij dieren en mannen daartoe eerst de ballen – de zaaddragers, immers – volledig weggenomen, sinds de tweede helft van de negentiende eeuw experimenteerden artsen met vasectomie: het doorsnijden van de zaadleiders. Aan het eind van de negentiende eeuw werd vasectomie ook bij mannen uitgevoerd; en uiteraard is een vasectomie niets dan een geciviliseerde, minder invasieve vorm van castratie. (Taylor dist zijn lezers het saillante detail op dat Freud himself de ingreep overwoog. Ha. En dat voor een man die castratie zo immens vreesde dat-ie het tot een centraal punt in al zijn theorieën maakte.)

Naar Taylors schatting laat tegenwoordig een op de drie mannen in de Westerse wereld zich op latere leeftijd steriliseren; geen paus die daar nog met een bul tegenop kan. Castratie na de pubertijd levert geen cherubijntjes op. Mannen die na de pubertijd hun testikels uitschakelen, hebben geen last van impotentie, haperende viriliteit, falende erecties, van molligheid, een “vrouwelijke huid” of gebrek aan baardgroei, in tegenstelling tot jongens die voor hun pubertijd worden gecastreerd. Ze zijn heus goed in bed (zoals Taylor ons verzekert, alsof-ie toch iets moet bewijzen). Sterker: ze zijn hun plezier toegewijd – niet god.

Unbiased columnism # 2.7

Carrying water from the desert to the sea

Stockholm, January 26-27, 2001

[Previous installment: Unacceptable truths.] WHEN WE ARRIVE AT COURT for the final day, two women approach us. Zenon shakes hands with one of them; they speak for a short while, Zenon introduces her to me – it is the bailiff who was responsible for the raid in 1996 – and then she hands him an envelope. As it turns out, it is a demand for outstanding tax bills.

While discussing this – I am sure that Scientology has sicked the bailiff on him, while Zenon thinks that she came of her own accord – we walk inside. After a few meters, a man approaches Zenon and flashes a badge. I can’t see the badge and for a second I fear that this is a police officer who is going to arrest Zenon for god-knows-what; perhaps Scientology has filed some weird complaint against him of the kind that are filed against US critics all the time. The man seems angry and grabs Zenon’s arm. Zenon calms him somewhat, and they have a short discussion; then the man hands Zenon an envelope too and a paper for him to sign. It turns out to be another demand, this one for his study loan. The idiotic part is that both bailiffs came from the same office. (Which also means that they sent three people in order to hand over two letters. Isn’t that a tad inefficient?)

This is no coincidence. I am sure that somebody has tipped somebody or has pulled some strings. This must be Scientology’s revenge for Zenon’s new witnesses, and for his claim that McShane has come very close to perjury.

9:30

ZENON SUBMITS TO the court that McShane has not been telling the truth and that he can prove as much. Magnusson, of course, objects: isn’t this the exact same evidence that was at one point rejected by the court because Zenon didn’t file his briefs in time? Quite some discussion ensues. Zenon argues that yes, indeed, that was the case, and he would not have been able to bring up this evidence nor would he have had a need to do so if it hadn’t been for the fact that in Tuesday’s deposition of McShane, Magnusson himself suddenly brought in this new claim that no money was charged for the NOTs. But since Magnusson has brought up this claim, it is Zenon’s goddamn right to refute it – especially since McShane lied in his testimony.

Magnusson acts all upset over this vicious suggestion that his most honourable client hasn’t been telling the truth, and tells the court so, with this embarrassed and shy smile of his that by now I have come to recognise as a performance, meaning “I apologise to the court that I had to bring this clown Panoussis into their respected presence, so would you please disregard what he is saying right now, it is simply too stupid,” or something to that effect.

And then Zenon explodes with cold anger. Didn’t Magnusson bring in four witnesses that have to quite some degree disqualified themselves? Didn’t we have Small hiding the fact that he was actively employed by RTC when he rushed to their defence? Didn’t we have Mikael Nyström who had said that Usenet postings could not be falsified, and who now admitted that they could – actually, that some people sit with their hands right in the cookie jar? Didn’t we have the notary public vowing that she had made a random selection of the Monkey NOTs, while now it transpired that she selected only those Monkey NOTs that she “recognised” as infringing? And on top of that, now we have Magnusson’s main witness, actually his client, evading the truth and perhaps downward lying to us. For god’s sake: doesn’t Zenon then has a right to prove his point, especially when it concerns something that Magnusson has only recently brought in?

The Chair seems inclined to see things Zenon’s way on this, but is justifiably concerned about the court’s schedule. Hearing new witnesses will disrupt the proceedings, it would mean that the case needs to be adjourned and would proceed well into next week. Besides, there is a procedural problem: our first and main witness is Italian, and according to Italian law, witnesses cannot testify via telephone. Thus, she would need to be flown over.

The court would like to know all names of the witnesses; yesterday, Zenon only filed the name of the first one. I scrutinise McShane’s face when Zenon lists the people willing to testify:

  1. Maria Pia Gardini from Italy; a Class IX Auditor who was invoiced immediately for the NOTs; no deferred payment. Besides, she knows the material rather well. She is adamant that most of the NOTs are included in OT6 and OT7.
  2. Michael Philip Pattinson, from Los Angeles, California. [I see McShane’s face sagging. Then he notices that I saw it, and for the next ten minutes he averts his eyes.] Michael Pattinson can testify that huge part of the NOTs pack is included in OT6 and OT7.
  3. A former member from Austria, who has done OT6 and later on saw the NOTs on the Internet. He can testify that a huge part of them is included in OT6.

Magnusson claims that all of this is not relevant. The parishioners do not pay for the material but for the course as a whole. The Chair intervenes: Zenon has a solid point. What if we put McShane in the witness stand again and ask him these questions once more? Magnusson can’t very well oppose this. There we go…

9:50

MCSHANE TAKES THE witness chair. The atmosphere in the court room is tense, very tense. We all know what is at stake.

Zenon: Let’s first clarify definitions. For the purpose of this deposition, “NOTs” is all the material included in attachment 37 and nothing else. That is what I define as NOTs.
McShane: That is not the church’s definition.

Z: That is irrelevant. In this interrogation, I define NOTs as exhibit 37.
Magnusson intervenes. How do we know that these are the original NOTs? [Dork. He has been claiming that they are all along.]

Z: I am talking about the NOTs such as they are in attachment 37, from page 24 and on. Mr. McShane, have the NOTs, either in their entirety or partly, ever been part of any other course except for the Class IX Auditors Course?
McShane: [speaking slowly, and very aware of what he is saying] There are parts of NOTs, the description of NOTs, the principles of NOTs, that are contained in OT6. The actual issues themselves, the bulletins, that we call works, are not in OT6. But some of the principles are contained in OT6. Because OT6 is on the same subject. But you have to understand that NOTs, the NOTs, teaches a Class IX Auditor how to deliver those services, those processes, to a member.

Z: I want to know about concrete text mass. Are any of these NOTs texts part of another course than the Class IX Auditor Course?
McShane: There are parts that are in OT6.

Z: And in OT7?
McShane: [pause; he hesitates] No.

Z: How do you know? I asked you on Monday or Tuesday what level you yourself had attained; you answered that you were OT6, and I asked you specifically if everything up to OT6 was your personal knowledge and nothing above, and you confirmed that.
McShane: [pauses] I, ehm, I don’t exactly know what that, ehm, question was, what I said then. I know the texts of OT7.

Z: Have you seen my latest brief?
McShane: Yes.

Z: [picks up that brief] Have you read this brief? I expect that it was translated for you?
McShane: [nods twice]

Z: I would like you to comment upon the list of the re-use of NOTs that is included in that brief. And please bear in mind that I am not only asking you about current times but also about the past.

[From here on, Zenon uses what Scientology would most likely refer to as “Tone 40”: he is precise, insistent, commanding, demanding, and his voice makes it clear that he won’t be fooled with. For the first time during this whole court procedure, McShane suddenly answers in broken sentences. Again, my transcript is more or less verbatim.]

Z: Has any part of the NOTs in attachment 37, i.e. any part of the material from page 24 and onward, at any time been part of any course whatsoever other than the Class IX Auditors Course?
McShane: Yes, some parts of that material are used in OT6 and OT7. But I have read your list in which you claim that some, eh, 20 or 30 NOTs are part of OT6 or OT7. That is not true.

Z: In that case, let’s go through them one by one and assess which ones are part of OT6 or OT7. To start with, are any parts of NOTs series 1 such as it appears in exhibit 37 part of any other course than the Class IX Auditors Course?
McShane: I would have to have the OT6 course to compare them with and I don’t have that with me.

Z: Can you say approximately how much text mass of attachment 37 is included or has ever been included in other courses than the Class IX Auditor Course?
McShane: Ehm, in order to do that, I would need to make a comparison and I can’t do that here. [Hesitates] There are texts, there are parts of these texts, in OT7. But there is more in NOTs than there is in exhibit 37.

Z: The rest of the NOTs are not interesting; they are not part of this case. We are only talking about the NOTs material in exhibit 37 here. How many people did partake in OT6 and in OT7, approximately?
McShane: [pause] I would estimate probably some 5,000 to 7,000.

Z: These pro forma invoices, can you describe what is on them?
McShane: They are meant for employees, and it says something to the effect of, the persons name, what course the person is taking, and the worth, the value of the course. And the person promises that if he breaks the contract he will pay that money. It is an internal church procedure, and its purpose is to prevent somebody to join staff in order to get the courses for free. So it tells the person: it is part of your job that you get this for free, but if you leave without fulfilling your contract, your have to pay.

Z: For how long are these contracts?
McShane: Which ones?

Z: The Sea Org contracts for instance, of which Class IX Auditors are members.

 
[Comment: it is interesting to see how long it takes McShane to reply that Sea Org members sign a billion year contract. Yet, Zenon has already put this bit of information in his Wednesday January 25 brief. The court knows.]

McShane: The Sea Org is eternal within the church. More religions, other religions also … like the Jesuits, or certain religions have, and it’s the staff who dedicate their entire life to their religion and we sign a kind of a pledge, ehm, for a billion years of service. It’s a symbolic gesture of your dedication.

Z: If a year or two after signing this fraternity membership, and completing the course you break the contract, will this pro forma invoice be brought up?
McShane: If the member leaves the church there is no bill. If he wants to continue receiving services, he would be responsible to not only pay that course, but all services. But there are circumstances when somebody has left that that somebody does not have to pay at all.

Z: Is it correct that these pro forma invoices are known as the “Freeloader’s Bill”?
McShane: Yes.

Z: Is it correct that the church claims these “Freeloader Debts” as amounts receivable on its balance sheets as submitted to the US Internal Revenue Service?
Magnusson interrupts, and wants to know where these questions are going to. The Chair answers instead: the obvious point of this line of questioning is whether these invoices are symbolic or not.

Z: Is it true that these Freeloader Debts are reported to the US tax offices?
McShane: [smiling] No.

Z: Does the church have an internal reporting system that weekly reports these Freeloader Debts to Scientology management, as part of the “Income Notes Collections Summary”?

 
[Comment: We received this information just that same morning. Thank you – you know who you are.]

McShane: It is possible … there could be … I am not familiar with such a system. I don’t know.

Zenon has gotten enough out of McShane. Yes, these bills are real, and yes, parts of the NOTs Pack are included in OT6 and OT7, and McShane didn’t say so before. That is all he had to prove. Zenon ends his interrogation and retracts his request to hear the new witnesses. The court looks relieved.

10:10

MAGNUSSON’S TURN: McShane gets his chance to repair some of the damage done. While Zenon was questioning McShane, he was ghastly nervous. Our supporter, who was sitting right behind McShane, later told us that McShane was shaking and that his legs couldn’t stop trembling. Only when Magnusson interrogates him does he calm down. Actually, McShane relaxes so much that out of sheer relief , he starts babbling and again confirms what Zenon just got out of him, but this time of his own accord:

McShane gives us the same story about OT5 that we have heard a few times before in this court, but this time with an emphasis on “services” and “exchange”.

McShane: “Solo NOTs are related to NOTs but are not NOTs. On Solo NOTs the member needs to have some understanding of what NOTs are and what he will be addressing at that level so some of the principles are related to him, so that he understands what he is doing.”

McShane: “The pro forma invoices relate to training, the costs of living et cetera. That is because the Class IX Auditor Course is only for staff members – and there is only one church that trains Class IX Auditors, that is our Flag church, in Florida – and that church invests a lot in those persons. Not only the supervision, room and board, but also the medical expenses and dental expenses, and that is how this pro forma invoice came about, because people were coming in for these free services doing these courses for a year or two and then leaving, without any exchange for the church! That is why we came up with this.”

Zenon loves this. In almost every other line, McShane is confirming that in exchange for work people are allowed to study the NOTs. Under Swedish law, that means that the NOTs are not for free. Any exchange whereby you give something away but expect something in return, may simply not be labelled “free”.

*

IT IS ONLY AFTERWARDS that we discover that Zenon’s job could have been easier. Jeta points out in a message that we only find after the court sessions have finished, that the Freeloader’s Bill is actually part of the NOTs:


HCO POLICY LETTER OF 15 NOVEMBER 1978R-1
ADDITION OF 15 OCTOBER 1981

C O N F I D E N T I A L
NED FOR OTs
ADVANCED COURSES SPECIALIST COURSE
CHECKSHEET
PART TWO

[…]

STUDENT COURSE COMPLETION

[…]

B. STUDENT ATTEST AT C & A:

I attest (a) I have enrolled on the course, (b) I have been properly invoiced for the course as a contracted staff member,

10:20

THE CHAIR ANNOUNCES that we will have short break, after which final pleas will be held. The Chair wishes to know how long both parties will approximately speak. Magnusson claims and hour, and Zenon says, oops!-ishly, “The court said that brief is better, so I went home and wrote fifty pages of notes…” Some judges can’t help but smile.

The pleas will be taped. [Yes, we will get hold of these tapes and then translate Zenon’s plea to English.]

10:35

MAGNUSSON GOES FIRST. He focuses very much on first publication, quotes a lot of foreign rulings, and seems to come up with more rhetoric than legal arguments. He also claims that the Court in my case made a severe error, because they believed that 25,000 copies of OT3 were made while that number only pertained to the amount of people who had studied them. This is a blatant lie: the court in my case never said anything to this account. They knew that people just studied the same copies; one of my lawyers had even made a joke about it: if in a porn video shop fifty people see a flick one after the other, all of them seeing it on their own, it is still fifty people who have seen it and the flick is still publicly shown, not privately.

11:20 – Magnusson is done! That was remarkably short. Last time he was excruciatingly lengthy.

11:30 – Zenon’s turn. [These are just short notes. A full transcript will be made available later on.]

ZENON EXPLAINS TO the court Scientology’s principle of “acceptable truths” and illustrates it with the testimonies that we have heard. Vorm, Small, Alexandersson, and McShane himself – all of them have been proven to have been withholding parts of the truth, or sometimes reverted to claiming that “they didn’t know” when an answer would be too damaging. The court must also take into account that Vorm, Small and McShane have big economic, social and religious stakes in what they say. They are not objective witnesses, they have their position and their religion to defend.

Zenon at one point openly slights Magnusson: while going through the Dutch case and CST being part of it, he says that “RTC had a better lawyer in that country than the one that they employed here…” I only manage to keep a straight face because I knew that the joke was coming. Not even a hint of a smile crosses my lips. Magnusson contains himself. But fifteen seconds later I hear a deep sigh escaping him.

Discussing the identity of the texts, Zenon stresses that modifications abound, different versions have been used through time, and that texts are often revised. We simply have no means of knowing what exactly is registered with the US Copyright Office; it is masked, after all. Zenon explains that there is no contradiction between his claim that this material is Scientology’s material on the one hand, and his claim that there is no equality between the Scientology’s material and what he published on the other. Only the text that is registered with the US Copyright Office counts, and RTC has not proven that the materials that Zenon published are identical to those that are registered.

Zenon harps upon McShane’s definition of “infringement”: paraphrasing is infringement; the use of certain words is a infringement, quoting is an infringement, actually, any use of any part of any text outside the church is an infringement. When Zenon quoted mere captions of a part of OT2 in the Fishman Affidavit, without ever including the actual sections underneath each caption, that was labelled as an infringement too. And what is more: RTC’s method of comparison never allowed the court to assess how much he quoted of a passage, and thus doesn’t allow the court to consider whether quoting such a passage is within the limits of the law.

Publication. Zenon lists the reasons why the OTs and NOTs should be considered to have been legally published (an assessment from which the right to quote and the right to make private copies follow, and from which it will follow that the primary court, the administrative court and parliament will again be able to give copies of the OTs and NOTs to the public as per offentlighetsprincipen). The amount of people who accessed the NOTs (5,000 to 7,000) and the OTs (25,000); the translation of the OTs into four languages; the commercial offering of the OTs and NOTs to all eight million Scientologists via the Scientology magazine “Source”; the accessibility (all you need to do is to qualify) of OTs and NOTs for all Scientologists; and the paying for these courses – each and every one of these elements is in itself sufficient to constitute publication.

Jurisprudence has it that the “closed circle”, the “limited circulation” that a text can enjoy without constituting legal publication, is very small. Now let’s look at the church’s own figures: 25,000 (members who have done OT2 and OT3) times 6,000 dollars (the price for each of these courses) times 2 (OT2 and OT3) times 9 (crowns in the dollar) amounts to 2,7 billion SEK. Would any circle that generates such an amount ever be considered closed?

The pro forma invoices are not pro forma. They build upon the principle of exchange. In order to partake these courses, students are supposed to produce for the church. These Class IX Auditors who study the NOTs do pay in work: only this morning, McShane literally said: “We don’t want them to have these courses for free.” They work for years on end, and produce the huge revenues that Scientology gets from the courses that they administer.

12:10 – 13: 15 – Lunch break.

ZENON POINTS OUT to the court that if they accept Magnusson’s stance on copyrights, that would have severe repercussions on copyright law. Actually, the law would need to be completely re-written. After all, Magnusson claims that private circles can be really big, and that distributing material within such a circle gives you all rights but no obligations whatsoever. If that point of view is accepted by the court, Zenon’s own Free Church of Scientology will have a ball. All Zenon needs to do is set up membership, invent some requirements that members have to meet, and treat the material with the same confidentiality that Scientology does. Once he has done that, he can circulate this same material to up to 25.000 members without committing infringement. After all, it is only within a closed circle, isn’t it? What is more, this same principle will be applicable to other material by other people. People can set up closed circles for the distribution of DVDs, of computer programs, of videos. Nobody would be obliged to pay anything to any copyright holder as long as they apply some membership conditions and confidentiality.

As for the material: RTC’s argument obscures that Zenon did not simply post parts of OT2 and OT3. What he actually did was to publish a court file, to instruct the general public. The OT-fragments were just a very small part of the Fishman file. Article 26 of the Swedish copyright law, explicitly permits the publication of copyrighted texts that are part of a court case, if this is done within the frame of reporting about the case itself.

Regarding the right to quote: Zenon quoted only 3 pages of the 300 page OT2 and the 25 pages from the 200 page OT3: that is less than 6%. Compare this fact to how McShane portrayed the severity of Zenon’s infringement: “From OT2 [Panoussis] infringed upon 10 individual works and 4 of those works are infringed upon 100%, one is infringed upon for 94%, one for 84%, one for 75%, one for 62%, one for 20%, and the last one for 7%. I did the same calculations for OT3. 15 works were infringed upon. 13 of those for 100%, one for 66%, and the last one for 29 %.” That sounds serious, Zenon says, but in all actuality we are only talking about less then 6% of OT2 and OT3.

European Convention of Human Rights. Scientology has always blocked discussion: sometimes via their demand for secrecy, sometimes by (threatening to) sue, most often by either denying their own teachings or claiming that quotes are “taken out of context”.

Religious freedom: other Scientologists, not part of the official church, are not allowed to practice their religion. McShane has even testified here that one of the reasons for RTC registering the advanced material was so that they could sue people who used the material outside the church. These people, the free Scientologists, have a constitutional right to be able to practice their religion without having to pay any particular organisation.

The damages claimed should go down in proportion to the claims that RTC loses in this appeal. Apart from that, RTC claims that their “market value” has gone down and that they have suffered “commercial damage”, which is a rather remarkable claim for an organisation that purports not to be charging for the material it is suing over. As for immaterial damages: RTC does not represent and is not entitled to damages on behalf of those members of the public that suffer “irreparable damage” by reading this material “without being prepared”, nor is RTC entitled to damages on behalf of individual Scientologists that might have to retake their courses. Finally, when it comes to “hurt feelings”, only the author himself can be hurt, and the right to such damages does not follow the copyrights; in other words, RTC cannot legally have hurt feelings.

[Meanwhile, Magnusson’s aide is looking at Zenon and me with piercing eyes. If looks could kill… The effect is however quite ruined by his nervousness. The guy has developed a nervous tic in the past half hour and is continuously bobbing his head.]

How can RTC claim to have suffered damages, by the way? They only license the material to the Advanced Organisations, it is them who lose clients, not RTC. If anybody should have sued Zenon, it should have been those Advanced Orgs.

[By this time I am sure that McShane wishes that he had had Zenon as his lawyer (and Magnusson as his opponent). Even I, with my shaky Swedish, can hear that while Magnusson was merely making statements, Zenon is developing arguments, and that some of them are rather ingenious. He is not reading from his paper, he uses them as mental reminders and builds his arguments from these stepping stones.]

Zenon goes through the various copies made / infringements that RTC claims, and the evidence for it. Nyström’s testimony proved that anybody could have made the disputed May 2 posting. But RTC never bothered to look for evidence and didn’t ask for any logs: perhaps they did not really want to assess who the culprit was? As for the bailiff: when RTC asked her to go through his computer files, she was ordered to search for more than infringements. Neither the word “Vorlon” nor “Ward” are part of RTC’s texts, these are the names of people. That clearly demonstrates that RTC was after Zenon’s correspondence, not (only) after the material. As for the copy of the OTs and NOTs that Zenon handed in to the administrative court: Scientology itself had stolen that copy (the thief has been identified and Zenon names him in court: Thierry Duchaunac) and Zenon only returned a copy that the primary court itself had produced.

Legal costs: McShane counts the lobbying with US congress and the Swedish government to seal the OTs and NOTs and to change the law regarding offentlighetsprincipen and the guarding of the OTs and NOTs in court and in parliament, as legal costs and wants Zenon to foot that bill, but none of these costs have anything to do with the court case itself. RTC could have claimed these costs as damages, but probably feared that it wouldn’t get them; and thus, they made them part of the legal bill.

RTC insists on having their material masked. That in itself makes establishing of identity and other evidence so much more difficult: suddenly we need notaries and complicated comparisons. Those costs are the consequence of RTC’s own desires and demands, and they can hardly expect Zenon to pay for that.

Meanwhile, Magnusson has produced an enormous amount of copies, many of them unnecessary; and all these are put on Zenon’s bill. Besides, the amount of payment that Magnusson demands for his own work is enormous as compared to what lawyers usually get.

14:05 – Zenon is done. 90 minutes all in all.

In this case, too, bills for legal costs need to be handed in. Zenon asks for 25,000 SEK, that is: 2525 USD – for lost hours of work, copies, stamps and so on. Magnusson’s turn. He hands in a bill for 1,665,000 SEK (168,000 USD):

  Lawyer’s fees: 1,400,000 SEK
  Translations 160,000 SEK
  Work McShane: 75,000 SEK
  Travel costs McShane: 20,000 SEK

Zenon comments upon the amount demanded for McShane’s work: it is McShane’s job to travel from court to court. To put that here as expenses, is slightly ridiculous. And as for Magnusson’s fee, he won’t even comment upon it.

The court announces that the ruling will be available from the secretariat of the court in six weeks from now: on March 9, 2001, at 11:00.

*

SATURDAY AFTERNOON we take the plane back home. We have a nice flight and even get served (fake) caviar. We read Dutch newspapers and work on this report. After landing, we stack an enormous amount of luggage on a trolley: apart from our bags, we have a 25 kg Samsonite with legal papers and a 10 kg carton with more of the same.

We show our passports at customs. The guy is not interested and waves us to pass on. The moment Zenon moves, another guy in civilian clothes comes up to him and flashes him a badge. “Customs. Opium law. We want to search your luggage. Would you please follow me into this room?” I am whisked off as well. Four other people, all plainclothes customs officers, are waiting for us there. All our bags are put in line and are searched thoroughly. The man searching the Samsonite dutifully sifts through the binders and is amazed at the number of them. “The both of us are being sued by Scientology, you know, this cult,” we explain. “Actually, we are just returning from court.” Zenon picks up a newspaper that was on top of the binder and shows them a one-page article with a picture of us: “Zenon’s lonely war against Scientology”. (A stupid headline, by the way. We are not lonely. We have all of a.r.s. to back us up and help us – and it did.)

Slowly, something dawns upon the faces of the police. We are cleared within five minutes and allowed to leave. They apologise profusely.

When we get home we make a couple of calls and pull a few strings. Soon we discover that the Dutch Customs did not receive one but two tips, “independent” of one another, both describing Zenon and me at great length, and giving a rather detailed account of how we would be smuggling cocaine from Sweden into the Netherlands. And of course, Customs have to investigate every tip they receive. We had to be stopped and searched, even though Customs themselves found the tips a bit weird. (So would I. Smuggling coke from Sweden into Holland? That’s like carrying water to the sea – from the desert, at that).

Zenon and I learn one important lesson from this. Scientology’s harassment of us has stepped up remarkably: the tails that were put on us in Stockholm, the bailiff that was sicked upon Zenon, and now accusations of coke smuggling. This is how we reply:


From: Zenon Panoussis
Newsgroups: alt.religion.scientology, nl.scientology
Subject: First and last warning.
Date: Sun, 28 Jan 2001 00:08:16 +0100
Message-ID: <3A7354E0.D9226C7A@xs4all.nl>

Something happened. You will read about it in Karin’s next (and last) Stockholm report, due tomorrow. However, I have a point to make in the direction of the CoS, now at once.

The following is part of a mail from me to someone. I just post it as is so I don’t have to repeat myself.

Forget it. Anonymous phone calls. Even thinking of investigations is a waste of time. The same goes for most of what they do.

What they should think of is that, so far, we have been harassing them openly, while they are now harassing us anonymously. What they forget to take into account is that we are much better at anonymous harassment than they will ever be. Thus, if this continues, we might sooner or later take their example and pay them back in their own currency.

Actually I will post these last three paragraphs on ars/nls and give them one single chance to think it over. If they don’t get it, if they choose to change the war from “clean” to “dirty”, so much the worse for them. They’ll get a taste of their own medicine that no toothpaste will ever take away.»

Scieno drones, please pay attention to the subject line. This is your first *and last* warning. Any more of this kind of shit, any at all, and you will not know what the fuck is hitting you. Beware. You have been advised.

Z

[Unbiased columnism is a double series of seven court reports on the proceedings of Scientology versus Zenon Panoussis. This series covers the Jan 2001 sessions. Rhe first series – from May-June 1998 – starts here: Zenon does research.]

Unbiased columnism # 2.6

Unacceptable truths

Stockholm, January 24-25, 2001

[Previous installment: Child games.] THE COURT HAS ADJOURNED for two days. Friday we will resume: that day, pleas are to be held and that’s it. Afterwards, all we can do is wait for the ruling (and pray to Xenu).

McShane’s vehement assertion that no Class IX auditor ever pays for the ‘privilege’ to study the NOTs pack and that only Class IX auditors get to study this material, sits badly with us. We simply don’t believe that McShane is telling the truth, the whole truth and nothing but the truth.

After some discussion between the two of us, we slap our heads. Damn!! How stupid can you get! We asked about payment and donations, but never asked McShane about the Freeloader’s Debt… Scientology often allows staff members to do courses with delayed payment: you’re off the hook as long as you stay in the church. Probably Class IX auditors are presented with a nice fat bill for the darned stuff when they leave… McShane had given us one of Scientology’s ‘acceptable truths’: he’d answered the questions only partially and twisted them a bit, so that he could escape saying what he didn’t want to be revealed. Hurriedly, Zenon posted to a.r.s. and came up with a set of concise questions:


From: Zenon Panoussis
Newsgroups: alt.religion.scientology, nl.scientology,
alt.clearing.technology
Subject: The NOTs
Date: Wed, 24 Jan 2001 23:49:32 +0100
Message-ID: <3A6F5BFC.17BF9C75@xs4all.nl>

McShane said today under oath that
– only the Class IX auditors get to read the actual NOTs; the CoS members that do the new OT 5 course are audited on the basis of the NOTs, but never get to actually read them;
– all the Class IX auditors are employed by the CoS; studying the NOTs is part of their job; they have never had to pay for the class IX auditor courses; the CoS has *never* charged anybody for the NOTs and neither has it ever asked for donations for these particular courses;
– Until 1998 about 325 people had been allowed to read the NOTs within the CoS; after 1998 approximately another 100 have read them within the CoS.

If you can refute any of this, please **e-mail** me at once.

Z

WE RECEIVED QUITE a number of interesting replies to this. A few ex-members who had been rather high in Scientology confirmed that Class IX Auditors were presented with a Freeloader’s bill, so that yes, payment was expected for the NOTs Pack. Others told us that not only Class IX Auditors got to see the actual NOTs Pack: huge parts of the NOTs Pack are part of OT6 and OT7.

One mail that we get seems particularly promising. A woman, a former Sea Org member who has done the Class IX Auditing Course herself, did pay for the NOTs. Unlike most others, in her case Scientology never put it on her Freeloader’s Bill: they just took the money. And what is far more interesting: this woman is prepared to testify to this under oath. She is in a position to refute most of McShane’s statement regarding the handling of the NOTs.

Zenon phones her. They have an elaborate discussion and she gives a very detailed account of what NOTs pertain where. She is the perfect witness – and quite willing to be one.

*

ZENON IMMEDIATELY writes a new brief that he files with the court on Wednesday afternoon, outlining the new evidence in detail. The one big hassle is that we are officially done with the reviewing of the evidence, and that it is rather difficult to bring in anything new at this stage.

Then again, we have caught McShane with something very close to perjury. This amounts to more than telling ‘acceptable truths’: he has been weaselling and withholding information that he was pressed for. If Magnusson stops us from bringing this testimony in on Friday, we will prove it afterwards anyway and if we do that, the whole case could have to be started all over again – while by then Magnusson’s prime witness, and actually the party that he is representing, will have been revealed to be dishonest, to say the least.

We have no clue what will happen. We have RTC by the balls on this, but we don’t know what the short-term result will be. Magnusson might simply accept the new evidence and squirmingly admit that his client made a ‘mistake’. Magnusson might vehemently oppose the new evidence, and, for procedural reasons, the court might accept his protest. The court might allow us to hear the new witness, but in that case Friday’s schedule is completely messed up – the whole day was to be devoted to the final pleas – so that Zenon will need to stay in Stockholm a few days more. The new witness might not be allowed to testify, but in that case Zenon is going to make damn sure that he files her testimony afterwards, thereby forcing the case to start all over, at least if he loses. Which one of this will it be? We don’t know.


Zenon’s January 24 brief (rough translation)

Svea hovrätt
Box 2290
103 17 Stockholm

Case 1096-98

Warren McShane has testified that the scientologists that can partake in the NOTs within the “church” don’t have to pay for this and that the “church” has never charged anyone for the privilege of partaking in these scriptures.

As a result of my posting of McShane’s statements to the internet, several people who either themselves have followed the Class IX Auditor Course (the course of which the original NOTs are a part) or have held high enough positions within scientology to know how the system works, have replied that McShane’s statements are wrong in several aspects.

The correct situation is as follows:

The NOTs-material goes under several names, and, apart from the NOTs texts that are the topic of this court case, it consists of other material. In the following, when I talk about the “NOTs”, I only refer to those parts of the NOTs that are labelled as attachment 37.

There are two categories of scientologists that are allowed to do the NOTs within the church: those who in this court case have been called “the priests” and in scientology are called “Class IX Auditors”, and ordinary scientologists partaking in various courses. According the “church’s” rules, Class IX Auditors must belong to the special department within scientology that is called the Sea Org. Before they are allowed to partake in the Class IX Auditor course, members of the Sea Org must sign a contract for a billion years – this is no typing error. After having completed their “priest course”, Class IX Auditors give courses to paying scientologists, as McShane has described. The compensation for Class IX Auditors consists of food, lodging and a minimal sum of cash; in 1994 it was 15 USD per week for a full-time job.

Although Class IX Auditors don’t have to pay immediately for the NOTs, they are charged for the course: several thousand dollars. In the event that they break their billion year contract and leave the movement before they die, payment will be demanded of them afterwards. Thus, one way or another, the “church” is charging for the NOTs material.

Apart from the fact that the complete NOTs material is part of the Class IX Auditor Course, substantial parts of the NOTs are included in the OT6 and OT7 courses for the ordinary paying scientologists. At least until 1994, approximately 80% of the NOTs were actually included in these courses and were allowed to be studied directly in their original form by the students of these two courses.

To put it more precisely: normal paying members who do the OT6- and OT7-courses can themselves read the following sections of the NOTs that are the subject of this court case:

Parts of series 1, the whole of the series 4, 5, 6, 7, 9, 13, 14, 15 and 16, attachment 1 of series 18, the whole of series 19, 20 and 21, the parts “correction list” of series 24, the whole of series 25, 26R (of which parts are missing in attachment 37), 28 and 31, HCOB 29 October 1978 issue II, the whole of series 33, 37, 43 (including material from OT3), probably the whole of series 44, the whole of series 45 and 46, the first part of series 47, approximately half of series 49, the whole of series 51 and 55, approximately half of series 62, together with “correction actions on OT ser II flying ruds” (pages 170-172 in the copy of Stockholm’s tingsrätt’s administrative department).

The above mentioned parts of attachment 37 are included in the OT6 and OT7 courses, which, according to attachment 170, are being handed out in exchange for several thousand dollars in “fixed donations”. Approximately 10,000 paying scientologists have been following these courses, of which at least 3,000 had attained the corresponding levels already in 1994.

It is obvious from the above that the description of the NOTs use within the “church” that McShane gave in his testimony is incomplete, to say the least.

I request the court of appeals to order RTC to explain their stance on the above. Taking into consideration that the case is in a very advanced stage, this should be done as soon as possible. In case that RTC is unable to confirm these factual circumstances, I request that the pleas of January 26 shall be postponed, and that I am given the opportunity to put forward evidence to prove my claims.

I would like to remind the court that the statement “the church of scientology is charging for this material” is not new, but has been claimed by me ever since the beginning of the case in primary court. RTC’s refutation that payment is demanded for NOTs is however new, and was done within the frame of McShane’s testimony during the ongoing trial in the court of appeals.

I have verbally informed lawyer Magnusson of part of the above and will fax this brief to him directly.

Stockholm, 2000-01-24
Zenon Panoussis

THE NEXT DAY, Zenon phones Magnusson and asks him whether they will admit the facts that Zenon stated in his last brief. Magnusson refuses to answer the question. Zenon phones the court, which tells him that they want a reply from Magnusson before three in the afternoon and that they themselves can now not take a decision on it, because not all judges can be reached. Zenon goes to court to pick up the tapes from McShane’s testimonies, and by the time he is there, Magnusson’s reply has arrived.

Magnusson’s agitation can be discerned in his brief. He grudgingly admits that yes, indeed, there are invoices involved for the Class IX Auditors, but those are only a symbolical formality, not a real bill. Only those who wish to leave the Sea Org but not Scientology are expected to pay them. And besides, of all Sea Org staff, only one percent ever leaves. And the court must understand that RTC admitting this is merely a generous gesture towards Zenon, not an admittance of error of any sorts. As for NOTs being part of the OT6 and OT7 course, that is definitely not true.


Magnusson’s brief, January 25 2001
[Another rough translation; my aide in this claims that Magnusson’s brief was extremely badly phrased. Perhaps he was agitated…]

Svea hovrätt
Avdelning 2, rotel 50
Stockholm, January 25 2001

Regarding Panoussis’s statement of January 24, the court of appeals asked Religious Technology Center (“RTC”) to make a statement.

1. Class IX Auditors do not pay for the NOTs education.

2. Class IX Auditors do not pay for the NOTs education in case they leave the church.

3. Employees in the special department Sea Org (which Class IX Auditors are) do not pay for their education within the church nor for their costs of living – these costs are being paid by the church. While it is true that a symbolic pro forma invoice is made out for these employees, to demonstrate their commitment towards the church, and that employment is a prerequisite for free education and free costs of living, it can be added that this was introduced to prevent abuse of the beneficial system. Payment is actually not demanded if the person is leaving the church completely. If on the other hand such a person has left his employment within the church for good but still wants to be a member of the church and continue to use the religious services, the cost or parts thereof (depending on circumstances – in some cases, nothing is being paid) for the education and the costs of living according to the pro forma invoices must be paid. But the person who leaves the church entirely is thus not being required to pay the pro forma invoice, no matter what services he has used as an employee.

It can be noted that it is extremely unusual that Sea Org employees leave their employment, or the church (less than one percent).

4. It should be stressed that pro forma invoices DO NOT include the material itself, but only the education and the cost of living.

5. Panoussis’s claim that members who participate in OT6 and OT7 usually may use parts of the NOTs material is wrong.

6.Irrespective of the aforesaid, RTC wants to emphasise that the question about payment in some of the above-mentioned cases for education within the church and costs of living, lacks relevance in the case. Payment is never for copies of the material. [*]

RTC wants to stress that it does not in and for itself accept that Panoussis is allowed to hand in new evidence in the case, especially not the day before the pleas. RTC’s answers on these questions shall in this respect be seen as a benevolent gesture for the purpose of facilitating the handling of the case.

RTC assumes that the questions that Panoussis has brought up in his brief are hereby settled; otherwise, RTC retains the right to demand dismissal of Panoussis’ new claims.

Per Magnusson

[*] Do note the red herrings that Magnusson is throwing around. Zenon never claimed that payment is for copies of the NOTs.

*

MEANWHILE, ZENON CONTACTS other people. By the time it is evening, we have four people able and willing to testify under oath that about eighty percent of the NOTs Pack is included in OT6 and OT7, and that every public Scientologist who does these two courses, pays for them. That means: they pay to study the NOTs; which is what Zenon has been saying all along.

And what is more: we are able to prove that McShane is an unreliable witness.

We are looking forward to seeing McShane in court again tomorrow.

[Unbiased columnism is a series of seven court reports on the proceedings of Scientology versus Zenon Panoussis. This series covers the Jan 2001 sessions. Next and last: Carrying water from the desert to the sea.]

Unbiased columnism # 2.5

Child games

Stockholm, January 23, 2001

[Previous installment: Magnusson becomes helpful.] ZENON HAS NEW EVIDENCE and presents it to the court; it is a result of my transcript of McShane’s testimony as posted to the internet. Zenon got an e-mail from somebody [thank you! You know who you are] who claims that the NOTs are also studied privately and that more people have read the NOTs than McShane claimed in his deposition. The actual evidence is on its way and will be presented to court as soon as DHL allows it: an issue of Source Magazine and a copy of International Scientology News.

9:45 – First Tingsrätt tape.

WE HEAR THE 1998 tape of the deposition in primary court of Thomas Small. The dots represent the questions posed to him. And as we will hear, Small does indeed not explain that he is at the time of this deposition actively employed as RTC’s attorney. When answering what he does for a living, he replies by delineating his educational background and only speaks about his work for RTC as if it were a thing from the past. That makes him rather dishonest: he is far less impartial than he purported to be. He has not told the court that he is giving a testimony about his boss.

“I am a patent lawyer and intellectual property lawyer [explains about his education]. … I compiled the agreement [between CST and RTC] some time before it was signed. … Yes. … I was at the time representing primarily RTC and to some extent the Trustee as well, because they were co-operating as parties. I attempted to put their wishes on paper in the document. … Yes. … This document was designed to give all rights to the Advanced Technology Scientology material outside the US to RTC. … These were rights that were held by the Trustee as the successor of L. Ron Hubbard. … That includes the OTs and NOTs, those are part of the Advanced Technology. … The grant was intended to transfer all intellectual property. Basically, it consists of two parts. One part is the confidentiality of the documents and the other is the [couldn’t hear that, but I assume he refers to the license] … The protection of this confidential information is generally ruled by the contract. The license gives the right to use and make copies of the material. There are specific terms to it, which I will explain later. … There’s a specific provision in the agreement that RTC would be the enforcer and protector of these rights and, if necessary, enter into litigation to protect these rights. … This was in RTC’s name. They were granted the exclusive right to use the Advanced Technology and they were authorised to sue in their own name. CST can also sue if the need to do so arises. … [Lots of leafing through papers is audible.] … No, there were none other that I know of; at the bottom of the previous page it says that the Estate has the rights to pull [inaudible] and these serve as directions as to, as to the policy of the ecclesiastic use of the materials. … This is a religious document between parties who are the leaders of a religious group and there’s a number of scriptural limitations on how these materials can be used; confidential limitations, copyright limitations, and ecclesiastic limitations, explaining how RTC as the protector of these materials should protect them. … No. … Yes. … The rights remain the same. The role of the trustees simply passed to CST when CST became qualified to possess these rights.”

Zenon’s turn: “Are you saying that RTC and CST were co-operating partners in this?”

Small: “They were co-operating although CST had at that time not yet come directly into [xxx]. … The interests of CST and RTC were the same, yes. … CST did then not yet have a direct interest in the subject matter of the agreement; that was the Trustee at the time. … Whether RTC and the Estate had opposing any interest at that time? The answer is no, they had not. … It was an exclusive license, it was a transfer of copyrights, not to titles, but the right to [tape change] … The right to use and to authorise others to use were covered by the exclusive license, the copyright remains with the Trustee as the license holder. … First, because that was the desire of the partners, there was no intent to transfer copyrights to RTC or to anybody else. L. Ron Hubbard very carefully maintained personal rights to his own copyrights and Mr Hubbard made provisions that the rights went to CST and they were entitled to hold the rights into perpetuity. … The limitations as I intended to state are religious in nature: the Scientology scriptures state that this is the way they the Advanced Technology is to be used, after all it’s Mr Hubbard’s writings, and it is his wishes that guide the parties.”

Zenon asks why the contract – unlike most contracts – does not deal with possible conflicts between the contract partners or between them and third parties, and why RTC’s right to sue third parties in its own name is not regulated.

Small: “Well, that right accompanies exclusive licenses as a matter of law in the US, it wasn’t necessary to say any more in the license then it now states. … That’s right. … This contract was made in the US between parties in the US, and according to my understanding any conflict arising from the contract would be covered by and subject to US law.”

Zenon: “But the contract states explicitly that is only applies to the use of the copyrights outside the US; in countries with their own law, that might differ. Why was it not explicitly stipulated that the RTC has the right to sue in its own name?”

Small: “I suppose that it would be possible that there is a country where RTC would not have the right to bring suit as an exclusive licensee, and it is against that eventuality that, that in that case CST could do so if it became necessary. … I also add that this is not just a copyright agreement but also a confidentiality agreement and the licensee of confidential information might not automatically have the right to sue, and therefore its important for CST to have this right as a backup right as well.”

10:18 – End tape. Next one: Thomas Vorm’s testimony in Tingsrätt.

Vorm was giving his testimony via the telephone. The line was bad. Magnusson asked the questions.

M: How long have you held this position?
Vorm: “Since October 1988. My main task is to oversee the work done by RTC. I archive all [inaudible] to preserve the Scientology religion, including the Advanced Technology.”

M: [About the copyright of OT2, OT3 and NOTs and the respective roles of RTC and CST with regard to these copyrights]
Vorm: “Since 1988, RTC is the protector of the copyrights. Mr Hubbard’s estate was transferred to CST, and RTC brings litigation in case of infringement.”

M: Could you briefly describe CST’s position when it comes to the fact that the license has been given to RTC?
Vorm: “In 1993, after the copyrights were turned over, [inaudible]”

M: Which rights?
Vorm: “RTC had three basic rights. To authorise Scientology organisations to use the Advanced Technology and the right to distribute copies to these organisations; the exclusive right to protect and enforce these copyrights; and also to [inaudible].”

M: Does this also mean, according to CST, that RTC can also start litigation or take judicial procedures in its own name?
Vorm: “I’m not sure that I understand your question.”

M: According to CST, may RTC take legal action according to this license agreement when it comes to protect this copyrights?
Vorm: “Yes and yes.”

M: In RTC’s own name?
Vorm: “Yes.”

M: According to the opinion of CST, are there any remaining copyrights to this material that are not included in the license agreement and that are not given to RTC?
Vorm: “No, there are not.”

M: Could this mean that CST could take any measures if RTC does not fulfil its obligations?
Vorm: “Yes.”

Zenon’s turn.

Zenon: “Why did CST sue Spaink in Holland, if RTC takes care of this?”
Vorm: “– eh, I don’t understand the question.”

Magnusson interrupts. Thomas Vorm is not a lawyer and he objects to the question being asked.

Zenon: “If RTC is supposed to sue in its own name and that is sufficient, why did CST sue Karin Spaink and twenty-two Internet providers in Holland in 1995?”
Vorm: “I cannot say.”

Zenon: “No further questions.”

10:30 – End tape. Break.

10:51 – Third tape: the bailiff in Tingsrätt.

THE BAILIFF WAS responsible for the confiscation and searching of Zenon’s data, but did not carry out the search personally. She explains the method that was employed, as described in her protocol. The bailiff searched Zenon’s data on his hard disk, floppies and zip drives, but was only able to do so partially, because of encryption. The words that she was looking for as per RTC’s instructions, were the following: OT, NOT, NED, BT, Body Thetan, vulcano, volcano, GPM, Ward, Vorlon. Zenon handed her a floppy with the texts that were affected by the court’s decision, which helped her to retrieve some material from his hard disk and copy it to diskette. A month later Zenon asked for a copy of the floppy he had handed in, and then the bailiff confiscated it. That was the same floppy that had been in the bailiff’s possession all along, but it had not been formally confiscated before.

11:00 – Fourth and last tape: Birgitta Alexandersson, notary public. Since the original testimony was taped behind closed doors, part of the audience is now asked to leave.

Tape: Zenon asks how she selected the ‘works’ within attachment 126 that she then proceeded to compare to RTC’s originals of OT2, OT3 and the NED for OTs Pack (as she insists on calling the NOTs). She claims that she has made a random selection.

The court listens to that statement. Then the tape is rewound and fast-forwarded to another section of Alexandersson’s testimony, in which she again explains the procedure that she employed. And indeed again Alexandersson claims that she made a random selection.

This is totally at odds with her testimony of yesterday: there, she claimed that she started at the top of the stack of papers, and “since she knew the material so well by then”, she could “easily recognise what was infringing”.

11:15 – End of tapes.

Discussion about damages and legal costs. Magnusson again enumerates the instances in which Zenon infringed upon RTC’s rights and states the grounds for and the amount of damages that RTC claims:

Payment for usage: 10,000 SEK
  the standard tariff being, according to the ttariff of the Swedish Writer’s Guild, is 160,000 SEK. In other words: RTC is being mild here, or so they claim.  
–  Tort for material damage: 10,000 SEK
  which includes their economical damage, money spent on guarding the material, loss of customers, market shares and license proceeds.  
–  Immaterial damages: 5,000 SEK
  loss of good name, hurt feelings etc.  

Apart from that, RTC demands the destruction of any secret and confidential material that Zenon has in his possession, has published or has distributed.

11:30 – Lunch break

13:15 – Court resumes.

ZENON STATES HIS OBJECTIONS to the need to pay damages. One of his grounds is freedom of speech and freedom of religion, based on the European convention on human rights. Scientology is a cult that has been criminally convicted in many Western countries, he explains; only next month a penal case in Madrid will start in which Heber Jentzsch, the president of Scientology, is one of the defendants.

In order to explain and assess what Scientology stands for, it is necessary to have access to their material. Besides, this is a consumer’s right worthy to defend: you need to be able to understand what you get into and what you pay for before you join any group.

The Chair warns Zenon that he is diverting from the subject of damages.

Zenon explains that there is a strong need for an open debate about Scientology and its beliefs, and that this is sufficient reason to publish their texts. Thus, damages should be waived under the provisions of the convention.

Part of Scientology’s claims should be rejected because Zenon is not responsible for them. They hold him accountable for infringements that he has not at all perpetrated, as for instance copies of OTs and NOTs made by the courts, not by him. Part of the damage caused, as for instance loss of revenue, is due to the bad quality of Hubbard’s writing and not to Zenon’s actions as such. Furthermore, an author’s right to compensation for immaterial damage, i.e. his hurt feelings, is personal to him and does not follow the copyrights. As for the legal fees that RTC demands (8 million SEK) and what the primary court ruled that Zenon had to pay (1,2 million SEK), there are important issues to be taken into account, that is, to be subtracted from the bill. He will go into those later.

Regarding the injunction and the destruction order that RTC wishes to impose upon him: not only does he dispute them, he also thinks they should be specified to particular objects and to particular texts, and be limited to apply only within Sweden. As things are now, the injunction is far too wide and neither limited in scope nor in time.

Destruction orders must always be fully specified. Besides, Swedish rulings can be enforced in the Netherlands. As things stand now, making a copy of the scriptures for personal use is infringement in Sweden but not in the Netherlands, where the courts have explicitly ruled that the scriptures are published material. If the Swedish ruling is not limited to apply within Sweden only, the Swedish court would be imposing its ruling on another country against the rulings of the courts of that country. In a country where a ruling is only enforced, it cannot be appealed.

13:50

A MORE DETAILED discussion of the legal fees as presented to the primary court is conducted.

Magnusson right now drops two items from the bill: Bill Hart’s legal fees and his travelling costs for the primary case: 1,351,350 SEK, and 211,642 SEK respectively. RTC’s bill for legal fees has just been reduced from 8 million SEK to 6,5 million SEK.

Zenon disputes various items on Magusson’s bill:

  • The legal fees: the political lobbying and the guarding of the OTs and NOTs in parliament are on the legal bill. This is not correct; only what is spent within a case itself can be charged in the case.
  • RTC is charging fees for costs brought about by other cases, lawsuits that branched off this one. You can’t put those on this bill: for instance, when RTC sued the court demanding secrecy, they can’t expect Zenon to foot the bill for that. It is simply not part of this case.
  • The legal bill is terribly vague where it comes to specifications. None of the costs on the bill can be checked.
  • The charges are unreasonable, and Magnusson’s fee is outrageous. If you compare what he demands or states that he costs with what Ms. Calissendorff, who for some time acted as Zenon’s lawyer, was awarded by the court, you can’t but cringe.
  • The legal bill is unduly burdened by unnecessary actions (from McShane’s affidavit and the translation thereof, to translations of a multitude of US rulings and a flood of legal opinions offered; from travelling and any number of hours worked for lawyers that didn’t actually participate in the case; Small’s travelling expenses while he could easily have testified by telephone, just like Vorm did; the amount of copies made and the price per copy calculated; the handing in of evidence to prove things that Zenon never questioned or denied; the consistent use of couriers instead of faxes; the aide who has been sitting next to Magnusson for a week while doing nothing much more than leafing through papers and occasionally passing a note on to Magnusson. And let’s not forget the ten binder set that Magnusson presented everybody with at the beginning of this case: there was nothing new in it, Magnusson just ‘re-ordered’ his evidence, and surely Z will be expected to pay for that as well.

In short, RTC and Magnusson have deliberately increased their costs and are now pushing that bill unto Zenon. Equality of arms (viz. the European Convention of Human Rights) is surely applicable in this aspect. In the absence of a reasonable bill, RTC’s legal costs must be reasonably assessed and be brought down proportionally according to what RTC has lost.

14:00

MAGNUSSON’S REPLY. It is obvious that Panoussis has done everything he could to increase RTC’s costs. On alt.religion.scientology, Zenon has in various postings claimed that RTC, by imposing such a enormous sum upon him, has in fact granted him immunity from future claims. And he is actually challenging RTC in that posting – as he has done in other postings – to sue him, while alternatively threatening to post more of RTC’s material.

Zenon’s claim that equality of arms should be taken into account is ridiculous. Actually, it amounts to discrimination: it means that the strongest party can’t spend more than the weaker party can afford.

Zenon replies that Magnusson’s last remark about strong and weak parties is of course nonsense. The strong party can spend whatever it wants; the only question at stake is whether it can demand that the weaker party will afterwards bear all these costs. He will save his other arguments for his plea.

14:30 – Break.
14:50 – Court resumes.

MAGNUSSON IS GOING TO deposit McShane again. Zenon informs the court that he would like to pose additional questions as well, and explains on what subject: contrary to what he stated, there appears to be a part of NOTs that people do study. Apart from that, it would appear from Scientology’s own publications that there are much more than just 325 Scientology members who have studied the NOTs, as McShane claimed: some 120 more at least. Does this evidence come from Scientology itself, the Chair asks? Yes, Zenon explains, it comes from Scientology’s own publications: Source Magazine and International Scientology News, and copies of those magazines arrive tomorrow. Zenon will provide Magnusson with copies immediately.

Magnusson claims that this is not at all relevant, and besides, why are we getting this at the latest moment imaginable? Short discussion between Chair and Zenon. Zenon explains that NOTs are courses with ‘fixed donations’ as well. The Chair wants to know since when. It has always been like this, says Zenon.

15:05 – Deposition of McShane

WE KNOW THAT THIS new deposition has been put in to repair some of the damage done previously, where McShane was forced to admit how many people have read OT2 and OT3, and his admittance that people pay for those courses. (Any commercial exploitation of a text is in itself sufficient to constitute publication, and thus, under European law, gives every citizen the right to possess copies for private use and allows everybody to quote from it.)

Magnusson: How many copies has RTC itself produced of OT2, OT3 and NOTs?
McShane: Of OT2, RTC has produced about twenty packs for each of the Advanced Churches. That is approximately a hundred copies in total. For OT3 the numbers are a little bit higher, about thirty copies for each Advanced Church. In case of the NOTs it is different, each of the Advanced Churches only has four copies, except for the Advanced Church in Florida that actually is the church that trains the NOTs ministers. They have about seventy copies.

Magnusson: That means that all in all there are about a hundred copies of OT2, hundred and fifty of OT3, and seventy or eighty of the NOTs?
McShane: Of the NOTs, that would be about eighty-six copies. Each of them is part of the inventory, is numbered and is plugged into the computer.

Magnusson: ..
McShane: Yes, about [xx] years ago we translated the OTs and NOTs into the four main languages: German, Spanish, French, Italian.

Magnusson: Are these translations part of the total amount of copies?
McShane: Yes, those numbers include the translations.

Magnusson: [assessing the degree of infringement as perpetrated by Zenon Panoussis]
McShane: I went through how much he infringed and [gets folder, opens it]

Magnusson: [can you give us the details?]
McShane: I compared the original work to the infringing copy. I did a word count and determined how many words he took from the originals. For instance, from OT2 he infringed upon 10 individual works and 4 of those works are infringed upon 100%, one is infringed upon for 94%, one for 84%, one for 75%, one for 62%, one for 20%, and the last one for 7%.
I did the same calculations for OT3. 15 works were infringed upon. 13 of those for 100%, one for 66%, and the last one for 29%.
I also did the same calculations for the NOTs. Of a total of 60 works 53 or 54 of the NOTs series and 4 other works were infringed upon. Just about all of them were infringed 100% There were two, I would say for 99,99% infringed upon, one for 91%, and there was a couple that was infringed upon for 95 % and another 80%. But the majority was taken verbatim.

Magnusson: .. summarise .. sentences .. text ..
McShane: I don’t follow the question.

Magnusson: [Are there other texts among the infringements?]
McShane: No, there are not.

Magnusson: The notary public, Alexandersson said that the distribution list of NOTs 54 mentions “solo NOTs”. Can you explain?

McShane: I testified that there was no Solo OT5. There is a course called Solo NOTs, but the member or parishioner who does that course does not study the NOTs himself, and although it says “NOTs Pack” on the cover, there is no NOTs issue or NOTs course on OT6.

 
[Comment: this ping-pong between Magnusson and McShane is the result of Zenon asking about Solo NOTs. Zenon had implied that the Solo NOTs – a course that has been done by plenty of Scientology members – are part of the NOTs pack. Here, McShane tries to refute that.]

Magnusson: [can you explain a bit more about the OT-levels]
McShane: Each of the OT-levels were based on research that Mr. Hubbard did into the spiritual nature of man, in order to discover the means, the ways of improving man’s spiritual nature, all leading to the ultimate goal of immortality. Each of the OT-levels are an expression of Mr. Hubbard’s writings, of what he discovered. And I know that it is hard to understand what those writings mean without prior knowledge, but after my twenty-seven years of being in the church, I’m very familiar with Mr. Hubbard’s writings and also from testifying in court cases, that each of those individual works is an expression of what he discovered on those particular subjects. I know that it is difficult for the courts to review this material, because we are dealing with religious scriptures, but the courses and the material contained within those courses impart to the individual that reads them the revelations that Mr. Hubbard discovered; and when you apply that material to yourself, you discover those revelations.

Magnusson: [Panoussis being wrong about whether any payment is expected for studying the NOTs]
McShane: Yes, Zenon Panoussis has it totally wrong. OT5 and the NOTs are only available to Scientology ministers and they do not pay for this course. These are employees of the church and it is their training. They do not pay for it.

Magnusson: [about the additional ministers who studied the NOTs Pack, over and above the 325 ministers that McShane testified have read them]
McShane: My testimony was about the state of affairs at the beginning of the trial at hand. I did not calculate any new ministers, but obviously there have been additional people trained under the same circumstances.

Magnusson: [how many additional people have studied the NOTs?]
McShane: Maybe between 50 and 100 additional members. Again, these are church members, they are staff, and they do not pay for this course.

15:27 – Zenon’s turn.

Zenon: The percentages that you mention you have calculated pertain to Exhibit 37? [That exhibit is what Zenon filed and what became public: it contains the OTs from the Fishman Affidavit and the NOTs.]
McShane: Yes.

Zenon: Are these percentages based on calculations per word, or on the amount of words?
McShane: I took your infringing copy and highlighted all the words and then counted all the words that were the same.

Zenon: Did you count any instances of words in the wrong order as an infringement?
McShane: I found no instances of that.

Zenon: Do your calculations pertain to individual works or the whole collection?
McShane: To individual works.

Zenon: With respect to the NOTs, you stated that sixty works were infringed upon. Are these sixty works all parts of the NOTs pack?
[Some discussion ensues as to what is the NOTs pack.]

Zenon: The sixty works that were infringed upon, are they all part of the binder that you showed here last Friday?
McShane: Yes.

Zenon: What OT-level have you yourself attained?
McShane: OT6.

Zenon: That means that you only have personal knowledge about everything up to and including OT6, but not of anything higher?
McShane: Yes.

Zenon: With respect to the ministers who study the NOTs: you say that they don’t pay for this course. But do they have to donate?
McShane: No.

Zenon: What is the official title of these ministers, their ‘hat’?
McShane: Auditors.

Zenon: Ehm, I mean what class of auditors?
McShane: Class IX.

[Z gets up and borrows a Scientology glossy from the court that has been filed as evidence; it contains a price list]

Zenon: Can you explain what it says here? “Class IX auditing rates – 9250 USD for 12,5 hours”.
McShane: That is what auditing with them costs.

Zenon: Is this what the auditors pay, or the auditees?
McShane: The auditees. The price refers to auditing rates for 12,5 hours. So if your a parishioner and you want to do NOTs, that would be the donation rate for 12,5 hours of auditing in Flag Clearwater, which is our Advanced Church in Florida.

Zenon: Let me rephrase. The people who actually get to see and study the NOTs: are they expected to pay any fixed donations?
McShane: No.

Zenon: In the magazines that are now on their way, Source Magazine issue 132 from 2000, and International Scientology News issue 9, 1999, it is claimed that 57 and 60 new Class IX Auditors respectively are about to get their grades. Is it probable that this many people have participated in NOTs since the previous trial?
McShane: That is possible.

15:40 – McShane’s deposition is done.

Some discussion about the magazines that are on their way ensues. On behalf of RTC, Magnusson admits that about 100 people have read the NOTs after 1998. As a result, the magazines do not need to be filed as evidence.

Both parties’ written evidence is then mentioned and noted – a procedural necessity, brought about by the Swedish legal system that demands that all arguments, grounds and evidence have to be presented verbally.

We are ready at 16:30, and pack our stuff. This time we need to take the extra binders with us with us that Magnusson brought in at the first day. Zenon had just left them in the court room so far; there was no point in dragging them along. Besides, we couldn’t carry them with us even if we wanted; but fortunately, this time one of our supporters has shown up and he will carry them for us. We take one of the cartons that Magnusson brought them in and pack.

Only later we look at the box more closely. On the side, it says:


Legal Source, Inc
The Total Litigation Support Company

… based in California. “Total litigation support”? Duh. Do they deliver jails, too?

*

Outside the court we have a much-needed smoke. The UK guy who approached us yesterday is there waiting for us: yes, he went to visit the local Scientology Org to get a second opinion and to fish for information about his grandson. To his great surprise, just before he entered, he saw the guy we had observed at the pub yesterday exit the Org…

We have a drink with our supporter. He gets to carry the extra carton. In the pub, we notice a woman who is slightly out of place. She has seated herself in such a way that she has an excellent view of us and she ‘appears’ to be reading a newspaper. Since we are tired of being followed, we devise a trick to figure out what is going on. Zenon will leave, and we will observe her.

Within thirty seconds of Zenon having exited the pub, the woman folds her paper and leaves. Our supporter phones Zenon on his mobile: “She’s getting out of the door now.” Our supporter and I continue talking, meanwhile scrutinising the street. After six or eight minutes, we see the same woman in the presence of a man passing the cafe, Zenon just behind them. He points at them and mimics at us. Our supporter gets up and joins Zenon.

After a few minutes, Z and our supporter get back into the café. “The street is swarming with Scientologists,” Zenon exclaims. “I noticed at least five,” and he explains what happened. When he went out, he saw a guy who was loitering and then slowly moved in the direction that Zenon was taking, so then Zenon turned around a corner and stopped; he saw the guy looking at him, pretending that he didn’t, and then he exchanged glances with another woman and wandered off, obviously having lost his purpose. This second woman appeared lost when Zenon simply turned and walked back to where he came from. Two guys were sitting in a parked car. On his way back to the café, Zenon saw the woman from the café coming towards him. The moment she noticed him, she turned around and walked back again, walked past the café and stopped at the next shop window. Behind her was a man, obviously unrelated to her, but he stopped at the shop window too and started talking with the woman. Sure enough, Zenon was yet further behind, so the man hadn’t seen him.

Zenon continued past the café and reaches the two, overhearing part of the woman’s exited explanations to the man. Zenon stopped next to them at the same shop window, whereby the man and the woman immediately departed in the direction they had just came from.

At this point Zenon followed them past the café and stopped them. “Can we stop these stupid little games NOW?” Zenon demande. “I don’t know what you are talking about,” the woman mumbled. (The natural answer would of course have been: “Games? What the fuck are you talking about? Who are you?”) Zenon scolded them severely and returned to the café.

When later all three of us get into a taxi, we are followed by a white Volvo. When we stop to let off our supporter, the white Volvo stops behind a parked bus. Our supporter takes them for a ride from there, while we, just in case, make sure that they have to spend a few hours in the Swedish cold if they manage to follow us.

[Unbiased columnism is a series of seven court reports on the proceedings of Scientology versus Zenon Panoussis. This series covers the Jan 2001 sessions. Next: Unacceptable truths.]

Unbiased columnism # 2.4

Magnusson becomes helpful

Stockholm, January 22, 2001

[Previous installment: McShane compliments Zenon.] WHEN ZENON AND I ENTER the hall after the weekend, Magnusson’s aide is the first person that we meet. While he usually ignores us, he now makes a show of flashing me a big grin. He must have read my previous report, I gather, and is doing his best to disprove my published assessment that he is a Scientologist. As I will soon discover, I am only partially right. There is a bit more to this smile.

9:30

THE COURT RESUMES. Magnusson starts by protesting my presence during last Friday’s closed door sessions. I wrote about these closed-door sessions, he informs the court, and published my notes on alt.religion.scientology. Thus, I broke the confidentiality that RTC tried to maintain with such difficulty, and apart from that, my reports constitute contempt of and defiance to the court that ordered me to maintain secrecy. Hence, Magnusson wants me out in all future closed sessions (such as today’s, when Birgitta Alexandersson, the notary public, will be heard).

Magnusson’s aide, who flashed me a huge smile only minutes ago, gets up and hands copies of my court reports as found on DejaNews to the court and to Zenon. Zenon replies that secrecy is only limited to actual parts of the scriptures discovered within these closed-door sessions, not to anything else, and I did not reveal any of that.

Magnusson sustains his protest. Zenon asks him to what passages exactly he and RTC object. One of them turns out to be the five-liner that Magnusson prevented Zenon from uttering Friday afternoon and which I later quoted as a planned part of Zenon’s plea, but most of all Magnusson protests the defiance that he discerns in the closing sentence of that paragraph: “That’s secrecy for you.” Aren’t I ridiculing the court here?

Zenon explains that this certainly was not information that I learned in a closed session: Magnusson did not allow Zenon to utter these lines and I got them at home, from Zenon himself, from his notes. And what does Magnusson mean by ‘contempt’? I simply pointed out the consequences of Magnusson’s own stance: if Magnusson will not allow Zenon to say something while they are discussing evidence and grounds, he will bring up that same issue in his plea – perhaps even with more vehemence.

It slowly dawns upon me that Magnusson has actually been demanding that I be thrown out of the court room completely, even when the doors are not closed and no secrecy is required. I must no longer be allowed to be here. I have shown gross contempt of court, and have proven myself to be utterly unsuitable and unworthy.

The court tackles the question in slices. They are not sure whether my use of the term “body thetan” in the previous report is justified. There is indeed some secrecy to be maintained, isn’t there? Zenon argues that far before he ever got into a dispute with Scientology in 1996, that word was already being used by other people in public discussions about Scientology. (Actually, he could have informed the court that there even is a Dutch Body Thetan Society, and that the UK can boast an Association to Prevent Cruelty Against Body Thetans.) The court can’t very well prohibit us from using words from the scriptures, can they? If it did, half the English vocabulary would be covered by secrecy. As for Magnusson’s wish that I be dismissed: Zenon needs me; while he is interrogating people he can’t make notes, and he has no other assistance than mine.

The court adjourns. They need to reach a formal decision on Magnusson’s request.

9:50

DURING THE BREAK, Zenon and I discuss the consequences of a negative decision. “I need to have somebody who can make notes and who can shove information at me,” Zenon says. “If the court refuses you any further entrance, I am afraid that I must ask the court to adjourn and reschedule the whole case. Fuck, I can’t do this totally by myself, can I?”

Then again, we understand why Magnusson is doing this. First of all, McShane suddenly finds a rather detailed transcript of his testimony on the net – and as we all know, transcripts such as these are often terribly useful in other people’s court cases. McShane would rather not have them around, especially not where it concerns a closed session. He’d rather not be held accountable elsewhere for what he is saying here. Secondly, there is probably an element of revenge involved. So there I was, not a party in this court case at all, yet allowed to see the OTs and NOTs; probably I am the second non-Scientologist, non-lawyer in the position to officially lay their eyes upon Scientology’s scriptures – Zenon being the first. And thirdly, Magnusson might hope to hamper or cripple Zenon. He is simply being pusillanimous.

We wait for twenty-five minutes for the court to announce its decision. Judging by the amount of time that it takes, and by the no-nonsense behaviour of this court, we assume that the court is carefully reading my two reports and weighing my words.

It’s a rather weird thought that by now three of my articles have made it into this court case: my summary of OT3 has been part of the case for a few years already (in attachment 126), and by now two new pieces have been officially filed.

10:15

THE COURT RESUMES. We are called in to hear their decision. Although I walked a tight line, the court states, they found me neither incapable nor unsuitable to be Zenon’s biträde. There was no contempt of court. I can stay.

I breathe relief. Zenon will not be forced to ask to reschedule. Moreover, while I was vehemently hoping that the court would come across my reports – they do after all not only comment upon McShane’s glitches (oh, how I now wish that I had incorporated all previous known and established security breaches concerning the OTs in my last report; it would have been so edifying), they also present a more social, subjective point of entry than any legal assessment can provide one with – Magnusson has dutifully fulfilled that task for me and has himself formally provided the court with my reports. Thank you, Mr Magnusson; you were most kind.

Then again, I’m quite sure that Magnusson will put the fee for the copies of my a.r.s. reports on Zenon’s legal bill.

10:18 – A procedural discussion starts.

Zenon would like to have the deposition of Ms Alexandersson, the notary public who compared Zenon’s postings and his webpage to RTC’s originals in an open session: he assumes that the procedure of her comparison will be discussed, not the actual contents of the material. The court needs to make another decision. It takes them ten minutes.

10:30 – The court announce their decision: Ms Alexandersson’s testimony will be partly open, and partly under secrecy, just like McShane’s testimony.

10:33 – Birgitta Alexandersson’s deposition

MS ALEXANDERSSON SEATS herself. She is reminded – like McShane was previously – that she is still under oath. She starts by explaining that she is not working as a notary public anymore, and is by now living abroad.

Magnusson: What method did you employ to make the comparison?

Birgitta Alexandersson: 3 steps. We – I and my aide, who is a lawyer – sat down with the material I got the originals from the church, both OT2 and OT3 and NOTs. We compared those to attachment 30, 37, and 126, the diskettes from the bailiff, the material from Panoussis’ hard disk and the documents handed in to the various authorities. With respect to attachment 126 [the monkey OTs], I made a ransom selection and compared those to the originals. They were exact copies.

M: How did you get the originals?

BA: A church official brought them to my office.

10:38 – Start of closed session

Zenon comments that Alexandersson’s aide stays in the court room. Alexandersson says that he helped her to make the comparison and that he knows her notes. Zenon asks why he should be allowed to stay during this closed session. Can’t Alexandersson read from her notes by herself? Does she need help or a souffleur?

The court has a small discussion amongst themselves. In the meanwhile Alexandersson gets quite annoyed and says that she doesn’t care if her aide leaves, so the aide does so before the court reaches a decision. Magnusson tries to retaliate by reminding the court that I am here and am making notes. The court assures Magnusson that I am still bound by secrecy.

Alexandersson produces her notes and from those, she reads what differences and similarities she assessed existed between Zenon’s OT2, OT3 and NOTs and the originals that RTC supplied her with. It takes an hour and a half to do so.

12:17-13:15 – Lunch break.

Zenon questions Alexandersson. He wishes to know how much of OT2 and OT3 was not quoted in the documents that he posted or filed. Alexandersson goes through her notes, but can’t find the answer in them; she exclaims that these notes are old and that she doesn’t remember. She only has her notes to go by. Zenon insists, the answer is quite important to him; Alexandersson gets quite irritated: she has no knowledge apart from what is comprised in her notes, and she doesn’t see why Zenon insists. I, however, understand why he does so: Zenon is trying to show that Alexandersson only compared texts that match and is not telling or does not know how much of the original text was not at all in Zenon’s copies. This is important with regard to the right to quote. Alexandersson finally states that she received the full binders from RTC, the same ones that the court has seen. Taking this into consideration, her account of how big parts were copied doesn’t seem to match the length of the respective materials. End of closed session.

Zenon wants to know how Alexandersson made her selection of the works within attachment 126 that she then compared to RTC’s original NOTs pack. Did she make a random selection? Yes. No. She started at the top of Attachment 126 and then compared each individual Monkey NOT to the NOTs Pack. Since by then she was well acquainted with the originals, she could decide rather quickly which works within Attachment 126 was infringing and which one wasn’t. No, she didn’t go through the whole of Attachment 126; it contained 200 individual texts, she was dead tired and she had agreed with Magnusson that she would hand in her assessment the next morning. Yes, she started at the top and ignored the ones that were fakes. Yes, that is how she assessed that the seven works that she compared were originals. No, the ones that she threw aside she didn’t count. No, she doesn’t remember, it’s too long ago. Yes, she worked her way from the top down.

In the hearings of 1998, Alexandersson twice stated under oath that she had made a random selection from within attachment 126 and that each of those randomly selected works that she compared to he originals, was infringing. According to the investigation protocol she said the same to the prosecutor in the penal investigation case against Zenon. Now she says that she did not select randomly, that everything that at first glance did not appear infringing was cast aside, and that she defined the result of her selection to be her random selection. The court frowns. Alexandersson denies that she ever stated that she made a random selection. The court secretary intervenes: Alexandersson has indeed stated that.

Zenon asks for Alexandersson’s testimony in primary court to be re-heard from the tapes.

13:55 – Mikael Nyström’s testimony.

NYSTRÖM IS THE internet and computer expert who in primary court stated under oath that a series of NOTs postings to a.r.s. – dated May 2, 1996, postings that Zenon disputes he ever made – could not, or could almost not have been falsified. Meanwhile, it has been proven that such a message can be falsified: a few weeks ago a message was posted to a.r.s. having the exact same headers (host name, NTTP-posting host, NTTP-posting user, user, sender, what have you; all from Zenon’s old dodo.pp.se account which has long been closed) and that message was purportedly written by Mikael Nyström. Zenon questions Nyström.

Zenon: can you explain to the court how one identifies a Usenet message?
Nyström: By the IP address (you check whether it exists), the message ID, the NNTP posting host, NNTP posting user, the news server used. You can falsify a few things but not all.

Z: Can you falsify the sender’s address?
N: Yes.

Z: The message ID?
N: That is more difficult, but not impossible. The message ID in part serves as a guarantee for authenticity: it is unique for each message.

Z: Where is such a message ID created?
N: That depends upon the operating system used, and upon the program used. Almost always the message-ID is created by the server.

Z: Do you know if Netscape generates a message ID?
N: I’m not sure with Netscape, but in any case the news server checks the message ID and might modify it.

Z: Which headers are generated from within Netscape, that is: at the client side?
N: The sender name and e-mail address.

Z: What about NNTP posting user and NTTP posting host?
N: These are always generated by the server. Even if the client would add them to a message, the server would strip them off and re-generate them.

Z: Can you falsify NNTP posting user and NTTP posting host?
N: There is some room for falsification, but not much.

Z: So how do you tell where a message come from?
N: By looking at the dial-up and at the posting host, the IP address for the computer, that is: the name for the computer to which you are connected and via which you post.

Z: What does ‘dial-up’ and ‘posting-user’ mean?
N: It tells you which particular user is logged in at this particular moment from which particular dial-up.

Z: If you dial in and post to a newsgroup, are your actions then logged, under normal circumstances?
N: Yes, certainly when you pay per minute of usage at your provider. Paid providers do extensive logging. With free providers, it’s a tad different.

Z: How normal is logging for normal providers?
N: It is even expected of them. When a client for instance abuses the net you must be able to trace him.

Z: So you can look at these logs and then find out who it was?
N: Yes.

Z: Let’s look more closely at this particular message. Can you tell from where it was posted?
N: Yes, by looking at the path, the posting host, the news server.

Z: The path lists all the computers through which this message passed?
N: Yes. Each message passes lots of machines; and here you can see which ones. At news servers, a replication process takes place: news servers check what they have and what they miss, and then exchange on a peer-to-peer basis with one another in order to get a full feed. That is where the message IDs comes in, these are used to check what you have and what you have not.

Z: So, is it correct to say that from this path you can tell…
N: Yes, you can see which way it traveled.

Z: And the dial-up?
N: You can tell that he’s from e.g. Tele2 and dialed in.

Z: Within which limits can you be certain about that?
N: To quite some degree.

Z: [shows Nyström the falsified message]
N: This one says that it came from Swipnet. We know that it is false, the account does no longer exist.

Z: But if you had no clue about its origin and were just presented with this message, would you still say…
N: I can’t be sure. We know that this one is falsified.

Z: How can you falsify a news message?
N: Usually, this is done by injecting it into a news server.

Chair: How do you do that?
N: You contact a news server directly, and you fake a sender and a message ID.

Z: How do you recognise a faked message?
N: You look at the sender, at the message ID and check whether that is plausible, then at the posting host and user, and you look at the path and check whether it is reasonable.

Z: As a system administrator, you can log in everywhere, can’t you, and can’t you inject any message then?
N: Well, if you are a system administrator, basically, you sit with your hands in the cookie jar.

Z: You spoke about news servers pooling their messages and exchanging them. How many news servers are there?
N: Tens of thousands.

Z: If you inject a message in any of them, will that message circulate normally?
N: More or less.

Z: So sysadmins have full possibility to falsify messages?
N: Yes.

Z: In tingsrätt you said that you were 99% sure that this message could not have been falsified. Now you say that it is possible.
N: Erm, it is not impossible.

Z: Can a system administrator inject a Usenet message via his own news server?
N: Yes.

Z: Can an individual do it?
N: Yes.

Z: And an organisation?
N: Yes.

Chair: So it is technically possible?
N: Yes. It can be done. However, the information about how it can be done is now more readily available than it was in 1996. If the court would search the net, I am sure that within five minutes, they would find a course on the net teaching them “How to make a fake posting”.

Z: How can you ensure that a posting is real?
N: By checking the logs that the provider keeps, by checking the telephone numbers that were used for dial-up, by checking who was logged in from where. You would need to have all log files.

Z: Having Tele2’s logs would give you a good chance of proving this?
N: Sure. I would first of all check the dial-up and then see from which telephone line the user phoned in.

Z: Can you fake that?
N: That is very, very difficult. You need to manipulate a really big system, but perhaps when you have lots of money…

15:00 done. Magnusson’s turn.

M: At your Tingsrätt deposition, you said that you had informed yourself about the possibilities to make false postings.
N: I spoke with experts and with Tele2.

M: Can you manipulate posting host and posting user?
N: Sitting at home it is more complicated, but it can be done.

M: And you say that this is easier for a sysadmin to do?
N: Yes, the discussions that I had show that it is possible.

M: Does a firewall make such things more easy?
N: A firewall is meant to bar unwanted requests. It blocks them. We have a few attacks each day on our own systems.

M: Can you fake a posting host or posting user via a firewall?
N: No, you must manipulate them at the server. The firewall is just a guarantee that things don’t get in.

M: Was it easy in 1996 to fake the posting host?
N: The information on how they to do that was less generally available.

M: [speaks about moving copies from the one place to the other; cached copies etc; previously, in primary court, Magnusson had tried to stamp each virtual copy that Zenon’s computer created as a separate instance of infringement]
N: That’s just a technical thing. When you have a file on a medium and you want to move it, you create a copy first and then delete the original. You must always first copy a file when you move it, even if both actions are accomplished with one single command.

M: Newsgroups, can you explain what they are and compare them to homepages?
N: A website is fixed in one place, you copy your files directly to that. Newsgroups get their information from many sources, and the messages jump from server to server to server.

M: If I want to copy text from my computer to a newsgroup?
N: [explains how to do that]

M: Thus, many virtual copies are made of my posting?
N: That is the nature of newsgroups. The Usenet system is not located in one place, it is copied around.

M: How many copies exactly are made of news postings?
N: That depends on how popular a newsgroup is and how often a particular message is requested. They just go to a news server and get replicated from there.

Zenon’s turn again. From now on, Magnusson and Zenon each pose a few question to the witness. It’s almost like a bidding contest.

Zenon: Do you know whether Tele2 demanded authentication on the news server in 1996?
N: I don’t think that they did.

Zenon: As for copies when files are moved: would you say that it is impossible to do without them, that the technical process demands them?
N: Yes.

Magnusson: In primary court, you said that you were 99% sure that it was not possible to falsify a newsgroup message. On what did you base this statement?
N: On talks, discussions, my general knowledge.

Zenon: Have you ever heard of the spamming of newsgroups?
N: Yes.

Z: In May 1996, there was a whole flood of false postings to a.r.s. Do you know that?
N: I know about spam attacks on newsgroups, but I do not know about this one.

15:45 – End of Nyström’s deposition.

The remaining 45 minutes of today’s session are taken up by procedural matters: evidence is listed and compared, and tomorrow’s schedule is decided.

*

ZENON AND I LEAVE court rather happy. Today’s session went well: we have caught Alexandersson with errors, and Nyström by now has admitted that it is not at all as difficult to fake a posting as he previously stated. Also, we note that Magnusson seems increasingly nervous. Today, we saw him smoking outside. He has never done so before.

When we have our cigarette just at the court’s door, a couple approaches us. The man, fifty-ish, asks who we are. He is looking for Zenon Panoussis. You see, he explains, his grandson has joined Scientology and now he is looking for information about them, and then his lover – he points at the young blonde who is accompanying him – found out about this court case on the net, and since he doesn’t know anybody who is familiar with Scientology, he thought that he had better come to court and ask us to impart our knowledge.

After a few minutes we decide to go to a café to talk.

Once there, we launch upon a one-hour explanation about Scientology, while warning the couple that our information is coloured and that they should check for themselves. They are increasingly unsettled at what we tell them. All your money? Space Opera? Reincarnation? Discipline? Intelligence division? Scientology has been convicted for theft, fraud, infiltration?

Five minutes after we entered, a guy comes in and takes the table next to us. He orders food and a glass of water and consistently stares at the television at the other end of the café. It is right behind us. He stares over our heads and our conversation seems to totally evade him.

I get uncomfortable. We are after all discussing rather weird and outrageous matters in a loud voice, and I know that if I had been sitting next to a table where such a conversation would be conducted, I would listen in a bit, and that my reaction would be visible on my face. Not this guy. He doesn’t bat an eye. Actually, he seems so impervious to our conversation that it becomes suspicious.

I have the feeling that the guy is a Scientology tail.

So does Zenon, as it turns out. The moment the guy gets up to have a leak, Zenon brings him up. And once he says so, the young woman says she has been wondering about his behaviour as well. We decide that once we all leave the café, Zenon and I will dash into a taxi and that the couple will keep an open eye. They might be tailed now as well.

THE NEXT DAY, after court is done and we leave the building, the man with the grandson in Scientology is waiting for us. He wants to tell us that not only did he go to the local Scientology org – to inform himself, as we advised him to do, and to get the other side of the story – but most of all that when he was about to enter the Org, he saw the guy who had been sitting next to us in the café exit the Scientology building.

We are being tailed.

[Unbiased columnism is a series of seven court reports on the proceedings of Scientology versus Zenon Panoussis. This series covers the Jan 2001 sessions. Next: Child games.]

Unbiased columnism # 2.3

McShane compliments Zenon

Stockholm, January 19, 2001

[Previous installment: Mangled material.] THE SCIENTOLOGY DELEGATION has changed configuration: there are two new guys. One of them is an extra interpreter. Today, McShane will be deposed and he needs a legal interpreter. Neither of the translators are Scientologists; that is apparent from the fact that they speak with us. The only other person who does this is William Hart, McShane’s lawyer. We joke a bit on occasion, especially when we’re outside to smoke. When we ask him whether he is a member of Scientology, Hart plainly states: “No. I am a Jew.” During one of these short conversations he tells us that Scientology is not his only client. He also does work for the MPAA, the Motion Picture Association. “Oh, in that case you must have come across me there as well,” says Zenon, “in the DVD case.” Yes, Bill is indeed doing a DVD case, but not the one Zenon is involved in.

Robin, who is to be Scientology’s main interpreter for the course of these hearings and who herself is no Scientologist, made a rather funny but embarrassing faux pas when she met RTC’s president McShane on the morning of the first hearing. “Oh, I downloaded something about you from the Internet,” she brightly stated. Internet. Wrong. “It concerns another court case that you are involved in, a libel suit. It seems that you lost.” She gracefully hands McShane a copy that he refuses to take. It is of course the infamous Time lawsuit, of which the last part was decided upon only a few days ago. “I don’t know about this one, it is minor,” mumbles McShane. Ouch.

*

10:30. MAGNUSSON STARTS EXPLAINING his grounds, something that he was asked to save until Zenon would have made his admissions, so that all discussion regarding points that Zenon concedes can be weeded out. Let’s hope that he does indeed skip quite a lot.

Magnusson claims that a copy of Zenon’s homepage from 1996 (containing the Fishman Affidavit) that Zenon filed a few days ago is “new evidence” and “new circumstances”, which should be rejected by the court. As it turns out, RTC itself had filed an identical copy of that same homepage already back in 1996. Exit objection.

Copyrights, transferred after Hubbard’s death as per testament, exclusive license, exclusive rights, RTC, bla bla bla, we know this. Magnusson recites the number of pages that were quoted of OT2, OT3 and NOTs. The Chair asks how the OTs and NOTs were filed at the US Copyright Office. Masked? Magnusson confirms. Was it the *originals* that were masked? Yes. In other words: has the Copyright Office seen the unmasked OTs and NOTs? Yes, of course, and the Copyright Office has even assessed the literary value of the OTs and NOTs, and found them to have dignity of work.

Magnusson is wrong: the Copyright Office has not seen the unmasked versions, as McShane will later on testify. Nice try, no cigar.

*

DISCUSSION ABOUT IDENTITY. Texts on Z’s hard disk, texts handed in to court.

These works are original, they have merit, they are registered, thus they are copyrightable, Magnusson drones on. Very often, he doesn’t make a statement himself but refers the court to the upcoming deposition of McShane. Zenon objects: first of all, an attorney needs to state his grounds for his claims himself and not let his client do this in a testimony. Secondly, a big part of McShane is going to be held behind closed doors, while whatever pertains to Magnusson’s ground ought to be stated in public. Magnusson continues about the damages that RTC suffered and the legal costs that Zenon has burdened them with.

Magnusson has no sense of humour whatsoever. He speaks in a deadpan voice, he never makes a joke, and what’s more: he hardly reacts when somebody else does. He doesn’t get angry, he doesn’t get inspired, he doesn’t get vehement. The only emotion he shows is embarrassment when Zenon makes at a hole in his legal arguments (and then he laughs, expressing his despair at such a stupid question or remark) or when he finds himself in a fix.

The Chair wants a clarification on a few of Magnusson’s points, or actually, about Zenon’s stance on them. One: the authorship of the OTs and NOTs. Zenon states that the NOTs were actually not written by Hubbard, but by David Mayo. The other point the Chair asks to be clarified is the matter of evidence: Zenon explains that RTC has to prove their copyright and it is up to the court to assess the evidence handed in, not up to Scientology itself, as has been happening up until now. And just showing the OTs and NOTs to the court will not be sufficient: there won’t be any time for a solid comparison, he argues.

*

ANOTHER DISCUSSION. Thomas Small, a lawyer, testified last time about how he helped to set up the license agreement between CST and RTC and how it was designed. What Zenon never knew and what Small certainly didn’t tell the previous court while he was being heard, was that he was at the time of his deposition actively employed as RTC’s lawyer. Zenon has found some correspondence dated a month after Small’s deposition in the Swedish court, in which he acted as RTC’s lawyer. That fact certainly questions his objectivity – actually, under US law he is not even allowed to say anything that could damage his client.

Magnusson raises the issue, claiming that the new evidence shouldn’t be allowed at all and that if it is allowed, RTC would need to depose Small anew. Nah, says Zenon, we have Small’s boss right here in the court room, we can simply ask whether he employs Small, can’t we? Magnusson mumbles, and then admits that yes, Small was in active duty of RTC while he was deposed in Zenon’s case.

*

ZENON OBJECTS to the closed doors that we will soon have. Last time, only three words were uttered that RTC actually considers to be confidential. (For your information: those three words were “body thetan” and “cluster”. We can summarise whenever we speak about the actual texts, can’t we? Magnusson hesitates: that could still constitute infringement. Well, if the Catholic Church had copyright to the bible and if I would then proceed to explain about God, heaven and hell, would I then be infringing? Zenon asks. Magnusson hesitates. Zenon has had enough of this. “What I want to say is five lines only, nothing more.” He gets up to Magnusson taking a paper with him. “These five lines is what I want to read.” Magnusson answers that these lines can only be uttered behind closed doors: secrecy has to be maintained. Zenon sits down again, exasperated. It is only a description and an argument, not a quote.

And here are these five lines, verbatim from Zenon’s notes: “The teachings are dangerous. The OTs and NOTs establish that sickness should be treated with auditing. This is also applied on children that do not have their own free will to abstain from medical care but are actually deprived of it instead (Lisa McPherson)”.

Zenon had wanted to expand upon it, explaining about body thetans – but Magnusson had no way to know this. Yet, he forbade Zenon to utter this quote in public. So instead, this will have to come in during the plea, with or without Magnusson’s consent, the only difference then being that Magnusson can’t reply to it. That’s secrecy for you.

*

11:05 McShane’s deposition starts.

SINCE QUESTIONS are asked in Swedish, translated into English for McShane while his answers are given in English and then translated, I have ample time to write down whatever McShane says. The following is more or less verbatim. The questions are usually left out, since I couldn’t understand them too well. Magnusson is asking questions. I am again – like in the previous hearings – Zenon’s biträde, that is: his legal aide, and I sit next to him.

McShane: I am the president of RTC and I have been an officer and a director of this organisation since 1983.

McShane: I have been employed by RTC since 1983 and became officer and director that same year.

McShane: I became president in 1984.

[How long have you been a member of Scientology?]
McShane: Twenty-seven years.

[What did you do before?]
McShane: I was a businessman, I had a construction company. I left that in 1980.

[Please describe the relation of RTC to the Church]
McShane: Scientology has a hierarchical structure. We have missions, churches, advanced churches, the mother church, and then, on top of that, RTC. RTC licenses the various trademarks and licenses specific advanced churches to use the material.

 
[Comment 1: this is the first time that I hear such a straightforward admission that RTC is not only part of Scientology but also its head. Earlier on, critics had to go at great lengths in order to prove this: that is why the affidavit of Vicky Aznaran, a former RTC officer, was so welcomed years ago. She said the same as McShane now states here: that RTC is the head of the church.]

[Comment 2: he did say “trademarks” and not “copyrights”. I assume this to be a telling slip of the tongue.]

[Comment 3: Larry Wollersheim might have good use for this statement in his efforts to make RTC pay CSC’s debts to him. McShane made it under oath and the entire deposition is on tape.]

McShane: RTC got exclusive licenses from the Hubbard estate in 1988, which gave us the right to distribute the material to the advanced churches and to protect the material against infringements.

[Has RTC taken a stance in other cases?]
McShane: Yes, RTC has brought other cases before court.

[Such as the Dutch case. Why was CST a co-plaintiff in that lawsuit?]
McShane: That was only due to specific law in The Netherlands, so that RTC could not sue by themselves. The licensee in that country couldn’t sue.

McShane: RTC is the only entity that has these rights.

McShane: In the Scientology religion, services are delivered in gradient steps, meaning that a member takes lower levels first and once he has completed them, he can move on to the next. We have two types of services: religious courses, where church members study Mr Hubbard’s texts and learn about them, and religious counselling, which is a service that the church delivers on a one to one basis through its ministers.
At a certain moment, members are eligible to go to higher levels. Of all the scriptures written by Mr Hubbard, circa 95% are publicly available. They can be obtained in the Church bookstores. They are available to the public. A small amount is not available and those are the unpublished, confidential writings by Mr. Hubbard. He mandated that. Unless somebody understands the basic principle, he can’t understand the higher principle contained in the OT material. This mandate is strict.

McShane: This is a matter of our religious tenets, that you need to be spiritually mature. It is hard to compare us to other religions, but other churches also have a similar practice of maintaining secrecy of their more esoteric principles.

[Who can do these higher courses?]
McShane: Only Scientologists who are qualified, not all Scientologists.

McShane: We call them OT levels. It starts with OT1 and it goes up until OT8. 1 and 2 are specifically used in those levels. The member, once he meets the requirements, is then permitted to go on to the next.

McShane: For instance,OT2, when somebody wants to do it, he does the OT2 course and in that course he would study the OT2 materials, and apart from that there is a lot that he would need to do. He has exercises to do, drills to understand, he is supervised. The supervisor ensures that he understands and duplicates the material. OT2 also contains films and tape recordings that are part of the course; they are also confidential. Once the member demonstrates his comprehension, he is allowed to do the OT2 auditing which he does on himself. Once he gets a specific religious result, he is allowed to continue to OT3. There, there is a similar procedure.
Now, as for the NOTs. In Scientology, as I said, we have auditing proceedings developed by Mr Hubbard to address spiritual travails. A member apply those proceedings to himself, under supervision, to oversee him.
NOTs is two things. The NOTs are OT5. It is not a course for the parishioner; it is meant to train ministers of the church to deliver NOTs, processes to members. The member cannot take that course. He never sees the actual NOTs himself.

McShane: The minister who is trained to deliver those processes asks questions designed to address certain spiritual questions.

McShane: In Scientology, we derive our revenues from a fixed donation system. Like other religions demand donations for their services, each one of our services has a fixed donation. The OT-levels too. For the OT3 course, it is 6000 USD. Each level has a specific donation rate.

[How long does it take to complete a level?]
McShane: That depends on the person. OT3, the actual course, could be done in one or two weeks. The counselling could vary from two months to two years.

McShane: NOTs is not a course, it is spiritual counselling, delivered in blocks of time. Twelve and a half hour is one block. There is a fixed donation for such a block. Within NOTs, that is 7000 USD per block.

McShane: We don’t think that that is expensive, but you have to understand that Scientology is a relatively new religion and it costs money to pay our church operations. We have to pay rent and mortgages, we have staff, there is the publication of books, promotion material – there are a lot of expenses involved. And quite some money goes to charity activities: drug rehabilitation, illiteracy programs, disaster relief. It takes a lot of money to keep this going.

[How does one get access to the OTs and NOTs?]
McShane: There are a lot of other requirements needed, apart from donations. For instance, the parishioner needs to have the correct qualifications and has to be of the correct moral character. He has to sign confidentiality agreements and has to agree to particular security precautions. He will be reviewed by RTC before he is, as we call it, invited to do these levels.

McShane: RTC has representatives in each Advanced Organisation and also staff within RTC do these assessments.

McShane: Seven advanced churches, and five specifically deliver OT2 and OT3 and the NOTs.

[What are your security measures?]
[Magnusson brings McShane the binder that contain impressive colour snapshots of RTC’s security system. Zenon protests, whether anything has been secured is irrelevant in this context and, besides, he is not disputing the current security measures. The court allows the evidence anyway and McShane flips through the binder, explaining as he goes along:]

McShane: This binder depicts what all parishioners have to go through. This is the confidentiality agreement. The security arrangements are explained to the parishioner. This is a picture of the course room. The actual binders with the material are plugged into a computer system that actually keeps track of the location of the material. You can unplug the material from its standard place and take them to a table where you study them, and there you plug them in. After you have unplugged a binder, you have thirty seconds to re-plug it elsewhere. If it is still unplugged after thirty seconds, the alarm goes off and all doors are automatically locked.

 
[Comment: and of course McShane is hardly an objective witness in this. The person who designs a security system or who ordered it, is not going to tell you about its fallacies and the holes in it…]

[Has the material ever escaped?]
McShane: In 1983, 3 ex-members of the church disguised themselves as high church officials. They travelled from England to Denmark, where they wouldn’t be recognised, and via a trick – they switched the material – they got the NOTs. Since then the NOTs have surfaced every now and then, and every time we sue, the material has been enjoined.

 
[Comment: McShane doesn’t seem to realise that his story of material having been “switched” in Copenhagen contradicts his previous explanation of the tight and automated security. If the material is not “plugged in to the computer system”, which it won’t be after it has been “switched” – surely you can’t simply open these plugged binders and just take out the pages – the alarms would have gone off and all doors would automatically have been blocked, right?]

[Magnusson hands McShane a price list that Zenon has filed. The OTs and NOTs are advertised there.]
M: These are folders from the advanced organisations and they advertise our specific religious activities, and of course they encourage members to progress.

12:10 – 13:30: Lunch break. Zenon and I prepare for our interrogation.

*

13:30 – Magnusson continues his deposition of McShane.

McShane: We have always had some security since 1968. The material was always locked; the sets were numbered; as technology progressed, we enhanced our security.

McShane: Before you can sue in the US, you need to have your texts registered with the US Copyright Office. I checked with them how to register while still maintaining secrecy. After some deliberations, they accepted masked copies.

McShane: The Copyright Office has not required nor looked at the unmasked texts. They only saw the first page or two, and accepted the masked versions. I made a carton mask, put those over the pages, and then copied them. Actually, my first attempt at masking them was rejected by the Copyright Office because the mask was too tight. I then made a slightly wider mask, but since you could then on occasion see full words, even confidential words, I proceeded to strike these with a black marker.

McShane: OT2 consists of 27 works. There are other parts of OT2 that are not confidential. OT3 consists of 37 works, plus non-confidential material that is part of the course. The NOTs consist of 55 works; the whole course is greater and contains non-confidential works.

[How many people have studied the OT3 and how many have studied the NOTs?]
M: OT3 has been studied by some 25,000 people. As for NOTs, I am not quite sure, but my best estimate would be 325 people.

 
[Comment 1: In May 1998, in Zenon’s deposition of him, McShane also stated that 325 ministers had studied the NOTs. That means that they have not had any NOTs completions since?]

[Comment 2: if 25,000 people did OT3, each ‘donating’ USD 6000, that amounts to USD 150,000,000. Hundred and fifty million dollars for the material only – not including the auditing that goes with it.]

[What is the damage that Zenon has incurred upon Scientology?]
M: Extensive damage. First of all, we have had a loss of revenue through people who have seen the material that Zenon Panoussis made available; they won’t become church members, mainly because they saw this material without the proper preparation. Secondly, the amount of effort we had to put into protecting the copies around here. Scientologists gave up their jobs, their family life, made great personal sacrifices to do so, just to prevent people who were not eligible from seeing the material. There were loopholes in the law that Zenon Panoussis took advantage of. It took us over three years to solve this. Lots of money and personal sacrifice went into this. Thirdly, the money involved in this litigation. This is one of the most complex cases I have come across. Zenon Panoussis has taken advantage of the system. It took tremendous expertise to counter him.

[At this point, Zenon puts his hand on his chest and nods to McShane, making a virtual bow. He takes this accusationas a compliment.]

13:45 – Zenon’s turn to question McShane.

Zenon: You stated that the inclusion of CST as a plaintiff in the Dutch case was necessitated by law.

Magnusson immediately protests that McShane is not a lawyer and cannot be expected to answer this. Zenon turns to the court and tells the court that in the earlier hearings, he could never finish a sentence while deposing McShane, because Magnusson kept interrupting him. Would the court kindly ensure that he wouldn’t be interrupted this time? The court nods. And indeed, Magnusson is silent the rest of the time.

Zenon repeats the question.
McShane: I am not a lawyer. Our Dutch attorneys informed us that the copyright owner, that is CST, had to be part of the case.

Zenon: So you can’t tell us for sure whether it was actual law or general legal principles that forced the CST to take part in the lawsuit?
McShane: No.

Zenon: We know from your answers earlier today that OT5 is the NOTs. What is meant by OT5 Solo Auditing? And what by OT5 Solo course?
McShane: There is no such thing. There are the OT6 and OT7 Solo Courses, but no solo courses of OT5.

Zenon: Regarding the NOTs, you explained that members doing OT5 get audited based on the material. But questions are only a very small part of the NOTs.
McShane: The NOTs serve as a background for auditors.

Zenon: The security that you described applies to all OT-levels?
McShane: Yes.

Zenon: And to all advanced organisations?
McShane: Yes.

Zenon: How come that doors didn’t automatically close when the NOTs were “switched” in Copenhagen?
McShane: [reluctantly] We didn’t have that security then.

Zenon: Who can subscribe to “Source Magazine”?
McShane: Flag members.

Zenon: Can other Scientologists subscribe?
McShane: Yes, they can.

Zenon: Is each member of Scientology allowed to subscribe the magazine “Keep Scientology Working”?
McShane: Yes, any Scientology member can get it.

Zenon: How many members do you have?
McShane: Circa eight million.

Zenon: When you visited the US Copyright Office, did they only see the first page unmasked?
McShane: The first couple of pages.

Zenon: In your case against Factnet, you claimed under oath that OT2 consists of 300 pages and OT3 of 200 pages. Of this, how many pages do you regard as confidential?
McShane: 166 pages of OT2, and 68 or 69 of OT3 were filed masked.

Zenon: The rest of those 500 pages were filed unmasked?
McShane: Yes.

Zenon: Your organisation uses a lot of abbreviations. On the distribution list of the NOTs for instance, —
Magnusson warns Zenon: no quotes from the NOTs here, only behind closed doors. Zenon retorts that he is about to quote from a distribution list that RTC itself filed unmasked.
Zenon: — On the distribution list of the NOTs, for instance, it says that it is addressed to “ACS Auditors” and “ACS C/Ses”. What do these abbreviations mean?
McShane: Case Supervisor Auditors, and [something I didn’t get]. The one is a subsection of the other. These are the only people allowed to see the NOTs.

Zenon: How big are both groups taken together?
McShane: Circa 325 people.

Zenon: With respect to the costs you had to make in this case, you spoke about people sitting here in court and in parliament in order to prevent others from seeing the material. How many people were involved in guarding the OTs and NOTs?
McShane: Circa fifty. I authorised them to sit with the material.

Zenon: Are they included in the 325?
McShane: They were only supposed to sit with the material, not to read it.

Zenon: The Fishman Affidavit contains fragments of OT2 and OT3. Did other parts of OT2 and OT3 ever get out?
McShane: Yes, in 1982, in 1983, in the Copenhagen theft.

Here, I shake my head vehemently and immediately reach for my computer, whispering to Zenon that the Copenhagen theft concerned only NOTs and that if anything else got out – as we know it has – it was elsewhere. McShane sees my opposition and suddenly remembers that he is under oath.

McShane: Well, there was a theft in the UK, in 1982, where other material was stolen.

Good. Scored again. First of all, Zenon has shown that the material is not at all as secure as McShane has implied. And secondly, I reminded McShane that whatever he says here is recorded and that he had better not lie: that I know about security leaks as well as he does.

Zenon: Can one reach the level of OT2 or OT3 by just studying the material? That is: without the tape recordings, without the films and without the supervision?
McShane: [hesitates, he knows what is going on] We wouldn’t consider that studying.

Zenon: Does the study of the written text only suffice to attain the corresponding OT level?
McShane: No, it doesn’t.

At 14:20, we are done. The Chair asks McShane a couple of questions on behalf of the court:

Chair: How many people did you say have read OT3?
McShane: Circa 25,000.

I see the court thinking: “but such an amount of people having read it establishes publication…! Twenty-five thousand people can never be a closed circle.”

Chair: Is registration in the US necessary?
McShane: Yes. Shortly before we registered, we discovered that there were squirrels, groups of people who used our material outside the church. We had to sue them, and thus had to register the OT material with the Copyright Office, according to US law. In the US – and I believe it’s the only country in the world that has this requirement – you can’t sue for infringement if you haven’t registered the work.

14:20 – Break.

*

14:35. McShane’s deposition continues as a closed session, in order to prevent any “confidential” phrases or words from becoming public. Only the lawyers (including Bill Hart), the two interpreters, Zenon and me – I am still his legal aide – remain in the room. Magnusson wants to show the court the OTs and NOTs, unmasked. Zenon objects. Previously, Zenon demanded that RTC would file the OTs and NOTs while Scientology protested; the lower court, tingsrätten, agreed with RTC. So why the heck would they show them now? And it is not real evidence, the court cannot really review these stacks of papers nor compare those to the OTs and NOTs that he posted and filed. Besides, viewing is a different category of evidence, that has not been announced in the due manner.

A short break ensues, the court needs to make a formal decision on this. After fifteen minutes they are done: they will allow Magnusson to show the OTs and NOTs to the same extent that he did in the district court.

15:15. Magnusson continues his deposition of McShane. As before, most questions are left out of my transcript.

McShane: Spring or summer 1996. Zenon Panoussis threatened to post our material and I instructed one of our attorneys to find out who he was and to inform him of our rights regarding these materials.

McShane: I downloaded Zenon Panoussis’ postings of the OTs and compared them to the originals.

McShane: I made the comparison myself.

McShane [opens one of the case binders that Magnusson has supplied the court with]: This is the comparison that I did before the lawsuit was filed. On the left side is what Zenon Panoussis posted and on the right side is a copy of the original, unmasked OT-levels, well, unmasked before I started this. I marked the similar paragraphs. I masked our comparison and then I went through them and blackened out the key confidential words so that one could see that they came from the same Hubbard work but still maintain confidentiality.

McShane: The first one is a NOTs issue, I think 28, all the issues are formatted in a similar way, they have a title of Hubbard Communication Office and it has the title of the actual work; then the body of the text itself, and then there’ll be a signature. If you turn the page, to NOTs 29, you’ll see Mr Hubbard’s signature at the bottom and the infringing copy even copied the copyright notice.

McShane: There’s a page titled OT2, and the infringing copy here has the computer address at the top right corner. And then I took this and compared it to the original, and if you look at the first issue after the blue divider, that page corresponds to OT2.

McShane: OT2 has 166 confidential pages and I believe that of these 16 were copied. Out of the 68 confidential pages of OT3, Zenon Panoussis infringed upon 39 pages. NOTs is altogether 177 pages, of which 141 pages were copied. In works, that means that 53 out of 55 NOTs were copied.

McShane proceeds to show the unmasked OTs and NOTs to the court. Unlike in my case, where McShane came with a selection of gold-plated suitcases containing the OTs, he now takes them out of a black bag. Out come three black binders: OT2, OT3 and the NOTs pack. They look definitely unimpressive. Everybody assembles in front of the bench. Everybody – except Magnusson’s aide. Yesterday, I rejected the thought that he was a Scientologist: although he has their general look and feel, he blinks too much. Later on, when I see his behaviour during breaks, I am forced to reconsider. While the lawyers invariably clutter together and discuss matters with McShane, Magnusson’s aide invariably chats with the Scientologists. While I was sitting next to Zenon, acting as his aide, I noticed Magnusson’s aide trying to stare me down. That was weird behaviour. And now he pretends to not want, or to not need, to see the OTs and NOTs. The guy is a Scientologist.

McShane leafs through OT3. Typoscript, handwriting, lots of typoscript and some more of Hubbard’s handwriting.

McShane shows a part of OT2. “See, this is what we consider to be a work.” He points at a page containing ten or twelve lines. “Other works are longer, for instance look at this OT2 work.” He leafs through four or five pages. Zenon, who is also standing there, recognises a part and interrupts. “This part is in the Fishman Affidavit, but while here you have a list of items and then a short description under each, in my Fishman Affidavit I only have the headings.” That can hardly even be seen as a quote, let alone as an infringement, Zenon implies. “But you must understand that these words have a very special meaning for us,” McShane objects. “And the one-page work that you showed us earlier? Can I see that again?” Zenon leafs through OT2 and finds the ten-liner. McShane cringes, a Suppressive is touching the OTs, and he can’t prevent it. Zenon takes the Fishman Affidavit, puts it next to this work from OT2 and shows the court that the Fishman version contains only half of these twelve lines. Zenon lets the matter rest. He has made two points, and he knows that the court understands it: what Scientology claims as full-fledged infringement is in fact often just a quote, and a “work” only containing 10-12 words on as many lines is not copyrightable to begin with.

McShane continues about the special meanings that words have. He points at a list and reads it aloud: “… Love …” and then proceeds to sing-song the rest; he finds it difficult to pronounce them under these circumstances, within this company. They really are sacred to him. He explains: “All the nuances of these words must be understood, and it is terribly important that they are understood properly. You can imagine how difficult it is to make an adequate translation…” The Chair suddenly looks up from the OTs that he is viewing, and asks McShane, with a certain surprise in his voice: “Are there any translations made of the OTs and NOTs?” “Yes,” McShane answers proudly. He doesn’t know that he is digging his own grave. Twenty-five thousand readers, translations… all this suffices to establish legal publication, and thus the right for individuals to have copies for private use and the right to quote them in public.

We go through attachment 126, the two hundred mangled NOTs. McShane points at a Rastafarian NOT. “You see, they just wrote the words funnily, and while I agree that the texts have been mangled: what can be processed can be reverted and *unprocessed*.” The court looks and compares. Actually, as they find out, words have been exchanged as well: all instances of ‘thetan’ have been changed into ‘watermelon’ and all instances of body thetan’ into ‘watchammecallit’. “There are no instances of the word ‘watermelon’ in the original?” the Chair asks McShane, to be sure what it is that he is seeing. No, McShane replies, that word was not used by Hubbard.

We look at some mangled NOTs. “I admit that the order of the words has been changed, and that the text has been reworked,” says McShane, “but you must understand that these texts still contain our confidential words.” He is actually implying that they have copyright on words.

At 16:05, we’re done. A ten minute break. At 16:15 we resume.

*

There is some more discussion. Amongst others, my summary of OT3 is brought up. That article has found its way into attachment 126, the Monkey NOTs, and during the previous hearings in May 1988 Scientology claimed that the article fell under their copyright. They wouldn’t allow Zenon a copy of that article, not even with all my Hubbard quotes stricken: it would still be infringing. The whole of attachment 126 is sealed and subject to confidentiality. That includes my article, the one that proudly sits on my homepage and over which I have been sued twice and been absolved twice by court.

Zenon requests a copy on my behalf. McShane states that “paraphrasing is infringement”. I blink with surprise. I know that McShane claimed exactly the same, also under oath, in RTC versus Factnet, [see www.spaink.net/cos/coskit/ks-023.html for the court transcript], but I never thought that I would hear such an absurdity. Paraphrasing is infringement?

Zenon asks him to repeat himself. McShane amends: “Paraphrasing could be an infringement.” Under his belief system, I understand him: since they claim ownership to certain words, any text that contains these words is indeed infringing – according to them. But the law, alas for them, states differently.

16:30. The court adjourns. It is weekend.

[Unbiased columnism is a series of seven court reports on the proceedings of Scientology versus Zenon Panoussis. This series covers the Jan 2001 sessions. Next: Magnusson becomes helpful.]

Unbiased columnism # 2.2

Mangled material

Stockholm, January 18, 2001

[Previous installment: Poor guy versus multinational cult.] SWEDISH COURT CASES ARE BORING and take too long. All proceedings must be verbal; the written preparations just serve as a background and what is not said, does not officially count. That is why this court case will last five days.

Magnusson, Scientology’s attorney, opens with a tiresome enumeration of Zenon’s misdeeds and misbehaviours. Posted this, webbed that, material filed here, copy made there, said this, did that, in September… in October… in May… I am on the verge of falling asleep, I know this song too well by now. Besides, Magnusson is not a gifted speaker. The court – five judges, one of them a trainee who serves as the clerk – listens without much interest. They know this story too. Magnusson is so slow that he doesn’t manage to reach the part where he outlines the grounds for his complaints. He’ll continue tomorrow. Now it’s Zenon’s turn first.

The court hopes that he will simply plead guilty on many counts, so that deliberations about those acts can be dismissed. And Zenon is quite willing to do so: he has never denied having webbed parts of the OTs nor denies having posted the NOTs, but Scientology accuses him of much more. That he will fight. And he wants to win at least one point. He is even prepared to settle or to admit guilt on all counts as long as he gets this particular one: a declaration that the OTs and NOTs are legally published.

From that one concession or confirmation a series of important rights and consequences follow, and Zenon is prepared to sacrifice everything in order to establish these rights: the right to possess copies of the OTs and NOTs for private use, the right to quote from them, and thus, of course, re-establishing every citizen’s right to demand a copy of the OTs and NOTs under offentlighetsprincipen. (If legal publication is established, the limitation that the Swedish law, after pressure exerted from Scientology and the US, has put on offentlighetsprincipen would no longer apply to the OTs and NOTs.)

In Zenon’s case, just like in mine, Scientology claims infringement in many more instances than they are willing to – or can – prove. With respect to the OT-fragments included in the Fishman Affidavit, Scientology in my case has only shown some evidence regarding OT2 and OT3. For the other fragments they claim copyright as well but they have refused to come up with even the tiniest shred of evidence. Zenon knows that they wouldn’t; after al, he webbed the Fishman Affidavit after my case had been brought before court, and he challenged them on their faint evidence and their all too extensive claims.

The case against him was already well on its way when Zenon filed a new, even thicker stack of NOTs with the court. Scientology immediately claimed copyright to those as well and demanded secrecy. They even had a notary public compare this thick stack to the original, unmasked NOTs, and upon doing a random comparison, she established that this thick stack contained nothing but pure, unadulterated NOTs.

*

BUT THEY WEREN’T original NOTs. That is to say: just a few were. Of this stack of two hundred alleged NOTs, only eight were authentic; the rest had been mangled. Zenon had posted on a.r.s., asking people to send him Monkey NOTs, and he had received them in abundance. Some ten of them were NOTs that had been ‘translated’ using programs that produce dialects: there were Swedish Cheffed NOTs, Jived NOTs, and Rastafarian NOTs – hence, satire, not originals. “Hjändle åll sjuch Björks ånd cljusters by blåwing them öff,” that kind of stuff. Moreover, hundred and eight-five were cut up and mangled. To mangle them, you do this: you take a paragraph from a text, use it as a ‘seed’ and input it to a program, and the output is a full page of mixed-up phrases, illogical sentences and weird grammar – but full of faintly familiar phrases. “Those are our NOTs!” Scientology exclaimed, and the notary public agreed with them. Not true: they are nonsensical, gibberish, Jabberwocky’ed texts, Zenon explained to the court, and what is more: the fact that Scientology claims copyright on these texts proves that one should take their claims with not a grain but a pound of salt.

The court looks confused.

“Take a look at page so-and-so of my appeal brief,” Zenon says, and points the court to a page that looks familiar: “… copyright infringement … taking into consideration that … plaintiff stated that … in a ruling dated …” The court nods, they know this text. It is part of the ruling of the previous court in Scientology versus Panoussis, the ruling that is being appealed right now.

“Please read the text carefully,” Zenon asks, and he is silent. The court raises an eyebrow and reads. After a few seconds, more eyebrows are raised. This text doesn’t make any sense, it has no head nor tail. It’s plainly gibberish. The judges look at one another, quizzed. “This text is the result of a real paragraph of the ruling having been mangled in the same way as the Monkey NOTs that I filed and to which Scientology claims copyright,” Zenon explains. No reaction. “I wanted to prove that Scientology claims copyright to any text that contains a few of their phrases, so I mangled a paragraph of the previous court’s ruling in order to demonstrate the scope of that claim. Scientology claiming that the mangled NOTs are theirs, amounts to this court accepting this gibberish as a valid and legal ruling.” Slowly, things start falling in place. The one judge after the other grabs the mangled NOTs, picks up the mangled ruling and compares it to the actual ruling, and they understand what has been going on. Fuck. So this is what Scientology claims copyright to? And they got a notary to confirm their claim?

We really need to investigate those claims, the court thinks. You can see it on their faces.

Zenon sits back, happy. This is exactly what he wanted to attain when he filed these mangled NOTs, and Scientology fell into the trap that he had set up for them. Point scored.

*

MAGNUSSON, SCIENTOLOGY’S ATTORNEY, coughs and reassembles himself. He informs the court that he has re-ordered the evidence that he has filed and has created a new set of binders for the court. Aides go up to the bench and to both parties, and deposit ten new binders in front of all of them. Zenon just got another ten kilos of paper thrown into my lap.

[Unbiased columnism is a series of seven court reports on the proceedings of Scientology versus Zenon Panoussis. This series covers the Jan 2001 sessions. Next: McShane compliments Zenon.]

Unbiased columnism # 2.1

Poor guy versus multinational cult

Stockholm, January 17, 2001

[This is a second series about Scientology v. Zenon Panoussis. Zenon dealt with a similar case as I was doing, although while I kept winning in the Netherlands, he kept losing in Sweden. The first series – from May 1998 – can be found here.]

BY THE TIME that this court case will be appealed, we will need a trailer. I am the beast of burden. I am sitting in my wheelchair with my laptop bag on my lap; on top of that, a huge Samsonite containing most of Zenon’s court files, and on top of that again a plastic bag containing the papers that wouldn’t fit into the Samsonite. My arms and hands are wrapped around the mountain of bags to prevent them from shifting and falling. Zenon is huffing and puffing: he needs to push twenty-five kilos more than usual. This court case is half my weight.

We are in Stockholm for the appeal in Scientology versus Panoussis. In 1996, Zenon did the same as I, and more than a hundred people, had done in 1995 in The Netherlands: he put the Fishman Affidavit on his homepage, a court file containing parts of Scientology’s higher course material, the so-called OT-levels. Zenon got sued by Scientology, just like me. The cult claimed copyrights and secrecy.

Zenon contacted me in 1996. We became friends and often mailed one another about our respective court cases.

But Zenon did more that we in The Netherlands did. He posted the NOTs, yet higher course material, and, according to Scientology, yet more secret. Moreover, when Scientology sued him, he deftly used the Swedish “offentlighetsprincipen”. This constitutional principle states that every citizen has the right to access all documents that are in the possession of the state, unless these documents contain state secrets or exclusively relate to private matters. Citizens may request copies of all government documents. Zenon filed the OTs and NOTs with the court and Parliament (riksdagen), thus ensuring that anybody could access these files or could ask for a copy for a small administrative fee. The result? The material that Scientology had chased with such vehemence – raiding providers, organisations and individuals over them; threatening, intimidating and suing people over them – these documents were suddenly legally available, official stamps and all.

Scientology got furious and managed to incite the US – the cult’s claws reach far – to start a diplomatic row with Sweden over this constitutional offentlighetsprincipen. The US even threatened Sweden with a trade boycott if Sweden didn’t stop its official distribution of the OTs and NOTs. After three years of diplomatic and legal bickering, Sweden limited the constitution that they took such great pride in: from then on, unpublished material from third parties was no longer covered by the offentlighetsprincipen.

Meanwhile, Zenon moved to Amsterdam. We became lovers. “We were brought together by Scientology” became our standard joke.

*

IN SEPTEMBER 1998 the ruling in Scientology’s case against Zenon was given: Zenon lost on most counts. The court ruled that neither the OTs nor the NOTs were legally published, and thus nobody was allowed to possess private copies, nor could one quote from them. They ordered Zenon to pay Scientology some 2000 USD damages and more than 150,000 USD in legal fees. Scientology had claimed almost two million dollars in legal fees, a ridiculously high amount for Swedish standards, but even this 150,000 dollars was unprecedented. Hardly surprising, Zenon couldn’t pay that money, and Scientology confiscated most of his salary in The Netherlands. For more than two years he has been living under the level of minimum subsistence; and yet, what Scientology confiscates every month doesn’t even cover the legal interest on the main sum. The most cynical aspect of all this is that afterwards, in my case the Dutch court ruled that the OTs should be regarded as having been legally published, a ruling that was to a great extent based on testimonies delivered – guess – in Zenon’s court case.

[Unbiased columnism is a series of seven court reports on the proceedings of Scientology versus Zenon Panoussis. This series covers the Jan 2001 sessions. Next: Mangled material.]