Reuters 11/28/95 Scientology suit against NETCOM to head to trial Copyright, 1995 Reuters Ltd. By Eric Auchard SAN FRANCISCO (Reuter) - NETCOM On-Line Communications Inc. could be held liable for alleged copyright violations of internal Church of Scientology texts that a dissident former church member published over the Internet. A federal judge in San Jose, Calif., denied a summary judgment motion by NETCOM and a bulletin board operator named in the suit asking that the case be dismissed because the service providers were not responsible for what was published. In a Nov. 21 ruling, U.S. District Court Judge Ronald Whyte found that sufficient evidence existed for the copyright case to go to trial on the issue of contributory infringement. The lawsuit is the latest in a series of court cases involving intellectual property rights and free speech in cyberspace. Such cases have raised concerns in the computer industry that online service providers may be held responsible for exercising editorial judgment over their subscribers' writings, rather than merely providing transmission services. However, the judge narrowed the issues in the NETCOM case by rejecting claims that the online services could be held responsible for more direct forms of copyright infringement. The suit, filed by Scientology affiliates in February, named Dennis Erlich, a former Scientology minister turned vocal critic of the church, as chief defendant. Also named a defendant was Tom Klemesrud, who used NETCOM to publish via his own bulletin board service the material first posted by Erlich on the Internet. The Scientology suit asserts that providing these connections make Klemesrud and NETCOM contributors to Erlich's alleged copyright infringment. The suit argues that NETCOM should have exercised greater editorial control over the service's contents by blocking the postings by Erlich, who had published without permission the copyrighted works of the religion's founder, L. Ron Hubbard. Although NETCOM acknowledged in its motion that it had been contacted by Scientology representatives asking that it remove the copyrighted material, NETCOM refused, maintaining that to do so would have required also shutting off hundreds of other users of Klemesrud's bulletin board service. The bulletin board service, known as "support.com," carried the online writings, or postings, of more than 500 users and covered topics ranging from fixing computers to gardening, lawyers for the defendants said. One segment carried passages from Erlich's writings in the "alt.reglion.scientology" newsgroup on the Internet. Both sides saw the ruling as a victory. Church of Scientology lawyers said in a statement that the ruling represented a "precedent-setting" decision that could make online access providers take more responsiblity for the contents of messages placed by subscribers on the Internet. Helena Kobrin, the legal counsel for the Scientology affiliates who filed the case, said in an interview that the suit does not make the "unrealistic" demand that access providers monitor every message sent over their services. "What we were asking is that when (an access provider) is put on notice of an infringement, (the provider) has to do something about it," she said. A NETCOM spokesman declined to comment, referring the case to its outside legal counsel, Randolf Rice. Rice said the ruling had significantly narrowed the issues in the case and added that the issue of contributory negligence would be difficult to prove against his client. The lawyer said Erlich's postings mixed long quotations of Scientology text with torid commentary by the former minister. "That appears to be legitimate commentary," Rice said. Erlich said in a telephone interview that holding the online service providers responsible for his postings was "absurd." Erlich said he never had a direct connection to NETCOM. "It would be like finding AT&T potentially liable for communications between two computers," he said, comparing AT&T Corp.'s provision of long-distance communications to NETCOM's Internet access business. Judge Whyte had issued an injuction in September finding that the Scientology writings were fairly copyrighted and prohibiting Erlich from making further unlawful postings. The next hearing in the case is scheduled for Jan. 19.