Our lawyers ask for postponement
a.r.s., February 13, 1996
Last week, Planet Internet's lawyer Pors visited the offices of Nauta
Dutilh; Pors was accompanied by his colleague Van Manen. They were to
take a look at the evidence and to peruse the notary's statement that
is mentioned in both the drafted version of the new subpoena and in
the final one.
All that Pors and Van Manen were presented with, was a comparison
between the OT's on the one hand and a download of my homepage at
xs4all on the other hand. Given the fact that xs4all is a different
provider, and that no comparison of my homepage at Planet Internet and
the OT's was made, Pors got rather angry - the reason for his
appointment with Nauta Dutilh being that he was to be informed about
the available proof of infringement regarding a homepage at Planet
To make things worse for Nauta Dutilh, it turned out that the
notary statement that Nauta Dutilh speaks of in the subpoena, has
not been made. Given what Pors saw, it should not be too difficult
to put it to paper; but the point is that Nauta Dutilh has clearly
stated that they had one in their possession (viz. the subpoena).
Pors argues that he would need such a document in order to be able
to confer with the subscribers of Planet Internet that have Fishman
homepages; he refuses to act on Nauta Dutilh's word for it and says he
can't send all his clients to ND's offices in order to see for
themselves. (Darn, I wanted to go and see these infamous OT's
myself, at no charge at all. Except my lawyer's salary, that is.)
And so, Pors and my lawyer, Bakker Schut, have asked the president
of the court for a postponement and have asked him to not agendize the
case until Nauta Dutilh have produced this notary's statement.
Mr. Hermans was on vacation last week. This week he will answer
the court, and the president will decide about the postponement.
Here are the letters.
1. Letter Mr. Pors (Planet Internet) to Nauta Dutilh
(after having visited ND's offices)
From: Mr Pors
To: Mr Hermans, Mr Morel
Conc: Planet Internet / RTC cs
Date: Februari 6, 1996
I hereby send you a copy of the letter I sent to the President of the
Court this morning. Mr. Van Manen and myself feel rather misled
Even though you did indeed not explicitly promise in your letter
of January 17, 1996 that you would show us the evidence with which you
try to substantiate your claim, the first draft of the subpoena you
sent us most certainly gave the impression that this evidence was
available. Moreover, in my fax of february 1, 1996 (which led to our
appointment on February 6, 1996) I explicitly asked for duplicates of
this evidence. You could have at least informed me in advance that you
partly do not posess the evidence and partly would not be willing to
hand it over to me on February 6. As a result, my client was forced to
make expenses, while at the same time he still doesn't have the
information he needs to make a decision. In my opinion, the Court
should not go in session before we have had the chance to view the
evidence announced in the subpoena.
This morning, it transpired that up until now no legal document
has been produced in which the documents that have been published on
the Internet through the intermedia of my client, Planet Internet, are
being described. I did see such a document regarding XS4ALL, dated
November 6, 1995 [that would be a download of my homepage there - KS],
but Mr. Morel did not want to provide us with a copy of this document
either. I did not see any declaration by a notary and according to Mr.
Morel, such a document indeed does not exist. I therefore have not
been able to ascertain of which parts of documents that my client is
involved with, a notary has determined that they literally match the
copyrighted works of your clients.
Considering the fact that the dispute has been going on since
September 1995, I find it impossible to understand that in February
1996 you are still not able to provide me with the information that my
client needs to come to a decision. Moreover, both in the first and in
the final draft of the subpoena, you have deliberately given the
impression that this information was available already.
I have therefore proposed the President of the Court to
postpone the lawsuit until further notice and to only set a date for
the session after Planet Internet has been able to see the evidence
that you think you will be using.
2. Letter Mr. Pors (Planet Internet) to the Court
From: Mr. Pors
To: Pres. Court of The Hague, Mr. Van Delden
Conc: Planet Internet / Religious Technology Centre et.al.
Date: Februari 6, 1996
The above mentioned lawsuit will serve in your court on Monday,
February 26, 1996, at 10 AM. At this moment, Religous Technology
Centre et.al. have summoned 23 defendants.
Earlier, a lawsuit has been filed by two of the three plaintiffs -
amongst whom the alleged copyright-owner, Church of Spiritual
Technology. Some of the defendants who have now also been summoned to
appear, i.e. Dataweb B.V., Stichting XS4ALL, Stichting de Digitale
Stad, Cistron Internet Services B.V. and Karin Spaink were summoned in
that earlier lawsuit as well. It was scheduled for Thursday, December
14, 1995, but plaintiffs withdrew on the last moment. As you know,
Planet Internet had also been adressed by Religious Technology Centre
et.al., already in September 1995. For that reason, I asked you on
December 8, 1995, to add my client to the list of defendants.
On December 11, 1995, Mr. Hermans (representing Religious
Technology Centre et.al.) sent you a fax in which he announced that he
was not able to prove the claims mentioned in the subpoena. As he
wrote you, this was caused by the fact that the notary could not
declare that the works mentioned in the subpoena are exact duplicates
of the original texts. Mr. Hermans asked for a formal date in the
second half of December, on which he would give you his decision about
a possible continuation of the lawsuit. Nevertheless, the defendants
and Planet Internet did not agree with that, after which Mr. Hermans
withdrew the lawsuit.
After that, it was quiet for some time. Then, on January 17, 1996,
Mr. Hermans informed me that his clients had filed a new short-term
lawsuit. On that occasion, he sent me the first draft of the subpoena,
that I presume you have received as well when you were asked to set a
date. Paragraph 19 of this draft is identical to paragraph 19 of the
final version. It states that a notary has been asked to compare the
alleged originals and the alleged infringing documents. The notary
did mark on masked copies which parts could be literally found in
the infringing Internet publications. In doing so, it became obvious
- according to the subpoena - that considerable parts of the works OT
II and OT III had been copied. Plaintiffs announce to submit this
comparison by a notary as evidence in the lawsuit.
According to the fax from Mr. Hermans on December 11, 1995, the
first lawsuit has been withdrawn because plaintiffs were not able to
produce the evidence in the matter mentioned above. Now, both the
draft and the final version of the new subpoena explicitly state that
this evidence was available when the subpoena was written, or at least
on the moment when it was issued. Therefore, Planet Internet could
rightfully assume that this evidence would be available to Planet
Internet and myself from that moment on.
The offer of Mr. Hermans to view the documents in his office in
order to take away all doubt about the infringement, supported that
assumption. After this proposition, but before we were able to make an
appointment, the subpoena for the short-term lawsuit was issued. I
thereupon informed Mr. Hermans that I would indeed be very happy to
view the documents in his office, and added in this letter that I
would like to receive copies of the documents that he was able to show
us, especially of the declaration of the notary with all the
appendixes and the masked version of the originals owned by Religious
Technology Centre et.al.
This morning, my associate Mr. Van Manen and myself have visited
the office of Mr. Hermans, where we were received by (amongst others)
his associate Mr. Morel. Unfortunately, we found out that there was no
declaration by a notary, that we could not get a copy of it and that
it had not even been written yet. This is all the more remarkable,
because the history of this case would lead to the assumption that a
subpoena would only be issued when all the evidence was available.
Plaintiff's representatives had not even taken the trouble to inform
me in advance that the copies I had requested in my letter would not
Furthermore, they did not have of a copy of the Fishman Affadavit,
as it has allegedly been published on the Internet by Ms. Spaink. A
legal document about the downloading of the Fishman Affadavit at
another access provider [that would be a copy of the relevant part of
my homepage at xs4all - KS] was all that was shown to me - this
document was dated November 6, 1995 (well before the first lawsuit).
Given the peculiar circumstances of this case, it would not be
acceptable when plaintiffs would produce the evidence only shortly
before the session of the court. Planet Internet would like to have
the opportunity to decide whether it should come to a lawsuit or
whether there are valid reasons to voluntarily comply to plaintiff's
claims. Now that Planet internet still does not have the evidence
which the subpoena states is available, it is impossible for Planet
Internet to come to such a conclusion at this moment.
In this respect, it is also important to remark that Planet
Internet is only an access provider, and will therefore also have to
justify her decision to her subscribers. A few claims by Religious
Technology Centre et.al. are not enough reason to do so - Planet
Internet needs the evidence that will be used in the lawsuit to
convince her subscribers when this is necessary.
Now that Religious Technology Centre et.al. apparantly have been
able to produce the evidence and Planet Internet would like to be able
to decide whether it shall defend itself in a short-term lawsuit or
might perhaps voluntarily comply to plaintiff's demands, I kindly
request you to postpone the lawsuit until further notice, under the
condition that a date will only be set after plaintiffs have made the
material upon which their claims are based available to the
defendants, or at least to Planet Internet.
I will send a copy of this letter to Mr. Hermans, legal
representative of the plaintiffs.
3. Bakker Schut to the court
From: Mr. Bakker Schut
To: the Honourable Mr. Van Delden, president to the Court of The Hague
Conc.: XS4all cs v. RTC et.al.
Date: February 7, 1996
Presently, 23 accused parties have been summoned to defend themselves
in a short-term lawsuit, that will serve in your Court on Monday,
February 26, 1996, at 10 AM.
In this lawsuit, I will again represent the defendants Stichting
XS4ALL, DataWeb BV, Stichting De Digitale Stad, Cistron Internet
Services BV, and Karin Spaink, who had been summoned to appear in an
earlier short-term lawsuit on December 14, 1995, of which the subpoena
was withdrawn on the last moment. Moreover, I will certainly also
represent the defendants Internet Access Eindhoven BV, Euronet
Internet Inc., Spirit Interactieve Diensten BV io, and Metropolis
Internet BV. I have heard that more defendants will ask for my
I heartily support the request mailed to you on behalf of the
defendant Planet Internet BV on February 6th last. Moreover, I would
like to note the following.
It is of course very important for all parties, and not in the
least for yourself as well, to avoid that unnecessary time and energy
is again being spent on the preparation for a short-term lawsuit. The
way things look now, the lawsuit can only create a chaos - especially
in view of what Mr. W.E. Pors has encountered.
Personally, I have not yet had the opportunity to apply to the
office of Mr. Hermans because of the obvious problem of reaching a
consensus amongst such a large number of clients on such short notice.
Of course, the latter is also in the interest of the plaintiffs.
Apart from that, I have learned from the letter that Mr. W.E. Pors
sent you that I do not have to consider missing this opportunity of
applying to the office of Mr. Hermans as a vital omission.
As is also the case for Mr. Pors, I am at this moment simply
unable to advise my clients whether or not a lawsuit is avoidable or
whether there might be another way of solving the problem.
Given the fact that plaintiffs have already had the opportunity to
enable us to give such an advise since the summer of 1995, but have up
until now not effectuated this opportunity, it appears to me -
especially in view of the earlier history of this trial - that
granting the proposition as formulated by Mr. Pors is called for, if
only because of the economics of the procedure.
I will send a copy of this letter to Mr. Hermans.
P.H. Bakker Schut
(letters translated by Patricia Savenije)
Copyright Karin Spaink.
This text is offered for personal use only. Any
other use requires the author's written permission.