RELIGIOUS TECHNOLOGY CENTER, a California non-profit corporation, and Bridge
Publications, Inc., a California non-profit corporation, Plaintiffs,
F.A.C.T.N.E.T., INC., a Colorado corporation; Lawrence Wollersheim, an
individual; and Robert Penny, an individual, Defendants.
United States District Court,
Dec. 11, 1995.
Religious organization brought copyright infringement and trade secret
misappropriation action against nonprofit corporation which maintained library
of materials concerning organization and allegedly posted unpublished,
copyrighted documents to Internet. On defendant's motion to have certain
seized materials returned, the District Court, Kane, Senior District Judge,
held that return of hard copies of archive files and computer media
pending special master's investigation was appropriate.
In action for copyright infringement and trade secret misappropriation by
religious organization, return of seized hard copies, and computer media after
deletion of materials at issue, was appropriate pending special master's
investigation, subject to prior order restricting defendants to make only fair
use of copyrighted materials, and to refrain from making additional copies or
*1469 Todd P. Blakely, Robert R. Brunelli, Sheridan Ross & McIntosh,
Denver, CO, Jeffrey A. Chase, Ann B. Frick, Jacobs Chase Frick Kleinkopf &
Kelley, Denver, CO, Earl C. Cooley, Cooley, Manion, Moore & Jones, P.C.,
Boston, MA, Helena K. Kobrin, North Hollywood, CA, Elliott J. Abelson, Los
Angeles, CA, for Plaintiffs.
Thomas B. Kelley, Natalie Hanlon-Leh, Faegre & Benson, Denver, CO, for
ORDER ON MOTION FOR RETURN OF VARIOUS ITEMS
KANE, Senior District Judge.
In the pending motion, Defendants request authorization for the Clerk of
this court to return to them the documents consisting of the hard copy portion
of Defendant's library and archive, which have been deposited with the Clerk
pursuant to my October 3, 1995 order. In the alternative, Defendants request
such documents be returned to defense counsel, to be treated as "confidential"
documents as provided by the protective order entered September 8, 1995.
Defendants also ask for the return of computer media that do not contain
Advanced Technology Materials.
Defendants filed this motion on October 20, 1995. On October 25, 1995 I
requested Defendants to file a brief in support of their motion and established
a briefing schedule for such brief, a response and a reply. I stated after
examination of the briefs I would determine whether to schedule oral argument.
Having reviewed the briefs, I conclude oral argument would not materially
assist in resolving the issues presented.
On August 22, 1995, pursuant to a writ of seizure and temporary restraining
order, Plaintiff Religious Technology Center, Inc. ("RTC") seized documents and
computer media of Defendants and impounded them in the custody of RTC's
counsel. According to Defendants, the documents comprising the hard copy
portion of their archive and library ("hard copy archive") contain information
from FBI files, and other information concerning RTC's [FN1] conduct and
FN1. Although Defendants' brief states the information concerns
"Defendants' conduct", I assume this is a mistake and should read
Defendants state the only materials contained within their hard copy archive
and library that Plaintiffs claim to involve both trade secret and copyrighted
material ("Advanced Technology materials") are: (1) Documents which came into
Defendant Wollersheim's possession in 1984 which he received from his attorney
in the course of his litigation against the Church ("Wollersheim materials"),
and (2) The copy of the "Fishman Declaration" containing the April 9, 1994
file-stamp of the Central District of California, received by Wollersheim at
the time the affidavit was filed with that court.
The seized computer media of which Defendants seek the return consist of
compact discs containing computer files, tape backups, and floppy disks. These
include both data files of Defendant F.A.C.T.N.E.T. and personal information of
Defendants Penny and Wollersheim.
After the hard copy archive was seized and reviewed by RTC, the original
documents and copies of some but not all computer files were returned to
defense counsel pursuant to a protective order entered on September 8, 1995.
RTC did not return the computer hardware, hard disks, compact discs and other
*1470 Following an extensive evidentiary hearing on RTC's motion for a
preliminary injunction, I denied the motion. My written order of September 15,
1995, required RTC to return and restore to Defendants at its own expense all
seized materials. I ordered Defendants to maintain the status quo as to their
possession of all copyrighted materials at issue and restricted them to making
fair use thereof. Thereafter, RTC returned the computer hardware and altered
copies of the hard drives to Defendants.
On October 2, 1995, I held a hearing on RTC's Motion Concerning Full
Compliance With the Court's Order and the Order to Show Cause Re: Contempt.
RTC objected to Defendants' having possession of the Advanced Technology
Materials in electronic form but not to their possession of hard copy materials
or computer media which did not contain the Advanced Technology.
The written order of October 3, 1995 directed:
"all seized materials, including any computer media of any nature, and any
copies which have been made thereof, which are currently in the possession of
either counsel for RTC or counsel for defendants be immediately placed in the
custody of this court. They shall remain in the custody of this court until
(Mem.Op. & Order on Various Mots., Oct. 3, 1995 at 11.)
I allowed Defendants to retain those items seized but currently in their
possession subject to the provisions of the September 15, 1995 order requiring
them to maintain the status quo as to their possession of all copyrighted
materials at issue, and restricting them to only fair use thereof. (Id.)
I gave the parties permission to make application, through counsel, for access
to the materials placed in the court's custody pursuant to the October 3, 1995
order. (Id. at 12.) I stated I would specify the conditions to which such
access would be subject as the need arose.
I appointed Professor Gary Nutt as special master to examine all materials
placed in the court's custody and any other materials or equipment he deems
necessary. (Id.) I requested Professor Nutt to prepare a report concerning
the condition in which materials were seized and the condition in which they
were returned. (Id.) I also asked him to restore the operations of
Defendants to the full degree of function that existed before the seizure using
replacement hard drives and not using or permitting access to the AT materials
at issue. (Id.) I deferred any order on issues of contempt or sanctions
until I considered Professor Nutt's report. (Id. at 12.) [FN2]
FN2. To date Professor Nutt has submitted four interim reports on his
efforts to comply with the October 3, 1995 order and the condition of
Defendants' computers and disks.
On October 4, 1995, Defendants' counsel deposited with this court the hard
copy, copies of computer files and all other seized material in their
possession. Pursuant to the October 3, 1995 order, Defendants only retained
the limited amount of computer materials which were in their possession.
II. Pending Motion.
On October 20, 1995, Defendants filed the pending motion for return of (1) all
hard copies of materials seized from their library and archive and (2) all
computer media that do not contain Advanced Technology materials. Defendants
assert these materials are necessary for their preparation of this case, for
their work in counselling ex-Scientologists and their families and for
Defendants' activities protected by the First Amendment.
In their response, Plaintiffs state they do not oppose the return of original
published materials directly to Defendants subject to the restrictions placed
by the September 15, 1995 order. These include books and publications written
by L. Ron Hubbard and publications of various Churches of Scientology.
Plaintiffs attempt to distinguish original published works from
unauthorized copies of published works, which, they assert, should not be
returned. These, Plaintiffs assert, consist of unauthorized hard or electronic
copies of Plaintiff Bridge Publications, Inc.'s authorized representatives.
Defendants state, for the purposes of what is requested in this motion, the
unauthorized *1471 copies of published works are those which have been
transferred to electronic media for archival purposes. Defendants indicate
they have already agreed, as to all works in issue, to abide by the September
15, 1995 injunction that the copyrighted materials are not to be copied,
distributed or otherwise used except in the context of fair use.
Defendants maintain although they have no use for the unauthorized materials
separate and apart from the authorized published copies from which the
electronic media were made, it is impractical to separate the unauthorized
published works from the other electronic media materials and they should
therefore be returned with the authorized published works.
Defendants assert Plaintiffs impliedly conceded return of the unauthorized
published works to be appropriate when they claimed to have returned exact
copies of Defendants' hard drives (without the Advanced Technology) on
September 25, 1995. Similarly in their motion concerning full compliance and
at the hearing regarding compliance with the September 15, 1995 order,
Plaintiffs asked me to approve the return of all computer media except the
Advanced Technology. I agree and do not find it necessary for the purposes of
this ruling to distinguish between original or authorized published works and
unauthorized published works.
Plaintiffs oppose the return to Defendants of all seized hard copies of
materials, including the Fishman declaration and other documents, containing
Advanced Technology received by Wollersheim from his attorneys. Plaintiffs
state, at the very least, a decision on return of such materials should wait
until Professor Nutt has completed his investigation.
According to Plaintiffs, Defendants have presented no legitimate reason for
the return of any Advanced Technology material to either themselves or their
counsel. They maintain, pursuant to my October 3, 1995 order, counsel can
access the seized materials as needed. They also rely on Wollersheim's
admission at the preliminary injunction hearing that Defendants do not need
materials containing Advanced Technology to continue their business or
counselling services. Plaintiffs state Defendants have not shown why they need
the AT to comment on the Church of Scientology.
In addition, Plaintiffs assert potential prejudice to them is immeasurable
because the Advanced Technology is sacred to Scientologists and the Scientology
religion, is guarded as a confidential trade secret, and public disclosure
would cause Plaintiffs incalculable damage.
Defendants do not seek the return of their original hard drives nor of the one
computer tape which Plaintiffs contend contains a copy of the unpublished
Advanced Technology. They seek only the return of the hard copies, which
consist of: (1) the Advanced Technology materials used in Wollersheim's action
against the Church of Scientology of California which he obtained during the
course of the proceedings in 1984; (2) the "substantially identical" materials
attached to the Fishman affidavit of which Wollersheim obtained a copy when it
was filed with the Central District of California.
Defendants note the Fishman affidavit was copied from the court file
pursuant to the right of public access by the Washington Post Co. and remains
in its possession. In addition, the Fishman affidavit and attachments have
been available on the Internet.
The return of all hard copies of materials seized from Defendants library and
archive to them is consistent with the September 15, 1995 order permitting
Defendants to make fair use of those documents. Defendants have expressed to
this court under oath their intention to follow the injunction with respect to
the fair use of copyrighted materials.
In the October 3, 1995 order, I requested Professor Nutt to attempt to create
two operable replacement hard drives for Defendants deleting the Advanced
Technology materials at issue. This should not be read as any comment on
Plaintiffs' claim as to the religious significance of those materials.
As has been recognized recently in the District Court of Virginia, addressing
the RTC's efforts to enjoin the Washington Post from making fair use of AT
*1472 RTC is essentially urging that we permit their religious belief in
the secrecy of the AT documents to "trump" significant conflicting
constitutional rights.... RTC asks that we allow the Free Exercise Clause to
deflate the doctrine of fair use as embodied in the copyright statute, one of
the very status laws upon which the RTC has based this lawsuit.
Were they arguing to a religious council placed within a theocratic
government, RTC's arguments might prevail. But this is a secular branch of a
secular democratic government. Our traditional separation of church from the
state, combined with the heterogeneity of religious practices in this country
compel us to reject the RTC's arguments.
Religious Technology Center v. Lerma, 908 F.Supp. 1353 (E.D.Va.1995).
The Supreme Court has stated:
The government's ability to enforce generally applicable prohibitions of
socially harmful conduct ... "cannot depend on measuring the effects of a
governmental action on a religious objector's spiritual development." To make
an individual's obligation to obey such a law contingent upon the law's
coincidence with his religious beliefs ...--permitting him, by virtue of his
beliefs, "to become a law unto himself,"--contradicts both constitutional
tradition and common sense.
Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S.
872, 885, 110 S.Ct. 1595, 1603, 108 L.Ed.2d 876 (1990) (citations and footnote
Nor is it within my purview to assess the degree of importance to the
Scientology religion of maintaining the AT materials secret.
It is no more appropriate for judges to determine the "centrality" of
religious beliefs ... in the free exercise field, than it would be for them to
determine the "importance" of ideas ... in the free speech field. What
principle of law or logic can be brought to bear to contradict a believer's
assertion that a particular act is "central" to his personal faith?
Id. at 886-87, 110 S.Ct. at 1604-05.
There is no reason to delay the return of these hard copies to Defendants
pending the completion of Professor Nutt's investigation. Defendants'
allegations concerning the condition of seized materials returned to them by
RTC pertained to computer media containing the Advanced Technology materials,
rather than hard copies. Only computer media containing the Advanced
Technology materials form the subject of Professor Nutt's inquiry.
Accordingly, I order the Clerk of this court to return to Defendants all hard
copies of seized materials subject to the restrictions contained in my
September 15, 1995 order, namely, that Defendants may make only fair use of all
copyrighted materials and may not make any additional copies of the materials
or transfer or publicize them in any manner inconsistent with fair use.
In making this order, I do not disturb the October 3, 1995 order placing
Defendants' Exhibit CC submitted to this court in the course of the preliminary
injunction proceedings under seal.
Similarly, there is no legitimate basis for not returning to Defendants the
computer media that do not contain Advanced Technology materials. These
include compact discs containing computer files, tape backups and floppy disks
containing data files and personal information of Messrs. Penny and
Wollersheim. Their return is likewise subject to the restrictions described
above contained in the September 15, 1995 order.
Of course, any materials required by Professor Nutt in fulfilling his duties
as special master shall be retained by or delivered to him at his instance.
Any use of the returned materials by counsel for the defense of this
litigation shall be subject to the September 8, 1995 protective order.
In addition to the above, I grant Defendants' request that their counsel may
use the returned materials for the defense of the litigation pending in the
Eastern District of Virginia, Religious Technology Center, Inc. v. Lerma,
908 F.Supp. 1353, pursuant to the *1473 nearly identical protective order
entered in that case, a copy of which is attached to Defendants' reply as
IT IS ORDERED THAT Defendants' Verified Motion for the Return of (1) All Hard
Copies of Materials Seized from the Defendant's Library and Archive (2) All
Computer Media that do not Contain Advanced Technology Materials is GRANTED.