nettime-nl: Unbiased columnism #4: Brochures with a bite

[Karin Spaink <kspaink@xs4all.nl>]

(No #3 yet. It was settlement talks. Rejected. Lots of
work.)


Stockholm,
Wednesday, 27 May 1998


                                Brochures with a bite


Early court.

9:15. Yesterday, Mg hadn’t finished his opening statements
-- in which you state your position --  and is allowed to
continue. He doesn’t take long and speaks only about OT2,
OT3 and the NOTS, the authenticity of which will be proved
later on, amongst others during the hearing of witnesses.
"You can’t use witnesses to put forward new statements in a
case like this," the president of the court reminds him;
"You can only use them to proof a previously stated
argument." Hmm. Anyway, Mg states, the most important proof
has already been filed: the registration number copies.
These prove the authenticity of the NOTS _and_ testify to
the fact that they are copyrightable: only material that has
a certain amount of originality ("value", or "dignity" in
~Swedish law: meaning, they must be distinctive, creative,
testify to a personal style or something) can be
registrated, Mg explains. And yes, the OTs and NOTS
therefore must have met this neccesary level of originality.
"Excuse me," Z interrupts. "will you please state _which_
material was filed with the Registration Office? Were those
_masked_ or _unmasked_ OTs and NOTS?" Z asks. "Masked," Mg
replies. Exit argument. Who on earth can judge the level of
originality of a masked text?
        OT2 & 3 and the NOTS are a recurring subject. Mg
mentions that Zenon had copies of the OT/NOTS on his disks -- but
which version, Z wants to know? To which NOTS were they
compared? Attachment 37? 24? 126?

Z starts his opening statement. How can something that is on
the net end up on his disks? Where did he get this stuff in
the first place? He lectures about e-mail, Usenet, the Web,
about downloading, browsers, urls, hyperlinks, headers. He
speaks a couple of sentences and then waits for the judges
to finish their notes before he continues. Smart. This is a
_verbal_ case; files are assumed to be used for referral
only, and the judges will base their decision upon their
assessment of what they are _told_. [Also, he later explains
me, the judges asked him twice or thrice to please slow
down.]
        "I found OT2 and OT3 on the Web," he explains.
"There were lots of copies." He mentions the case in Holland which
triggered him: RTC sued over OT2 and 3 and lost the suit:
the Dutch court in March 1996 allowed my mixture of summary,
comments, notes and quotes. "This same file that RTC sued
somebody else over, is now by the way being claimed as
copyrighted by _themselves_ in _this_ case," he remarks,
referring of course to file 143 of attachment 126. Mg
uneasily shifts in his chair.
        Z proceeds with his historical outline, argument and
position. The announcement of his homepage, the ensuing
Kobrinogram, his provocative tone, the aggression RTC had
displayed against ISP’s, their cancel messages, their
demands that providers terminate users’ accounts, how what
he is doing is in sync with what others on the net are
doing, how he has always been totally open about who he was,
what he did, why, and even told them how they could stop
him. A Swedish Scientology member who is sitting two rows
behind me makes derogatory noises. "Psah. Pfah!"
        Now, can OT2 and 3 as included in the Fishman
Affidavit, be considered to be quotes? The originals, McS has at one point
testified in cross-examination, total to 300 and 200 pages
respectively. The Fishman OT2 and OT3 quotes may be huge,
but not in proportion to the total amount of text. The
Fishman Affidavit contains no more than 7 or 8 percent of
the total number of pages. And yes, there are _many_
questions surrounding the authenticity of OTs/NOTS: RTC has
the habit of claiming everything to be theirs. Including, in
this case, dialect versions of NOTS (Swedish chef, Jamaican,
Nuyorikan); my rendering and criticism of Hubbard; cut-up,
mixed and reshuffled versions of NOTS. It would appear that
whenever a Hubbard phrase shows up in any text, no matter
whose, RTC claims the copyright to the _whole_ of this text.
        Z refers to documents and attachments quite often. The
nasty bit is that he will often use Mg’s _own_ filed stuff
in order to make a point for himself: he’s using Mg’s
material against RTC. And something else becomes clear. The
judges need to look up most of the document Z refers to.
They are not _very_ familiar with the files. Mg has simply
been spamming the court and his own virtual flood of files
has prevented the judges from preparing well. And they don’t
like it.
        Coffee break.

Z discusses September 1996, when he filed a NOTS pack at
Riksdagen (the Swedish parliament) and the Administrative
Section of the court -- which is how the NOTS became
publicly accessible in Sweden. He gave a copy to parliament
because he wanted to instigate a discussion about CoS and
the NOTS, he states. Since he gave only one copy to
parliament, which can be considered to be a ‘limited
circle’, he did not publish or distribute these NOTS, he
argues.
        Why he handed over a copy to the Administrativa
Avdelningen -- the Administrative Section -- is a more delicate matter.
They _had_ one already, which was not given them by himself
but which ended up being there as a result of the procedure
he was involved in. Administrative sections of courts file
stuff. That’s what they are for. At one point, Z himself was
sent a copy retrieved from the Adminstrative Section --
somebody had ordered a copy and had requested that it be
sent to him. Anybody can get one, for just a small
administrative fee. Later, when the Administrative Court’s
_own_ copy was stolen by a Scientologist, Thierry Duchaunac,
Z provided them with a fresh pack: the copies he himself was
given.

Time to discuss the OTS, the NOTS and the beliefs of
Scientology itself. Z delves into it, making snide remarks
about Hubbard’s career as a science fiction writer, about
the ‘gains’ and ‘wins’ CoS promises; about Thetans; about
the need to inform the public _beforehand_ about which
tenets of belief they will be supposed to subscribe to, once
a member. "It is a matter of consumer’s rights, in a way."
        McS gets very nervous and slips Mg a note. Mg immediately
interrupts. "We’re not here to discuss Scientology’s merits
and also, I’m afraid that Panoussis is trying to disclose
some of the secret materials right now." "I’m not quoting,
just saying something _about_ them," Z retorts, but the
judges agree that Scientology’s character is not to be
judged today.

Next issue: the _rights_ to the texts. There is this
spaghetti-structure which becomes a Gargantuan Gordian knot.
The structure is self-referring, seems to be licensing
rights years after they have _already_ licensed them to
others while not having retrieved them; dates and years do
not match, and some documents are signed one year yet refer
in the body of the text to dates years ahead. (McS quickly
gets up to whisper something to Mg again.) Mg speaks up;
there is a short discussion and much leafing through
documents.
        "I am only trying to show you that these rights and
licenses are not as clear-cut as RTC and Mg say they are,
and I would like to show this by using their own documents."
I do believe that at one point he states that one of the
documents handed in carrying RTC’s or CST’s or Starkey’s
signature to be a forgery: the word "förfalskning" is being
used quite often. McS quickly confers with Mg. McS’s face is
red with anger. He sits down again. Everybody looks at
documents, files and folders. McS goes over to Mg once more.
"Are we all talking about the same document?" the president
wishes to know. Mg speaks: all this talk about forgery
amounts to character assassination. The president renders a
speech. He wants to know whether Z has referred to this
matter previously in his briefs; if not, he is bringing up
new issues, which is not allowed. Also, the president
insist, we’re not adhering to schedule and he is not,
repeat: _not_ going to sit here untill eight o’clock in the
evening.
        Lunch break. 
        Z goes through his previous briefs in a hurry, and does
indeed find some previous references to forgery or fakes. We
smoke, talk with a journalist in training, smoke, eat a
sandwich, smoke, drink coffee, smoke; and the hour is gone.
Time flies when you’re having fun.

13:00. Z will not let go. He takes up the issue once more by
referring to David Mayo. Hubbard wasn’t the only one to
write NOTS; some of them have been written by Mayo only,
some of them were written by the both of them, others by
Elron only. Can RTC claim copyright to all of them? Did CST
have the right to license those? There’s rights residing
with CSC too. How about those?
        The court needs to decide on whether this is or is not
going to be part of this lawsuit. They wish to confer
amongst themselves; we go out and smoke.

14:00. Next. Can these documents - OTs and NOTS - be
considered to be published? Now, _that_ is a question.
Material is considered to be ‘published’ once it gets spread
beyond the ‘inner’ or ‘limited’ circle of people in the
immediate surroundings of the author. CoS argues that they
have only spread the OTs/NOTS within a "limited circle", and
that they thus cannot be considered to have been
‘published’, that is: distributed to the public.
        Then again, Z argues, these same materials are in Saint
Hill, in Clearwater, in Flag, in other places; CoS itself
claims that thousands and thousands of people have read and
studied them. Z had filed an attachment (three CoS ad
brochures and two magazines) that claim that many have
studied -- and all can study -- the NOTS. "Why don’t you
come to Flag and improve your life? Study New OT5 at Flag!"
one says. This brochure is sent to all CoS-members. All are
‘invited’ to come and study OT5. "You can come to Flag clear
and go home OT!" states another leaflet. CoS-magazine
‘Source’ has a price-list for OTs and NOTS, broken down into
membership prices and non-membership prices. He points at
the completions list. So many people passed OT2, so many
OT3; so many passed NOTS this or NOTS that. Some of these
successful students are from the US, others from Canada or
Europe. Elsewhere it says: "We produce more than one
thousand OTs per year!" Or: "Advanced Org LA is really
booming! So many Class VIII Auditors produced!" Or: "Become
an OT3!" They say they ‘make’ a thousand OTs per year as
well. If the audience CoS here states it caters to does not
constitute more than a ‘limited circle’, Z continues, then
_what the fuck_  does?-- Nice touch, Z, to throw their own
promotion material back at them.
        [Z couldn’t find his copy of ‘Source’, so he goes over to
the bench and borrows the court’s, and shows it to them,
standing there and reading aloud. After a couple of minutes,
they invite him to try the overhead projector. Don’t work,
of course. You need transparant sheets for them, not glossy
paper. So Mg goes up to the bench as well.]
         Meanwhile, Scientology claims that _Z_ has distributed to
more than a limited circle by handing them in to parliament,
which consists of 349 people only. Aren’t those two
arguments contradicting one another? You can’t have your
cake and eat it, is what he says.

And RTC claims damages. But haven’t high Dutch CoS-members
stated that their members would _never_ _ever_ take material
from the net instead of from their own church? So, they
wouldn’t sell less, would they? So, why claim damages?
        Break. In session, and in ARC as well I assume. McS
_hated_ this last bit.

After the break. The first witness is going to be heard.
It’s Ms Alexandersson again, who testified in Monday’s court
case too. Same testimony, same comparision, same nutty NOTS;
it’s just that we have different judges, and a different
court case.
        This time however she will be prepared. She will know about
the cut-up NOTS and know that RTC has claimed my article as
theirs.

17:00. Z enters the smoking room. "We finally agreed upon
one thing," he says. "RTC has by now admitted that
attachment 126 is for perhaps 85% scrambled text and that
the rest is Borkified versions." He starts lighting his
cigarette. The intercom ding-dongs an announcement: Z is
called back into the courtroom. He sighs, drops his
cigarette, and goes back in again.
        Later on, we get the full story. The notary -- who had been
comparing the Nutty NOTS to material RTC claims is original
NOTS -- was meticulous beyond boring. Even the court tried
to rush her. At one point Z proposed that she would simply
state how many pages (out of 700) were similar, defining
‘similar’ as in allowing for five or six places where
different spelling or interpunction was used. Even this
didn’t speed Alexandersson’s snail pace.
        After tedious and boring hours -- Z almost fell asleep --
RTC is finally prepared to admit that, considering the
perl’ed NOTS and my article, 180 out of 200 files in
Attachment 126 are scrambled NOTS. RTC also admitted that no
scrambled and relocated portion of paragraphs is longer than
three, at most four sentences. Then agian, they maintained
that they had copyrigt over the scrambled NOTS. _And_ they
insisted that this copyright had been infringed upon.
        Wow. These guys are crazy, and want to make
copyright jump through every hoop.

        Five minutes later, we are allowed to re-enter as well. 
        Mg and Z are argueing. The president sometimes intervenes.
Suddenly, it is visible what a lawsuit is all about: two
warring parties who need someone else to settle their fight.
Mg and Z can not, will not, agree upon _anything_. This case
is exemplary.
        They even argue about the amount time each party needs,
will take or may have. RTC has lots of witnesses they want
to call, for instance the bailiff, who is supposed to
testify as to what he found on a diskette of Z’s. They argue
about what was on his harddisk and this diskette. The
diskette was used to copy something on from Z’ harddisk and
was then compared, and found to be similar to attachment 37
-- alleged NOTS. The court, to Z: "Can you accept that the
material on this diskette was the same as attachment 37?" Z:
"No. The stuff on my harddisk _is_ attachment 37. It is not
another instance, it is the same material: the print came
from that file., I printed it for my own personal use. Now,
I know what was on my harddisk, I know what is in attachment
37, and I will gladly admit that those are indeed the same.
We don’t need a witness for that. But if RTC wants to bring
in this diskette -- who am I to know what they might have
done with it?" RTC wants the witness to be heard anyway. The
court sighs. 


-- end --



- K -

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