|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 Stockholm, 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 - -- * Verspreid via nettime-nl. Commercieel gebruik niet toegestaan zonder * toestemming. <nettime-nl> is een gesloten en gemodereerde mailinglist * over net-kritiek. Meer info: email@example.com met 'info nettime-nl' in de * tekst v/d email. Archief: http://www.factory.org/nettime-nl. Contact: * firstname.lastname@example.org. Int. editie: http://www.desk.nl/~nettime.