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 Internet.

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 by you.

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.

Yours truly,
W.E. Pors

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 be available.

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.

Yours truly,
W.E. Pors

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

Honourable Sir,

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 services shortly.

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.

Yours truly,
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.