Karin Spaink on Mon, 1 Jun 1998 14:58:59 +0200 (MET DST)

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nettime-nl: Unbiased columnism #5: "You know you're being sued by CoS when --"

Unbiased Columnism # 5

Thursday, May 28 1998

		"You know you're being sued by CoS when..."

Every morning, it's the same routine. We get up too early,
quickly prepare some coffee, smoke, wash, check our mail,
smoke, dress, phone a taxi and hurry to Tingsrätt where
Zenon then needs to buy cigarettes in a shop opposite the court.
	There's so much stuff to take along. Two computers.
Cables. Batteries. A wheelchair. And most important, a
stack of five crammed binders with all pertinent files.
Some of the stuff is piled on my lap and Zenon carries the
rest. We feel like we're becoming regular housemovers.
	In court, we see the same people again and again. There's
a girl whose friend is a member of Scientology and who is
worried because the friend wants to join the Sea Org in
Copenhagen; there's Karsten, from the Danish Dialog Centre;
there are a couple of journalists who follow most of the
court sessions and report on an almost daily basis; there's
a woman who has organised a support group for former cult
members (today, she will give Zenon a vase of flowers, with
this nice little card attached to it: "For all you've done
for humanity"); there's friends of Zenon's who attend.
	We take a lot of taxi's. In this one week, we will spend
2700 kronor -- circa 325 US$ -- on transport alone.

9:35. The bailiff is called to testify. On RTC's behalf,
she confiscated Zenon's hard disks etc.; a computer expert
was hired to search it.
	However, as the bailiff didn't have the original texts,
she didn't know what to search for. Zenon finally decided
to help by handing in a copy of the OTs and NOTS to the
bailiff. That way, the bailiff could do the search, and
Zenon could get his hard disk back, which he desperately
needed. In this way, the bailiff retrieved what was
purportedly a NOTS pack from Zenon's hard disk and put it
on diskette. Search terms she was asked to use in case
Zenon hadn't helped her to retrieve these files, were
'volcano', 'BT', 'GP/M', 'Vorlon' and 'Ward' (as in: Grady
Ward). The notary public later compared this diskette to
Attachment 37, and found that they were the same.
	Small wonder. Attachment 37 is a print-out from a file on
Zenon's hard disk. A print-out from the file he himself
helped to retrieve. Zenon has stated that much. The bailiff
is apparently brought in to establish a chain of evidence:
hard disk --> diskette --> Attachment 37. Which is silly,
because this chain of evidence is completely unnecessary
and doesn't need to be established in the first place:
after all, Zenon himself has verified that Attachment 37 is
a print-out from this file on his hard disk. Why this
detour? To confuse the court? To insinuate that he had yet
'another' copy of a NOTS pack, i.e. the diskette? But
_they_ had him make that...
	9:45. Exit bailiff.

Magnusson speaks about the net, more specifically about
Zenon's homepage, e-mail and postings to Usenet (i.e.
alt.religion.scientology). He explains that ISPs have rules
about not abusing one's account and stipulates that Zenon
did indeed abuse his account at Wineasy, by putting the
NOTS on his homepage there. 
	Magnusson is stalling. Speaking teasingly, almost lethally
slow, as if he were verbosely dictating a letter to an
apprentice secretary instead of presenting a group of
intelligent people with a coherent set of arguments. Also,
it would seem, he's putting forward either the obvious or
repeating stuff everybody by now knows Zenon and Magnusson
disagree about. Zenon becomes visibly impatient.
	Magnusson wishes to discuss a posting of May 2, 1996,
allegedly sent by Zenon, in which he announces that in two
days he will post the NOTS to alt.religion.scientology. To
everybody’s dismay Magnusson starts _spelling_ headers. "N
N T P dash user dash ..."
	Magnusson discusses the financial damages RTC suffers due
to the dissemination of their secret material. Also, RTC
has suffered a 'kränking' by Zenon's behaviour, they have
been ridiculed, treated without any respect whatsoever.

The president asks Zenon for a reply.  Zenon maintains that
"the material" lacks in originality. Also, RTC claiming
that with parts of the OTs he has copied a 100% isn't
saying much because often 'a work' is very short, just a
paragraph, and one OT-level consists of many such 'works'.
Whether they are copies at all is impossible to ascertain,
because the material filed at the Copyright Office is masked.
	There is a discussion about exactly how many copies of the
NOTS Zenon has made. Magnusson counts literally
_everything_ as a copy: copies in RAM, copies that are
printed directly from files, copies in cache, copies here,
copies there, copies everywhere.
	Zenon, of needs, delves into another explanation of
computers. Many copies which one makes are volatile,
temporary. As a matter of fact, it is not you but the
computer who makes one, and you can't prevent that. For
instance, when you open a file in Word and meanwhile start
doing something else, the computer will automatically
reallocate memory and move the Word document to a different
place in RAM, or on RAM-disk; without you even being aware
of it, you'll have lots of temporary copies all over the
place. [This really needs to be explained, seeing that RTC
includes temporary copies in their calculations. The
damages that RTC demands are fixed, but the principle that
volatile copies shouldn't count is important to defend.]
Zenon explains that some copies RTC claims he has made, are
not _real_ copies: it's cache memory, or RAM, or a swap
file; in other words: you cannot evade making such copies
as soon as you do anything with a computer.
	Regarding RTC's remark about his ISP: the ISP is not
responsible for what their users do, Zenon maintains, it is
users themselves which should be held accountable. ISPs are
nothing but common carriers, companies that provide the
technical environment. This remark causes a slight uproar
in the CoS-benches behind me. One of the Swedish
CoS-members scribbles a note which is handed to Magnusson,
who receives it and nods happily. It would seem the two men
behind me -- a very young Swede, 26 at most, and a blond,
almost bald American -- are doing a god job. They whisper
with Cowboy Boots, who seems relieved and starts leafing
through a file. The three of them point at a paragraph;
Cowboy Boots nods vehemently and gives the two men a thumbs-up.
	Regarding Magnusson's dissecting of Zenon's May-2 posting,
Zenon explains that you can forge _every_ header. Headers
provide no proof, only logs do. And headers often seem
convincing, even when they obviously are manipulated. For
instance, Zenon reminds RTC, recently there were two
postings on a.r.s. purportedly made by their own lawyer
Helena Kobrin. Both had valid and, to all intends and
purposes, similar headers; yet the second messages claimed
to be by the 'real' Kobrin and alleged that the first one was a forgery.
	11:15. Coffee break. Smoke break.

11:35. Magnusson's aide has traded places with the young
Swedish Scientology member who sat behind me. The next
witness enters: Mikael Nyström, the computer expert, who is
going to be heard about the net.
	The net is basically a lot of computer networks linked
together, he explains, and they provide for the Web, mail
and news. The Web caters to the general public, everybody
can access these documents; what is in them, is decided
upon by the homepage owner. Newsgroups are discussion
platforms; news propagates via news servers. Which groups
you can access depends on your ISP's news server. Once
you're on, you can read and post to a selected group. News
is archived at DejaNews, a searchable database. Also,
there's ftp: retrieval or delivery of files. You need it to
put files on your homepage, because the homepage is located
at the ISP's disks. Then there's mail, distributed via mail
servers, whereby people can send messages to one another
and copy messages from the mail server to their own computer.
	[Nice that he mentions copies, temporary copies and cache.
Now _he_ is telling the judges that there are many kind of
copies and that most of them are technical necessities.
Unfortunately, the judges seem most unfamiliar with
computers in general and with the net in particular, and
they are definitely getting an information overload on the
subject. Every three minutes they beep for time in order to
process what they've heard.]
	Zenon’s turn. Zenon makes the witness admit that all
headers can be forged and that some people even consider it a sport to do so.
	The young Swede's turn. How can you post via e-mail to a
newsgroup? [He's bent on proving that Zenon must have made
a copy of his own NOTS file to Mozilla in order to post the
NOTS. Yet another copy RTC wants to be paid damages for.]
Zenon grills the expert witness, who explains that yes, you
can easily send off e-mail _and_ postings at once, without
making extra copies on your own computer, via Mozilla.
	12:40. Exit witness.
	Discussion about procedures, time and witnesses.

13:00. Lunch break.
	You know that you are being sued by Scientology --
	-- when the people working in the court’s cafeteria not
only start greeting you, but also know what you want for
lunch. When Zenon goes to the counter, he does no longer
need to ask. One coffee, one cappuccino, two ham sandwich
rolls, one apple. And an ashtray.

13:45. Yet another argument about time. Zenon would of
course like as much time for his final statement as
Magnusson is going to take. But it _is_ already Thursday,
and there's two witnesses, and then McShane will be heard,
and Magnusson expects this to take a long time, and ...

14:00 Thomas M Small, from RTC, is called in to testify. A
court interpreter translates his words for the judges. The
dots represent the questions.
	"I am a patent lawyer and intellectual copyright lawyer.
... I compiled the agreement [between CST and RTC] before
it was signed. ... I was at the time representing RTC and
to some extent CST as well, because they were co-operating.
I attempted to put their wishes on paper. ... This document
was designed to give all rights to the Advanced Technology
Scientology material outside the US to RTC. ... That
includes the OTs and NOTS, those are part of the Advanced
Tech. ... The agreement was intended to transfer all
intellectual copyrights. 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 material is part of 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 provision in the agreement that RTC would
protect these rights and, if necessary, sue infringements.
... This was in RTC's name. They were granted the exclusive
right to use the materials and they can sue on their own.
CST only sues when the need to do so arises. ... (Magnusson
gives him some papers.) ... There were none other that I
know of; at the bottom of the page it says that the Estate
has the rights to pull [xxx] and these serve as [xxx] the
ecclesiastic use of the materials. ... This is religious
document, agreed upon between the leaders of a religious
groups and there's a number of limitations on how these
materials can be used; not in the copyright sense but
rather in the ecclesiastic sense. ... The rights remain the
same. The role of the trustees was simply turned to RTC. ... 

	Zenon’s turn. "Are you saying that RTC and CST were
co-operating partners in this?"
	Small: "They were co-operating although RTC had not really
[xxx]. The interests of CST and RTC were the same, yes. ...
CST did then not yet have a direct interest in the matter;
that was the Estate at the time. ... whether RTC and the
Estate had opposing interest at that time? No they had not.
... It was a exclusive license, an transfer of copyright,
... the right to use and to authorise others to use is
covered by the license, the copyright remains with the
license holder. ... that was the desire of the partners,
they had no intent to transfer copyrights to RTC or to
anybody else. Mr Hubbard kept his own copyrights and Mr
Hubbard made provisions that the rights went to CST and
they were entitled to hold the rights. ... the limitations
are as I intended them to state: the Scientology scriptures
state that this is the way they are to be used, after all
it's Mr Hubbard’s writing."
	Zenon asks why the contract does not deal with possible
conflicts between the contract partners and third parties,
and why RTC's right to sue third parties *in its own name* is not regulated.
	Small: "Well, that right is right is a matter of law, it
wasn't necessary to say any more in the license then it now
states. ... This contract was made in the US between US
parties, and this subject is covered by 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: "It is possible that there is a country where RTC
would not have the right to sue, and the contract states
that in that case CST could. I also add that this is not
just a copyright agreement but also a confidentiality
agreement and therefore its important for RTC to guarantee
this confidentiality."
	14:35: exit witness.

The court attempts to phone Thomas K Vorn [born 10 Aug.
1964] who is vice president of CST and authorised to
represent CST. They meet with some difficulties: after Vorn
has stated his name, the connection dies. After a bit of a
hassle, the connection stays up. Magnusson asks him some questions.
	Q How long have you held this position?
	Small: "Since October 88. I oversee the work done by RTC.
I archive all to preserve the Scientology religion."
	Q [something about the copyright of OT2, OT3 and NOTS] 
	Small: "RTC is the protector of the copyrights. Mr
Hubbard’s estate was transferred to CST, and RTC brings
litigation in case of infringement."
	Q Could you describe CST’s position about the license to RTC?
	Small: "In 1993, after the copyrights were turned over, [xxx]"
	Q Which rights?
	Small: "RTC had three basic rights. To authorise
Scientology organisations to use the tech and provide those
organisations with copies; the exclusive right to protect
these copyrights; and to collect the [xxx] [money, I assume]."
	Q Does this also mean, according to CST, that RTC can also
start litigation in its own name?
	Small: "Huh?"
	Q According to CST: may RTC take legal action when it
comes to protect this copyrights?
	Small: "Yes."
	Q In RTC's own name?
	Small: "Yes."
	Q According to CST, are there any remaining rights not
included in the license agreement and _not_ given to RTC?
	Small: "No."
	Q Could this mean that RTC [xxx]
	Small: "Yes."
Zenon's turn.
	Zenon: "Why did CST sue Spaink in Holland, if RTC takes care of this?"
	Small: "-- ehm. I don’t understand the question."
	Magnusson interrupts.
	Zenon: "If RTC is supposed to sue in its own name and that
is sufficient, why did CST sue Spaink et al in Holland?"
	Small: "I cannot say."
	Zenon: "No further questions."
	15:00. That Zenon has no further questions is fortunate,
because the connection fails again before the judges can
formally thank Mr Vorn. The judge asks Zenon for a clarification.
	15:15. Smoke break.

15:30. We re-enter. Magnusson has announced to Zenon that
he will need 2,5 hours to question McShane on the materials
(closed doors again), plus 1 hour to question him on
RTC/CST. Zenon wants to question him as well, which means
we'll be well into Friday morning before we can start with
the final arguments & points -- time of which Magnusson
will take up the lot, too, probably. They _are_ trying to
fuck up the schedule.
	The judge reminds both parties -- and does so with great
emphasis -- of the need to be concise and to adhere to schedule. 
	By now, it is nevertheless obvious that the trial needs to
be prolonged. There is no time for all these witnesses plus
two final pleas. [Magnusson’s final plea will take a lot of
time because he speaks so tediously slow; Zenon's will take
time because Magnusson insists on interrupting him and
trying to prevent him from discussing specific subjects.]
	Dammit. Prolong the hearings, but when? Zenon needs to be
back at work on Monday; we have booked planes on Sunday.
Monday is a holiday, so the earliest day the court can
resume its proceedings is Tuesday. That means that Zenon
has to take another two days off from work, needs to cancel
his plane and book another -- probably rather expensive --
return flight. It also means that I cannot be present
during the final plea and can not help Zenon in his preparations.
	McShane doesn't care about the prolongation. He can easily
stay. Or even go home for the weekend. He doesn't need to
take leave from work. As a matter of fact, being in court
_is_ his work, as both the RTC and the CST witnesses have just explained.

15:55. McShane will be called to testify and will be asked
about "the" materials. The doors will be closed: chances
are that parts of Scientology's Advanced Tech will be
mentioned, and we can't have that, can we?
	16:00 Doors close. I pack my stuff and leave with the rest.
	16:35 Doors open. Now that was quick!
	There's an argument about planning. Again. And about
protocols. Cowboy Boots -- lawyer Bill Hart, as we have
learned meanwhile -- kindly warns me not to unpack: chances
are the court will recede within ten minutes. They do
indeed. Zenon and I go off for a smoke, a drink and a meal.
And yes, we will work all evening again.

--- end ---

- K -

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