Scientology's lawyers are pushing the IP envelope to keep the church's secret, sacred scriptures off the Internet. But will their heavy-handed tactics undermine key courtroom victories?
Helena Kobrin was ecstatic. It was January 19, and Kobrin -- a Los Angeles solo practitioner whose only client is the Church of Scientology International -- had just gotten word of a ruling from Virginia U.S. district court judge Leonie Brinkema on a summary judgment motion by the church. On the phone from California, she was bursting with the news. "Do you want to know the results of the hearing?" she says. "Judge Brinkema granted summary judgment." Brinkema, she explains, ruled from the bench that Scientology copyrights had been infringed by a critic of the church. "This is a major victory," Kobrin enthuses.
She's right. Brinkema found that a former Scientologist who had posted about 65 pages of secret, sacred writings to an Internet discussion group had not made fair use of the materials, but had infringed the church's rights to its holy scriptures. With Scientology in the middle of two other Internet intellectual property suits -- one of which involves the same postings as the Virginia case -- Brinkema's ruling may, as Kobrin hopes, turn out to be a breakthrough in the church's campaign to protect the secret writings of Scientology founder L. Ron Hubbard -- writings that form the spiritual and economic backbone of the religion.
But it may be too late. And if it is, the church can blame its own litigation tactics. The church's Internet cases are relatively simple as far as their copyright questions are concerned, and Scientology certainly has a strong legal argument that posting in bulk secret, unpublished writings -- with little or no commentary attached -- violates its copyrights. But Scientology has not been content to make simple, narrow copyright claims in these three cases. Instead, the church has litigated with characteristic overkill. Scientology lawyers sought and obtained writs of seizure in all three cases, permitting church lawyers and computer experts to stage surprise raids on the former Scientologists who were posting church scriptures. Because the postings were to Internet sites, the church also sued the companies that provided the former Scientologists with access to the Internet, arguing that bulletin boards and Internet access providers were directly liable for their users' copyright violations.
When The Washington Post got hold of the church scriptures and published a story about the dispute, quoting all of 46 words of secret Hubbard writings, the church sued the newspaper and two of its reporters. Scientology counsel Kobrin tried to shut down the on-line discussion group where the infringing postings were showing up, and subsequently wrote dozens of threatening letters to Internet participants who got involved in the battle.
In the process, Kobrin became perhaps the most reviled lawyer in Internet lore, and probably the only lawyer who's been the subject of a Web site devoted to nasty attacks on her. More importantly, the church turned gaining possession of its secret writings into a crusade for some Internet devotees, known as "netizens." Computer jocks who had had no previous interest in Scientology were outraged by the church's tactics, and responded in kind. Angry netizens -- as ruthlessly zealous in their way as Scientology litigators are in theirs -- played an elaborate game of hide-and-seek with the Scientology scriptures, posting them in sites all over the Internet faster than the church could shut them down. Getting a letter from Helena Kobrin became something of a point of pride for Net personalities who took up the anti- Scientology cause.
As a result, any damage done by the infringing postings was vastly magnified as more people got interested in the scriptures -- and more people became intent on making them public. And that damage, in turn, was magnified by all of the press attention that the battle between the church and the cyberspace community attracted.
Kobrin, who is not the apologizing type, makes none for the church's tactics. She says the church had to police its copyrights vigorously or else face the prospect of losing them. The church, she and other Scientology lawyers maintain, did everything it could to end the infringing posting without litigation, and once forced into suing, did nothing more than what software companies do when their copyrights are at stake. Kobrin also says the litigation is serving its purpose; illicit posting, she maintains, has dropped off since the litigation began, and rulings like Judge Brinkema's will surely clarify Scientology's rights to its intellectual property.
But that ruling comes at the cost of other adverse findings in all three courts -- and at the cost of precisely the kind of public attention the church did not want its scriptures to get. And that attention is likely to intensify for as long as the three-pronged litigation goes on, creating, in some instances, new Internet law with far-reaching copyright implications. Says netizen Ronald Newman: "They turned what was a small dispute involving a few people into a major thing."
Scientology was founded by science fiction novelist L. Ron Hubbard in 1952. At the religion's foundation is a belief that people are immortal spiritual beings, called Thetans, whose experience extends beyond a single lifetime. Scientologists believe that through "auditing" -- a process devised by Hubbard - - they can overcome the negative experiences that impede spiritual awareness. Hubbard provided voluminous text about his beliefs, leaving at his death in 1986 554 written works, nearly 3,000 hours of taped lectures, and more than 100 instructional films. Most of these -- including Hubbard's longtime mainstay of bestseller lists, Dianetics: The Modern Science of Mental Health -- are public.
Beginning in 1966, however, Hubbard began generating material that he instructed be kept secret. Even the aides to whom Hubbard entrusted the originals of these works, according to the testimony of Scientology official Warren McShane in one of the Internet cases, were not allowed to read them as they copied them. In McShane's account, these secret materials derive from Hubbard's discovery that incidents far back in history "have debilitized [sic] the Thetan and all Thetans. . . . Through [Hubbard's] research and discoveries over the years he found the way out," McShane continued. "He found what had happened many, many years ago, traumatic and devastating circumstances to all Thetans, and discovered and developed a way out, so to speak, a particular series of processes and things that a person can do in Scientology that can rekindle the person's native abilities and his natural spiritual awareness of himself and others."
Hubbard believed that Thetans were intentionally blocked from resolving some terrible historic experiences, and that he had uncovered the way to reverse the blockage and lead Thetans to spiritual awareness. But he insisted on confidentiality because, McShane explained, he believed "in the wrong hands that that technology could be used to further degradate [sic] the individual and stop him from regaining his natural abilities." Scientologists couch the danger in terms of spiritual harm, saying that people who are exposed to the materials before they are spiritually prepared can forever damage their well-being; former Scientologists say they were instructed that anyone who read the materials prematurely would get pneumonia and die.
Hubbard wrote eight levels of the secret materials, called the Operating Thetan (OT) materials or the Advanced Technology, over the next 20 years. In all they comprise about 700 pages. For the privilege of seeing and studying the OT materials, level by level, parishioners deemed spiritually and ethically fit have to pay "fixed donations," which began in 1993 at $2,200 for OT I and total tens of thousands of dollars for all eight levels. The church, McShane testified, derives significant revenue from the fixed donations.
The church has long taken extraordinary measures to keep the OT materials secret. Scientologists who are invited to view the documents have always had to sign confidentiality agreements. In the early days the materials were kept in locked file cabinets in locked rooms. If they had to be moved, they were logged in and out of their file cabinets and couriered in locked briefcases. As technology advanced over the years, the church's security measures got more sophisticated. Today, according to McShane's testimony, all OT materials are kept in sealed binders, wired into a computer system and available for viewing in only six of Scientology's churches worldwide, all staffed by the most trusted Scientology staffers, known as the Sea Organization. When parishioners are invited to see the documents, the Scientology instructor removes the binders from their cabinet, unplugging them electronically, thus triggering the room's doors to lock magnetically. The instructor has about 20 seconds to plug the binder in at the table before an alarm goes off and, presumably, security guards come rushing in.
Nevertheless, OT materials have leaked. The church maintains that the documents have gotten out only through theft. Some were stolen in England, and others were stolen from a Danish church in 1983. "[Thieves] dressed themselves up in uniforms that are worn by the Sea Organization," testified McShane. "The staff at [the] organization in Copenhagen fell for the pretense, allowed them to view the materials in a secure room. They proceeded then to put them in a briefcase and walk out to the car that was sitting outside in front of the church with the motor running. The whole bit, just like the movies."
Just like the Keystone Kops, according to Robert Vaughn Young, who was a senior public relations operation official until he left the church in 1989. Young testified in one of the Internet cases that the OT materials had gotten out in all sorts of ways. "The funniest one," Young said, "was a gentleman [who] put the materials in [a] briefcase. He put his briefcase on the top of his car and drove off and the briefcase broke open . . . and the OT materials were drifting down the Hollywood freeway. . . . So there were several instances where they were simply lost." Young cited a sheaf of news stories, dating back to 1977, which he said revealed some of the secrets of the OT materials.
And what secrets they are. According to various published accounts of the material, Hubbard wrote that 75 million years ago, a galactic ruler named Xenu (sometimes called Xemu) banished to Earth (then known as Teegeeack) spirits called thetans, which were implanted in volcanoes. The volcanoes exploded and the thetans invaded mankind, accounting for our ills. "Xemu's Cruel Response to Overpopulated World," headlined one account of the OT materials, a 1988 story in the St. Petersburg Times. (Strangely, despite the secrecy surrounding the OT levels, Hubbard told the basic Xenu story in "Revolt in the Stars," a screenplay he tried to sell in the early 1980s, according to Young.) The materials also contain Hubbard's precise instructions for reversing the damage done by the galactic cataclysm.
After Hubbard's death in 1986, his estate licensed the copyrights to the OT materials to a church organization called the Religious Technology Center, which McShane heads. The RTC has ardently protected the material. "Wherever these documents have cropped up," testified McShane, "we have sued." In 1983, for instance, a onetime Hubbard associate named David Mayo broke off from Scientology and established a new church, called The Church of the New Civilization. Mayo used materials similar to Scientology's OT scriptures in his new church; Scientology sued in 1985, alleging that Mayo was in cahoots with the Europeans who had stolen OT writings.
Also that year, attorneys for a former Scientologist named Lawrence Wollersheim -- who has been enmeshed in litigation with Scientology for ten years and is currently a defendant in one of the Internet cases -- got copies of the OT levels indirectly from someone in The Church of the New Civilization. Three days after the Los Angeles superior court judge overseeing Wollersheim's case refused to seal the materials, Scientology sued Wollersheim and his lawyers in federal court, claiming racketeering and trade secret misappropriation.
The case was eventually dismissed, but not before the Ninth Circuit ruled that Scientology's OT materials were not trade secrets, because the church had posited their worth as spiritual, rather than economic. Several years later, Scientology heeded the Ninth Circuit's comments and claimed that a former Scientologist named Enid Vien, who was using OT materials in Scientology-like courses she was teaching, was causing the church economic harm, because the church depended on the fixed donations Scientology asked parishioners to pay for the privilege of studying the OT levels. Church lawyer Kobrin says she knows of no other religion that has sought court rulings that its scriptures are trade secrets, but in a 1993 ruling in the Vien case, San Diego U.S. district court judge Marilyn Huff granted Scientology summary judgment on its trade secret claims. She also found that Vien had infringed Scientology's copyrights.
That same year, however, another former Scientologist -- convicted felon Steven Fishman -- dumped about 65 pages of OT materials into the record in a defamation case the church had filed against him for comments he made in Time reporter Richard Behar's 1991 cover story, "Scientology: The Cult of Greed." Fishman claims he bought the documents from a Scientology staffer who needed the money to continue progressing through the OT levels, and that he put the materials in the record to demonstrate Scientology's coercive mind control techniques. The church maintains that Fishman did not buy the documents, but somehow got them from a lawyer representing another defendant in his case, who contrived to get the materials into the record after the case was dismissed and the record unsealed. Fishman's intent, the church alleges, was blackmail.
But the judge overseeing the Fishman case refused to reseal the record, as did the Ninth Circuit, which remanded the issue to the trial court for further review. Ever resourceful, the church marshaled qualified Scientologists to control the court file. Every morning, a Scientologist would sign out the file. For the rest of the day, every day the court was open and the file unsealed, Scientologists kept watch over it. The church maintains that thanks to this remarkable effort, only one copy of the Fishman papers was ever made, by a reporter for The Washington Post.
In late November or early December 1994 messages started appearing in an Internet discussion group called alt.religion.scientology, which since its founding in 1991 had become a hotbed of debate between former, current, and wavering Scientologists. Sent anonymously by firstname.lastname@example.org, an address that prevented tracing, the messages purported to contain the OT materials.
The "nobody" postings caught the attention of Dennis Erlich, a former Scientology minister who had begun to participate in alt.religion.scientology the previous summer. Erlich had spent 15 years in the church, ultimately completing seven OT levels and serving, he says, as "chief cramming officer," overseeing what he asserts was brainwashing by the church. Erlich has been a vociferous critic since before he left in the church in 1982, amassing a Scientology library and ministering, he says, to former Scientologists in need of counseling.
Erlich leapt into alt.scientology.religion with a fury, posting 20 or 30 messages a day. In the newsgroup, says netizen Ron Newman, who was an occasional alt.religion.scientology participant in those days, Erlich was abrasive and confrontational, but likeable. "He was rude to someone if they deserved it," Newman says.
"It was a handful of Scientologists chatting with a handful of skeptics," says Erlich. "I got in [the Scientologists'] faces real quick. I stayed in their faces till they had to shut me up." Erlich frequently accompanied his postings with Scientology written material that he scanned into his computer from books and pamphlets he says he has collected from public sources since he left the church. In August Erlich got a letter from a lawyer named Thomas Small of Los Angeles's Small Larkin & Kidde, one of the church's regular outside intellectual property lawyers, warning him that he was infringing Scientology copyrights. He got another letter in September. Erlich ignored the warnings.
In December, when Erlich saw that the anonymously posted OT materials were authentic, he reposted them, with brief comments affirming that they were the real thing. "I just sort of signed my name to each one with a cursory explanation for the wogs [a Scientology word for non-Scientologists]," Erlich says.
The church responded with an e-mail letter, dated December 28 and signed by Small but sent from the Internet account of Scientology lawyer Helena Kobrin. "Actions will be taken against you and all of those who have participated with you or contributed to your infringements," the letter said. "This includes those who provide the systems and services through which your postings are made. It will be in your best interest to remove any unauthorized postings and refrain from any further postings of our clients' materials or we will have no other option but to go forward with litigation against you."
Following up on the threat in the letter to Erlich, church lawyer Kobrin sent a letter the next day to Netcom On-Line Communications Services, Inc., the Internet access provider used by support.com, the bulletin board Erlich subscribed to. According to Netcom counsel Randolf Rice of The Genesis Law Group in San Jose, Kobrin demanded that Netcom cut off Erlich's access to the Internet. The next day Kobrin contacted Tom Klemesrud, the systems operator of support.com, alleging copyright infringement by Erlich.
If any one of the three had responded to the church's demands and Erlich's infringing posts had stopped appearing, says Kobrin, there would have been no litigation. "The only thing we are looking for is to protect our materials," she says. "If people rectify [the infringements], we do not sue."
Kobrin, 47, is the lawyer who has become the most closely associated with Scientology's Internet cases -- and who has been subjected to the ugliest vitriol from netizens offended by them. Kobrin grew up on New York's Long Island, went to Hofstra University, got married, had kids, and graduated from Seton Hall University School of Law, where she was editor in chief of the law review. She practiced in Florida for a while before she joined the Church of Scientology, but, according to a letter she wrote to The American Lawyer in response to "The Two Faces of Scientology" (July/August 1992), grew disenchanted with her law practice. "I did not want to practice law if I could not feel my work was contributing to the improvement of humanity," she wrote. "My own father was a refugee from Germany and my grandparents were killed by the Nazis. As a result, my interest in religious freedom and social reform has always been strong."
Kobrin began working as a lawyer for a Florida Scientology church in the mid-1980s, a practice she says she found meaningful. In 1990 she moved to Los Angeles and joined Bowles & Moxon, a small firm that essentially served as the church's in-house legal department. Kobrin developed an intellectual property expertise, working on the Vien, Mayo, and Wollersheim cases in the early 1990s. She set up her own shop in 1995 when Bowles & Moxon disbanded.
Kobrin has none of the bombast of longtime Scientology lawyer Earle Cooley of Boston's Cooley, Manion, Moore & Jones, who was lead trial counsel in the early stages of all the Internet cases. On the phone she is courteous and professional, though occasional flashes of anger make it clear: She is dead serious about protecting her church's sacred writings.
When Scientologists first saw the anonymously posted scriptures, Kobrin says, church lawyers contacted the poster's remailer, but were unable to identify "nobody." When Erlich reposted the materials, however, the church recognized his name right away.
"He had tried to stir up trouble in the past with wild and false allegations. He has also been associated with other groups doing this," Kobrin asserts, referring to the Cult Awareness Network, Scientology's nemesis and a group to which Erlich has ties. Indeed, Kobrin says, it is a measure of the church's integrity in these cases -- proof that the church's sole purpose is the protection of its copyrights and trade secrets -- that the church didn't attempt in any way to censor Dennis Erlich until after he posted copyrighted materials.
In response to the church's late December demands, Erlich, Netcom, and Erlich's system operator, Klemesrud, all refused to give assurances that the alleged copyright infringement wouldn't happen again. Erlich e-mailed a letter back saying, "I do not appreciate your threats. I am exercizing [sic] my rights as a citizen of the United States. If you have a problem with that, do whatever you intend to do. Do not send me any more of these unsubstantiated, harassing threats." Klemesrud told Kobrin that he would consider deleting materials from his bulletin board, but only if he were sent a copy of the originals so he could confirm that the postings were infringing. Kobrin, asserting that the materials were trade secrets, refused to do so.
Netcom referred Kobrin to its outside counsel, Michael Sullivan of the Menlo Park office of San Francisco's Pillsbury Madison & Sutro, who eventually told Kobrin that Netcom couldn't cut off Erlich's access to the Internet without cutting off all 500 subscribers to Klemesrud's bulletin board. Netcom did not review Erlich's posts before Sullivan responded to Kobrin.
In January 1995 Kobrin tried another route to squelch the problem, sending out a message to servers providing access to the Usenet, where the alt.religion.scientology discussion group is located. Kobrin informed servers that the group was started by someone with a forged message; that it violated Scientology's intellectual property rights to the very word "Scientology"; and that it was a haven for Scientology critics. She requested that Usenet servers cancel the newsgroup.
"We were not, at the time, sophisticated about the Internet," says Kobrin. "Somebody said, 'If there's a group, you can shut it down.' The group was started through forgery . . . and since the group was improperly formed, we thought we could cancel it. Obviously we didn't accomplish that."
News of Kobrin's attempt to remove the group went out to other discussion groups, attracting people who had no previous interest in Scientology to alt.religion.scientology. Jon Noring, an Internet personality who in 1994 had initiated a petition to Intel asking the company to recall and replace defective Pentium chips, started an Internet petition protesting Scientology's attempts to censor the discussion group. Netizen Ron Newman, who had occasionally browsed in alt.religion.scientology, heard about Kobrin's attempt to cancel the newsgroup, and, he says, "I said, 'I'm in this for the long haul.' " Newman was known by Internet cognoscenti for his efforts to curtail on-line advertisements by two Arizona lawyers; after Kobrin tried to shut down alt.religion.scientology, he helped organize a group to track down the "cancelbunny," someone who appeared to be canceling postings to alt.religion.scientology that were critical of Scientology.
Computer science professor Richard Cleek of the University of Wisconsin Centers joined Newman's hunt. "This was an outrageous and unprecedented set of behaviors," says Cleek, who later became a defense witness in two of the Internet cases. "This was a threat to the essence of the Net -- the thing that makes it work so well. The core of the Net is the freedom to create a newsgroup on any subject you want, and the freedom of access. This was an orchestrated attack. That was disturbing."
In the somewhat anarchic culture that prevails in parts of the Internet, the Scientology attack roused passions. Some of these netizens, after all, are as devoted to their cause as Kobrin is to hers. "A lot of us hold the Net to be sacred in the same way they hold the OT materials to be sacred," says Newman. "To some of us, preserving the Net for free speech is more important than anything in the free world."
As Internet discussion groups buzzed with the news about Scientology, a computer lexicographer named Grady Ward tuned in. "I was raised to believe that [freedom of speech] is sacrosanct," says Ward, a free speech zealot who once distributed a National Security Agency employee manual over the Internet. He began reading alt.religion.scientology in January, and quickly became a dedicated follower and poster. He spent hours and hours studying Scientology writings, and developed into an ardent critic of the church, posting sometimes disgustingly obscene attacks on Kobrin. Like Newman, Ward portrays his battle with Scientology as a moral quest. "I never served in Vietnam," he says. "I feel I owe a couple years of service to my country. This is my service to my country -- I'm defending the Constitution."
Speech isn't free, however, when it is the property of someone else. In Scientology's view, the OT materials unquestionably belong to the church, and the church doesn't care to share them publicly. In fact, the church badly needs to maintain the mystery surrounding its scriptures. As McShane, president of the church organization that owns the rights to the material, has admitted, the writings can seem weird to those who don't have the requisite Scientology training. Making them public, argued church trial counsel Cooley at one hearing, could dissuade Scientologists from paying the "fixed donations" the church requires its parishioners to pay for the privilege of studying the scriptures -- and could convince potential Scientologists not to join the church.
Indeed, Cooley thundered at the hearing, the aim of the former Scientologists was nothing less than the destruction of the church. "The plan is to take those [secret] upper-level materials and expose them before their time and before people are ready," Cooley said, "so as to ridicule and demean the Church of Scientology. . . . The intention [is] to wipe out the religion by strangling it financially and destroying its rights."
So on February 7, 1995, Scientology lawyers went to federal court in San Jose, seeking an ex parte restraining order against Erlich, Netcom, and Klemesrud. Erlich had copied at least 154 pages of copyrighted and secret material onto the Internet, the church alleged, and there was every reason to believe he would continue to make infringing postings. Netcom and Klemesrud, church lawyers maintained, were contributing to Erlich's infringment by allowing him access to the Internet, even after the church notified them of Erlich's violations. "Ehrlich has commenced and is continuing an insidious campaign of copyright infringement and trade secrets misappropriation," the church asserted. "[He] has been enabled in this respect by Klemesrud and Netcom.
Scientology has long had its own unique view of litigation. Hubbard, in a bit of writing since disavowed by the church but often cited by lawyers who oppose Scientology, advised that litigation is intended "to harass and discourage rather than to win. The law can be used very easily to harass, and . . . will generally be sufficient to cause [an opponent's] professional decease. If possible, of course, ruin him utterly." Certainly the church has never been shy about litigating with an aggressiveness that makes tobacco companies look like patsies: swamping dockets with pleadings, appealing everything, relitigating everything, hurling accusations of insanity or worse at opponents, and even investigating and suing the lawyers who represent those opponents.
The Internet cases have been no exception. At the same time they asked for an ex parte restraining order against Erlich and his access providers, Kobrin and the other church lawyers also sought a writ of seizure against Erlich, arguing that they needed to impound whatever Scientology materials he possessed. Such writs are relatively common in counterfeiting cases -- in which someone is manufacturing knockoffs of, say, Rolex watches or Louis Vuitton handbags -- and have come to be used frequently in cases of software piracy. Scientology's Kobrin points out that software companies often give no warning before raids, and espouse a "scorched-earth" policy. Scientology, she says, tried everything it could to avert a seizure but was forced into action by the intransigence of Erlich, Klemesrud, and Netcom.
"My sense of it is that [the church] had their backs against the wall," says William Hart of the New York office of Los Angeles's Paul, Hastings, Janofsky & Walker, who recently began representing the church in its intellectual property cases. "They felt they had to do this."
But lawyers for the defendants in the Internet cases say seizures are extremely rare when there is no allegation that the infringer is using copyrighted material for economic gain. (Indeed, even church counsel Eric Lieberman of New York's Rabinowitz, Boudin, Standard, Krinsky & Lieberman says he cannot think of a precisely analogous case.) Says Carla Oakley of San Francisco's Morrison & Foerster, who is representing Erlich pro bono: "In circumstances like this it's quite extraordinary."
Nevertheless, U.S. district court judge Ronald Whyte granted the ex parte writ of seizure, allowing Scientology to take possession of anything written by L. Ron Hubbard that Erlich had in his possession, from files on his computer hard drive to published Scientology texts.
On February 13, 1995, accompanied by a Glendale, California, police officer, a group that included Scientology lawyer Thomas Small and church official Warren McShane arrived at Erlich's house. The police officer, according to Erlich, departed after an hour or two, leaving two off-duty policemen to supervise the seven-hour search of his house. "[Scientology] representatives personally copied materials from Mr. Erlich's computer and deleted information from the hard drive," Erlich's MoFo lawyers asserted in their answer to the church's complaint. "The materials taken from Mr. Erlich's home and deleted from his hard disk included many, many more materials than are described in the writ of seizure . . . including private and confidential information regarding Mr. Erlich's acquaintances, his taxes, finances, and his research efforts."
"Fox [television] had a camera crew who videoed me begging the Glendale Police not to let them confiscate my material without me examining the disks and copies to see specifically what they were taking," Erlich asserted in a post to alt.religion.scientology after the raid. "I was refused the right to even look at what they had copied from my disk. Criminals being arrested have more rights than these officers of my hometown and of the court provided me."
The amended complaint filed by church lawyers on March 3, 1995, alleged Erlich had infringed copyrights on both published and unpublished church materials, and had misappropriated trade secrets by posting the OT materials. The church also made sweeping allegations against Klemesrud and Netcom, asserting that the bulletin board and the Internet access provider were directly liable for infringing its copyrights as well. Erlich's posts were sent from his computer to Klemesrud's, which stored the messages for a few days and also created an additional copy that was sent to Netcom. Netcom, in turn, stored the data on its computer, and copied and distributed the postings to the destination Erlich intended, the Scientology discussion group. This computer copying, the church argued, infringed its copyrights.
Lieberman and Hart, outside intellectual property lawyers for the church, maintain that Scientology has behaved like any other plaintiff trying to protect copyrights, and that there is strong precedent in copyright law for both the seizure and the attempt to hold access providers liable. But segments of the Internet community were not interested in the fine points of copyright law: If Kobrin's January effort at wiping out alt.religion.scientology had riled the Internet world, the raid on Erlich and the church's argument that Netcom and Klemesrud were direct infringers -- an argument that, if the courts agreed, could cripple the Internet -- sent some netizens into a frenzy.
"People arrived [on alt.religion.scientology] that I'd never heard of before," says Newman. "If Scientology had sued Dennis without raiding him, it wouldn't have stirred things up. This would be a tempest in a teapot. But the raid and the suit on the [Internet service providers] heated it up."
"[The raid] seemed to be a remedy so out of the bounds of the alleged rights of copyright," says free speech fanatic Grady Ward. "It galvanized me and a thousand people on the Net."
And now, netizens weren't just posting petitions or tuning in to alt.religion.scientology to grouse about Scientology. People began posting and downloading snippets of OT materials, mostly one six- or seven-line extract considered to be particularly ridiculous.Trying to get a letter from Kobrin became the object of a game, says Newman. Netizens started Web pages critical of the church; Newman, for instance, set up a highly detailed page at http://www.cybercom.net/~rnewman/scientology/home.html [Note by Ron Newman, February 1998: This page has since moved to http://www2.thecia.net/users/rnewman/scientology/home.html] with links to documents and people involved in the litigation. Kobrin got her own "pen pals" page, featuring an awful picture, various nasty jingles written about her, and a haiku calling her "official Usenet kook" and citing an obscene nickname Grady Ward coined for her. The Electronic Frontier Foundation, a group devoted to preserving on-line freedom of speech, began an on-line archive of documents from the Erlich/Netcom case. (The site, at http://www.eff.org/pub/Censorship/CoS_v_the_NET, now includes documents from all three cases. The church's site is at http//www.theta.com/relfreedom.) More and more people began uploading affidavits, declarations, and pleadings from court cases involving Scientology. Former Scientologists were treated as heroes.
The church, in other words, had made enemies of a host of people who had previously not even registered its existence.
Most damagingly to the church, the secret OT scriptures were cropping up all over the place. An anonymous poster called "Scamizdat" spent the spring and summer of 1995 posting the documents at sites all over the Internet. (Grady Ward is one Scamizdat suspect, and the church sent representatives to his house to talk to him about the error of his ways; a private investigator hired by church lawyers has also questioned Ward associates.) Church lawyers, says Kobrin, were able to persuade a lot of access providers to remove infringing postings, but sophisticated computer users, says Wisconsin computer science professor Cleek, knew that simply by searching for the word "Scamizdat" with a good search engine, they could find OT materials. As recently as September 1995, Cleek testified, you could find Scamizdat's OT postings if you knew how to look.
"It was like the Sorcerer's apprentice," says former Scientologist Robert Vaughn Young. "Every time they chopped it up it reappeared. . . . It was just all over the place. Net people were delighting in the anarchy. The Internet is to Scientology what Vietnam was to the United States -- no matter how much you bombed, no matter how much you attacked, it just got worse."
One beneficiary of the anti-Scientology fervor was Steve Fishman, the convicted felon who had dumped about 65 pages of OT materials into an unsealed court record. Fishman became a household name on the Internet -- and, despite the church's extraordinary vigil over the OT materials he had leaked, somehow, by July, the Fishman materials were out on the Internet. Cleek testified that a Carnegie Mellon University professor posted them on a Web page in July and left them up for two days before he was forced to remove them. At various times, Cleek testified, they were available on two German sites, one Finnish site, and even a Beijing site for several hours.
Then, on August 1 and 2, 1995, the Fishman OT materials became available right on alt.religion.scientology. They were posted there, without comment, by a former Scientologist named Arnaldo Lerma.
Like Erlich, Lerma had spent years in the church, including seven as a member of the high-ranking Sea Organization. Lerma says his church duties included trying to sell high-priced church services to members, and that he depended on the church for food, clothes, and housing.
Lerma left Scientology in 1977; he says he and one of Hubbard's daughters fell in love, and Hubbard disapproved. He eventually moved to Virginia and set up an electronics business. For almost 20 years, he says, he had virtually no contact with Scientology or even with old friends who, like him, had left the church.
Sometime in 1994 Lerma bought an Internet guide with a list of all the discussion groups on the internet, and saw the listing for alt.religion.scientology. "My motivation -- I had no interest in bashing Scientology," he insists. "I wanted to meet up with old friends." Nevertheless, Lerma told his on-line acquaintances that he had a scanner, and people began sending him hard copies of court documents critical of Scientology, which he scanned into his hard drive and then posted. All told, he posted hundreds of pages of court documents to alt.religion.scientology between July 1994 and July 1995.
Last July Lerma was invited to join the board of F.A.C.T.Net, a nonprofit, on-line archive and library of information on groups engaged in coercive mind control. F.A.C.T.Net's then-executive director was none other than Larry Wollersheim, the onetime Scientologist whose lawyers had been sued in the 1980s by the church for getting hold of the OT materials. Wollersheim, who won a multimillion-dollar verdict against the church in his state court case, had amassed a huge library of Scientology documents, including the OT materials from his case and a copy of the Fishman materials (he was to have been an expert witness in the Fishman case had it not been dismissed). And though F.A.C.T.Net purports to collect information on any group it believes to be a cult, its specialty is Scientology material. F.A.C.T.Net's board frequently featured well-known Scientology critics, including former Sea Organization member Gerald Armstrong and Jon Atack, author of an unauthorized Hubbard biography.
Sometime after joining F.A.C.T.-Net, Lerma began scanning in a document that he had previously received in the mail, a declaration by Steve Fishman attached to about 65 pages of OT writings.
Lerma's account of where the document came from has changed. He first said in a declaration that he believed, after a conversation with Wollersheim, that the Fishman materials had come from F.A.C.T.Net's archives. He later said he thought another Scientology critic had sent them, and now he says he's not absolutely sure who sent them to him. But he checked out the document to see if it seemed authentic -- it did -- and called Kemp Harshman, a friend who is a civil liberties lawyer, to see if there was any reason why he shouldn't post something that was in a public court file. He says he got assurances from Harshman that he was okay. (Harshman confirms Lerma's account, although he says he didn't realize copyrighted materials were part of the document.) So Lerma scanned the materials into his computer, posted them to alt.religion.scientology (without comment), and also e-mailed a copy to F.A.C.T.Net.
The church, according to counsel Earle Cooley, was by then monitoring alt.religion.scientology 24 hours a day, on the lookout for what it deemed illicit postings. On August 3 Lerma got a letter from Melvin Jager of Chicago's Willian Brinks Hofer Gilson & Lione, whom the church had brought in for additional intellectual property firepower. Lerma was also visited by two women from the church who tried to convince him to stop his posting.
Like Netcom and Klemesrud in the Erlich case, Lerma's access provider, a small operation called Digital Gateway Systems, Inc., was notified of Lerma's alleged infringement. Digital Gateway's president, Robert Carter, spoke to Kobrin, telling her -- just as Klemesrud had -- that he needed to see a copy of the original works to see if Lerma was violating copyrights. By the time Kobrin and Carter spoke again, several days had passed, and Lerma's postings were no longer stored on Digital Gateway's system. Moreoever, Lerma had assured Digital Gateway by letter that he didn't intend to make infringing postings in the future.
Nevertheless, on August 11 Scientology lawyers Cooley and Kobrin, as well as lawyers from the Willian Brinks firm, appeared in the Alexandria, Virginia, courtroom of U.S. district court judge Leonie Brinkema, seeking an ex parte temporary restraining order against Lerma and Digital Gateway, and a writ of seizure against Lerma (a Virginia resident). Brinkema held a brief hearing, at which Cooley asserted that Lerma was posting "out of spite," and as long as he had the copyrighted material, the church couldn't be sure he wouldn't post it again. Cooley assured Brinkema that the seizure would be limited, and that independent computer experts would supervise the search of Lerma's electronic data. Cooley did not mention that Lerma's post was a publicly available court document. Brinkema issued the writ.
On August 12 Cooley, Kobrin, church official McShane, two federal marshals, and the church's hired computer experts raided Lerma's house and carted off boxes of his things. "I was muttering, 'And this is a church?'" Lerma says. "Warren McShane was going through my underwear drawer. I felt the way a lady would feel after being raped."
Three days later F.A.C.T.Net issued a statement supporting Lerma. Although the on-line archive espouses a policy of not distributing copyrighted material publicly, directors Wollersheim and Robert Penny, another former Scientologist, said Lerma had made the posts as a F.A.C.T.Net director, and that the Fishman materials would encourage the sort of public knowledge and debate F.A.C.T.Net fostered. Moreover, the statement said, these civil raids were a brutal attempt by Scientology to shut down its critics. "The response of those trying to protect public dialog and the libraries and archives that preserve the information for this debate must be OVERWHELMING!" the statement said. "F.A.C.T.Net and a corps of emergency volunteers needs to immediately begin putting up 100-1,000 times more Fishman affidavit-type public records on Scientology into worldwide distribution on the Internet. Scientology needs to learn that attacking critics, illegal and immoral raids, do not work anymore."
Armed with F.A.C.T.Net's call for continued copyright infringement, Scientology lawyers went to federal court in Denver on August 21, seeking an ex parte TRO and a writ of seizure against F.A.C.T.Net, Wollersheim, and Penny. With hardly a question, Judge Lewis Babcock granted the writ. The subsequent raid shut down F.A.C.T.Net's bulletin board system. Thousands of files were seized from Penny and Wollersheim, whose computer hard drive was searched for files containing not only words that would lead to the OT materials, but also for Grady Ward's name and the names of lawyers in cases Wollersheim was an expert in.
And the church still wasn't done with its August blitzkrieg: The day after filing the F.A.C.T.Net suit, the church amended its complaint in the Virginia case, adding as defendants The Washington Post and two of its reporters. Lerma had been a source for one of the Post reporters, and had sent him copies, both paper and electronic, of the Fishman materials before they were seized. From information it got off Lerma's hard drive after the raid on his house, the church found out about the Post's copies, and asked that the newspaper turn over the hard copy. The newspaper complied. But a Post stringer went to the courthouse where the still-unsealed Fishman declaration was on file, and obtained a copy of the court record. She sent the materials back to Washington, and the Post carried a story about Scientology's Internet offensive on August 19, quoting briefly three phrases from the Fishman materials, a total of 46 words. Those 46 words, Scientology argued, constituted copyright infringement -- and, the church claimed, reflected a long-lasting vendetta against the church carried out by one of the Post reporters.
Scientology's Internet cases have raised all sorts of knotty legal questions about copyrights, trade secrets, and the Internet: When are civil searches and seizures appropriate, and how can computers be searched in a way that protects everyone's rights? Can materials that have been published all over the Internet be trade secrets? What constitutes fair use of copyrighted material on an Internet discussion group? And what is the liability of Internet access providers in cases of copyright infringement?
Yet at the core of Scientology's Internet cases is a question of motive. Why has the church litigated these cases so provocatively? Scientology lawyers and church board members have always maintained that the church's only intention in the three Internet cases is enforcing its legitimate copyrights, not silencing its critics. "The best way of analyzing this," says Scientology counsel Cooley, "is to look at what it took for the church to initiate litigation. There were thousands of postings to newsgroups, to alt.religion.scientology. Vicious allegations were made about people who happen to be Scientologists. Only after infringing material was posted did the church sue. . . . The debate continues, and the debate can continue."
Kobrin, who has been the subject of some of the vicious attacks, gets furious when she's asked if the litigation is a means of squelching debate about Scientology. "I find [those allegations] revolting," she says. "Nothing could be further from the truth. . . . Erlich had been mouthing off about the church for years. It took them posting [the copyrighted] materials that pushed us to a point where we sued them. What we're trying to do is protect our intellectual property rights, period."
The netizens who see it differently, Kobrin says, in an argument that resonates with truth, "are not dealing with reality. . . . There are rules and laws we all have to live by. Most of these people, they wouldn't go into a public library and photocopy books and sell them. But they think this is a whole new ballgame and different rules apply."
Even in suing the Internet access providers, argues outside church counsel Lieberman of Rabinowitz, Boudin, the church showed restraint. Lieberman insists that the church only intended for providers to be liable once they are notified of infringement, not for the passive copying that is a necessary part of Internet operations. "The church took the middle position," he says. "This litigation is not directed at criticism [of the church], libelous and defamatory though it may be, but at the intellectual property violations. The church is getting a bum rap on this."
The defendants and their lawyers, however, are convinced that the church used the raids to intimidate and gather information on Scientology critics, and sued access providers so that other Internet service providers wouldn't ask so many questions when the church made complaints about copyright violations. As Digital Gateway's attorney, Michael Grow of the Washington, D.C., office of Columbus's Vorys, Sater, Seymour and Pease, wrote in a brief seeking summary judgment in the Lerma case in Virginia: "[The church] had no valid basis for naming DGS as a party in this case, and it obviously did so only to intimidate other [Internet service providers] and to deter them from leasing their equipment to critics such as Lerma." (Digital has since settled with Scientology; terms of the settlement, says Grow, are confidential.)
The suit against the Post, argues its lawyer, Charles Sims of New York's Proskauer Rose Goetz & Mendelsohn, was further evidence that Scientology's true motive was intimidation. Sims calls the suit "an outrage," and wrote in his summary judgment brief that it "practically defines the circumstances where an award to a defendant is warranted. . . . Bringing suit on the August 19 article cannot possibly be considered objectively reasonable. In addition, the Court has experienced firsthand the apparent intention of the [church] to bury its opponents, and the court, in paper. The [church] has to get the message sometime that the courts of this nation are not appropriate vehicles for venting frustration against one's critics." (Judge Brinkema agreed; in a November 28 ruling she dismissed the Post case and awarded the newspaper attorneys' fees.)
Even Brinkema came to suspect the church's intentions. In a November 29 ruling she wrote: "When the RTC first approached the court with its ex parte request for the seizure warrant and temporary restraining order, the dispute was presented as a straightforward one under copyright and trade secret law. However, the court is now convinced that the primary motivation of RTC . . . is to stifle criticism of Scientology in general and to harass its critics."
Certainly the netizens sent into a frenzy by the church's tactics never doubted that Scientology's true goal had always been to shut down people like Erlich and Lerma. Whether or not it's true, the enmity the church had inspired among them -- and the ensuing sport that netizens made of posting the church's scriptures -- colored the litigation as Scientology's Internet cases progressed in Colorado, Virginia, and California.
Thomas Kelley, a First Amendment partner in the Denver office of Minneapolis's Faegre & Benson, was hired by F.A.C.T.Net's insurance carrier to represent the on-line library. Entering the F.A.C.T.Net case after the August 22 raid on Wollersheim and Penny, Kelley and the Faegre & Benson team he assembled had about two weeks to prepare for a preliminary injunction hearing. They plunged into Scientology's extensive litigation history -- including the decade of bitter fighting between the church and Wollersheim -- the intricacies of Internet operations, and the tale of Xenu and the volcanoes. "[This case] is very weird," Kelley says. "I used to think it was oppressively weird, but I've gotten used to it. A lot of lawyers have gotten very personally involved in this. I'm not personally involved -- the republic would be safe without either side of this dispute. But there are some very important issues here."
For F.A.C.T.Net, a three-day preliminary injunction hearing in Denver in mid-September resolved some of those issues. After hearing testimony from, among others, church official Warren McShane, the church's computer expert, Wisconsin computer science professor Richard Cleek, former Scientology official Robert Vaughn Young, and Larry Wollersheim, U.S. district court judge John Kane, Jr., denied Scientology's preliminary injunction motion in an emphatically pro-F.A.C.T.Net ruling. First of all, F.A.C.T.Net hadn't infringed the church's copyrights, Kane found. "The alleged copying by the defendants was not of a commercial nature," he wrote in his September 15 ruling. "Rather, it was made for nonprofit purposes to advance understanding of issues concerning the church, which are the subject of ongoing public controversy. . . . The postings may well be considered as having been made for the purposes of criticism, comment, or research falling within the fair use doctrine."
Nor were the Fishman materials that had been posted by F.A.C.T.Net director Arnie Lerma trade secrets, in Kane's view. Cleek had testified about the availability of the Fishman materials on the Internet, and Robert Vaughn Young had testified about other leaks of the OT materials; Kane ruled that the scriptures "are widely known outside of the church through multiple sources," including Internet postings that pre-dated Lerma's Fishman posting. "As such," ruled Kane, "they are not secret."
Kane, who had taken over the Colorado case after the writ of seizure had been granted, also vacated the writ and ordered the church to return everything it had seized from the F.A.C.T.Net defendants, including their hard drives.
More bad news for Scientology came from Judge Brinkema, the Virginia judge overseeing the Lerma case, on September 15. Cooley's passionate style had not impressed Judge Kane; Brinkema was similarly irritated by his emotional declamations about the holiness of the scriptures and the despicability of the attacks on Scientology. From the bench she denied the church's motion for a preliminary injunction against Lerma and Digital Gateway. Moreover, she said, the church had violated the spirit of the writ of seizure, and so she ordered it vacated, and Lerma's material returned to him.
Like Kane, Brinkema subsequently ruled that the church's scriptures were not trade secrets. "The Internet and the court file are simply public domain entities," she said a summary judgment ruling from the bench. "When information gets into them and stays in them for any extent of time, and certainly 28 months is a lot of time in a court file, they simply become publicly known."
Relying on similar reasoning, San Jose federal Judge Ronald Whyte, in a September 22 ruling in the third of Scientology's Internet cases -- the Erlich/Netcom case -- also found that the church had not shown a likelihood of success on the merits of its trade secret claims. "[Defendant Dennis] Erlich claims that because the alleged trade secrets were received from 'public sources,' they should lose their trade secret protection," Whyte wrote. "The court is . . . convinced that those postings made by Erlich were of materials that were possibly already generally available to the public."
Kobrin points out that both Whyte and Kane made only preliminary rulings, and that the church still plans to make trade secret claims in those cases. Church counsel Lieberman adds that the church plans to appeal Lerma's summary judgment ruling on trade secrets. But it is hard to imagine how, given the reasoning of these three judges -- and the proliferation of OT postings to the Internet after the church began the litigation -- Scientology will ever again be able to make a strong case that the OT writings that cropped up on computers worldwide are trade secrets. According to F.A.C.T.Net defense counsel Kelley of Faegre & Benson, that means anyone can legally possess the widely posted OT materials -- and anyone can legally make fair use of them under the copyright laws, even, perhaps, quoting them liberally in the context of criticism.
It's true that the church has had some significant wins in the litigation -- a not unexpected outcome, given the strength of Scientology's copyright claims. San Jose judge Whyte ruled on September 22 that Dennis Erlich had not made fair use of the copyrighted church materials. Church lawyers also celebrated Whyte's precedent-setting November ruling, in which he found that Netcom and Klemesrud could be liable for contributing to Erlich's infringement after they had been notified of the alleged infringement by Scientology. Both Netcom and Klemesrud had been warned, Whyte wrote, yet continued to aid Erlich's infringement by allowing him access to the Internet. "Plaintiffs have raised a genuine issue of fact regarding whether Netcom should have known that Erlich was infringing their copyrights after receiving a letter from plaintiffs," Whyte wrote. (Netcom counsel Rice says that Whyte's ruling means Netcom had a duty to investigate and take reasonable steps in response to Scientology's complaint -- which, he asserts, Netcom did. "We were already following Whyte's guidelines," he says.)
Virginia judge Brinkema's January 19 ruling that Lerma had infringed the church's copyrights, resulting in a summary judgment victory for Scientology, is probably the church's biggest win to date. It ends the case against Lerma, who is liable for damages and, possibly, attorneys' fees. (He is appealing.) The church brought in intellectual property heavyweight Hart from the New York office of Los Angeles's Paul, Hastings to present its straightforward copyright case effectively. Throughout the case Lerma's lawyers from Washington, D.C.'s Ross, Dixon & Masback and Faegre & Benson had tried to argue that, although Lerma did not attach specific comments to the Fishman declaration posting, Lerma's ongoing contributions to the debate on alt.religion.scientology made it clear he was posting the materials for the purpose of criticism and discussion. But Judge Brinkema was unpersuaded. (Tom Kelley of Faegre & Benson took over as lead counsel from Lee Levine at Ross, Dixon when it became obvious that F.A.C.T.Net's $1 million insurance policy, which was funding the defense in both Virginia and Colorado, was being too quickly depleted by the involvement of two firms.)
It is also significant that Brinkema denied Lerma's motion for summary judgment based on the church's conduct during the search of his house. Brinkema blamed herself for issuing an overly broad writ. Indeed, the January 19 hearing in Judge Brinkema's courtroom was a demonstration of how easy these cases could have been for Scientology: Even Brinkema, who had lashed out at the church in a previous ruling, was entirely receptive to the narrow copyright claims.
The church maintains that its goal has always been to protect those copyrights, and in that, it is succeeding. "The judges who have issued the rulings in our lawsuits have already done a tremendous job to fortify the rights of copyright owners vis-à- vis the Internet," says spokeswoman Leisa Goodman. Adds Kobrin: "The effect of these rulings is quite salutary. [The illicit] posting has quieted down as a result of the litigation. . . . It's foolhardy [for infringers] to continue." The church says, indeed, that it did not engender much controversy with its tactics, and that only a handful of zealots are responsible for the wholesale posting that went on in the spring and summer of 1995. Moreover, says Kobrin, even that posting did not notably impact the secrecy of the church writings; surveys of the public conducted by polling organizations hired by the church have shown that the secret scriptures remain secret.
But for how long? Because the church's tactics provoked such apparently widespread posting of OT materials, the documents are in the hands of an unknown number of netizens with a virulent animosity toward the church and, in the case of Scamizdat and others, a proven willingness to flout copyright law. They don't even have to flout the law to possess the Fishman declaration, given Brinkema's ruling that it's not a trade secret; the Fishman materials, says Lerma and F.A.C.T.Net's lawyer, Tom Kelley, seem to be fair game for fair use. "I think the situation we have now," he says, "is that anybody who can get their hands on the Fishman affidavit can possess it and make fair use of it."
Kelley is quick to assert that his clients say they never intended to infringe church copyrights, and do not support the Internet community's sport-posting of Scientology secrets. Nevertheless, he says, "I think perhaps the Scientologists did meet their match in the [Scamizdats] of the world."