Karin Spaink on Mon, 8 Jun 1998 05:50:49 +0200 (MET DST)

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nettime-nl: Unbiased columnism #3: Settlement talks

Unbiased columnism # 3

Tuesday, 26 May 1998

				To want to eat a pie and have it

This is the UC that has been missing; it wasn't written on
time and got very close to not being written at all. It's
about Tuesday 26 May and the settlement discussions that
took place in court. It's a mixed issue: part of it is
written by Zenon, and part by Karin. The main reason for
that is that most of the day Zenon was in a closed room,
while Karin was in a smoking room. 

This court case is the main one in RTC vs Panoussis. It
deals with the question whether Zenon has infringed upon
Scientology's, or rather, RTC's copyright of L. Ron
Hubbard's text when he had the OTs on his homepage and
posted the NOTS. This case will be heard by three judges;
one of them has been concerning himself with it for one
year and a half already. 

	"I had met the entire scientology delegation the day
before, on my TRO case, and I had taken the opportunity to
ask McShane what he thought about a possible settlement;
our meeting is described in UC #2. So on Tuesday, when the
"main" case was opened and the chairman asked in a rather
imperative tone if there was any possibility that the
parties could reach a settlement, I was in position to
raise my shoulders and say that yes, I proposed that
yesterday, but RTC seems quite unwilling. Magnusson said
that my conditions were utterly unreasonable.
	The chairman was not prepared to dismiss the matter that
easily. I was on the other hand not prepared to let
Magnusson call me unreasonable. I turned the tables and
said that I will listen to any settlement proposal that RTC
might want to put forward. This opened for formal
settlement discussions, that the court was not only
prepared to assist, but actually very eager to see come through. 
	Settlement discussions are not part of the court
proceedings, so they are not open to the public unless both
parties agree they should be. RTC did not agree and the
courtroom was cleared. The judge that has handled the case
during the 1,5 year preparation was to handle the settlement talks as well."

	"This was the weirdest day of all. The public was let into
the courtroom and, almost immediately afterwards, requested
to vacate it. This happened a couple of times, to the point
where everybody in the audience started to feel a bit dizzy
and believed they were being trained in order to take the
part of the puppets you'll find in weather boxes. In. Out.
Sunshine. Rain. In. Sun. Out. Thunder. 
	Zenon’s face reflected many changes in the weather.
Whenever there was a break in the negotiations, or when the
judges wanted to speak with each party separately, he
joined us in the smoking room and attempted to briefly
explain how things stood. Rain. Sun. Unsettled, mainly."

	"Being the plaintiff, RTC was first to be subjected to
pressure from the court to settle. I don't know what they
were told, but they looked less than happy when they left
the courtroom and I entered it for my one-to-one discussion
with the judge. I guess I looked less than happy myself after it.
	The point of the court was that both parties had something
to lose by insisting on a ruling, that both parties could
gain something by settling and that the main characteristic
of a settlement is that it leaves both parties
dissatisfied, albeit less dissatisfied than what they risk
to be if the case comes to a ruling. I have to admit they are right on this.
	I put forward the same proposal I had given McShane the
previous day (incidentally the same one I put forward last
year): RTC admits that the OTs and NOTS are open to fair
use and I admit copyright infringement, pay damages and
treat the OTs and NOTS with the same amount of respect (in
the copyright sense) that I treat any other text with. I
was confronted with RTC's proposal: that I admit
infringement and they let me off damages and legal costs. 
	I explained that (1) I didn't publish the disputed texts
in order to avoid paying damages because if that had been
my goal, I would have abstained from publishing them in the
first place and (2) given the fact that I am basically
broke, I won't be paying any damages or legal costs anyway,
so there's nothing in for me in RTC's proposal. 
	There was evidently a hope for a settlement on both sides,
but not a basis for it. So the court brought us together,
face to face with each-other and with all three judges. Let's argue. 
	We did. The chairman took the initiative, "took" as in
"categorically refused to let anyone else have it". Both
Magnusson and myself were quite prone to escalate arguments
into dead-ends, so the chairman wouldn't let us argue with
each-other, but rather take over and apply pressure to both
sides to decrease their demands."

	"As time progressed, the critics in the smoking room
became increasingly nervous. Joe Harrington was having his
birthday. Somebody started singing him a birthday song and
before he knew it, he was treated to anniversary songs in
Swedish, Danish, Dutch and English. Whenever the door would
open, we would expectantly turn our eyes, hoping it was Zenon. 
	The Scientologists in the corridor were increasingly
nervous, too. There was much pacing. Hardly anybody spoke,
let alone sang. Some lawyers leafed through papers. Most
Scientologist simply sat or paced, eyes vacantly staring
into space. Then again, they are trained to stare hard. So
perhaps they were practising Training Routines while we
were practising birthday songs.
	I went out a couple of times and mingled with the
Scientologist. All refused to even acknowledge my presence
-- except Cowboy Boots, that is, who tried to strike up a
conversation about my t-shirt. Church of Euthanasia. Yes,
ordered via the net. I expected him to flinch at the word
'net', but he didn't. I jotted down the url for him."

	"At some point, RTC in the person of McShane accepted in
principle that they could concede certain limited use by
the public of the OTs and NOTS. The discussion turned into
how that could be put into an agreement between RTC and me,
that would be binding for RTC towards the public. At that
moment everything looked bright: if we agreed in essence,
putting the agreement on paper should pose no problem. I
was naive, and so was the court: RTC had no intention to
give away anything at all."

	"Zenon entered the smoking room, fuming without the aide
of a Camel. 'Guess what,' he said. ‘They will allow fair
use. But to _me_ only!’. And before he’d taken three puffs
of a freshly lighted cigarette he would be ordered back in
	'We're _this_ close to an agreement,' he would say. Or:
'Fuck, they are redefining terms _again_!' And once, during
a slightly longer break: 'I simply don't understand.
McShane  seems prepared to accept the current settlement
terms, the court is obviously pressing him to accept, and
yet he doesn't. It is as if something were holding him
back. And he _knows_ he will lose the case in as far as
their claim that this is unpublished material is concerned.'
	'Perhaps it's not something that is holding him back, but
some_body_,' I conjectured. 'He anwers to Miscavage. And
RTC's license with CST binds him to sue under any
circumstance. Perhaps he'd like to strike a deal with you but simply cannot.'
	'I'll ask him,' said Zenon, and left the smoking room
again, this time to talk with McShane in the corridor,
without any judges present.
	Ten minutes later, I could no longer wait. I went out as well.
	And found Zenon in the corridor, surrounded by
Scientologist. I joined them. McShane was standing face to
face with Zenon, upper body bent towards him, shoulders
hunched, looking terribly red in the face. He was angry,
arrogantly angry. 'Bullshit,' he said, in a most derogatory
tone, 'bullshit.' 'But _why_ do you think I'm doing this?'
Zenon asked. 'Why do you think all of us are doing this? Do
you really believe that we do this just to harass you?'
McShane threw me a sideways glance and returned his gaze at
Zenon. My presence there obviously confirmed his beliefs
that yes, there was this major conspiracy against
Scientology going on and that we were partaking in it.
'Bullshit!' he repeated. 'It _is_ to harass us. That is
your only motive,' and for one moment I truly believed he
was going to spit on the court's carpet. He spoke as if Z
was vermin, a despicable entity, an irritating insect that
needed to be trampled and crushed and utterly wiped out,
and as if he, and he alone, had the power to do so. Yet his
facial expression and his posture belied him. McShane was
arrogant, no doubt about it, but very unsettled as well. 
	It turned out that the question Zenon had posed to McShane
was: 'Is there anybody else you need to consult on this
settlement matter? Do you need anybody's permission to sign an agreement?'
	'You're looking at the man,' McShane had proudly answered
(thereby, and that is rather interesting, belying both
Vorn's and Small's testimony of the following day).
	'Then what is the reason why you don't?' Z had continued.
And that is when McShane had exploded.
	Before they could finish their argument, Zenon was called
back in. Five minutes later, McShane followed suit.
	What was keeping McShane from agreeing to a settlement, we
later decided, was L. Ron Hubbard. Elron had said that OTs
and NOTS are to be considered unpublished, and so they
shall be. You cannot argue with source, and you must obey the Tech.

	"For every formulation proposed by me or the court,
Magnusson would have an objection and introduce a new
reservation. At first they would accept that "the material"
could be subject to fair use. Then "fair use" was not any
normal fair use. Next, they would accept that individuals
are allowed to make copies for personal use, but only if
the original used to make the copy was legal. "Legal", as
it turned out, was to be defined by RTC, probably as "RTC's
own copies only", their standard claim being that all
copies not in their own possession - even the ones in this
same  Stockholm court that are being lent out on a daily
basis - are illegal per se. Then "personal use" had to be
re-defined to mean *strictly* personal use, so that the
normal right to spread a personal use copy to family and
friends would be excluded. Consequently, a copy for
personal use could not be used as an original to another
copy for personal use. In short, RTC was only prepared to
allow the public to make copies of originals that are not
available, and such copies could be used for nothing more
than their original could be used for.
	I was under just as severe a pressure from the court as
the RTC was, so I went along and accepted many more
limitations to my original proposal than I would ever have
been happy with. Yet that didn't help. Every time I went
along with yet another limitation, Magnusson put forward
yet another reservation. At the end, when I exploded and
refused  to discuss settlements any more, RTC's proposal of
a settlement agreement stood as follows:

	Panoussis admits copyright infringement. 
	RTC accepts every use of the material that is legal.

Taste this. They accept every use that is legal. As if they
had any alternative to accepting legal use. They keep their
position that no use whatsoever is legal, and accept the
rest. Then I'm supposed to sign an agreement that would
constitute a statement on my part that it is up to RTC to
accept legal use or not, and we should all be grateful to
them that they do. In practice they were asking me to sign
an admission that they stand above the law, but are so
generous as to concede to abide by it anyway. End of settlement talks.
	Yet, I don't think they were satisfied with the outcome.
McShane looked really pressed during the talks. At times he
looked like somebody between a hard place and a rock, just
short of being in agony, in all contrast to what you would
expect from a high OT representative of the almighty RTC,
in court against a lowly copyright terrorist. He looked as
if he thought that both his alternatives - settle and not
settle - were equally bad, and he was anyway forced to take
the predestined road to self-destruction.
	At 13.54 the settlement talks broke down definitely and
the normal hearing of the case was resumed. The public was
let in, Magnusson made his opening statement. At 16.45 it
was my turn, and I had no idea where to begin; I was as
badly prepared as one can be. Thanks to the delay the
settlement talks brought about, I was able to postpone my
opening statement to the next day. Had it not been for
this, I'd have been in very deep shit."

We left court and bought binders. A lot of them. And
started to sort out the paperwork.

--- end ---

- K -

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