1 July 2001: Add response by Zenon Panoussis to Wouters message.

1 July 2001: Add message from Paul Wouters on his experience with similar CoS disputes.

28 June 2001

Date: Thu, 28 Jun 2001 16:09:18 -0500
From: ezola <ezola@lfcity.com>
To: John Young <jya@pipeline.com>
Subject: DMCA and Church of L. Ron Hubbard

        From: <AMPaquette@aol.com>
        To: <support@townsqr.com>
        Cc: <ztrow@townsqr.com>; <AMPaquette@aol.com>
        Sent: Tuesday, June 26, 2001 3:09 PM
        Subject: Notice of Copyright Infringement under the Digital Millennium Copyright Act

        Dear Gentlepersons:

        Our office represents L. Ron Hubbard Library, the exclusive licensee of the copyrights to certain photographs of Mr. L. Ron Hubbard. Additionally, our office also represents Religious Technology Center ("RTC"), the owner of the federally registered trademark and service mark "L. RON HUBBARD". The mark "L. RON HUBBARD" is registered with the United States Patent and Trademark Office under registration number, 1,821,751, a copy of which is attached. We also represent the Church of Scientology International ("CSI"), which is the licensee of the "L. Ron Hubbard" trademark.

        Please be advised that one of Town Square Internet's subscribers, Laissez Faire City, has placed one of the L. Ron Hubbard Library's copyrighted photographs on his home page on your web site without the authorization of our client. This photograph is registered with the United States Copyright office under TX 441 079, a copy of which is attached hereto. He has also placed RTC's federally registered trademark, L. RON HUBBARD above this photograph. The copyrighted work and trademark can be found under the following URL:

        http://www.zolatimes.com/JparArt/hubbard.html

        Our clients have obtained numerous permanent injunctions concerning Internet infringements of other copyrighted works. For instance, in May 1998, a jury in the United States District Court in San Jose, California assessed damages in the amount of $75,000 against a Mr. Henson for copyright infringement on the Internet. Mr. Henson was also permanently enjoined by the court against         further infringements. A United States District Court in the state of Virginia granted judgment for damages, costs, and a permanent injunction related to similar copyright infringement. Permanent injunctions have also been entered in three additional U.S. cases.

        Similar results have been reached in Europe. On September 14, 1998, a Swedish court enjoined a defendant who engaged in similar infringements, in addition to finding that his actions in placing our client's copyrighted works on the Internet violated the owner's rights under Swedish copyright law. He was also fined for his illegal actions and ordered to pay $161,000 in litigation costs. On June 9, 1999, a Dutch court found an individual and numerous Internet service providers had engaged in copyright infringement by posting, or hosting, our clients' copyrighted works on their web sites. The court ruled that the service providers must remove such postings as soon as they are notified of them, subject to a penalty of $2,500 for each day on which they do not comply.

        Moreover, the reproduction of a photograph in its entirety constitutes copyright infringement. See Rogers v. Koons, 751 F.Supp. 474, 478 (S.D.N.Y. 1990) aff'd, 960 F.2d 301 (2nd Cir.), cert. denied, 506 U.S. 934 (1992).

        Likewise, your subscriber's use of RTC's federally registered trademark, L. RON HUBBARD, has caused his name/web page to be falsely associated with our client's registered mark as owner and creates a likelihood of confusion as to the source or sponsorship of this web page in violation of United States state and federal law, including the Lanham Act, 15 U.S.C. . 1125(a), various state and federal laws and international law.

        Additionally, the federally registered trademark, L. Ron Hubbard, is famous, distinctive and unique. The use of this mark in this manner dilutes the distinctiveness of the mark in violation of the federal trademark antidilution statute, 15 U.S.C. . 1125(c) and California's antidilution statute. See, Archdiocese of St. Louis v. Internet Entertainment Group, Inc., 34 F.Supp.2d 1145 (E.D. Mo.         1999); Mattel, Inc. v. Internet Dimensions, Inc., 55 U.S.P.Q.2d 1620 (S.D.N.Y. 2000); Deere & Co. v. MTD Products, Inc., 41 F.3d 39, 43 (2nd Cir. 1994).

        This subscriber's actions in placing our clients' copyrighted work and federally registered trademark on his web page violates United States copyright and trademark law. Accordingly, we request that this work and the trademark be removed immediately.

        I have a good faith belief, and in fact know for certain, that the posting of this work by your subscriber on their web page was not authorized by my client, any agent of my client, or the law.

        I declare under penalty of perjury that this information is accurate and that I am authorized to act on behalf of the L. Ron Hubbard Library in this matter.

        Sincerely,

        Ava Paquette
        Moxon & Kobrin
        3055 Wilshire Boulevard
        Suite 900
        Los Angeles, California 90010
        Tel: (213) 487-4468
        Fax: (213) 487-5385

Date: Sun, 1 Jul 2001 15:06:03 +0200 (MET DST)
From: Paul Wouters <paul@xtdnet.nl>
To: ezola <ezola@lfcity.com>, <support@townsqr.com>, <ztrow@townsqr.com>,
<AMPaquette@aol.com>, John Young <jya@pipeline.com>
Subject: Clarification on http://cryptome.org/dmca-cos.htm

To the people, companies, religions, and mostly ISP's involved:

I just read: http://cryptome.org/dmca-cos.htm which lists a more or less standard complaint, in a more or less standard fashion where evidence supporting RTC/CoS gets pinpointed to the copyright registration number, but where evidence against RTC/CoS gets paraphrased.

Since we as an ISP also got involved in a workaround lawsuit which involved these parties, I have some more pinponted information for you so you can reach a more fair decision, insofar you need to make a decision as an ISP to begin with. Rulings are usually handled by the courts.

My eye particularly felt two parts Ms. Paquette's wrote:

"Similar results have been reached in Europe. On September 14, 1998, a Swedish court enjoined a defendant who engaged in similar infringements, in addition to finding that his actions in placing our client's copyrighted works on the Internet violated the owner's rights under Swedish copyright law. He was also fined for his illegal actions and ordered to pay $161,000 in litigation costs."

Ms. Paquette insinuates here that the case was closed in 1998. However, an appeal is still running, and one of the things that is obvious is that there are fundamental issues involved here that conflict. In this case, US Patent law and Copyrights on one side, and The Swedisch Offentlichprinzip on the other side. More information on this can be found at:

http://www.xs4all.nl/~kspaink/english/zenon-20010117.html

The part however, that really got my attention, was:

"On June 9, 1999, a Dutch court found an individual and numerous Internet service providers had engaged in copyright infringement by posting, or hosting, our clients' copyrighted works on their web sites. The court ruled that the service providers must remove such postings as soon as they are notified of them, subject to
a penalty of $2,500 for each day on which they do not comply."

This is an extremely oversimplified version of what happened. Only a tiny amount of material that was first claimed as infringement was in the end claimed as infringement, and only some of that was found by a court to be proven as infringing. More importantly, the court ruled:

(see http://www.xs4all.nl/~kspaink/fishman/home.html)

3. With respect to defendants [ ISP's ] sub 1 up to and including 22 it is to be assumed that they do nothing more than to give the opportunity to publication and that, in principle, they can exert no influence over, nor have knowledge of, what the person who gain access to Internet through them, will supply.

In principle, therefore, there is no reason to hold them responsible for wrongful acts of users, e.g.  copyright infringements by third parties.

A responsibility might be assumed in a situation where it is unequivocally clear that a publication of a user is wrongful and where it can be assumed with reason that such is known to the access provider, for instance because someone has notified the provider of this. In such cases, Internet access providers might be requested to take steps against the user in question.

In the matter at hand, it has not been made clear by plaintiffs that one of the defendants 1 up to and including 22 should have acted.

The conditionals are VERY clear here. An ISP cannot be expected to remove material if they receive contradicting claims from parties regarding the state of these materials. That is a fight between parties for in court, and has nothing to do with the ISP.

We (Xtended Internet) also got involved in a similar case, though in our case also the anonimity of the site invovled (http://xenu.xtdnet.nl/) played a part. We found it extremely difficult, and certainly not a clear
cut case, to balance RTC/CoS's right to sue (for financial loses) versus the user's right for (much needed) privacy. Neither did the judge think so.

The ruling can be seen (In Dutch only unfortunately) at:

http://www.wetten.nu/jurisprudentie/data/14535.html

In our case, RTC/CoS didn't sue us as provider, but called us as a witness.  Our legal dispute ended with an out of court settlement where RTC/CoS explicitely stated it would not hold the ISP liable and would never sue the ISP, as long as they had the option to sue the user (eg break anonimity).  At this point, the user itself stepped forward, so Xtended Internet luckily didn't need to weigh these conditions itself. It is after all a provider, and not a court, law enforcement agency, judge nor executioner.

A copy of our agreement with RTC/CoS where they waive their claim to sue an ISP as long as they can sue the enduser will be faxed upon request to anyone who wishes to receive a copy.

I find that document important, because it clearly shows where disputes like this belong, namely between the arguing parties in court, and not at the ISPs, and that RTC/CoS know this very well. Yet they try to get
"rulings" from "ISP's", based on their fear of the law, overloading parties with documents, manipulated to their own end, paraphrased to suit their needs. Most US based AUP's make it even easier for them to circumvent law, based soleley on the ISP's commercial interest and wish to maximize profit without caring for such fundamental needs as freedom of speech.

Recently, another US ISP, Interliant a, gave up on the document pile they received from RTC/CoS, and forced the website www.xenu.net to be hosted outside the US. This site is now co-hosted at Xtended Internet (xtdnet.nl) and XS4ALL (xs4all.nl). See http://xenu.net/news/

But it goes beyond websites. The EFF recently issued their concern regarding a US citizen that was forced to ask political assylum in Canada for speaking his mind:

http://www.eff.org/Legal/Cases/Scientology_cases/20010622_eff_henson_pr.html

But also, some countermeasures against what is deemed "dangerous religions" and "cults and sects", such as going on now in both France and Germany, worry me, and I'm keeping a close eye on that as well.

And I DO want RTC/CoS to also realize that Xtended Internet is more than happy to host their website, if at any time in the future, your legal site is threatened by unlawful or unconstitutional means or AUP's. In that aspect, I fully agree with Mrs. Paquette's Dutch collegue, Mr. Hermans, that a "possible criminal nature of his client" cannot be used as a prejudice against them, until such claims or rumors are proven facts,
substantiated in a court.

Regards,

Paul Wouters
Xtended Internet
--
Broerdijk 27 Postbus 170 Tel: 31-24-360 39 19
6523 GM Nijmegen 6500 AD Nijmegen Fax: 31-24-360 19 99
The Netherlands The Netherlands info@xtdnet.nl

Copyright (c) 2001 by Paul Wouters. This material may be distributed only
subject to the terms and conditions set forth in the Open Publication License,
v1.0 or later (the latest version is presently available at
http://www.opencontent.org/openpub/).

Date: Sun, 01 Jul 2001 19:02:42 +0200
From: Zenon Panoussis <oracle@xs4all.nl>
Organization: Marcab Technologies
To: ducks@bagheera.xs4all.nl
CC: John Young <jya@pipeline.com>, ampaquette@aol.com,
ezola <ezola@lfcity.com>, support@townsqr.com
Subject: Re: Clarification on http://cryptome.org/dmca-cos.htm

Paul Wouters skrev:
>
> I just read: http://cryptome.org/dmca-cos.htm which lists a more or less
> standard complaint, in a more or less standard fashion where evidence
> supporting RTC/CoS gets pinpointed to the copyright registartion number,
> but where evidence against RTC/CoS gets paraphrased.

The European cases that Paquette refers to and you comment have nothing to do with the matter at hand to begin with. All European cases so far,as well as the Henson case that Paquette is quoting, had to do with the publication of the OTs and/or NOTs, while the current Paquettogram deals with the copyright to a picture and the applicability of trade mark protection in the particular case. What Paquette is basically saying is "since it's more or less clear that we hold the copyright on the OTs, you may not publish this picture of L Wrong Hubbard". That's bullshit in its purest form.

Under the provisions of the DMCA, the ISP can choose to:

1. remove the allegedly offending material, wait two weeks, and then reinstate the material with inpunity if the user requests it and the complainant has not taken legal action against the user in the meanwhile, or

2. not remove the material at all and be liable alongside the user for possible infringements etc.

No matter what we think about the ISP being police, judge and executioner in one, this is the law in the US and it is usually very wise for ISPs to choose the first line of action. The problem, as I see it, lies more in the fact that ISPs and users alike seldom take full advantage of the DMCA and reinstate removed material after two weeks.

Apart from this, and based on my experience of five years of copyright litigation against the CoS, I strongly advise anyone who receives a complaint from the CoS to *always* check its allegations at the source. The fact that Paquette claims that the particular picture in question is registered and attaches a copy of a registration means nothing; you need to check with the copyright office and make sure that the registration really regards this picture and not another. You will only know how often they bluff if you always see their hand.

Likewise with the trade mark allegations. The fact that the CoS has registered their fool guru's name as a trade mark does not mean that no-one else can use it to denominate and refer to Hubbard himself. It only means that the name may not be used to designate competing goods or services in the areas of trade for which it was registered. Everybody is still fully free to say "this is L. Ron Hubbard", and "I prefer Pepsi to Coke" and "McDonald's sucks". The last people in this world whose interpetation of IP law one should accept unquestioningly are the CoS and its nastygrammatron Paquette.

Z

--

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