From : The Australian November 7th 1995 : pages 38-39 Scientology attacks Net freedom to hush critics Opponents of the Church of Scientology are disseminating its 'secret' scriptures on the Internet - provoking a vigorous retaliation which threatens free speech on the Net. Chris Bucholtz reports from San Jose COPYRIGHT law, trade secrets and the Internet are providing the kindling -- and the Church of Scientology is supplying the spark -- for a heated debate over freedom of speech and intellectual property. What had been a battle between the church and several former Scientologists has now evolved into a bigger controversy about the church's methods of silencing critics and how much right the public has to know about the organisation. While debate has centred on religion and censorship, the outcome of the legal issues could have far reaching implications for the Internet. The battle began with the uploading of excerpts of secret scriptures, known as the Advanced Technology, by a number of former church members around the world. According to the church, these documents may only be read by members who have had extensive spiritual training. Revelation of these documents to those not sufficiently trained, church spokesmen said, "could impede parishioners' spiritual progression, and out-of-context exposure to the materials can create misunderstanding". The church's critics say the reason the Advanced Technology is available only to those who have been thoroughly indoctrinated is because, to the uninitiated, the documents are absurd and would cause potential members to dismiss the religion outright. To combat the distribution of portions of the texts, the church has sued many of these critics, and has obtained permission for raids of their systems and software. Bulletin board owners and Internet providers were also named in the suits, in a tactic that critics contend could result in chilling of free speech on the Net. One of the more celebrated cases is that of former church member Mr Dennis Erlich, a systems operator from Glendale, California, who was a Scientologist for 15 years. Mr Erlich's last years in the church were spent as one of Scientology's top educational officials. It was his job to study all of Scientology's principles and documents and to know the written materials well enough to correct and retrain other Scientologists who made mistakes. After breaking from the church, Mr Erlich began a bulletin board to discuss Scientology. The service received anonymous postings, and Mr Erlich reviewed the material for accuracy. What was accurate, he said, he posted to his bulletin board. Mr Erlich admits to posting "a few" of his own messages, including excerpts from the church documents he had studied so intently. Mr Erlich, who is bitter about the time he spent in the church, said that publishing the excerpts was his way of providing a public service. "The public interest needs to be served, and I'm putting my ass on the line to make sure this information is available to the public," he said. "I'm doing this to make up for the 15 years of work I did for the Church of Scientology, helping them to bilk people." But what to Mr Erlich was a public service, to the church was a copyright infringement. In February, Mr Erlich's home was raided by a local policeman and seven other people, including Scientology attorney Mr Thomas Small, with a writ of civil seizure. Police seized Mr Erlich's hard drive and computer equipment, and, prior to deleting allegedly infringing files, church officials copied the whole of Mr Erlich's hard drive. "They bought in a 250 megabyte Colorado hard disk, plugged it right in and, believe me, I know when my drive is being backed up." Mr Erlich said. Although a judge in San Jose later vacated the order for the raid and ordered the return of Mr Erlich's equipment, he alleged that the church is using the information from the raid to continue to harass him. "I don't have any privacy," Mr Erlich said. "They took personal information from the hard drive, and long before this they had 15 years of my confessions as a member of the church." "On top of that, my hard drive (has been damaged). I have some back-ups, but nothing compete." The initial order sought to prevent Mr Erlich from continued "copyright infringement on the Internet computer network", an argument his supporters say is easily countered. The broadest outline of copyright law is that ideas and facts are not protected by copyright, but the verbatim use of the form the author uses to express these ideas and facts is protected. When a work is excerpted without alteration, the doctrine of "fair use" can allow the use of copyrighted material without the author's permission. Fair use can be determined through a balance of the purpose of the use, the nature of the copyrighted work, the amount and substance of the portion used in relation to the work as a whole, and the effect of the use on the potential value of the work. This principle allows book reviewers and essayists to reprint sections of other works in their analyses, and it is determined by the court on a case by case basis. An attorney for the Electronic Freedom Foundation, Mr Mike Godwin, said that this provision of copyright law was the key to Mr Erlich's defence. "I believe the materials he used do qualify under the fair use guidelines," Mr Godwin said. "For the most part, they were excerpts accompanied by comment, and I can't think of a more appropriate application of the fair use doctrine." Although the church's original argument was that Mr Erlich was violating it's copyright, it later declared that the materials Mr Erlich had made available were "trade secrets" and subject to different criteria. The church came up short on this issue; the presiding judge dismissed the claim that Mr Erlich had violated any trade secrets and ordered the church to return all property seized. For Mr Erlich, the ruling was a mixed blessing, because it also held that some of his postings did not qualify as "fair use" under the Copyright Act, making him potentially liable in future action. "Trade secrets are another issue entirely," Mr Godwin said. "They aren't part of federal law. They're part of State law, and can vary from State to State." "The fair use argument does not apply, and trade secret law does not hinge on protected expression but protected knowledge." As the term suggests, trade secrets laws are designed to protect commercial entities' abilities to compete. As such, Mr Godwin said, using these laws to stop the dissemination of church materials could prove to be a dead end. "For knowledge to be a trade secret, it must be yours and no- one else's, and it must be information that, if given to a competitor, would cause that competitor to gain a competitive edge and cause serious damage to your business," Mr Godwin said. "This is a pretty interesting argument to apply to a church -- if the Catholic Church gets this information, will it surge ahead in the religion market?" An attorney retained by the Church of Scientology, Mr Melvin F. Jager, maintained that the trade secret laws were indeed applicable to the church's materials. "One key underpinning for the enactment of trades secret laws is the public policy of encouraging morality in dealings between people and entities and discouraging theft of confidential information," he said. "Protecting the Advanced Technology scriptures under trade secrets law encourages morality in the relationships between people and preserves and protects the most fundamental rights of privacy." Mr Jager said the church had set a precedent with a 1993 case it had won by proving its scriptures brought money into the church. "In Bridge Publications Inc (the church's publishing arm) vs Vien, the court found that the church certainly did derive economic value from the Advanced Technology," he said. Mr Godwin said: "Scientology has times when it wants to be a church and times when it wants to be a business." "With regard to trade secret issues, they're trying to be a business. But other courts in other cases have ruled that the Advanced Technology did not qualify." The church -- founded in the 1950s by L. Ron Hubbard after the publication of his best seller, Dianetics: The Modern Science of Mental Health -- has also stepped into other legal potholes. In August, a raid was carried out on the Maryland home of Mr Arnaldo Lerma, who ran a bulletin board focusing on Scientologist activities. Software and equipment was seized at the church's behest. Mr Lerma was posting documents from a previous case (Church of Scientology International vs Fishman and Geertz, 1991) in which the defendants had filed sections of the Advanced Technology in their brief to the court, effectively entering the material on the public record. As these earlier defendants had done, Mr Lerma entered the "secret documents" in his filing. Two reporters from the Washington Post obtained the material through the court, and ran a long article about the church. The newspaper was promptly added to the church's suit against Mr Lerma. The case against the Post has since been thrown out, because the information was obtained legally. In August and order was issued forbidding the dissemination of materials in the Fishman case but, by then, it had been posted on almost a dozen Internet sites. Also in August, marshals in Boulder, Colorado raided the site of a bulletin board called FACTnet, operated by Mr Lawrence Wollershiem and Mr Robert Penny. As in the Lerma case, the courts later vacated the initial temporary restraining order and ordered the church to return seized material. In September, Dutch police and Scientology officials visited the offices of XS4ALL, an Internet service provider in Amsterdam. Dutch law provides stronger protection than US law, so there was no search of any computer files and no seizure of equipment. Instead, the officials noted equipment serial numbers for a possible suit. The church complained an anonymous remailer at XS4ALL was used to transmit their copyrighted documents. A similar case in Finland forced another service to reveal the name of a user the church alleged had uploaded secret material. The tactics of the church in naming system operators and Internet service providers in its suits have an impact far beyond the disagreements between the church and its former members. Should a bulletin board or service provider be found liable, it would imply that operators are responsible for ensuring the copyright ownership of all the material on their services -- a mammoth task that would force many out of business for fear of litigation. The courts have yet to see it that way, however. In the case of Mr Erlich, the church also named the bulletin boards owner, Mr Tom Klemensrud, and the Internet provider Netcom in its suit. The suit against them was thrown out on February 22. A similar suit was filed in the Lerma case, naming the Internet provider Digital Gateway Systems. The case against this provider was also dismissed. "There's a lurking issue of how much blame can be placed on system operators for copyright infringement," Mr Godwin says. "I hope Congress or the courts will realise this is a First Amendment issue and act to protect provider's rights." The church asserts in a position paper that service providers have a responsibility to act against alleged infringers when copyright-holders blow the whistle. "While it can be argued that access providers have no responsibility for controlling the tremendous flow on information through their systems, when evidence is presented of infringement of intellectual property rights, then access providers have a responsibility to take action," its paper says. "Moreover, when a particular user has shown a repeated pattern of abuse, that person should be removed from the system, or the access provider held liable." Service providers fear such a policy would force them to conduce extensive investigations. "We don't want to be thrown into the liability chain," the general counsel for America Online, Mr William Burrington, says. "We don't want to be put into the role of playing Net cop." A panel of legal and on-line experts met in October and suggested the creation of a copyright arbitration board, but the tortuous process of determining fair-use and trade-secret status will remain a problem, experts agree. Observers like Mr Godwin worry that groups willing to use their legal clout could significantly affect the outcome of such a board's decisions. "The Scientologists recognise there's a strong risk that they'll lose most, if not all, of these cases, but they hope that fear of litigation, fear of lost money and fear of unlawful search and seizure will quiet discussion," he says. While the church has said it must take action against those who "would destroy the spiritual future" of its followers, Mr Godwin says it is attracting negative attention. "They're generating a lot of bad publicity, and people are becoming interested from a freedom-of-information aspect who, before, couldn't have cared less about Scientology. "In The Netherlands, for example, people are posting copies of the Fishman declaration on telephone poles, and it has been added to hundreds of servers." "When you show a willingness to throw your weight around, people are more than willing to strike back." Edittech International