OPERATION CLAMBAKE: SCIENTOLOGY COURT FILES

Part of a public library containing court papers related to lawsuits involving Scientology in some way. Collected to help lawyers and critics of Scientology in future lawsuits from or against this cult. Please report back if this has been of help, or send new contributions to the collection. Thanks. Andreas Heldal-Lund (heldal@online.no)




  RELIGIOUS TECHNOLOGY CENTER, a California non-profit corporation;  and Bridge
      Publications, Inc., a California non-profit corporation, Plaintiffs,
                                       v.
  NETCOM ON-LINE COMMUNICATION SERVICES, INC., a Delaware corporation;  Dennis
  Erlich, an individual;  and Tom Klemesrud, an individual, dba Clearwood Data
                              Services, Defendants.
                               No. C-95-20091 RMW.
                          United States District Court,
                                N.D. California.
                                 Sept. 22, 1995.
  Organizations affiliated with Church of Scientology brought action against
 individual who allegedly posted Church's copyrighted works on Internet,
 alleging copyright infringement and trade secret misappropriation.  Plaintiffs
 filed motion for preliminary injunction and to hold defendant in contempt, and
 defendant filed motion to vacate previously issued writ of seizure.  The
 District Court, Whyte, J., held that:  (1) church's copyrights were likely to
 be valid;  (2) defendant's use of the works was not likely to be fair use;  (3)
 works would not likely be trade secrets;  (4) church was entitled to enjoin
 unauthorized posting of copyrighted works;  (5) defendant would not be held in
 contempt for violating temporary restraining order;  and (6) writ of
 seizure was unconstitutionally overbroad.
  Ordered accordingly.

 [1] INJUNCTION
 Party seeking preliminary injunction may establish its entitlement to equitable
 relief by showing either combination of probable success on the merits and
 possibility of irreparable injury or serious questions as to these matters and
 that balance of hardships tips sharply in its favor;  these two tests are not
 separate, but represent continuum of equitable discretion whereby greater the
 relative hardship to moving party, less probability of success need be shown.

 [2] INJUNCTION
 Primary purpose of preliminary injunction is to preserve status quo pending
 trial on the merits.

 [3] COPYRIGHTS AND INTELLECTUAL PROPERTY
 To establish copyright infringement, plaintiffs must demonstrate they own valid
 copyright and defendant violated any of their exclusive rights, including
 rights to produce or prepare derivative works from original, or distribute or
 display copies publicly.  17 U.S.C.A. ss 106(1-3, 5), 501(a).

 [4] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Copyright for works that were registered under Copyright Act of 1909 that was
 not renewed 28 years after initial publication fell into public domain and
 could not be subject of action for infringement, although works were registered
 within the 28 year period as part of collection.  17 U.S.C.A. ss 101 et
 seq., 411.

 [5] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Where author of collection or derivative work is also author of preexisting
 work, registration of collection is sufficient.

 [6] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Renewal of works that were unpublished as of effective date of Copyright Act of
 1976 was not required;  works were originally protected only by common-law
 copyright and, as of effective date of 1976 Act, works became protected by
 statutory copyright under new scheme, which did not require renewal.  17
 U.S.C.A. s 101 et seq.

 [7] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Statutory presumption of copyright validity did not apply to works published
 more than five years before registration.  17 U.S.C.A. s 410(c).

 [8] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Errors, such as incorrectly naming author, did not make copyright invalid,
 absent some evidence that alleged infringer was misled.

 [9] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Even though fair use is affirmative defense in copyright infringement case,
 plaintiffs, as parties moving for preliminary injunction, have burden of
 proving likelihood of success on their infringement claim, including fair use
 defense.  17 U.S.C.A. s 107.

 [10] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Fair use defense in copyright infringement action calls for case-by-case
 analysis;  all statutory factors are to be explored, results weighed together,
 in light of purposes of copyright.  17 U.S.C.A. s 107.

 [11] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Use of work for purpose of criticism weighs in favor of fair use.  17
 U.S.C.A. s 107.

 [12] COPYRIGHTS AND INTELLECTUAL PROPERTY
 That alleged infringer's unauthorized publication of church's copyrighted works
 on Internet was for purposes of criticism weighed only slightly in his favor
 for purposes of fair use defense, where alleged infringer added little
 new expression to church's works, making his use only minimally
 transformative.  17 U.S.C.A. s 107.

 [13] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Where use is not highly transformative, court considering fair use defense will
 focus on whether use is of a commercial nature.  17 U.S.C.A. s 107.

 [14] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Purpose and character of use weighed in favor of alleged infringer who
 published church's copyrighted works on Internet, for purposes of fair use
 defense, where works were published for purpose of criticism and not for
 commercial purposes, although alleged infringer may have gained recognition by
 his peers.  17 U.S.C.A. s 107.

 [15] COPYRIGHTS AND INTELLECTUAL PROPERTY
 That alleged infringer who published church's works on Internet without
 authorization may have obtained his copies in unauthorized manner did not bar
 his fair use defense in church's copyright infringement case, but was factor
 that tended to weigh in church's favor.  17 U.S.C.A. s 107.

 [16] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Intermediate copy made for purposes of posting or uploading work on computer
 bulletin board does not make subsequent copy unauthorized such that fair use
 defense is unavailable.  17 U.S.C.A. ss 101 et seq., 107, 411.

 [16] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Intermediate copy made for purposes of posting or uploading work on computer
 bulletin board does not make subsequent copy unauthorized such that fair use
 defense is unavailable.  17 U.S.C.A. ss 101 et seq., 107, 411.

 [17] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Church's works were "unpublished" for purposes of fair use defense in
 copyright infringement action arising when alleged infringer published works on
 Internet, where church kept works confidential by using tight security
 measures, although individuals may have made unauthorized public disclosures of
 some of the works.  17 U.S.C.A. s 107.
 See publication Words and Phrases for other judicial constructions and
 definitions.

 [18] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Even though work is read by large group of people, it is still unpublished for
 purposes of fair use defense where it is held confidential and authors do not
 relinquish control over their copies of work.  17 U.S.C.A. s 107.

 [19] COPYRIGHTS AND INTELLECTUAL PROPERTY
 "Nature of work" factor, for purposes of fair use defense raised by alleged
 infringer who posted church's religious works on Internet, weighed against
 alleged infringer with respect to unpublished works, despite informational
 nature of most of them, and weighed in favor of alleged infringer with regard
 to works that were already published and primarily informational.  17
 U.S.C.A. s 107.

 [20] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Copying of entire work will ordinarily militate against finding of fair use,
 although this is not per se rule.  17 U.S.C.A. s 107.

 [21] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Amount of copying that is acceptable for purposes of fair use defense will
 depend on character of use and degree to which copy transforms the original.
 17 U.S.C.A. s 107.

 [22] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Although many of church's documents were collected into larger volumes and
 registered as a whole, they could still constitute separate works for purposes
 of "amount and substantiality of portion" fair use factor.  17 U.S.C.A. s
 107.

 [23] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Alleged infringer's copying of all or almost all of many of church's works when
 he posted them on Internet weighed in favor of church under "amount
 and substantiality of portion used" fair use factor;  alleged infringer posted
 predominantly short documents of less than three pages, mostly with no comments
 or with very brief comments at beginning or end, and where he only copied
 portion of work, that portion was "heart" of the work.  17 U.S.C.A. s 107.

 [24] COPYRIGHTS AND INTELLECTUAL PROPERTY
 While practice on Internet of repeating large portions of previous postings
 verbatim when necessary to add context for those who are late in joining a
 discussion would perhaps justify copying of works that were previously posted
 by their authors on basis of implied license or fair use argument, those
 defenses would not apply where first posting made unauthorized copy of
 copyrighted work;  however, it is possible that particular quotation of
 copyrighted work in context of long "thread" that involves significant
 criticism or commentary could be fair use.  17 U.S.C.A. s 107.

 [24] COPYRIGHTS AND INTELLECTUAL PROPERTY
 While practice on Internet of repeating large portions of previous postings
 verbatim when necessary to add context for those who are late in joining a
 discussion would perhaps justify copying of works that were previously posted
 by their authors on basis of implied license or fair use argument, those
 defenses would not apply where first posting made unauthorized copy of
 copyrighted work;  however, it is possible that particular quotation of
 copyrighted work in context of long "thread" that involves significant
 criticism or commentary could be fair use.  17 U.S.C.A. s 107.

 [25] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Alleged infringer's posting of church's copyrighted works over the Internet
 would not diminish or prejudice potential sale of church's works, interfere
 with their marketability, or fulfill demand for works, so that "effective use"
 fair use factor weighed in favor of alleged infringer;  alleged infringer did
 not systematically attempt to post complete works of church necessary for
 setting up complete religious group, and it was unlikely that church's unique
 ability to provide parishioners with completed and guided access to various
 course materials would be suppressed.  17 U.S.C.A. s 107.

 [26] COPYRIGHTS AND INTELLECTUAL PROPERTY
 To extent that alleged infringer's posting of church's works on Internet
 suppressed demand for original works by persuading potential buyers that
 church's founder was a charlatan or that church was a fraud, such critique was
 not within scope of copyright protection.  17 U.S.C.A. s 107.

 [27] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Alleged infringer's posting of large portion of church's copyrighted works on
 Internet for purposes of criticism was not likely to be fair use;  works were
 copied with often no more than one line of criticism, alleged infringer's work
 was only minimally transformative, and if his use were to become widespread, it
 could potentially have effect on market for church's works by supplying future
 splinter groups with materials needed to compete with church.  17 U.S.C.A. s
 107;  Restatement (Third) of Unfair Competition s 39 comment.

 [28] TORTS
 To establish trade secret claim under Uniform Trade Secrets Act (UTSA), church
 was required to show that its works had independent economic value to
 competitors and had been kept confidential.  West's Ann.Cal.Civ.Code s
 3426.1(d).

 [29] TORTS
 Church's status as a religion did not preclude it from holding a trade secret.
 Restatement (Third) of Unfair Competition s 39 comment.

 [30] TORTS
 Church's religious texts, which were integral part of church's spiritual
 counseling techniques, could be trade secrets, if they were secret and
 valuable, although texts were not used in production or sale of a commodity,
 but were commodities themselves.  Restatement (Third) of Unfair Competition s
 39.

 [31] TORTS
 Although trade secret status may apply to works that are techniques for
 spiritually improving oneself, secret aspect of those techniques must be
 defined with particularity.

 [32] INJUNCTION
 Church that claimed its religious texts describing techniques for spiritual
 improvement were trade secrets did not identify trade secrets with sufficient
 definiteness to support injunctive relief;  church claimed entire works were
 trade secrets, even though portions of works had been disclosed.

 [33] TORTS
 Church's religious texts had independent economic value, as required for trade
 secret protection, where church received substantial licensing fees from
 texts;  church's need for revenues to support its services was no less because
 of its status as religion.  West's Ann.Cal.Civ.Code s 3426.1(d)(1);
 Restatement (Third) of Unfair Competition s 39 comment.

 [34] TORTS
 Church's lack of competitors did not bar trade secret protection for its
 religious texts;  works gave church competitive advantage, in view of instances
 of breakaway groups exploiting church's works for profit.  West's
 Ann.Cal.Civ.Code s 3426.1(d)(1).

 [35] TORTS
 There is no requirement that trade secret have any value to defendant;  value
 can be to others who do not possess it.  West's Ann.Cal.Civ.Code s
 3426.1(d)(1).

 [36] TORTS

 patent rights.
 Definition of trade secret does not require that there currently be
 competitors, only that there be actual potential value from information being
 secret;  thus, potential competition is sufficient.  Restatement (Third) of
 Unfair Competition s 39 comment.

 [37] TORTS
 patent rights.
 Information as protectable as trade secrets where owner has taken efforts that
 are reasonable under circumstances to maintain its secrecy;  "reasonable
 efforts" can include advising employees of existence of trade secret, limiting
 access to information on "need to know" basis, requiring employees to sign
 confidentiality agreements, and keeping secret documents under lock.  West's
 Ann.Cal.Civ.Code s 3426.1(d)(2).
 See publication Words and Phrases for other judicial constructions and
 definitions.

 [38] TORTS
 Church made reasonable efforts to protect the secrecy of its religious
 documents, as required for trade secret protection;  means taken to ensure
 confidentiality of the works included the use of locked cabinets, safes,
 logging in identification of materials, availability of materials only to
 handful of sights worldwide, electronic sensors attached to documents, locked
 briefcases for transporting works, alarms, photo identifications, security
 personnel, and confidentiality agreements for all those given access to the
 materials.  West's Ann.Cal.Civ.Code s 3426.1(d)(2).

 [39] TORTS
 Church's religious documents were entitled to trade secret protection even
 though documents had been disclosed to thousands of parishioners, where
 parishioners were required to maintain the secrecy of the materials.  West's
 Ann.Cal.Civ.Code s 3426.1(d)(2).

 [40] TORTS
 Unprotected disclosure of trade secret will cause information to forfeit its
 trade secret status, since information that is generally known and readily
 ascertainable through proper means by others is not protectable as trade
 secret.  West's Ann.Cal.Civ.Code s 3426.1(d);  Restatement (Third) of Unfair
 Competition s 39 comment.

 [41] TORTS

 Once trade secrets have been exposed to public, they cannot later be
 recalled.  West's Ann.Cal.Civ.Code s 3426.1(b)(2).

 [42] TORTS
 Availability of secret church documents in open court records in another case
 did not destroy secrecy element necessary for trade secret protection, where
 court in other case later sealed file pending decision on whether documents
 were trade secrets;  even if those records were temporarily open to public,
 court would not assume that their contents had been generally disclosed, absent
 evidence that the secrets had become generally known.  West's
 Ann.Cal.Civ.Code s 3426.1(d).

 [43] TORTS
 Disclosure of portions of church's religious documents in popular press did not
 necessarily destroy documents' trade secret protection, where value of
 documents arguably depended on availability of complete documents, not mere
 fragments.

 [44] TORTS
 Registration of church's religious documents with Copyright Office did not
 forfeit their trade secret status, where works were registered in masked form.

 [45] TORTS
 Anonymous posting of church's religious documents to public portion of the
 Internet caused documents to lose their trade secret status;  although those
 who made original postings likely gained information through improper means,
 once posted, works lost their secrecy.

 [46] TORTS
 That unauthorized posting of church's religious documents on Internet were not
 "entire secret" did not mean that postings were not misappropriation of
 church's trade secrets.  West's Ann.Cal.Civ.Code s 3426.1(b).

 [47] TORTS
 Uniform Trade Secrets Act (UTSA) does not require that defendant gain any
 advantage from disclosure of trade secret for there to be misappropriation;  it
 is sufficient to show "use" by disclosure of trade secret with actual or
 constructive knowledge that secret was disclosed under circumstances giving

 rise to duty to maintain its secrecy.  West's Ann.Cal.Civ.Code s
 3426.1(b)(2).

 [48] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Preliminarily enjoining unauthorized disclosure of church's copyrighted
 religious documents on Internet would not act as unconstitutional prior
 restraint on free speech in violation of First Amendment;  defendant would be
 able to continue to criticize church and use its published and unpublished
 works to extent allowed by doctrine of fair use, and injunctive relief sought
 was no broader than necessary to protect church's copyrights.  U.S.C.A.
 Const. Art. 1, s 8, cl. 8;  Amend. 1;  17 U.S.C.A. ss 107, 501(a),
 502(a).

 [49] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Church was entitled to preliminarily enjoin unauthorized disclosure of its
 copyrighted religious works on Internet, except as to item for which copyright
 had expired or as allowed by doctrine of fair use.  17 U.S.C.A. s 107.

 [50] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Under fair use doctrine, alleged copyright infringer could post, or otherwise
 publish, his criticism of church, using church's copyrighted religious works to
 extent necessary to carry out his critical purpose;  however, copying of works
 in their entirety with very little added criticism was probably not fair use.
 17 U.S.C.A. s 107.

 [51] COPYRIGHTS AND INTELLECTUAL PROPERTY
 In copyright case, broad injunction which goes beyond scope of allegedly
 infringing activity should be avoided for First Amendment reasons.  U.S.C.A.
 Const.Amend. 1.

 [52] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Alleged infringer's unauthorized postings of church's religious works on
 Internet did not warrant seizure of alleged infringer's computer and other
 equipment;  copying was in context of criticism and potentially subject to fair
 use defense, equipment was essential to operation of alleged infringer's
 business and other affairs, and attempting to shut down critic's speech
 activities, including those that did not implicate copyright laws, would be
 unwarranted prior restraint on speech.  U.S.C.A. Const.Amend. 1.

 [53] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Alleged infringer of church's copyrighted religious documents would not be held
 in civil contempt for violating temporary restraining order (TRO) prohibiting
 publication of church's confidential works, although he posted portion of those
 works on Internet;  TRO permitted publication of works that were not
 confidential, that was fair criticism or fair use, and alleged infringer, who
 was not represented by counsel, may have misconstrued language so that he
 believed it also applied to confidential material.

 [54] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Supreme Court's copyright rule adopted under Copyright Act of 1909, setting
 forth procedures for seizure and impoundment and allowing clerk of court to
 summarily issue writ of preseizure for allegedly infringing article without
 requiring any preseizure notice or hearing, was no longer valid, and party
 seeking seizure of infringing materials was required to comply with rule
 governing ex parte injunctive relief.  17 U.S.C.A. s 503(a);  17 U.S.C.
 (1976 Ed.) s 25(e);  Fed.Rules Civ.Proc.Rule 65(b), 28 U.S.C.A.

 [55] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Alleged infringer's placement of multiple copyrighted works, including several
 that were confidential, onto Internet was sufficient to establish likelihood
 that, absent threat of seizure, alleged infringer would continue to post
 church's copyrighted works prior to hearing, as required for ex parte writ of
 seizure.  17 U.S.C.A. s 503(a);  Fed.Rules Civ.Proc.Rule 65(b), 28
 U.S.C.A.

 [56] INJUNCTION
 Rule governing ex parte injunctive relief permits injunctive relief without
 notice only where notice to adverse party is impossible or, in some limited
 circumstances, where notice would render further action fruitless.  17
 U.S.C.A. s 503(a);  Fed.Rules Civ.Proc.Rule 65(b), 28 U.S.C.A.

 [57] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Alleged infringer's statement, when asked to stop posting church's copyrighted
 religious work on Internet, that no local government or court had power to tell
 him otherwise, did not establish that alleged infringer would not follow court
 order, as required for ex parte seizure order;  other than isolated statement,
 there was no evidence of alleged infringer's propensity to fight court order.
 17 U.S.C.A. s 503(a);  Fed.Rules Civ.Proc.Rule 65(b), 28 U.S.C.A.

 [58] COPYRIGHTS AND INTELLECTUAL PROPERTY
 To comply with requirements of Fourth Amendment, writ of seizure in copyright
 case should specify with particularity premises to be searched and articles to
 be seized;  scope of search must thus be limited by object of search and places
 in which there has been shown that object is likely to be found.  U.S.C.A.
 Const.Amend. 4;  17 U.S.C.A. s 503(a);  Fed.Rules Civ.Proc.Rule 65(b), 28
 U.S.C.A.

 [59] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Ex parte writ of seizure allowing seizure of "articles and things" appearing to
 be copyrighted religious work was unconstitutionally overbroad, in violation of
 Fourth Amendment;  mere possession of copyrighted works did not offend
 Copyright Act, and writ described category of works which could not be
 identified by any easy to apply criteria.  U.S.C.A. Const.Amend. 4;  17
 U.S.C.A. s 503(a);  Fed.Rules Civ.Proc.Rule 65(b), 28 U.S.C.A.

 [60] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Use of computer expert to enable search of alleged infringer's computers and
 use of experts in works of church to enable identification of church's
 copyrighted works, which had been posted by alleged infringer or Internet, was
 justified as part of ex parte seizure order;  number of potentially infringed
 works was too great to permit church to bring originals to verify source of
 copies, and allegedly infringing copies were likely to be stored on computer.
 17 U.S.C.A. s 503(a);  Fed.Rules Civ.Proc.Rule 65(b), 28 U.S.C.A.
  *1237 Helena K. Kobrin, North Hollywood, CA, Andrew H. Wilson, Wilson,
 Ryan & Campilongo, San Francisco, CA, Thomas M. Small, Janet A. Kobrin, Small,
 Larkin & Kidde, Los Angeles, CA, Elliot J. Abelson, Los Angeles, CA, for
 Plaintiffs.
  Randolf J. Rice, Pillsbury, Madison & Sutro, San Jose, CA, for Defendant
 Netcom On-Line Communication Services.
  Harold J. McElhinny, Carla Oakley, Morrison & Foerster, San Francisco, CA, for
 Defendant Dennis Erlich.
  *1238 Daniel Leipold, Hagenbaugh & Murphy, Orange, CA, for Defendant Tom
 Klemesrud.
    ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' APPLICATION FOR A
   PRELIMINARY INJUNCTION AND DEFENDANT ERLICH'S MOTION TO DISSOLVE THE TRO;
 DENYING PLAINTIFFS' APPLICATION TO EXPAND THE TRO;  DENYING PLAINTIFFS' MOTION
   FOR CONTEMPT;  GRANTING ERLICH'S MOTION TO VACATE THE WRIT OF SEIZURE;  AND
       DENYING PLAINTIFFS' REQUEST FOR SANCTIONS AGAINST ERLICH'S COUNSEL

  WHYTE, District Judge.
  This case involves the scope of intellectual property rights on the
 Internet. [FN1]  Plaintiffs, two Scientology-affiliated organizations claiming
 copyright and trade secret protection for the writings of the Church's founder,
 L. Ron Hubbard, brought this suit against defendant Dennis Erlich ("Erlich"), a
 former Scientology minister turned vocal critic of the Church, who allegedly
 put plaintiffs' protected works onto the Internet. [FN2]

      FN1. The Internet is a world-wide network of networks, made up of
     approximately 7 million computers interconnected through 60,000 networks,
     all sharing a common communications technology.  Anthony M. Rutkowski,
     Federal News Service, July 27, 1995.  It is decentralized in that there is
     no central hub through which information must be routed and no central
     governing body.  United States v. Baker, 890 F.Supp. 1375 at 1379 n. 1
     (E.D.Mich.1995).  Started as a project by the Department of Defense, the
     Internet has expanded to include universities, government agencies, and
     commercial enterprises.  There are currently over 25 million users
     worldwide accessing the Internet, and the numbers are doubling every
     year.  MTV Networks v. Curry, 867 F.Supp. 202, 203 n. 1 (S.D.N.Y.1994).
     Users of the Internet can access such services as e-mail, Usenet
     newsgroups, file exchanges, and the "World Wide Web," a distributed
     hypertext information service, accessed using a "Web browser."  Guardian,
     Sept. 1, 1994, at T8.

      FN2. Plaintiffs additionally sued defendants Tom Klemesrud ("Klemesrud"),
     who operates the bulletin board service ("BBS") used by Erlich, and Netcom
     On-Line Communication Services, Inc. ("Netcom"), who provides that BBS with
     access to the Internet.

  On June 23, 1995, this court heard the parties' arguments on eight motions,
 five of which relate to Erlich and are discussed herein:  (1) plaintiffs'
 motion for a preliminary injunction against Erlich and Erlich's related motion
 to dissolve or amend the Amended TRO;  (2) plaintiffs' application to expand
 the TRO;  (3) plaintiffs' motion for contempt against Erlich;  (4) Erlich's
 motion to vacate the writ of seizure;  and (5) and plaintiffs' request for
 sanctions against Erlich's counsel. [FN3]  For the reasons set forth below, the
 court grants in part and denies in part plaintiffs' motion for a preliminary
 injunction against Erlich and Erlich's motion to dissolve the TRO, denies
 plaintiffs' application to expand the TRO, denies plaintiffs' motion for
 contempt against Erlich, grants Erlich's motion to vacate the writ of seizure,
 and denies plaintiffs' request for sanctions against Erlich's counsel.

      FN3. The court will address plaintiffs' motion for a preliminary
     injunction against Klemesrud and Netcom, Klemesrud's motion for judgment on
     the pleadings, and Netcom's motion for summary judgment in a separate
     order.

                                    I. BACKGROUND
  Defendant Dennis Erlich was a member of the Church of Scientology ("the
 Church") [FN4] *1239 from approximately 1968 until 1982.  During his years
 with the Church, Erlich received training to enable him to provide ministerial
 counseling services, known as "auditing."  While with the Church, Erlich had
 access to various Scientology writings, including those of the Church's
 founder, L. Ron Hubbard ("Hubbard"), which the Church alleges include published
 literary works as well as unpublished confidential materials (the "Advanced
 Technology works").  According to plaintiffs, Erlich had agreed to maintain the
 confidentiality of the Advanced Technology works.

      FN4. Plaintiffs describe the works of the "Scientology Religion" as
     "applied religious philosophy and spiritual healing technology."  First
     Am.Compl. ("FAC") P 9.  The Ninth Circuit described the Church's teachings
     as follows:
     The Church ... teaches that a person's behavior and well-being are improved
     by removing "engrams" from the unconscious mind.  Engrams are impressions
     recorded by the unconscious mind in times of trauma in this life or in
     previous lives.  Engrams return in moments of similar stress to the
     detriment of the person's behavior.  Removing engrams from the unconscious
     permits the person's analytical mind to function unhindered.
     Engrams are located and purged through "auditing."  Auditing uses the
     "technology" and "advanced technology" of the Church....  The adherent must
     proceed through a series of increasingly sophisticated technologies of
     closely structured questions and answers to reach "a higher spiritual
     existence."
     The Church asserts that the unsupervised, premature exposure of an adherent
     to these materials will produce a spiritually harmful effect.
     Religious Technology Center v. Wollersheim, 796 F.2d 1076, 1077 (9th
     Cir.1986), cert. denied, 479 U.S. 1103, 107 S.Ct. 1336, 94 L.Ed.2d 187
     (1987).

  Since leaving the Church, Erlich has been a vocal critic of Scientology and he
 now considers it part of his calling to foster critical debate about
 Scientology through humorous and critical writings.  Erlich has expressed his
 views about the Church by contributing to the Internet "Usenet newsgroup" [FN5]
 called "alt.religion.scientology" ("the newsgroup"), which is an on-line forum
 for the discussion of issues related to Scientology. [FN6]

      FN5. Usenet news, which is one of the most popular features of the
     Internet, allows users of systems "subscribing" to the groups to
     participate by reading and "posting" messages on a particular topic, such
     as intellectual property rights ("misc.int-property") or table tennis
     ("rec.sport.table-tennis").  "Posting," as a noun, refers to an article in
     a newsgroup and, as a verb, refers to the act of sending an article one has
     written for distribution to the newsgroup's subscribers.  When a message is
     posted to a group, it is distributed to the computers of all those systems
     that subscribe to that group so that the users of that system can access
     the message.  There are currently thousands of different newsgroups, with
     about 50,000 new articles posted each day.  John R. Levine & Carol Baroudi,
     The Internet for Dummies 131 (2d ed. 1994).

      FN6. Erlich gained access to the Internet by using a personal computer and
     a modem in his home to connect to defendant Klemesrud's BBS, to which
     Erlich was one of 512 subscribers paying an annual fee.  Klemesrud Decl. P
     13.  Klemesrud's BBS, in turn, was connected to the Internet through an
     arrangement with defendant Netcom under which Klemesrud leased access to
     the Internet at a fixed rate.

  Plaintiffs allege that in the six months prior to their filing suit, Erlich
 unlawfully posted to the newsgroup works from two separate categories of
 writings by Hubbard which are contained in Exhibits A and B of the FAC.
 Following Hubbard's death in 1986, ownership of Hubbard's copyrights passed to
 Author's Family Trust-B.  In 1993, the copyrights were distributed to the
 Church of Spiritual Technology ("CST"), a California nonprofit religious
 corporation.  Plaintiff Bridge Publications, Inc. ("BPI"), a nonprofit branch
 of the Church, claims to be the exclusive licensee of CST's copyrighted
 literary works listed in Exhibit A to the Complaint ("Exhibit A works"), which
 consist mainly of policy letters and bulletins from the Church.
  Plaintiff Religious Technology Center ("RTC"), a nonprofit religious
 corporation, "was formed by Scientologists, with the approval of [Hubbard], to
 act as the protector of the religion of Scientology and to own, protect, and
 control the utilization of the Advanced Technology [FN7] in the United
 States."  FAC, Ex. C, at 2.  RTC claims to be the exclusive licensee of the
 copyrights and the owner of the other rights in the unpublished Advanced
 Technology works listed in Exhibit B to the Complaint (the "Advanced
 Technology" works or the "Exhibit B works").

      FN7. These works are part of the "course" materials used in the upper-
     levels of Scientology training, and are only available to those
     Scientologists who have successfully completed all of the lower courses.

  BPI and RTC allege that Erlich infringed the copyrights in the Exhibit A and B
 works.  RTC also alleges that Erlich misappropriated its trade secrets in the
 Exhibit B works, the confidentiality of which it alleges has been the subject
 of elaborate security measures.  RTC further claims that those works are
 extremely valuable to the Church.  Erlich admits to having posted excerpts from
 some of the works, but argues that the quotations were used to provide context
 for debate and as a basis for his criticism.  Erlich further argues that he has
 neither claimed authorship of any of the works nor personally profited from his
 critique, satire, and commentary.  Erlich contends that all of the Exhibit B
 documents he posted had been previously *1240 posted anonymously over the
 Internet, except for item 1, which he claims he received anonymously through
 the mail.
  From August to December 1994, plaintiffs exchanged a series of letters with
 Erlich, warning him to stop posting their protected writings onto the
 newsgroup.  Plaintiffs also demanded that defendants Netcom and Klemesrud take
 actions to prevent Erlich's continued postings of protected materials.  Erlich
 indicated that he would not stop, claiming he had a right to continue with his
 criticism and satire.  On February 8, 1995, plaintiffs filed this action
 against Erlich, Klemesrud, and Netcom for copyright infringement and, against
 Erlich alone, for misappropriation of trade secrets, seeking actual, statutory,
 and punitive damages, injunctive relief, impoundment of the infringing
 materials and equipment, and attorneys' fees and costs.
  On February 10, 1995, the court granted plaintiffs' ex parte application for a
 temporary restraining order ("TRO") prohibiting Erlich from making unauthorized
 use of works identified in the exhibits to the complaint and an order directing
 the clerk to issue a writ of seizure under 17 U.S.C. s 503(a).  On February
 13, 1995, in execution of the writ of seizure, local police officers entered
 Erlich's home to conduct the seizure.  The officers were accompanied by several
 RTC representatives, who aided in the search and seizure of documents related
 to Erlich's alleged copyright infringement and misappropriation of trade
 secrets.  Erlich alleges that RTC officials in fact directed the seizure, which
 took approximately seven hours.  Erlich alleges that plaintiffs seized books,
 working papers, and personal papers.  After locating Erlich's computers,
 plaintiffs allegedly seized computer disks and copied portions of Erlich's hard
 disk drive onto floppy disks and then erased the originals from the hard
 drive.  Although plaintiffs returned to Erlich's counsel some of the articles
 seized, Erlich contends that plaintiffs have not returned all of the seized
 articles, including ones that are unrelated to the litigation.
  On February 23, 1995, the court issued an "Amended TRO," which sought to
 clarify what types of use were prohibited and to emphasize that Erlich could
 make "fair use" of the Exhibit A works.
   II. PRELIMINARY INJUNCTION/DISSOLUTION OF TEMPORARY RESTRAINING ORDER [FN8]

      FN8. The parties treated the motion to dissolve the TRO as superseding the
     earlier application for a preliminary injunction.  The court finds no
     differences in the legal standards for dissolving a TRO and for granting a
     preliminary injunction, except for the potentially different relevant
     timeframes.  Here, both motions concern whether further injunctive relief
     prior to trial is appropriate.  Accordingly, the motions will be discussed
     together.

  A. Legal Standards
  [1][2] A party seeking a preliminary injunction may establish its
 entitlement to equitable relief by showing either (1) a combination of probable
 success on the merits and the possibility of irreparable injury, or (2) serious
 questions as to these matters and that the balance of hardships tips sharply in
 its favor.  First Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1378, 1381 (9th
 Cir.1987).  These two tests are not separate, but represent a continuum of
 equitable discretion whereby the greater the relative hardship to the moving
 party, the less probability of success need be shown.  Regents of University
 of California v. American Broadcasting Cos., 747 F.2d 511, 515 (9th Cir.1984).
 The primary purpose of a preliminary injunction is to preserve the status quo
 pending a trial on the merits.  Los Angeles Memorial Coliseum Commission v.
 National Football League, 634 F.2d 1197, 1200 (9th Cir.1980).
  B. Likelihood of Success on Copyright Infringement Claims
  [3] To establish copyright infringement, plaintiffs must demonstrate (1)
 they own a valid copyright and (2) Erlich violated any of their exclusive
 rights, including, inter alia, the rights to reproduce or prepare derivative
 works from the original, or to distribute or display copies publicly.  17
 U.S.C. ss 106(1)-(3) & (5), 501(a);  Feist Publications, Inc. v. Rural
 Telephone Service Co., 499 U.S. 340, 361-63, 111 S.Ct. 1282, 1296, 113 L.Ed.2d
 358 (1991).  Erlich, for the most part, admits to having "copied" the Exhibit A
 and B works, but contends that plaintiffs are not able to *1241 establish
 ownership of a valid copyright interest in those works.  Erlich also argues
 that his activities do not constitute infringement because his use was a "fair
 use."
  1. Ownership of a Valid Copyright
  Proof of ownership of an existing, valid, and registered copyright interest is
 a statutory prerequisite to filing an infringement action.  17 U.S.C. s
 411.  Registration, when "made before or within five years after first
 publication of the work[,] shall constitute prima facie evidence of the
 validity of the copyright," including originality, compliance with statutory
 formalities, and copyrightability.  Id., s 410(c);  3 Melville B.
 Nimmer & David Nimmer, Nimmer on Copyright (1995) ("Nimmer") s 12.11[B].  When
 registration is made more than five years after first publication, the
 evidentiary weight of the certificate of registration is within the court's
 discretion.  Id. s 12.11[A], [B].  When the plaintiff is not the author of a
 work, he must provide evidence of a chain of title from the registrant to him.
 Nimmer s 12.11[C].
  Plaintiffs provide evidence of registration for all of the Exhibit A and B
 works.  See FAC, Ex. H.  Plaintiffs further provide copies of assignment and
 licensing agreements purportedly showing the necessary chain of title from
 Hubbard, the author of the works, to plaintiffs RTC and BPI.  Attached to the
 FAC are assignments of all rights in the Advanced Technology works from Hubbard
 and his estate to RTC.  Id., Exs. C, D, F & G.  Under the "Literary
 Agreement" attached to the FAC, BPI is the exclusive licensee of various
 published, non-fiction Hubbard works, including those works in Exhibit A to the
 FAC.  Id., Ex. E.
  Erlich sets forth in his "Appendix re:  Copyright Issues" a host of
 purported irregularities and defects with the registrations, maintaining that
 plaintiffs have failed to prove a likelihood of success on ownership of many,
 if not all, of the works.  The court finds that, except as to item 4 of Exhibit
 A, Erlich has failed to rebut the presumption of validity.
  [4] Erlich's contention that item 4 of Exhibit A ("20 Nov 1961, Routine 3D
 Commands") has fallen into the public domain appears to be correct.  The
 registration for item 4 gives a first publication date of 1961.  Under the
 Copyright Act of 1909 ("the 1909 Act"), which still applies to works that were
 first published prior to January 1, 1964, an author is entitled to an initial
 28-year copyright term, which expires unless the copyright is renewed by the
 author or his statutory successors during the final year of the initial term.
 2 Nimmer s 9.05[B][1].  The copyright notice date on item 4 is evidence that
 the work was first published in 1961.  See New Era Publications
 International, ApS v. Carol Publishing Group, 729 F.Supp. 992, 995 (S.D.N.Y.),
 aff'd in part, rev'd in part, 904 F.2d 152 (2d Cir.), cert. denied, 498
 U.S. 921, 111 S.Ct. 297, 112 L.Ed.2d 251 (1990).  Because there is no evidence
 that the copyright for item 4 was renewed in 1989, 28 years after its initial
 publication, the court finds that it fell into the public domain and cannot be
 the subject of an action for infringement.  See id.  Plaintiffs argue,
 however, that item 4 was part of a collection that was registered in 1976, the
 year that it was first published.  As such, plaintiffs contend that the
 collective work is not yet subject to renewal.  While those parts of the 1976
 collection that were first published in 1976 were not subject to renewal in
 1989, those previously published portions of the collection, such as item 4,
 must still be timely renewed notwithstanding the registration as a collection
 in 1976.  See 1 Nimmer ss 3.07[C], 3.04[A], at 3-19.
  [5] Erlich's next claim is that plaintiffs have not registered the works
 that were infringed, but only the compilations in which they were included.
 Where, as here, the author of a collection or derivative work is also the
 author of the preexisting work, registration of the collection is sufficient.
 Abend v. MCA, Inc., 863 F.2d 1465, 1471-72 (9th Cir.1988), aff'd, 495
 U.S. 207, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990);  2 Nimmer s 7.16[B][2], at
 7-168 to -170 (distinguishing this situation from that where copyright owner
 of collective work is not also the owner of the preexisting work).  Here,
 Hubbard was the author of the underlying work and was also the author of the
 collection of his own works.  Accordingly, registration of the
 collections *1242 that include the Exhibit A works constitutes registration
 of the underlying works.
  [6] Erlich's next argument, that plaintiffs have not shown that Hubbard's
 statutory successors assigned the renewal terms of the copyrights to
 plaintiffs, is clearly rebutted by the evidence.  See Hawkins Decl., Exs. A-I.
 The Exhibit B works do not require renewal because they were unpublished as of
 January 1, 1978, the effective date of the Copyright Act of 1976 ("the 1976
 Act"), and were thus protected only by common law copyright.  See 2 Nimmer
 s 9.01[B][2], at 9-17 to -18.  As of January 1, 1978, these works became
 protected by statutory copyright under the new scheme of the 1976 Act, which
 does not require renewal.  Id.
  [7][8] Finally, Erlich contends that the automatic statutory
 presumption of validity does not apply because many of the works were published
 more than five years before registration.  The dates specified in a copyright
 notice are evidence of the date of publication.  New Era, 729 F.Supp. at
 995.  As to the unpublished [FN9] Exhibit B works, registrations were made
 before first publication in accordance with section 410(c) and thus the
 presumption is still valid.  However, it appears Erlich is correct that the
 statutory presumption does not apply as to items 1, 2, 4, 5, 6, 7, and 8 of
 Exhibit A.  It is within the court's discretion what weight to give the
 copyright registrations in determining the validity of the copyright interests
 of those works for which plaintiffs are not entitled to an automatic
 presumption of validity.  In light of plaintiffs' evidence of validity, see
 Hawkins Decl., and the lack of a persuasive challenge to the validity of the
 copyrights by Erlich, the court finds that plaintiffs' registrations are strong
 evidence of the validity of their claimed copyrights. [FN10]

      FN9. Although the court concludes in its discussion of the trade secrets
     claim, infra part II.C.3, that most of the Exhibit B works may no longer
     contain trade secrets (assuming they ever did), this does not mean that,
     for the purposes of copyright protection, they are not unpublished.
     "Publication," as defined in 17 U.S.C. s 101, requires that the owner
     consent to selling, leasing, loaning, giving away, or otherwise making
     available to the general public, the original or copies of the work.  1
     Nimmer s 4.04, at 4-17 to -19 & n. 8.  There is no evidence of any
     consensual release of any of these works to the public.

      FN10. The court is unpersuaded by the various alleged technical
     deficiencies, such as title discrepancies, in the copyright registrations.
     Errors, such as incorrectly naming the author, do not make the copyright
     invalid absent some evidence that the defendant was misled.  2 Nimmer s
     7.20, at 7-201 to -207.

  2. Direct Infringement
  Except as to item 9 of Exhibit A and item 9 of Exhibit B, see Oakley May 12,
 1995 Decl., Ex. B, Erlich does not dispute that he engaged in "copying," which
 would constitute direct infringement under section 106.  As to the item 9
 works, there is no evidence that Erlich ever made any postings of or otherwise
 copied those items.  The court will therefore consider plaintiffs' infringement
 claims as to the remaining works. [FN11]

      FN11. The court will address the issue of direct infringement more fully
     in its order on the motions concerning defendants Netcom and Klemesrud.

  3. Fair Use Defense
  [9][10] "Infringement" consists of violating the author's exclusive
 rights.  17 U.S.C. s 501.  Although the author has the exclusive rights to
 reproduce, distribute, and display a copyrighted work under section 106,
 these rights are limited by the defense [FN12] of "fair use":

      FN12. Even though fair use is an affirmative defense, Harper & Row,
     Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 561, 105 S.Ct. 2218,
     2231, 85 L.Ed.2d 588 (1985), the court notes that plaintiffs, as the
     parties moving for a preliminary injunction, have the burden of proving a
     likelihood of success on their infringement claim, including the fair use
     defense.  See 2 William Schwarzer et al., California Practice Guide:
     Federal Civil Procedure Before Trial P 13:47 (1994) (citing Original
     Appalachian Artworks v. Topps Chewing Gum, 642 F.Supp. 1031, 1034
     (N.D.Ga.1986)).  However, in determining whether plaintiffs have met their
     burden, the court recognizes that fair use is an affirmative defense on
     which defendants will have the burden of proof at trial.

   Notwithstanding the provisions of section 106 and 106A, the fair use of
 a copyrighted work, including such use by reproduction *1243 in copies ...
 or by any other means specified in that section, for purposes such as
 criticism, comment, news reporting, teaching (including multiple copies for
 classroom use), scholarship, or research, is not an infringement of copyright.
  17 U.S.C. s 107 (emphasis added).  The defense "permits and requires courts
 to avoid rigid application of the copyright statute when, on occasion, it would
 stifle the very creativity which that law is designed to foster."  Campbell
 v. Acuff-Rose Music, Inc., 510 U.S. 569, ---, 114 S.Ct. 1164, 1170, 127 L.Ed.2d
 500 (1994) (citation omitted).  Congress has set out four nonexclusive factors
 to be considered in determining the availability of the fair use defense:
   (1) the purpose and character of the use, including whether such use is of a
 commercial nature or is for nonprofit educational purposes;
   (2) the nature of the copyrighted work;
   (3) the amount and substantiality of the portion used in relation to the
 copyrighted work as a whole;  and
   (4) the effect of the use upon the potential market for or value of the
 copyrighted work.
  17 U.S.C. s 107.  The fair use doctrine calls for a case-by-case
 analysis.  Campbell, 510 U.S. at ----, 114 S.Ct. at 1170.  All of the
 factors "are to be explored, and the results weighed together, in light of the
 purposes of copyright."  Id. 510 U.S. at ---- - ----, 114 S.Ct. at 1170-71.
               a. First Factor:  Purpose and Character of the Use
  [11] The first statutory factor looks to the purpose and character of the
 defendant's use.  Erlich argues that his use was criticism, which is one of
 those uses listed in the preamble to section 107.  Similarly, Erlich
 maintains that his use was meant to "evoke discussion regarding various
 Scientology philosophies."  Mot. To Dissolve at 22.  Use for the purpose of
 criticism weighs in favor of fair use.  See New Era, 904 F.2d at 156-57
 (using Hubbard's works in critical biography meets first factor for fair use).
 Plaintiffs contest Erlich's characterizations of his use, claiming that most of
 Erlich's postings were verbatim copies, with little or no added comment or
 criticism. [FN13]  Plaintiffs further contend that Erlich's purpose was spite
 or some other destructive reason.  However, plaintiffs give no explanation as
 to why Erlich's purpose was other than to criticize or to evoke discussion
 regarding Scientology.  Because there is insufficient evidence to support
 plaintiffs' claim that Erlich's copying was made out of spite or for other
 destructive reasons, the court will assume Erlich's intended purpose was
 criticism or comment.

      FN13. Erlich responds that the documents that he posted "speak for
     themselves," and thus little further commentary was necessary.  The court
     will address this dispute under the third statutory factor.

                                 Transformative Use
  [12] Plaintiffs' argument that the amount of added criticism belies Erlich's
 critical purpose can also be construed as an attack on the "transformative"
 nature of Erlich's use.  In Campbell, the Supreme Court held that the
 central purpose of the first inquiry is to determine whether the new work is
 transformative (also described as "productive"), that is, whether it "adds
 something new, with a further purpose or different character, altering the
 first with new expression, meaning, or message."  510 U.S. at ----, 114
 S.Ct. at 1171.  Erlich's use is only minimally transformative since, unlike the
 typical critic, Erlich adds little new expression to the Church's works.
 Accordingly, despite Erlich's purported critical purpose, the actual character
 of his use does not weigh heavily in his favor because it has only a slight
 transformative nature.  In any case, the Supreme Court held in Sony Corp. of
 America v. Universal City Studios, Inc., 464 U.S. 417, 455 n. 40, 104 S.Ct.
 774, 795 n. 40, 78 L.Ed.2d 574 (1984) that the fair use defense is not "rigidly
 circumscribed" by the productive use requirement.  The Court found that a home
 viewer's verbatim copying of copyrighted television shows for the purposes of
 time shifting was fair use even though there was only a minimal showing of
 increased convenience to the home user.
                         *1244 Commercial Nature of Use
  [13][14] Where the use is not highly transformative, as here, the court will
 focus on whether the use is of a commercial nature.  The Campbell Court
 emphasized that a commercial use does not dictate against a finding of fair
 use, as most of the uses listed in the statute are "generally conducted for
 profit in this country."  510 U.S. at ----, 114 S.Ct. at 1174.  Nonetheless,
 the Court recognized that a commercial use weighs against a finding of fair
 use.  Id.  The fact that there is no evidence that Erlich gains financially
 from his criticism of the Church weighs in his favor.
  Plaintiffs argue, however, that Erlich personally gains through
 increased status and recognition among his peers and the public.  In
 Weissmann v. Freeman, 868 F.2d 1313 (2d Cir.), cert. denied, 493 U.S.
 883, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989), the Second Circuit recognized that,
 in the unusual setting of academia, a defendant can profit personally from
 copying despite the lack of a monetary gain.  The defendant in Weissmann was
 a professor who copied a former assistant's scholarly work, used it for the
 same purpose as the author, and claimed credit for himself, thereby aiding his
 professional advancement.  Id. at 1324.  Here, there is neither evidence
 that Erlich took credit for any of plaintiffs' works nor that he is personally
 profiting, professionally or otherwise, as a result of his postings.  If mere
 recognition by one's peers constituted "personal profit" to defeat a finding of
 a noncommercial use, courts would seldom find any criticism fair use and much
 valuable criticism would be discouraged.  Thus, the court finds that
 Weissmann is inapplicable here, and that its holding should not be stretched
 to swallow all nonprofit criticism motivated by concern for status.
 Accordingly, based on the clearly noncommercial nature of the use and the
 protected purpose of criticism, the court finds that the first fair use factor
 weighs slightly in Erlich's favor despite the minimally transformative nature
 of Erlich's use.
                               Defendant's Conduct
  [15] Plaintiffs contend that, regardless of the results of weighing the four
 fair use factors, a finding of fair use is nonetheless precluded because
 Erlich's copies were made not from legitimate copies of the works but from
 unauthorized copies.  Although plaintiffs discuss this purported "good faith"
 prerequisite [FN14] to fair use apart from the four factors, it is properly a
 factor to be considered with the first statutory factor regarding the character
 of the use.  3 Nimmer s 13.05[A][1][d], at 13-171 to -174 (discussing
 "defendant's conduct" as one aspect of the first statutory factor).

      FN14. Plaintiffs cite Sega Enterprises Ltd. v. Maphia, 857 F.Supp. 679
     (N.D.Cal.1994) for the proposition that there can be no fair use defense
     where the defendant did not use an authorized copy to make his copies.  In
     Sega, the defendant, who had allegedly copied Sega videogame cartridges
     onto an electronic BBS where others could copy them, id. at 683,
     admitted that he did not own any copies of Sega's game cartridges, id.
     at 687.  Sega relies on language from Atari Games Corp. v. Nintendo
     of America Inc., 975 F.2d 832, 843 (Fed.Cir.1992) stating that "[t]o invoke
     the fair use exception, an individual must possess an authorized copy of a
     literary work."  Atari, in turn, relies on Harper & Row's discussion
     of the first statutory factor.  In Harper & Row, 471 U.S. at 563, 105
     S.Ct. at 2232, the Supreme Court cited the trial court's finding that the
     defendant "knowingly exploited a purloined manuscript" as weighing against
     a finding of fair use on the first factor.  Nothing in Harper & Row
     indicates that the defendant's bad faith was itself conclusive of the fair
     use question, or even of the first factor.  After Campbell, it is clear
     that a finding of bad faith, or a finding on any one of the four factors,
     cannot be considered dispositive.  Campbell, 510 U.S.
     at ---- - ----, ---- & n. 18, 114 S.Ct. at 1170-71, 1174 & n. 18.
     Campbell cited Harper & Row's good faith discussion without comment,
     but noted that the defendant's use of the plaintiff's work, despite the
     plaintiff's explicit denial of permission, would not, in any case,
     constitute bad faith.  Id. at ---- n. 18, 114 S.Ct. at 1174 n. 18.
     Campbell, the Supreme Court's most recent pronouncement on fair use,
     thus hardly endorses the good faith requirement.  See 3 Nimmer s 13.05
     [B][3], at 13-205 n. 298.  Accordingly, the court will treat bad faith as
     merely one aspect of the first factor.

  [16] The court finds that plaintiffs' showing on bad faith is mixed at
 best.  There is no evidence here that Erlich obtained his copies of plaintiffs'
 works through deceit.  Cf. Atari, 975 F.2d at 836, 843 (finding no fair use
 where defendant obtained plaintiff's source code by lying to copyright
 office).  *1245 Unlike Sega, there is no admission by the defendant that
 he does not possess any legal copies.  As to several of the Exhibit A works, it
 appears that Erlich possessed legitimate, published books containing some of
 the works;  plaintiffs offer no evidence that Erlich obtained these books in
 some unlawful or illegitimate manner. [FN15]  However, as to those works where
 Erlich claims he obtained his copies over the Internet or anonymously through
 the mail, this does not negate an inference that he received those copies in an
 improper manner.  Erlich's copies of Exhibit B works were more likely
 unauthorized than not;  plaintiffs have provided substantial evidence that the
 Advanced Technology works are kept confidential, see infra part II.C.2, and
 that Erlich would not have been given permission to keep a copy of those
 works.  For most of the disputed works, the fact that Erlich may have obtained
 his copies in an unauthorized manner tends to weigh in plaintiffs' favor.  This
 finding, however, will not bar Erlich's fair use defense, but will merely be
 considered with the other factors.

      FN15. The court is unpersuaded by plaintiffs' argument that an
     intermediate copy made for the purposes of posting or uploading a work
     makes the subsequent copy unauthorized such that fair use is unavailable.
     Sega and Atari merely suggest that fair use is unavailable where the
     defendant does not possess any authorized copy;  not that the challenged
     copying cannot be made from a secondary copy.  While the extra copying may
     constitute infringement (for which there may or may not be a separate fair
     use defense), it should not affect the availability of the fair use defense
     as to the critical or parodic use.

                  b. Second Factor:  Nature of the Copyrighted Work
  The second factor focuses on two different aspects of the copyrighted
 work:  whether it is published or unpublished and whether it is informational
 or creative.
                            Published vs. Unpublished
  [17] The unpublished status of a work is "a critical element of its
 'nature.' "  Harper & Row, 471 U.S. at 564, 105 S.Ct. at 2232 (finding no
 fair use where The Nation magazine used unpublished manuscript to scoop
 Time magazine).  The Nation case held that "the scope of fair use is
 narrower with respect to unpublished works."  Id.  In a case involving
 copying of allegedly unpublished works by Hubbard, the Second Circuit
 recognized that where the works were unpublished no court had yet found in
 favor of the infringer on the second factor.  New Era, 904 F.2d at 155.
 Nevertheless, the Second Circuit affirmed a finding of fair use where a
 biographer quoted portions of unpublished letters.  Wright v. Warner Books,
 Inc., 953 F.2d 731 (2d Cir.1991);  see also Norse v. Henry Holt & Co., 847
 F.Supp. 142, 147 (N.D.Cal.1994) (finding fair use where 50 words copied from
 unpublished letters and all but the second factor weighed in favor of
 defendant).  In 1992, Congress amended section 107 of the 1976 Act to
 clarify that the unpublished nature of a work should not itself bar a finding
 of fair use.  See H.R.Rep. No. 102-286, 102d Cong., 2d Sess. 8 (1992) (House
 Report) (citing Wright with approval and criticizing earlier Second Circuit
 decisions that created a per se rule against fair use of unpublished works);
 see also 3 Nimmer s 13.05[A][2], at 13-184 to -186.  Congress construed
 the Nation' s statement that the scope of fair use is narrower for
 unpublished works to mean that the amount of permissible copying will be less
 in the case of an unpublished work.  Id.
  [18] Even though a work is read by a large group of people, it is still
 unpublished where it is held confidential and the authors do not relinquish
 control over their copies of the work.  See College Entrance Examination
 Board v. Cuomo, 788 F.Supp. 134, 139-41 (N.D.N.Y.1992) (finding that
 administered secure tests were necessarily unpublished because author did not
 relinquish control and finding for author on second fair use factor).
 Plaintiffs have adequately demonstrated that the Exhibit B Advanced Technology
 works are kept confidential using tight security measures.  See infra part
 II.C.3.  Although there is evidence that individuals may have made unauthorized
 public disclosures of some of these works, see id., the works are still
 "unpublished" for the purposes of the fair use defense.  See discussion
 supra note 9.  However, the Exhibit A works, with one exception, are
 published.  Accordingly, this portion of the second factor weighs in
 Erlich's *1246 favor as to the published Exhibit A works and strongly in
 plaintiffs' favor as to the Exhibit B works.
                           Informational vs. Creative
  [19] The second aspect of this factor looks to broaden the protection of
 those works that are creative, fictional, or highly original and lessen the
 protection for those works that are factual, informational, or functional.
 See Campbell, 510 U.S. at ----, 114 S.Ct. at 1175.  The Second Circuit noted
 the obvious difficulty in applying this test in a case involving a large number
 of works by Hubbard:
   We agree ... that there is no easy distinction between works that are
 "factual" on the one hand, and "creative" or "expressive" on the other,
 because " '[c]reation of a nonfiction work, even a compilation of pure fact,
 entails originality.' "  Thus, reasonable people can disagree over how to
 classify Hubbard's works.
  New Era, 904 F.2d at 158 (citations omitted).  The Second Circuit concluded
 that "although some of the quoted passages can accurately be described as
 expressive--e.g., Hubbard's poetry--our review of the record persuades us that
 most simply cannot be so characterized."  A district judge in this Circuit,
 considering works that are part of the Church's Advanced Technology, concluded
 that "Hubbard's works are the product of his creative thought process, and not
 merely informational." [FN16]  Bridge Publications, Inc. v. Vien, 827
 F.Supp. 629, 635-36 (S.D.Cal.1993).

      FN16. Somewhat inconsistently, Erlich argues on the trade secret claim
     that many of the Exhibit B works are "more prosaic than formulaic."  Reply
     at 13.

  In the present case, this court also finds the task of categorizing Hubbard's
 writings difficult.  In their complaint, plaintiffs describe Hubbard as the
 author of "original works on applied religious philosophy and spiritual healing
 technology, including training materials and course manuals of the Scientology
 religion."  FAC P 9.  In reviewing the Exhibit A works, which are
 predominantly "policy letters" of the Hubbard Communications Office, the court
 finds that these works, although creative, are primarily functional or
 instructive.  Item 1 of Exhibit B, the Class VIII "Assists" Tape, appears more
 original and creative than the other works, and is thus deserving of greater
 fair use protection.  The remaining Exhibit B works, however, are part of the
 methodology of the Church's "applied religious philosophy," and as such are
 more instructive and functional than fictional.  This court is not convinced,
 however, that this factor should play a major role in the context of religious
 works, which do not easily fit into the creative/informational dichotomy.
  Because the Exhibit B works are unpublished and large portions of them were
 copied by Erlich, see infra part II.B.3.c, this factor weighs heavily against
 Erlich with respect to those works, despite the informational nature of most of
 them.  The Exhibit A works, however, are published and primarily informational,
 and this factor weighs in favor of Erlich as to those works.
         c. Third Factor:  Amount and Substantiality of the Portion Used
  [20][21] The third factor concerns both the percentage of the original work
 that was copied, and whether that portion constitutes the "heart" of the
 copyrighted work.  Harper & Row, 471 U.S. at 564-65, 105 S.Ct. at 2232-33.
 The copying of an entire work will ordinarily militate against a finding of
 fair use, although this is not a per se rule.  Sony, 464 U.S. at 449-450,
 104 S.Ct. at 792 (finding exception to this rule for time-shifting by home
 viewers to enable them to see works that they were invited to see in their
 entirety free of charge).  The amount of copying that is acceptable will depend
 on the character of the use and degree to which the copy transforms the
 original.  Campbell, 510 U.S. at ---- - ----, 114 S.Ct. at 1175-76 (finding
 parody can copy enough of original to "conjure [it] up" so the audience will
 recognize what is being parodied).  Less copying will be acceptable where the
 original is unpublished.  See 3 Nimmer s 13.05[A][2], at 13-185 n. 200.
  [22] Plaintiffs allege that Erlich's postings copy substantial
 amounts of the originals or, in some cases, the entire works.  *1247 Erlich
 responds that, as to some of the copied works, the original documents are
 actually only a small part of a larger collection.  See Oakley Reply Decl., Ex.
 C.  Erlich claims that the court should look at the entire registered
 collective work to determine the percentage of that work which Erlich copied.
 However, the Ninth Circuit held in Hustler Magazine, Inc. v. Moral Majority,
 Inc., 796 F.2d 1148, 1155 (9th Cir.1986) that "[a] creative work does not
 deserve less protection just because it is part of composite work."  The Second
 Circuit held in American Geophysical Union v. Texaco, Inc., 802 F.Supp. 1,
 17 (S.D.N.Y.1992), aff'd, 37 F.3d 881 (2d Cir.1994) that copying an entire
 article from a journal whose copyright has been registered as a whole still
 constitutes copying the entire work.  Similarly, here, although many of
 Hubbard's lectures, policy statements, and course packets are collected into
 larger volumes, and registered as a whole, they may still constitute separate
 works for the purposes of this factor.
  [23][24] It appears Erlich copied all or almost all of many of the works,
 [FN17] which were predominantly short documents of less than three pages, and
 mostly with no comments or with very brief comments [FN18] at the beginning or
 end.  See McShane February 27, 1995 Decl., Ex. A, B, C-1.  The court further
 finds that where Erlich only copied a portion of a work, that portion
 constituted the "heart" of the work.  Compare February 27, 1995 App. in Support
 of Warren McShane, Exs. 1A-188A with 1B-188B;  see Harper & Row, 471 U.S. at
 564-65, 105 S.Ct. at 2232-33 (finding quotation of 300 out of 200,000 words
 that were "essentially the heart of the book" not fair use).  Accordingly, this
 factor weighs heavily in plaintiffs' favor, especially as to the unpublished
 works, where the amount of acceptable copying is even lower.

      FN17. Erlich also argues that, even if he did copy most or all of many of
     the works, he copied no more than was reasonable for his purposes.  Erlich
     cites Belmore v. City Pages, Inc., 880 F.Supp. 673, 678-79
     (D.Minn.1995), in which the court found fair use where the defendant copied
     verbatim an entire short article from a police newspaper for the purpose of
     criticism with added commentary constituting only about one fourth of the
     defendant's article.  The court found reasonable the alleged infringer's
     explanation that he copied the original in its entirety because the
     original "took the form of a parable and was relatively short" and because
     he "decided that the repulsive message it appeared to convey could not be
     adequately communicated except by printing the story as a whole."  Id.
     at 679.  Erlich fails to mention that the Belmore court concluded that
     the third factor weighed in favor of the plaintiff;  only a strong showing
     by the defendant on the first and fourth factor overcame the fact that the
     defendant had copied the entire work.  Moreover, unlike the defendant in
     Belmore, Erlich never adequately explains why it was essential for him
     to copy verbatim the amount of the works that he copied, merely asserting
     in a conclusory fashion that it was "reasonable in relation to the purpose
     of the copying."  Further, Erlich's added criticism was far less
     substantial than the thirty-four lines of added commentary in Belmore.
     The court is unconvinced that Erlich's wholesale copying of Hubbard's works
     with little or no commentary was necessary for his critical purposes.

      FN18. To the extent that courts look at how much of the allegedly
     infringing work is made up of copied material, see Harper & Row, 471
     U.S. at 565-66, 105 S.Ct. at 2233, this factor also weighs heavily against
     Erlich.  Most of Erlich's postings constitute verbatim quotes from
     Hubbard's works, with occasional commentary such as "The perfect reference
     for any occasion," "I believe a discussion of this policy is in order,"
     "Any questions?" and "Someone requested this, I assume, to discuss."
     Standing alone, these remarks are hardly criticism or commentary.
     However, Erlich argues that the critical nature of Erlich's postings must
     be viewed in light of the extended nature of "threads" on newsgroups.  A
     thread is an article on a particular topic, together with all the follow-up
     articles, and the follow-ups to the follow-ups.  Levine & Baroudi, supra
     note 5, at 399.  While an entire thread might be considered one composite
     work authored by all those adding to the thread, there is no evidence in
     the record that any of Erlich's postings were followed up with further
     comments or criticism on the works that are excerpted.  Erlich argues that
     it is common practice on the Internet to repeat large portions of a
     previous posting verbatim, which is necessary to add context for those who
     are late in joining a discussion.  While this would perhaps justify the
     copying of works that were previously posted by their authors on the basis
     of an implied license or fair use argument, see Maureen A. O'Rourke, "The
     Future of Copyright and Contract Law in a Networked World," Federal Bar
     News & Journal (August 1994), these defenses would not apply where the
     first posting made an unauthorized copy of a copyrighted work.  The court
     accepts, however, the possibility that a particular quotation of a
     copyrighted work in the context of a long thread that involves significant
     criticism or commentary could be fair use.

      *1248 d. Fourth Factor:  Effect of the Use upon the Potential Market for
                                      the Work
  [25] The fourth and final statutory factor concerns "the extent of market
 harm caused by the particular actions of the alleged infringer" and " 'whether
 unrestricted and widespread conduct of the sort engaged in by the defendant ...
 would result in a substantially adverse impact on the potential market' for the
 original."  Campbell, 510 U.S. at ----, 114 S.Ct. at 1177 (quoting 3 Nimmer
 s 13.05[A][4] ) (remanding for consideration of this factor).  Although the
 results of all four factors must be weighed together, id. at ----, 114 S.Ct.
 at 1171, the fourth factor is central to the fair use analysis, 3 Nimmer
 s 13.05[A][4], at 13-188 to -189 (citing Harper & Row, 471 U.S. at
 566, 105 S.Ct. at 2233), 13-207 (observing that fourth factor explains results
 in recent Supreme Court cases).
  Plaintiffs contend that Erlich's posting of plaintiffs' copyrighted works over
 the Internet, where more than 25 million subscribers could access them, could
 potentially have a detrimental effect on plaintiffs.  Plaintiffs point to the
 fact that, in the past, the Church has faced "ex-parishioners using copyrighted
 materials to set up and market 'religious' training adapted from the
 Scientology religion."  Pltfs.' Opp'n at 39.  In Vien, the defendant had
 left the Church of Scientology to start her own competing ministry, taking with
 her some of the Church's Advanced Technology works, which she used in her
 courses and offered for sale.  827 F.Supp. at 632-34.  The court held that
 "since defendant uses the works for the same purpose intended by plaintiffs, it
 appears defendant's unauthorized copies fulfill the 'demand for the original'
 works and 'diminish or prejudice' their potential sale."  Id. at 636.
  [26] Plaintiffs' case is not as strong here as it was in Vien.
 The demand of those seeking out the Church's religious training will hardly be
 met by Erlich's postings. [FN19]  Even if Erlich's copying of plaintiffs' works
 were not for a critical purpose, plaintiffs would still have not shown that
 Erlich's postings diminish the demand by Church followers in the courses.
 According to the Church, these courses must be studied in a systematic fashion,
 following one "course" at a time, with proper guidance.  McShane May 31, 1995
 Decl. PP 7-8;  see Wollersheim, 796 F.2d at 1091 (noting RTC's argument that
 Advanced Technology works are trade secrets whose misappropriation would cause
 " 'religious harm' ... [to] adherents from premature unsupervised exposure to
 the materials").  Although many of Erlich's postings contain much of an
 original work, each of these works is only a small portion of the teachings
 necessary for a particular "course."  See Oakley Reply Decl., Ex. C.  For the
 most part, Erlich's postings are sporadic and incomplete.  The court is thus
 not convinced that postings like Erlich's could be effectively used by rival
 Scientology-like religious groups.  Moreover, there is no evidence that the
 Church currently faces any competition by ex-parishioners, see Oakley Reply
 Decl., Ex. B., McShane Depo. at 95, although there is circumstantial evidence
 that such competition could occur in the future, based on the fact that several
 groups have competed with the Church in the past.  See id. at 93-94.

      FN19. To the extent that Erlich's postings suppress demand for the
     original works by "persuad[ing] [potential buyers] that Hubbard was a
     charlatan" or that the Church is a fraud, as clearly Erlich intends, such
     a "devastating critique" is not "within the scope of copyright
     protection."  New Era, 904 F.2d at 160 (citation omitted);  Campbell,
     510 U.S. at ----, 114 S.Ct. at 1178 (citing Fisher v. Dees, 794 F.2d
     432, 438 (9th Cir.1986)).

  There is little evidence of a systematic attempt by Erlich at posting the
 complete works necessary for setting up a competing religious group.  It seems
 unlikely, although possible, that Erlich's postings, if continued and expanded,
 could supply such a group with the means to compete with plaintiffs.  See
 discussion infra part II.B.3.  While the demand for a particular work may be
 suppressed through criticism, it is unlikely that the demand for the Church's
 unique ability to provide parishioners with a complete and guided access to the
 various course materials will be suppressed.  The court finds it unlikely that
 Erlich's noncommercial use, or widespread conduct like Erlich's use by others,
 would diminish or prejudice the potential sale of plaintiffs' works, interfere
 with their *1249 marketability, or fulfill the demand for the works.  See
 Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1264 (2d Cir.1986), cert.
 denied, 481 U.S. 1059, 107 S.Ct. 2201, 95 L.Ed.2d 856 (1987) (finding no
 market harm where pro-choice work was excerpted in anti-abortion book because
 of differing viewpoints and editorial formats);  Hustler, 796 F.2d at 1155-
 56;  Religious Technology Center v. Lerma, 897 F.Supp. 260, 265
 (E.D.Va.1995) (finding fair use defense probably valid in part because no
 separate market for Advanced Technology works where Scientologists cannot
 effectively use them without the Church's supervision);  Religious
 Technology Center v. F.A.C.T.NET, Inc., 901 F.Supp. 1519, 1524-26
 (D.Colo.1995) (finding valid fair use defense because financial harm to the
 Church was unlikely and there was no showing of a potential effect on the
 market for plaintiffs' works).  Accordingly, the court finds that this factor
 weighs in Erlich's favor.
                             e. Equitable Balancing
  [27] In balancing the various factors, the court finds that the
 percentage of plaintiffs' works copied combined with the minimal added
 criticism or commentary negates a finding of fair use.  Although criticism is a
 favored use, where that "criticism" consists of copying large portions of
 plaintiffs' works--and sometimes all of those works--with often no more than
 one line of criticism, the fair use defense is inappropriate.  Erlich has not
 adequately justified his copying verbatim large portions of plaintiffs' works.
 The amount of copying was particularly unacceptable with the unpublished
 Exhibit B works.
  While copying all or most of a work does not necessarily preclude fair use,
 those cases recognizing fair use for complete copying are easily
 distinguishable.  Although the Sony Court found acceptable the copying of
 entire television shows with no added content, this was necessary for the
 purpose of time-shifting.  Unlike Erlich, the time-shifters in Sony were
 already given permission to view the works in their entirety for free.
 Sony, 464 U.S. at 449-450, 104 S.Ct. at 792.  The Court further noted in
 Sony that time-shifters are just as likely to buy prerecorded videos as live
 viewers, and thus there is no effect on the market for the original.  Id. at
 450 n. 33, 104 S.Ct. at 792 n. 33.  The case that perhaps best supports
 Erlich's position, Belmore, is also distinguishable.  See supra note 17.
 The original work copied verbatim in Belmore was shorter than many of the
 works Erlich copied and the added criticism in Belmore was far longer than
 most of the criticism that Erlich made.  880 F.Supp. at 678-79.
 Additionally, unlike the district court in Belmore, this court does not find
 reasonable Erlich's claim that he copied no more than was necessary for his
 purpose.  Moreover, this court is not convinced that Belmore is supported by
 Ninth Circuit law.  See Supermarket of Homes, Inc. v. San Fernando Valley
 Board of Realtors, 786 F.2d 1400, 1409 (9th Cir.1986) ("Generally, no more of a
 work may be taken than is necessary to make the accompanying comment
 understandable.").
  While use of a large percentage or the "heart" of the copyrighted work does
 not rule out fair use per se, other factors are not sufficiently in Erlich's
 favor to overcome this third factor.  Further, the second factor weighs
 strongly against Erlich as to the unpublished works.  The almost verbatim
 copying here shows that Erlich's work is only minimally transformative and that
 it is unlikely that Erlich is "truly pursuing a different functional milieu"
 from the original.  3 Nimmer s 13.05[D][1], at 13-231.  In addition, as to
 the unpublished materials, Erlich's use of possibly illicit copies of those
 works weighs against him.  Thus, Erlich's showing on the first factor is not
 very strong despite his critical purpose.  Similarly, Erlich's showing on the
 fourth factor does not persuasively suggest fair use.  If Erlich's use were to
 become widespread, it could potentially have an effect on the market for
 plaintiffs' works by supplying future splinter groups with the materials needed
 to compete with the Church.  The court views this potentiality as somewhat
 remote.  Nevertheless, given plaintiffs' very strong showing on the third
 factor, the court finds that, on balance, the equities do not favor a finding
 of fair use.  The case against fair use is even more compelling *1250 for
 the unpublished works. [FN20]  But see Lerma, 897 F.Supp. at 265 (order
 denying temporary restraining order against defendant Washington Post from
 using Advanced Technology documents obtained from open court files in Church
 of Scientology v. Fishman, 1994 WL 467999 (9th Cir.1994);  finding fair use
 defense exists where no separate market for works because Scientologists cannot
 effectively use them without the Church's supervision);  F.A.C.T.NET, 901
 F.Supp. at 1524-26 (denying preliminary injunction against copying of Advanced
 Technology works based on fair use defense because financial harm to the Church
 was unlikely, there was no commercial motive, works were used in part of
 "ongoing dialogue" on the Internet, and there was no showing of a potential
 effect on the market for plaintiffs' works).

      FN20. The court notes the difficulty of coming to this conclusion based on
     the lack of guidance in how to weigh the various factors.  See Rubin v.
     Brooks/Cole Publishing Co., 836 F.Supp. 909, 922 (D.Mass.1993) (citing 3
     Nimmer s 13.05[A][5], at 13-199).

  4. Conclusion
  Accordingly, plaintiffs have demonstrated a likelihood of success on
 its claims that Erlich infringed their copyrights on all of the Exhibit A and B
 works, except items 4 and 9 of Exhibit A and item 9 of Exhibit B.
  C. Likelihood of Success on Trade Secret Claim
  [28] In the third cause of action, plaintiff RTC alleges that Erlich
 misappropriated its trade secrets.  California has adopted a version of the
 Uniform Trade Secret Act ("UTSA"), Cal.Civ.Code s 3426.1 et seq.  The UTSA
 defines a trade secret as
   information, including a formula, pattern, compilation, program, device,
 method, technique, or process, that:
   (1) Derives independent economic value, actual or potential, from not being
 generally known to the public or to other persons who can obtain economic value
 from its disclosure or use;  and
   (2) Is the subject of efforts that are reasonable under the circumstances to
 maintain its secrecy.
  Cal.Civ.Code s 3426.1(d). [FN21]  The UTSA further defines
 "misappropriation" of a trade secret as

      FN21. The new Restatement provides a similar definition of a trade secret:
     A trade secret is any information that can be used in the operation of a
     business or other enterprise and that is sufficiently valuable and secret
     to afford an actual or potential economic advantage over others.
     Restatement (Third) of Unfair Competition ("Restatement") s 39, at 425
     (1995).  Although California has adopted the UTSA, courts also look to the
     Restatement to help interpret the UTSA.  See Restatement s 39, cmt. b, at
     427;  cf. 1 Milgrim s 1.01[1], at 1-3 (noting that UTSA jurisdictions
     frequently rely on the Restatement's definition of a trade secret).

   (1) Acquisition of a trade secret of another by a person who knows or has
 reason to know that the trade secret was acquired by improper means;  or
   (2) Disclosure or use of a trade secret of another without express or implied
 consent by a person who:
   (A) Used improper means to acquire knowledge of the trade secret;  or
   (B) At the time of disclosure or use, knew or had reason to know that his or
 her knowledge of the trade secret was:
   (i) Derived from or through a person who had utilized improper means to
 acquire it;
   (ii) Acquired under circumstances giving rise to a duty to maintain its
 secrecy or limit its use;  or
   (iii) Derived from or through a person who owed a duty to the person seeking
 relief to maintain its secrecy or limit its use;  or
   (C) Before a material change of his or her position, knew or had reason to
 know that it was a trade secret and that knowledge of it had been acquired by
 accident or mistake.
  Id. s 3426.1(b).
  To establish its trade secret claim, RTC must show, inter alia, that the
 Advanced Technology works (1) have independent economic *1251 value to
 competitors and (2) have been kept confidential.
  1. Nature of Works
  As a preliminary matter, Erlich argues that the Advanced Technology works
 cannot be trade secrets because of their nature as religious scriptures.  In
 Wollersheim, 796 F.2d at 1090-91, the Ninth Circuit rejected the Church's
 application for a preliminary injunction on the basis of a trade secret claim
 against a splinter Scientology group that had acquired stolen copies of the
 Advanced Technology.  The Church argued not that the works gave them a
 competitive market advantage but that disclosure of the works would cause its
 adherents "religious harm ... from premature unsupervised exposure to the
 materials."  Id.  Although the Ninth Circuit rejected plaintiffs' trade
 secret argument based on the spiritual value of the harm, it later noted that
 it had left open the question of whether the Advanced Technology works could
 qualify as trade secrets, assuming plaintiffs could prove that the secrets
 confer on them an actual economic advantage over competitors.  Religious
 Technology Center v. Scott, 869 F.2d 1306, 1310 (9th Cir.1989);  cf. Vien,
 827 F.Supp. at 629. [FN22]  Nonetheless, the court noted that such an
 allegation would "raise grave doubts about [the Church's] claim as a religion
 and a not-for-profit corporation." [FN23]  Id. (quoting Wollersheim, 796
 F.2d at 1091).

      FN22. In granting summary judgment for the Church on its claim that a
     splinter group had misappropriated the Advanced Technology works, the
     Southern District of California did not address this preliminary question
     of whether religious scriptures should be unprotectable as trade secrets
     because of their noncommercial, religious nature.  Vien, 827 F.Supp.
     629.  Instead, the court found that the works were trade secrets because
     the Church had used reasonable steps to keep the works secret and because
     they had independent economic value both to plaintiffs, who use the
     proceeds from the sale of these materials to support the operation of the
     Church, and to the defendant, who was a competitor of the Church who also
     charged for Scientology-like courses.  Id. at 633-34.

      FN23. Neither the Church's status as a religion nor its not-for-profit
     status are at issue in the current dispute.

  The Church contends that the Advanced Technology works consist of
 "processes and the theory behind those processes ... that are to be used
 precisely as set forth by L. Ron Hubbard to assist the parishioner in achieving
 a greater spiritual awareness and freedom."  McShane February 27, 1995 Decl. P
 9 (emphasis added).  Erlich responds that the works are essentially religious
 texts.  Cf. FAC P 9 (describing Hubbard as author of "applied religious
 philosophy and spiritual healing technology" and works as "training materials
 and course manuals of the Scientology religion").  Erlich argues that the
 Church cannot have trade secrets because trade secret law is necessarily
 related to commerce.  See Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470,
 481, 485, 94 S.Ct. 1879, 1886, 1888, 40 L.Ed.2d 315 (1974).  The Church
 contends that, like other organizations, it must pay bills, and that licensing
 fees from these documents allow it to continue operating.  McShane February 27,
 1995 Decl. P 7.
  [29] The Church's status as a religion does not itself preclude it from
 holding a trade secret.  Restatement s 39 cmt. d, at 429 ("[N]onprofit entities
 such as ... religious organizations can also claim trade secret protection for
 economically valuable information such as lists of prospective members or
 donors.");  UTSA s 3426.1(c) (defining "person" to include a
 "corporation ... or any other legal or commercial entity");  cf. United
 Christian Scientists v. Christian Science Board of Directors, 829 F.2d 1152,
 1169 (D.C.Cir.1987) (noting that Church was entitled to copyright protection on
 same basis as nonreligious groups).  With the exception of the Vien case,
 there is little authority to support a finding that religious materials can
 constitute trade secrets.  However, there is "no category of information [that]
 is excluded from protection as a trade secret because of its inherent
 qualities."  Clark v. Bunker, 453 F.2d 1006, 1009 (9th Cir.1972) (citing
 Restatement of Torts, s 757 cmt. b, at 5) (upholding as a trade secret a
 "detailed plan for the creation, promotion, financing, and sale of contracts
 for 'prepaid' or 'pre-need' funeral services");  see also Smith v. Dravo
 *1252 Corp., 203 F.2d 369, 373 (7th Cir.1953) ("We assume that almost any
 knowledge or information used in the conduct of one's business may be held by
 its possessor in secret.").
  [30] Nor is there any authority to support Erlich's argument that the
 Church's religious texts cannot be trade secrets because, unlike most trade
 secrets, these secrets are not used in the production or sales of a commodity
 but are the commodities themselves.  The Church's Advanced Technology "course"
 materials, which are an integral part of the Church's spiritual counseling
 techniques, do not appear fundamentally different from the course manuals
 upheld as trade secrets in SmokEnders, Inc. v. Smoke No More, Inc., 184
 U.S.P.Q. 309 (S.D.Fla.1974):
   The [SmokEnders ("SE") ] program requires attendees to follow a rigid
 structured regimen comprised of specific assignments and detail[ed] concepts as
 recited in [the manual]....
   The SE program is a step-by-step regimented program which requires
 that each person attending a SE program perform each act of the program at a
 particular time.  Each act required by a SE seminar attendee must be performed
 by attendees at the same time in the program, with each a minimum departure
 from the program.
   The SE trade secret resides in the composite program as it is arranged for
 step-by-step delivery to the attendees.
  Id. at 312 (emphasis added).  SmokEnders is arguably distinguishable
 because only the "moderators" and not the attendees were given access to the
 course materials in that case.  However, the adherents of the Church, unlike
 the attendees and like the moderators in SmokEnders, are under a duty of
 confidentiality as to the materials.  This case is analogous to SmokEnders
 because in both cases the "commodity" that is produced from the trade secrets
 is the result achieved by the person using the course materials and their
 techniques (whether it be stopping smoking or reaching a "higher spiritual
 existence").
  Thus, there is at least some precedent for granting trade secret status to
 works that are techniques for improving oneself (though not specifically
 spiritually).  Conversely, there is no authority for excluding religious
 materials from trade secret protection because of their nature.  Indeed, there
 is no authority for excluding any type of information because of its nature.
 While the trade secret laws did not necessarily develop to allow a religion to
 protect a monopoly in its religious practices, the laws have nonetheless
 expanded such that the Church's techniques, which clearly are "used in the
 operation of the enterprise," Restatement s 39, at 425, are deserving of
 protection if secret and valuable.
  [31][32] Although trade secret status may apply to works that are techniques
 for spiritually improving oneself, the secret aspect of those techniques must
 be defined with particularity.  See Restatement s 39 cmt. d, at 430 (requiring
 plaintiff to define the information claimed as a trade secret with sufficient
 definiteness).  It appears that plaintiffs are claiming that the entire works
 themselves, which they describe as "processes and the theory behind those
 processes," constitute the trade secrets.  See Pltfs.' Mem. in Support of
 Prelim.Inj. at 17.  This definition is problematic because it is impossible to
 determine when the "secret" has been lost after portions of the works have been
 disclosed.  Cf. F.A.C.T.NET, 901 F.Supp. at 1527 ("In the course of the
 hearing ... RTC changed its position with regard to what materials constitute
 the purported trade secrets.").  Although plaintiffs' definition has at least
 some support in SmokEnders, where the court upheld as a trade secret a
 "composite [stop-smoking] program" found in an instructional manual, 184
 U.S.P.Q. at 312, this court is not satisfied that plaintiffs have identified
 their trade secrets with sufficient definiteness to support injunctive relief.
  2. Independent Economic Value
  [33] A trade secret requires proof of "independent economic value,
 actual or potential, from not being generally known to the public or to other
 persons who can obtain economic value from its disclosure or use."  UTSA
 s 3426.1(d)(1).  A trade secret must *1253 have sufficient value in the
 owner's operation of its enterprise such that it provides an actual or
 potential advantage over others who do not possess the information.
 Restatement s 39 cmt. e, at 430.
  RTC's president, Warren McShane, attests that
   [t]he Advanced Technology is a source of substantial revenue for RTC in the
 form of licensing fees paid by Churches that are licensed to use the Advanced
 Technology.  These Churches themselves receive a significant amount of their
 income from donations by parishioners for services based upon the Advanced
 Technology.  These Churches pay RTC a percentage of the donations paid by
 parishioners for the services based upon the Advanced Technology.  These
 donations and fees provide the majority of operating expenses of these various
 Church organizations.
  McShane May 31, 1995 Decl. P 16;  see also Vien, 827 F.Supp. at 633
 (finding Advanced Technology has value to Church by helping support its
 operations world-wide).  The Church's need for revenues to support its services
 is no less because of its status as a religion.  Id. (citing Murdock v.
 Commonwealth of Pennsylvania, 319 U.S. 105, 111, 63 S.Ct. 870, 874, 87 L.Ed.
 1292 (1943)).  RTC points out that it receives six percent of what the
 individual churches receive in licensing fees.  J. Kobrin May 31, 1995 Decl,
 Ex. A ("McShane Depo."), at 43.  This evidence is sufficient to establish the
 value of the Advanced Technology works to the Church.
  [34][35][36] Erlich also argues that, to constitute a trade secret,
 information must give its owner a competitive advantage, which implies that the
 Church must have competitors, as it did in Vien.  See Ruckelshaus v.
 Monsanto Co., 467 U.S. 986, 1011 n. 15, 104 S.Ct. 2862, 2877 n. 15, 81 L.Ed.2d
 815 (1984);  ABBA Rubber Co. v. Seaquist, 235 Cal.App.3d 1, 18, 286 Cal.Rptr.
 518 (1991).  Although Erlich is clearly not a "competitor" of the Church, there
 is no requirement that a trade secret have any value to the defendant;  the
 value can be to others who do not possess it.  Rest. s 39 cmt. e, at 430.  The
 Church has admitted, however, that it currently has no "competitors."  McShane
 Depo. at 95.  However, the definition of trade secret does not require that
 there currently be competitors, only that there be actual or potential value
 from the information being secret.  Thus, potential competition is sufficient.
 Id.  This evidence can be shown by direct evidence of the impact of the
 information on the business or by circumstantial evidence of the resources
 invested in producing the information, the precautions taken to protect its
 secrecy, and the willingness of others to pay for its access.  Restatement s 39
 cmt. e, at 431.  The several past instances of breakaway Scientology-like
 groups exploiting RTC's Advanced Technology works for their profit constitute
 reasonable circumstantial evidence that these works give the Church a
 competitive advantage.  See McShane Depo. at 93-94 (citing several former
 Church members who started rival factions);  Vien, 827 F.Supp. at 634
 (describing a rival faction);  Wollersheim, 796 F.2d at 1078 (same).  In fact,
 McShane's declaration constitutes direct evidence that the works have a
 significant impact on the donations received by the Church, providing a
 majority of its operating expenses.  McShane May 31, 1995 Decl. P 16.  The
 status of the Advanced Technology works as trade secrets should not depend on
 Erlich's use of them.  Accordingly, this court finds support for the court's
 conclusion in Vien that the Church has shown independent economic value.
  3. Secrecy
  [37][38][39] Information is protectable as a trade secret where the
 owner has taken "efforts that are reasonable under the circumstances to
 maintain its secrecy."  UTSA s 3426.1(d)(2) (emphasis added).  "Reasonable
 efforts" can include advising employees of the existence of a trade secret,
 limiting access to the information on a "need to know basis," Courtesy
 Temporary Service, Inc. v. Camacho, 222 Cal.App.3d 1278, 1288, 272 Cal.Rptr.
 352 (1990), requiring employees to sign confidentiality agreements, MAI
 Systems Corp. v. Peak Computer, 991 F.2d 511, 521 (9th Cir.1993), and keeping
 secret documents under lock, 1 Milgrim s 1.04, at 1-126.  Accord Restatement s
 39 cmt. g, at 435.  The court finds that RTC has put forward
 *1254 sufficient evidence that it took steps that were reasonable under the
 circumstances to protect its purported trade secrets.  RTC's president
 describes elaborate means taken to ensure the confidentiality of the Advanced
 Technology works, including use of locked cabinets, safes, logging and
 identification of the materials, availability of the materials at only a
 handful of sites worldwide, electronic sensors attached to documents, locked
 briefcases for transporting works, alarms, photo identifications, security
 personnel, and confidentiality agreements for all of those given access to the
 materials.  McShane February 8, 1995 Decl. PP 13-18.  McShane testifies that
 all copies of the Advanced Technology works that are outside of the Church were
 gained through improper means, such as by theft.  Id. PP 22-24.  Thirty-five
 other declarants confirm that the measures mentioned by McShane have been used,
 though not in exactly the same manner, in other Churches and at other times.
 See e.g., Sydejko Decl. (describing measures used at Erlich's facilities during
 relevant time period);  Byrne Decl. P 15 (stating works have been kept
 confidential since at least 1968).  There is further evidence that Erlich
 himself signed confidentiality agreements with respect to the Advanced
 Technology materials and, specifically, the upper-level "NOTS" course
 materials.  See McShane February 8, 1995 Decl., Exs. H-I;  McShane February 27,
 1995 Decl., Exs. D-F;  McShane Depo. at 201-03;  H. Kobrin Mary 31, 1995 Decl.,
 Ex. A ("Erlich Depo."), at 84-88.  The court is unpersuaded by Erlich's claims
 that the Church's measures have not covered all locations where the Advanced
 Technology works are found and do not cover crucial time periods. [FN24]
 Efforts at maintaining secrecy need not be extreme, just reasonable under the
 circumstances.  Legislative Committee Comment--Senate, Cal.Civ.Code s
 3426.1, at 147 (West Supp.1995).  The Church has made more than an adequate
 showing on this issue. [FN25]

      FN24. In a declaration that was prepared in Church of Scientology Int'l
     v. Fishman, No. 91-6426 HLH (Tx), Erlich cites to books and articles by
     former Scientologists on the lack of security measures accompanying the
     study of the Advanced Technology materials.  Erlich's Request for Judicial
     Notice, "Berger Decl.," Exs. 10, 22.  This is clearly hearsay if offered to
     show the truth of the statements that the security measures were
     inadequate.  The court nonetheless notes that the documents confirm that
     works were taken home in locked bags.  See id., Ex. 10, at 30.

      FN25. The notion that the Church's trade secrets are disclosed to
     thousands of parishioners makes this a rather unusual trade secrets case.
     However, because parishioners are required to maintain the secrecy of the
     materials, McShane May 31, 1995 Decl. P 3, the court sees no reason why the
     mere fact that many people have seen the information should negate the
     information's trade secret status.  See SmokEnders, 184 U.S.P.Q. at 317
     (citing Chicago Board of Trade v. Christie G & S Co., 198 U.S. 236, 25
     S.Ct. 637, 49 L.Ed. 1031 (1905)) ("A trade secret owner does not lose his
     right by communicating the results to persons;  even if many, in
     confidential relations to itself, under a contract not to make public.")
     While it is logically more likely that a secret will leak out when more
     people are entrusted with it, absent evidence of leakage the court finds
     that giving out the secrets to a large number of people, though no more
     than necessary, is not itself an unreasonable security step.

  [40][41] Erlich raises a number of objections to the Church's claims of
 confidentiality.  Erlich argues that the Church's trade secrets have been made
 available to the public through various means.  The unprotected disclosure of a
 trade secret will cause the information to forfeit its trade secret status,
 since "[i]nformation that is generally known or readily ascertainable through
 proper means by others ... is not protectable as a trade secret."
 Restatement s 39 cmt. f, at 432;  see also Cal.Civ.Code s 3426.1(d);
 Kewanee Oil, 416 U.S. at 484, 94 S.Ct. at 1887;  Chicago Lock Co. v.
 Fanberg, 676 F.2d 400, 404 (9th Cir.1982);  1 Milgrim at 1-135.  Once trade
 secrets have been exposed to the public, they cannot later be recalled.  In
 re Remington Arms Co., 952 F.2d 1029, 1033 (8th Cir.1991);  Smith, 203 F.2d
 at 373.
  [42] Erlich argues that many of the Advanced Technology documents
 have been available in open court records in another case, Church of
 Scientology Int'l v. Fishman, Case No. 91-6426 HLH (C.D.Cal.), destroying
 the necessary element of secrecy.  Cf. Lerma, 897 F.Supp. at 262 (noting
 that some of Advanced Technology works were available in the court file in
 Fishman and that they were not subject to a sealing or protective *1255
 order).  However, the Fishman court recently issued an order sealing the
 file pending a decision on whether the documents are trade secrets.  Even if
 those records were temporarily open to the public, the court will not assume
 that their contents have been generally disclosed, especially when this
 question is still pending before the district court in Fishman.  Such a
 disclosure, without evidence that the secrets have become generally known, does
 not necessarily cause RTC to forfeit its trade secrets.  See Gates Rubber
 Co. v. Bando Chemical Industries, Ltd., 9 F.3d 823, 848-49 (10th
 Cir.1993) (finding that information retained its secret status despite being
 disclosed at hearing, where plaintiff evidenced continuing intent to maintain
 its secrecy by acting to seal the record).  The contrary result would mean that
 if documents were ever filed without a sealing order, even for a short time,
 the court would not be able to decide that they should be sealed because the
 documents would have lost their potential trade secret status by virtue of the
 temporary unsealing.  The only fair result would be to allow trade secret
 status for works that are otherwise protectable as trade secrets unless they
 were somehow made generally available to the public during the period they were
 unsealed, such as by publication.
  [43][44] Erlich further asserts that the Advanced Technology has been
 largely disclosed in the popular press, as evidenced by various publications
 attached to the Berger Declaration, which was originally filed in the
 Fishman case. [FN26]  These articles may reveal information referring to or
 hinting at the trade secrets, but may not disclose the secrets themselves, see
 McShane May 31, 1995 Decl. P 12 (cataloging what was disclosed by the Exhibits
 in Fishman ). [FN27]  However, as previously noted, the court is not certain
 how to properly define the "secrets."  To the extent that someone uses or
 discloses any information taken from any of these articles, there is clearly no
 trade secret claim.  However, much of Erlich's postings copied all or almost
 all of sections of the Advanced Technology works, which is far more than has
 ever been disclosed in the popular press.  See id. PP 12-15.  In fact,
 several of the works posted by Erlich are not mentioned in any of the clippings
 in the Berger declaration.  Id.  Arguably, the Church's alleged secrets are
 such that their value depends on the availability of the complete courses and
 not mere fragments, thus disclosures that describe parts of the works or
 disclose isolated portions do not necessarily suffice to ruin the value of the
 entire works as secrets.  Cf. SmokEnders, 184 U.S.P.Q. at 317 (finding that
 secret's value can be from unified design including components that are
 individually in the public domain).  However, without a clearer definition of
 what constitute the "secrets," the court is unable to determine whether some
 have been made generally known to the public. [FN28]

      FN26. Despite plaintiffs' argument to the contrary, these articles,
     several of which have been separately authenticated by Erlich's counsel,
     are not hearsay as they are being offered not for their truth but for the
     fact that they allegedly disclose to the public RTC's trade secrets.

      FN27. Erlich further cites as relevant authority the Ninth Circuit's
     observations in its unpublished opinion regarding the confidentiality of
     the Advanced Technology works.  See Fishman, 1994 WL 467999, 1994
     U.S.App. LEXIS 23848 (9th Cir. Aug. 30, 1994).  This court notes that the
     Ninth Circuit's Memorandum opinion is not to be cited, except where
     relevant under the doctrines of law of the case, res judicata, and
     collateral estoppel.  Ninth Cir.Rule 36-3.  It appears that none of the
     exceptions applies here.  Further, the Ninth Circuit made no findings as to
     the secrecy of the Advanced Technology works, but rather made
     "observations" that the district court might "wish to take into
     consideration" on remand.  Id. 1994 WL 467999, at *3, 1994 U.S.App.
     LEXIS 23848, at *8.

      FN28. There is no merit to Erlich's claim that the registration of the
     Advanced Technology works with the Copyright Office forfeited their trade
     secret status, as it appears that these works were registered in masked
     form.  McShane May 31, 1995 Decl., Ex. A.  There is likewise no merit to
     Erlich's argument that the Class VIII Assists lecture tape is not properly
     licensed to RTC and has not been kept confidential.  See McShane Depo. at
     134, 140;  Byrne Decl. PP 7-14.

  [45] Finally, Erlich newly emphasizes in his Reply that the works he
 posted were not secrets because he received them through proper means:  eight
 of the documents were allegedly previously posted anonymously to a public
 portion of the Internet and one of the *1256 documents (item 1 of Exhibit B)
 allegedly came to Erlich anonymously through the U.S. mail.  Erlich claims that
 because the alleged trade secrets were received from "public sources," they
 should lose their trade secret protection.  Although the Internet is a new
 technology, it requires no great leap to conclude that because more than 25
 million people could have accessed the newsgroup postings from which Erlich
 alleges he received the Exhibit B works, these works would lose their status as
 secrets.  While the Internet has not reached the status where a temporary
 posting on a newsgroup is akin to publication in a major newspaper or on a
 television network, those with an interest in using the Church's trade secrets
 to compete with the Church are likely to look to the newsgroup.  Thus, posting
 works to the Internet makes them "generally known" to the relevant people--the
 potential "competitors" of the Church.
  [46][47] The court is troubled by the notion that any Internet user,
 including those using "anonymous remailers" [FN29] to protect their identity,
 can destroy valuable intellectual property rights by posting them over the
 Internet, especially given the fact that there is little opportunity to screen
 postings before they are made.  See Eduardo M. Carreras, "Intellectual
 Property:  First Casualty on the Information Highway," 13 No. 1 ACCA Docket
 26 (Westlaw) ("Carreras") (Jan.-Feb. 1995) at *29-*32 (suggesting that trade
 secret protection is lost as soon as information is disclosed on the
 Internet).  Nonetheless, one of the Internet's virtues, that it gives even the
 poorest individuals the power to publish to millions of readers, see Eugene
 Volokh, "Cheap Speech and What It Will Do," 104 Yale L.J. 1805, 1806-07
 (1995), can also be a detriment to the value of intellectual property rights.
 The anonymous (or judgment proof) defendant can permanently destroy valuable
 trade secrets, leaving no one to hold liable for the misappropriation.  See
 Carreras at *30.  Although a work posted to an Internet newsgroup remains
 accessible to the public for only a limited amount of time, once that trade
 secret has been released into the public domain there is no retrieving it.
 In re Remington Arms, 952 F.2d at 1033.  While the court is persuaded by the
 Church's evidence that those who made the original postings likely gained the
 information through improper means, as no one outside the Church or without a
 duty of confidence would have had access to those works, [FN30] this does not
 negate the finding that, once posted, the works lost their secrecy.  Although
 Erlich cannot rely on his own improper postings to support the argument that
 the Church's documents are no longer secrets, see 3 Milgrim s 15.01[1][a]
 [ii], at 15-43, evidence that another individual has put the alleged trade
 secrets into the public domain prevents RTC from further enforcing its trade
 secret rights in those materials.  Because there is no evidence that Erlich is
 a privy of any of the alleged original misappropriators, he is not equitably
 estopped from raising their previous public disclosures as a defense to his
 disclosure.  Underwater Storage, Inc. v. United States Rubber Co., 371 F.2d
 950, 955 (D.C.Cir.1966), cert. denied, 386 U.S. 911, 87 S.Ct. 859, 17
 L.Ed.2d 784 (1967) ("Once the secret is out, the rest of the world may well
 have a right to copy it at will;  but this should not protect the
 misappropriator or his privies.").  The court is thus convinced that those
 postings made by Erlich were of materials that were possibly already generally
 available to the public.  See Lerma, 897 F.Supp. at 266 (finding that RTC
 could not show the *1257 Advanced Technology works were not "generally
 known" to support injunctive relief);  F.A.C.T.NET, 901 F.Supp. at 1527
 (same).  Therefore, RTC has not shown a likelihood of success on an essential
 element of its trade secret claim. [FN31]

      FN29. See Trotter Hardy, "The Proper Legal Regime for 'Cyberspace'," 55
     U.Pitt.L.Rev. 993, 1055 n. 45 (Summer 1994) (noting that "anonymous
     remailer" exists in Finland to allow anonymous or pseudonymous use of the
     Internet).

      FN30. See, e.g., McShane May 31, 1995 Decl. P 10.  In another case
     involving some of the same Advanced Technology works, the court found
     misappropriation of trade secrets where the works were stolen from a Church
     in Denmark and the defendant's copies must have been connected to the
     stolen documents, thereby defeating the defendant's argument that he had
     acquired the information through proper means.  Religious Technology
     Center v. Wollersheim, 228 U.S.P.Q. 534, 536-37, 1985 WL 72663
     (C.D.Cal.1985), rev'd on other grounds, 796 F.2d 1076 (9th Cir.1986).
     The present case is distinguishable because there was no argument in
     Wollersheim that the defendants had received the Church materials in a
     manner that would destroy their secrecy, i.e., over the Internet or by some
     other type of publication.

      FN31. Although Erlich does not specifically address the element of
     misappropriation, the court notes that RTC has shown that Erlich's
     disclosures over the Internet of RTC's Exhibit B works, like that of the
     defendant in Vien, may constitute misappropriation.  The fact that
     Erlich's postings were not of the "entire secret," and included only
     portions of courses, does not mean that Erlich's disclosures are not
     misappropriations.  While previous partial disclosures arguably made public
     only those parts disclosed, Erlich's partial disclosures of non-public
     portions of the secrets may themselves be actionable because they
     constitute "disclosure ... without ... consent by a person who ... knew or
     had reason to know that his ... knowledge of the trade secret was ...
     [either] [d]erived from or through a person who had utilized improper means
     to acquire it [or] [a]cquired under circumstances giving rise to a duty to
     maintain its secrecy or limit its use."  UTSA s 3426.1(b).
     Erlich argues that this case is distinguishable from Vien because in
     Vien the defendant was "a competitor of plaintiffs' [sic], who used the
     Advanced Technology in the delivery of the courses for which she [was]
     paid" and for which she charged as much as $3000.  Vien, 827 F.Supp. at
     633-34 (emphasis added).  Unlike the defendant in Vien, Erlich neither
     offers Scientology-like services nor charges anyone for the use of the
     materials.  Additionally, Erlich seems to argue that his activities are
     distinguishable from those of the defendants in Vien and Wollersheim
     because he never profited from his use of the trade secrets and thus has
     not misappropriated the works.  However, nothing in the UTSA requires that
     the defendant gain any advantage from the disclosure;  it is sufficient to
     show "use" by disclosure of a trade secret with actual or constructive
     knowledge that the secret was acquired under circumstances giving rise to a
     duty to maintain its secrecy.  UTSA s 3426.1(b)(2);  Ashton-Tate
     Corp. v. Ross, 916 F.2d 516, 523-24 (9th Cir.1990).  Thus, Erlich's
     admitted posting of the information, regardless of any alleged fair use
     defense or lack of financial motive may constitute misappropriation of the
     Church's trade secrets.

  4. Conclusion and Alternative Test
  Because RTC is the plaintiff, and because it is moving for injunctive
 relief, it bears the burden of proving its trade secrets.  3 Milgrim s 15.01
 [1].  The court finds that RTC has failed to adequately define its trade
 secrets and, at least as to those works that have been made available to the
 public through previous Internet postings not by Erlich, RTC has failed to meet
 its burden on the issue of secrecy.  Therefore, RTC has failed to show a
 likelihood of success on its trade secret misappropriation claim.
  RTC's failure to prove a likelihood of success on its trade secret claim of
 secrecy does not necessarily preclude it from showing an entitlement to a
 preliminary injunction.  RTC can meet the second formulation of the preliminary
 injunction test by showing a combination of serious questions going to the
 merits of its trade secret claim and that the balance of hardships tips in its
 favor.  However, since the trade secrets have not been adequately defined, the
 court cannot find that serious questions going to the merits have been
 sufficiently raised to justify a preliminary injunction on the trade secret
 claim.  Until RTC better describes what its trade secrets are, it is impossible
 to determine whether previous public disclosures of parts of the Advanced
 Technology works are sufficient to destroy the secrecy of the entire work.
 While parts of many of the works have been mentioned in various published
 articles and books, the court is unclear what effect such disclosures would
 have on the secrecy and value of an entire work.  The court is also not
 entirely persuaded by RTC's argument that its secrets have competitive value to
 future breakaway groups.  These issues will have to be resolved before RTC can
 ultimately prevail on its trade secret claims.
  D. Irreparable Injury and Balance of Hardships
  The court will presume irreparable harm for the copyright claim because
 plaintiffs have shown a likelihood of success on their claims of
 infringement.  Johnson Controls, Inc. v. Phoenix Control Systems, Inc., 886
 F.2d 1173, 1174 (9th Cir.1989);  Apple Computer, Inc. v. Formula
 International, Inc., 725 F.2d 521 (9th Cir.1984).
  E. First Amendment Concerns
  [48] In his Reply, Erlich argues that there is a strong presumption against
 any *1258 injunction that could act as a "prior restraint" on free speech,
 citing CBS, Inc. v. Davis, 510 U.S. 1315, ---- - ----, 114 S.Ct. 912, 913-
 14, 127 L.Ed.2d 358 (1994) (Justice Blackmun, as Circuit Justice, staying a
 preliminary injunction prohibiting CBS from airing footage from inside meat
 packing plant).  The court notes, however, that the 1976 Act explicitly
 sanctions the use of preliminary injunctions in the case of copyright
 infringement.  17 U.S.C. ss 501(a), 502(a).  The Supreme Court has
 recognized that the Copyright Act itself embodies a balance between the rights
 of copyright holders, guaranteed by the Constitution, U.S. Const. art. I, s
 8, and the protections of the First Amendment.  See Harper & Row, 471 U.S.
 at 557-60, 105 S.Ct. at 2229-30;  In re Capital Cities/ABC, Inc, 918 F.2d
 140, 143-44 (11th Cir.1990).  The doctrine of fair use already considers First
 Amendment concerns.  New Era Publications International, ApS v. Henry Holt &
 Co., 873 F.2d 576, 584 (2d Cir.1989), cert. denied, 493 U.S. 1094, 110 S.Ct.
 1168, 107 L.Ed.2d 1071 (1990) (rejecting defendant's argument that First
 Amendment concerns precluded granting an injunction, though finding other
 equitable considerations dictated denial of injunctive relief).  Because Erlich
 is able to continue to criticize the Church and use its published and
 unpublished works to the extent allowed by the doctrine of fair use and because
 the injunctive relief sought is no broader than necessary to protect
 plaintiffs' copyrights, Erlich's First Amendment interests have been adequately
 considered.
  F. Conclusion
  [49][50] Plaintiffs have shown a likelihood of success on the merits
 of their copyright claims except as to item 4 of Exhibit A, for which the
 copyright has expired.  Plaintiffs gain the benefit of a presumption of
 irreparable harm as to this claim.  Accordingly, plaintiffs are entitled to a
 preliminary injunction prohibiting any further copying of plaintiffs'
 copyrighted Exhibit A and B works pending a trial on the merits, except as to
 item 4 of Exhibit A and as allowed by the doctrine of fair use. [FN32]  Under
 the fair use doctrine, Erlich may post, or otherwise publish, his criticism of
 the Church, using plaintiffs' copyrighted Exhibit A and B works to the extent
 necessary to carry out his critical purpose.  However, the court notes that
 copying the works in their entirety with very little added criticism is almost
 certainly not fair use.

      FN32. Although there is no evidence that Erlich "copied" item 9 of
     Exhibits A and B, the court is satisfied that plaintiffs have shown the
     document to be protectable and of the same nature as other Exhibit A and B
     documents.  Therefore, it is reasonable to include those documents in the
     injunction.

  Accordingly, the court grants in part and denies in part plaintiffs'
 application for a preliminary injunction and Erlich's motion to dissolve the
 TRO.
                 III. PLAINTIFFS' APPLICATION TO EXPAND THE TRO
  [51] Plaintiffs have applied to expand the scope of the preliminary
 injunction against Erlich to include more of plaintiffs' works that are
 allegedly protected by copyright and trade secret law, beyond those listed in
 Exhibits A and B of the FAC.  This request comes after plaintiffs maintain that
 Erlich violated a promise he made to the court to convince it to continue the
 contempt hearing.  On March 14, 1995, counsel for Erlich stated that Erlich
 "would agree not to publish any of Mr. Ron Hubbard's writings, or copyright-
 registered writings of the Church of Scientology, until the contempt hearing."
 See March 16, 1995 Order Setting Hearing Dates.  Plaintiffs seek to expand the
 number of documents covered by the injunction to include 52 works because
 Erlich allegedly "furnished a copy of another copyrighted, confidential work,
 taken from the same course as the document which he posted in his first
 violation of the TRO, to a litigant in another lawsuit."  Ex Parte App. for
 Amended TRO at 4.  However, plaintiffs have not provided Erlich or the court
 with the registrations for these materials to allow a determination that they
 are the subject of valid copyright interests.  The scope of this case should
 not be expanded to encompass all or a large number of Hubbard's copyrighted
 works merely because Erlich made a promise to allow the postponement of the
 contempt hearing.  Now that there has been a contempt hearing, and
 *1259 given the court's finding that Erlich was not in contempt, see part IV
 infra, the court does not believe that an overly expansive preliminary
 injunction is appropriate.  In fact, a broad injunction which goes beyond the
 scope of the allegedly infringing activities should be avoided for First
 Amendment reasons.  See 3 Nimmer s 14.06[C], at 14-106 to -109 (noting that
 scope of injunction should be coterminous with, and no broader than,
 infringement);  In re Capital Cities/ABC, Inc., 918 F.2d at 144 (calling for
 a "surgical" restraint to accommodate First Amendment rights).  Accordingly,
 the court denies plaintiffs' application for an expansion of the injunctive
 relief. [FN33]

      FN33. This conclusion, however, is without prejudice to plaintiffs' filing
     a request for leave to file a supplemental complaint that contains further
     allegations of infringement of copyright or to request that the preliminary
     injunction be expanded to cover works which were seized from Erlich and are
     now being returned.  The application would need to show that plaintiffs
     hold valid copyright interests in the documents.

                         Request To Seize Erlich's Computer
  [52] The court finds plaintiffs' request that Erlich's computer and
 other equipment be seized to be wholly without merit.  No amount of excessive
 copying in the context of criticism, which is potentially subject to a valid
 fair use defense, would warrant such a seizure.  Here, Erlich's equipment is
 hardly an instrument of infringement.  Rather, it is essential to the operation
 of his business and other affairs.  While a specifically-tailored injunction in
 a copyright case does not offend the First Amendment, attempting to shut down a
 critic's speech activities, including those that do not implicate the copyright
 laws in the least, would constitute an unwarranted prior restraint on speech.
 Cf. 3 Nimmer s 14.06[C], at 14-107 to -109;  RCA Records v. All-Fast
 Systems, Inc., 594 F.Supp. 335, 340 (S.D.N.Y.1984) (where action not against
 record pirates, court should not seize equipment which can be used for non-
 infringing purposes).
                             IV. MOTION FOR CONTEMPT
  The Ninth Circuit set forth the standards for civil contempt in In re Dual-
 Deck Video Cassette Antitrust Litigation, 10 F.3d 693 (9th Cir.1993):
   Civil contempt in this context consists of a party's disobedience to a
 specific and definite court order by failure to take all reasonable steps
 within the party's power to comply.  The contempt "need not be willful," and
 there is no good faith exception to the requirement of obedience to a court
 order.  But a person should not be held in contempt if his action " 'appears to
 be based on a good faith and reasonable interpretation of the [court's
 order].' "  "Substantial compliance" with the court order is a defense to civil
 contempt, and is not vitiated by "a few technical violations" where every
 reasonable effort has been made to comply.
   The party alleging civil contempt must demonstrate that the alleged contemnor
 violated the court's order by "clear and convincing evidence," not merely a
 preponderance of the evidence....
   This set of rules is easy to articulate but difficult to apply.  [The court
 must properly determine] (1) that [plaintiff] violated the court order, (2)
 beyond substantial compliance, (3) not based on a good faith and reasonable
 interpretation of the order, (4) by clear and convincing evidence.
  Id. at 695 (citations omitted).  Plaintiffs allege that Erlich has violated
 the terms of the Amended TRO on three separate occasions.
  A. First Alleged Contempt
  [53] First, plaintiffs allege that Erlich was in contempt of this court's
 February 10, 1995 TRO or its February 23, 1995 Amended TRO when, on February
 26, 1995, Erlich posted portions of item 1 of Exhibit B, the Class VIII
 "Assists" tape transcript ("the Assists transcript").  Erlich contends that he
 had not received the court's Amended TRO at the time he made the posting.  At
 the time of the posting, Erlich was not yet represented by counsel.  The
 court's original TRO enjoined Erlich from making certain uses of the Exhibit A
 and B works, but did not make clear that Erlich could make fair use of the non-
 trade secret Exhibit A works.  From the content of Erlich's posting, it seems
 that *1260 Erlich thought he was engaging in fair use of the Assists
 transcript.  While the court did not explicitly indicate that Erlich could
 make "fair use" of any of the unpublished, confidential Exhibit B works at the
 February 21, 1995 hearing, the court indicated that its Amended TRO would
 "prohibit any publication of confidential matter or any publication of
 copyrighted matter that was not that which is fair criticism or comment or fair
 use."  Erlich's March 15, 1995 Opp'n, Ex. A, Tr. 30-31.  Erlich may have
 reasonably misconstrued this language so that he believed the exception for
 fair use also modified the first clause, "prohibit[ing] any publication of
 confidential matter," especially given Erlich's pro se status at the hearing.
 Accordingly, the court does not find that plaintiffs have shown by clear and
 convincing evidence that Erlich's mistake was not a "good faith and reasonable
 interpretation of the [court's oral] order."  In re Dual-Deck Video Cassette
 Antitrust Litigation, 10 F.3d at 695.  Although the court is not convinced that
 Erlich's use of the Exhibit B works, to which the fair use defense would not
 have applied at the time, was in any case a fair use, the defense was not
 adequately explained in the context of the hearing such that Erlich's violation
 could be considered a violation of a "specific and definite" court order.  See
 id.
  B. Second Alleged Contempt
  Plaintiffs allege that Erlich provided copies of one of Hubbard's
 Advanced Technology writings to another litigant to be used in a declaration.
 As the court found in its May 5, 1995 "Order Denying Plaintiffs' Ex Parte
 Application To Shorten Time re Contempt Hearing," plaintiffs have not
 demonstrated how Erlich has clearly violated the Amended TRO, which prohibited
 certain uses of the Exhibits to the complaint, by attaching to a declaration a
 work not listed in the Exhibits to the complaint but merely "related to" one of
 those works.  Plaintiffs have submitted no new evidence on this issue that
 would lead the court to change its earlier ruling.
  C. Third Alleged Contempt
  Third, plaintiffs allege that on May 15, 1995, an interview of Erlich appeared
 on a BBC television show which contained a segment related to this case.
 Plaintiffs have attached a declaration stating that plaintiffs believe Erlich
 disclosed information "taken right out of" one part of the Advanced Technology
 listed in Exhibit B-1 [FN34] to the First Amended Complaint.  Erlich disputes
 that he disclosed any portion of the Exhibit B works on the British television
 show, and argues that the information he disclosed is already widely available
 to the public, as evidenced by several articles in newspapers and magazines.
 Erlich further objects to the declaration of Warren McShane offered by
 plaintiffs, as it lacks foundation for the content of the BBC interview.  Even
 accepting the validity of McShane's declaration regarding what was disclosed on
 the BBC show, the court finds that plaintiffs have failed to prove by clear and
 convincing evidence that Erlich in fact disclosed any of the Exhibit B works
 which were the subject of the Amended TRO.  To the extent that Erlich's
 extremely brief statement relating to the Advanced Technology discloses
 information from one of those works, the court further finds that Erlich stated
 nothing more than has appeared in numerous newspaper and magazine articles and
 books about the Church.  See, e.g., Joel Sappell & Robert W. Welkos, "The Man
 Behind the Religion" L.A. Times, June 24, 1990, at A36, Oakley May 31, 1995
 Decl., Ex. C, at 81.

      FN34. Exhibits A and B, and not Exhibits A-1 and B-1 to the FAC, are the
     subject of the TRO and the Amended TRO.

                    V. ERLICH'S MOTION TO VACATE WRIT OF SEIZURE
  Erlich challenges the February 10, 1995 writ of seizure [FN35] on the grounds
 that it was *1261 not authorized under the Federal Rules and that it is
 unconstitutionally overbroad.  Erlich seeks the vacation of the writ of
 seizure, the return of all materials seized, and an increase in the amount of
 the bond.

      FN35. The writ of seizure provides in relevant part:
     TO THE UNITED STATES MARSHAL OR OTHER LAW ENFORCEMENT OFFICERS:
     Pursuant to the Order [of February 10, 1995 to Clerk To Issue Writ for
     Seizure of Articles Infringing Statutory Copyright], which commands me to
     issue this Writ of Seizure,
     YOU ARE DIRECTED to seize, using such force as may be reasonably necessary
     in the premises, the following articles and things which you may then or
     otherwise thereafter find on the person, in the possession, or under the
     control of defendant Dennis Erlich ("Erlich") and/or defendant's agents and
     persons acting in concert with defendant, at [defendant's home address], or
     elsewhere where defendant Erlich or any such agents and persons may be
     found in the territory in which you may serve this Writ, including any
     building, annex or other structure adjacent to or on the premises
     identified above, to wit:  any and all copies, reproductions, or
     embodiments of all or any part of the literary works identified on Exhibits
     A and B to the Complaint (copies of Exhibits A and B are attached hereto),
     including any 3 1/2 " or 5 1/4 " computer disks and printed materials;  all
     masters and tapes;  any articles and things that appear to be works of L.
     Ron Hubbard protected by copyrights;  but excluding all personal computers
     (including all ancillary equipment and disk drives, found at or within the
     above-described locations[ ) ].
     February 10, 1995 Writ of Seizure (emphasis added).

  Erlich argues that the writ of seizure is invalid because plaintiffs did not
 comply with the requirements of Rule 65(b) of the Federal Rules of Civil
 Procedure.  Plaintiffs respond that the seizure was authorized by the Supreme
 Court's Copyright Rules, which provide for a summary process of seizure
 separate from the Federal Rules.  Plaintiffs further argue that, even if
 Rule 65(b) applies, its requirements were met prior to the issuance of the
 writ.
  A. Supreme Court's Copyright Rules
  [54] The 1976 Act provides for the impoundment of allegedly
 infringing articles:
   At any time while an action under this title is pending, the court may order
 the impounding, on such terms as it deems reasonable, of all copies ... claimed
 to have been made or used in violation of the copyright owner's exclusive
 rights, and of all plates, molds, matrices, masters, tapes, film negatives, or
 other articles by means of which such copies ... may be reproduced.
  17 U.S.C. s 503(a) (emphasis added).  Unlike the 1909 Act, the 1976 Act
 gives the court discretion whether to issue an impounding order.  3 Nimmer s
 14.07, at 14-112.
  In 1909, the Supreme Court issued Copyright Rules ("Rules"), pursuant to
 section 25(e) of the 1909 Act, setting forth procedures for seizure and
 impoundment.  See 17 U.S.C. foll. s 501.  The Rules allow the clerk of the
 court to summarily issue a writ of seizure of allegedly infringing articles
 without requiring any preseizure notice or hearing.  Paramount Pictures
 Corp. v. Doe, 821 F.Supp. 82, 86 (E.D.N.Y.1993);  3 Nimmer s 14.07, at 14-113
 to -114.  Although neither the Supreme Court nor the 1976 Act explicitly
 repealed the Copyright Rules, Warner Bros. Inc. v. Dae Rim Trading, Inc.,
 877 F.2d 1120, 1124 (2d Cir.1989), courts and commentators have questioned the
 Rules' continuing validity, both as a matter of statutory construction and
 constitutional law.  See WPOW, Inc. v. MRLJ Enterprises, 584 F.Supp. 132,
 134-35 (D.D.C.1984) (rejecting continuing validity of Rules based on added
 discretion in 1976 Act which is inconsistent with summary and mandatory
 procedure of Rules);  Paramount, 821 F.Supp. at 87-91 & n. 4 (finding
 provisions of Rules "clearly inconsistent with the discretionary powers" of the
 1976 Act, noting that the 1976 Act "arguably supersedes and renders null and
 void" the Rules, and holding that Rules run afoul of Fourth and Fifth
 Amendments);  Van Deurzen & Assoc. v. Sanders, 21 U.S.P.Q.2d 1480, 1991 WL
 183817 (D.Kan.1991);  3 Nimmer s 14.07, at 14-115 to -119 (noting that Rules'
 ex parte proceedings are subject to "serious question" as to whether they
 violate free speech, due process, and freedom from unreasonable searches and
 seizures);  cf. First Technology Safety Systems, Inc. v. Depinet, 11 F.3d
 641, 648-49 & n. 8 (6th Cir.1993) (noting debate regarding sufficiency of
 compliance with Rules and applying Fed.R.Civ.P. 65(b) where seizure not
 authorized by Rules).
  Plaintiffs cite Duchess Music Corp. v. Stern, 458 F.2d 1305 (9th Cir.),
 cert. denied sub nom. Rosner v. Duchess Music Corp., 409 U.S. 847, 93 S.Ct.
 52, 34 L.Ed.2d 88 (1972) to support their position that the Rules still permit
 a summary procedure for the ex parte granting of writs of seizure.  In
 Duchess, the Ninth Circuit reversed the district *1262 court's order that
 certain seized items be returned, holding that "[n]either the [1909 Act] nor
 the Supreme Court rules give the District Court any discretion to determine
 what to impound" and that the "process Congress granted the aggrieved copyright
 proprietor is a summary one."  Id. at 1308.  Given the discretionary
 language of the 1976 Act, and the expansion of the Fifth Amendment in cases
 such as Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d
 406 (1974), the court finds plaintiffs' reliance on the Copyright Rules and
 Duchess to be misplaced.  Instead, the court finds persuasive the reasoning
 of the courts in Paramount and WPOW questioning the current validity of
 the summary process approved by the 1909 Act and Supreme Court Rules and
 requiring plaintiffs to meet the requirements of Rule 65(b) of the Federal
 Rules of Civil Procedure.
  B. Requirements of Rule 65(b)
  Rule 65(b) provides that ex parte injunctive relief will be granted
   only if (1) it clearly appears from specific facts shown by affidavit or by
 the verified complaint that immediate and irreparable injury, loss, or damage
 will result to the applicant before the adverse party or that party's attorney
 can be heard in opposition, and (2) the applicant's attorney certifies to the
 court in writing the ... reasons supporting the claim that notice should not be
 required.
  Fed.R.Civ.P. 65(b) (emphasis added).
  1. Irreparable Injury
  [55] In their ex parte applications for relief, plaintiffs argued that
 interim injunctive relief was necessary because Erlich had repeatedly infringed
 plaintiffs' copyrighted works, even after being warned by plaintiffs.  In his
 deposition, McShane testified that plaintiffs would suffer injury from Erlich's
 unauthorized posting of plaintiffs' works because "if people read those
 documents they're not supposed to, and if that affects them from ever doing the
 service, stops them from doing the service, obviously they won't make donations
 to the church which will directly affect RTC economically."  Oakley Reply
 Decl., Ex. B, at 112.  McShane also stated that he was "quite concerned that
 [Erlich] will continue to defy requests to cease infringement even if ordered
 to do so by the Court.  Mr. Erlich has already placed multiple copyrighted
 works, including several that are confidential, onto a massive computer network
 potentially accessed by 25 million people."  McShane February 8, 1995 Decl. P
 56.  The court finds this evidence sufficient to establish a likelihood that,
 absent a writ of seizure, Erlich would have continued to post plaintiffs'
 copyrighted works prior to a hearing.  Such a likelihood of further
 infringement before Erlich could respond, combined with a reasonable likelihood
 of success on the copyright infringement claim, allows the court to presume
 irreparable injury.  See Apple, 725 F.2d at 525 (holding that reasonable
 likelihood of success of copyright infringement claim allows presumption of
 irreparable injury);  WPOW, 584 F.Supp. at 138 (allowing presumption in
 context of impoundment).
  2. Reasons Why Notice Should Not Be Required
  [56][57] The second element of Rule 65(b) permits injunctive relief
 without notice only where notice to the adverse party is impossible or, in some
 limited circumstances, where notice would render further action fruitless.
 First Technology, 11 F.3d at 650.  Plaintiffs may meet the latter exception
 to the notice requirement by showing that Erlich "would have disregarded a
 direct court order and disposed of the goods within the time it would take for
 a hearing."  Id.;  3 Nimmer s 14.07, at 14-115.  This may be shown with
 evidence of a defendant's history of violating court orders or destroying
 evidence, such as in the case of a member of a counterfeiting ring who, if
 given notice, would simply transfer his inventories to another member of the
 ring. [FN36]  Id.;  In re Vuitton et Fils S.A., 606 *1263 F.2d 1, 4-5
 (2d Cir.1979).  Plaintiffs provide evidence of the need for a pre-notice
 seizure:  Erlich stated that the decision whether to stop posting Scientology
 works was his and that "[n]o local government or court in the [U.S.] has the
 power to tell [him] otherwise."  FAC, Ex. J.  Although the court was persuaded
 at the time of its seizure order that this evidence indicated that there was a
 chance that Erlich would not follow a court order, the court has reconsidered
 its original conclusion.  Erlich's statement of defiance, made in the context
 of an exchange of hostile letters between the parties, does not rise to the
 level necessary to meet Rule 65(b)'s demanding requirements for dispensing
 with notice.  Further, other than this isolated statement, there was no
 evidence of Erlich's propensity to defy a court order.  The court does not find
 that this case is analogous to that of a counterfeiter who, if given notice,
 might transfer the infringing works elsewhere.  Erlich is not "engaged
 primarily in illegitimate and infringing activities and [is thus not] likely to
 disregard an order from [the court] preventing [him] from disposing of or
 destroying any [evidence of infringement]."  Paramount, 821 F.Supp. at 89.
 The court further notes that plaintiffs already had evidence of Erlich's
 infringing copies in the form of the newsgroup postings, thereby reducing the
 importance of preserving other evidence of infringement.  Because there was an
 insufficient showing under Rule 65(b) to support a writ of seizure, the writ
 must be vacated. [FN37]

      FN36. Although Erlich's use of plaintiffs' materials for what is arguably
     criticism can hardly be analogized to the case of a professional
     counterfeiter, other considerations make this a good case for ex parte
     relief.  Computer files can be easily uploaded and copied from one location
     to another and are easy to transport, conceal, or delete.  The ability of
     users to post large amounts of protected works nearly instantaneously over
     the Internet makes it a rather dangerous haven for copyright infringers.

      FN37. Plaintiffs allege that Erlich has shown his propensity to conceal
     evidence and lie by his concealment of the computer containing the
     infringing materials in a closet in a locked room during the February 13,
     1995 seizure.  This evidence, which Erlich disputes, is irrelevant to the
     question of what evidence presented to the court prior to the issuance of
     the ex parte seizure order showed that the court should dispense with the
     usual notice requirement.  See First Technology, 11 F.3d at 651-52.

  C. Unconstitutionally Overbroad?
  [58] Although the court has found that the requirements of Rule
 65(b) were not sufficiently met, the court further notes that one aspect of the
 order was overbroad.  "It is well settled that the Fourth Amendment prohibition
 against unreasonable intrusions ... governs not only criminal investigations
 but also searches and seizures made pursuant to civil proceedings,"
 Paramount, 821 F.Supp. at 90 (citing Soldal v. Cook County, Ill., 506
 U.S. 56, 66-67 & n. 10, 113 S.Ct. 538, 546 & n. 10, 121 L.Ed.2d 450 (1992)),
 including "seizure orders directing the United States Marshal to impound
 allegedly infringing articles under the Copyright Act," id. (citing
 Warner Bros., Inc. v. Dae Rim Trading, Inc., 677 F.Supp. 740, 765
 (S.D.N.Y.1988), aff'd in part, rev'd in part on other grounds, 877 F.2d
 1120 (2d Cir.1989)).  To comply with the requirements of the Fourth Amendment,
 a writ of seizure should specify with particularity the premises to be searched
 and the articles to be seized.  Id.  The scope of the search must thus be
 limited by "the object of the search and the places in which there has been a
 showing that the object is likely to be found."  Id. (citing Maryland v.
 Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 1016, 94 L.Ed.2d 72 (1987)).  The
 order should "enable the executing officer to ascertain and identify with
 reasonable certainty those items that the [court] has authorized him to
 seize."  Time Warner Entertainment Co. v. Does, 876 F.Supp. 407, 413
 (E.D.N.Y.1994) (citing United States v. George, 975 F.2d 72, 75 (2d
 Cir.1992)).
  [59] The purpose of preliminary injunctive relief is to maintain the status
 quo.  Impoundment is also meant to allow for a possible remedy of destruction
 of the infringing articles.  3 Nimmer s 14.07, at 14-119.  To the extent that
 the order allowed the seizure of "articles and things that appear to be works
 of L. Ron Hubbard protected by copyrights," it went beyond the purpose of the
 Copyright Act to prevent the unauthorized "reproduction" of protected works;
 the mere possession of copyrighted works does not offend the Copyright Act.
 This language is also somewhat vague, as it describes a category of works which
 cannot be identified by any easy to apply criteria.  The criteria used to
 determine what items are to be seized *1264 must not be overly subjective,
 such that the decision of what to seize rests solely in the hands of
 plaintiffs' expert rather than the U.S. Marshal.  Paramount, 821 F.Supp. at
 91 (finding application constitutionally deficient where only some of
 distinguishing markings for identifying unauthorized videocassettes were listed
 in plaintiffs' application);  Time Warner, 876 F.Supp. at 413 (finding
 plaintiffs' application insufficient where murky photocopies of copyrighted
 designs and trademarks provided insufficient guidance to marshal).  Here, there
 were no specific criteria given by which a marshal could identify which works
 were written by Hubbard and were protected by copyrights.  In effect, this
 language gave plaintiffs' experts the authority to search through Erlich's
 possessions and computer files using their discretion in deciding what to
 seize, unchecked by any law enforcement officials.
  [60] Plaintiffs contend, however, that its use of a computer expert
 to enable the search of materials on Erlich's computers and an expert in the
 works of Scientology to enable the identification of plaintiffs' works was
 justified, citing a criminal case, State v. Wade, 544 So.2d 1028, 1030-31
 (Fla.Dist.Ct.App.1989).  In Wade, the Florida appellate court upheld a
 search for stolen computer equipment where law enforcement officers were aided
 by computer consultants employed by the victim computer manufacturer.  Id.
 The Wade court reasoned that searches in areas beyond law enforcement
 officers' expertise necessitate the use of experts and noted that the employees
 of the victim are perhaps the best experts to identify the allegedly stolen
 equipment.  Id. at 1030 (citing 2 Wayne R. LaFave, Search & Seizure
 s 4.11(b), at 343 (1987) (commenting that practice of using victims to help
 advise in search is unobjectionable in exceptional situations such as where
 only the victim can adequately identify what items are stolen)). [FN38]  The
 court finds that, in the context of identification of allegedly infringing
 copies of literary works, use of an expert to aid the marshal may be
 justified.  In this case, the number of potentially infringed works was too
 great to permit the plaintiffs to bring originals to be used in verifying the
 source of copies.  Accordingly, plaintiffs were justified in using an expert to
 identify the allegedly infringing works.  Similarly, because the allegedly
 infringing copies were likely to be stored on a computer, the use of computer
 experts was justified to aid in finding the materials. [FN39]  See Wade, 544
 So.2d at 1030;  cf. Oakley Reply Decl., Ex. C, at 200 (Erlich Depo.)
 (indicating that police officers at seizure were not computer literate).

      FN38. The cases cited by plaintiffs for the proposition that a very broad
     seizure is justified are not on point.  The extremely broad searches and
     seizures in those cases were justified because of the pervasiveness of the
     crime or fraud.

      FN39. The court is disturbed by the possibility that plaintiffs copied the
     entirety of Erlich's hard drive onto a tape for examination at their
     leisure.  If Erlich did not, as he claims, consent to this part of the
     seizure, this would constitute a significant intrusion into Erlich's
     private affairs that was not justified by the need to identify infringing
     copies.  But see McShane February 21, 1995 Decl. P 7 (stating that Erlich
     consented to plaintiffs' reviewing his floppy disks off the premises if the
     non-infringing disks were returned).  The court is also disturbed by
     allegations that plaintiffs deleted materials from Erlich's hard drive if
     such materials were not also saved on floppies or tape back-up for possible
     later restoration.

  However, such works should have been adequately identified before the seizure
 to "ensure[ ] that the search [would] be carefully tailored to its
 justifications and [would] not take on the character of the wide-ranging
 exploratory searches the Framers intended to prohibit."  Paramount, 821
 F.Supp. at 90 (quoting Garrison, 480 U.S. at 84, 107 S.Ct. at 1016).  The
 inclusion of language allowing the seizure of "any articles and things
 appearing to be works of L. Ron Hubbard protected by copyrights" arguably made
 the writ overbroad, giving RTC officials too much discretion in identifying
 Hubbard works and in determining which works were subject to copyright
 protection and which copies were unauthorized.  In effect, plaintiffs' agents
 were given the authority to seize even lawfully owned copies of Hubbard's works
 for which there was no evidence of any infringing use, which exceeds the
 authority of 17 U.S.C. s 503(a).
  *1265 D. Conclusion
  Because plaintiffs' ex parte application for a writ of seizure did not meet
 the requirements of Rule 65(b), the court vacates the writ.  Plaintiffs must
 return to Erlich all articles seized within ten (10) days of this order. [FN40]

      FN40. Erlich's additional arguments are mooted by the court's conclusion.
     The court has already disposed of Erlich's argument that plaintiffs'
     failure to prove likelihood of success on the merits and irreparable harm
     is an independent ground for vacating the writ of seizure.  Because the
     court has determined that the writ of seizure should be vacated, there is
     no need to consider Erlich's request to increase the amount of the bond.
     Erlich's request for the return of certain improperly seized articles is
     also moot as all materials must be returned.

             VI. PLAINTIFFS' REQUEST FOR SANCTIONS AGAINST CARLA OAKLEY
  The court is disturbed by the parties' seemingly endless applications
 to the court, consolidated oppositions, sur-replies, objections to sur-replies,
 and other such inappropriate pleadings.  In their objections to Erlich's
 "Consolidated Opposition to Plaintiffs' Ex Parte Applications," plaintiffs
 request that Erlich's counsel, Ms. Carla Oakley, be sanctioned under Rule 11
 of the Federal Rules of Civil Procedure and 28 U.S.C. s 1927 for filing
 "frivolous" pleadings which multiply the proceedings "unreasonably and
 vexatiously."
  To the extent that the Consolidated Opposition contains new arguments, the
 court finds that these arguments are necessary to address plaintiffs' multiple
 ex parte applications alleging three different instances of contempt.  Erlich's
 sur-reply to the motion to expand the TRO was arguably justified by plaintiffs'
 mention of a new instance of alleged contempt for the first time in their
 Reply. [FN41]  The court therefore denies plaintiffs' requests for sanctions.
 Plaintiffs' request that the court strike the arguments in the Consolidated
 Opposition because they are merely repetitive arguments that were "cut and past
 [ed]" from previous briefs is unnecessary to the extent that the briefs add
 nothing new.  However, the court orders that the parties not file any further
 post-Reply briefing, which only wastes the court's and parties' resources,
 without first seeking leave of the court.  See Civil L.R. 7-3(e).  The court
 further rejects plaintiffs' claim that Erlich's "Consolidated Opposition"
 reveals alleged trade secrets from plaintiffs' Advanced Technology works, and
 should have been filed under seal.  Nothing in the "Consolidated Opposition"
 reveals information not already publicized in the popular press.  See supra
 part IV.C.

      FN41. The court notes that plaintiffs are not alone in placing new
     arguments in their Reply--Erlich's Reply in support of his motion to
     dissolve the TRO contained several new arguments.  The proper response to
     such new arguments, however, would be to object to the new arguments, not
     to endlessly continue the arguments back and forth.

                                     VII. ORDER
  For the reasons set forth above, the court orders as follows:
   1. Defendant Dennis Erlich and his agents, servants, and employees, all
 persons acting or purporting to act under his authority, direction or control,
 and all persons acting in concert or in participation with any of them who
 receive notice of this Order, shall be and are restrained and enjoined pending
 further court order:
   a. From all unauthorized reproduction, transmission, and publication of any
 of the works of L. Ron Hubbard that are protected under the Copyright Act of
 1976, as codified in its amended form at 17 U.S.C. s 101 et seq.  Such works
 are found, for the purposes of this order only, to be those works identified in
 Exhibits A and B to the complaint, except for item 4 of Exhibit A.  A copy of
 said exhibits are attached hereto with item 4 of Exhibit A redacted.
   i. Unauthorized reproduction, transmission, or publication includes placement
 of a copyrighted work into a computer's hard drive or other storage device;
 "browsing" the text of a copyrighted work resident on another computer through
 on-screen examination;  scanning a copyrighted work into a digital file;
 "uploading" a digital *1266 file containing a copyrighted work from the
 computer to a bulletin board system or other server;  "downloading" a digital
 file containing a copyrighted work from a bulletin board system or other server
 to the computer;  and "quoting" a copyrighted work that is cited in an on-line
 message in sending, responding to or forwarding that message.
   ii. Nothing in this section of the order shall be construed to
 prohibit fair use of such works, as set forth in 17 U.S.C. s 107 and
 interpreted by applicable case law.  Fair use of the copyrighted material for
 the purposes of this order includes use of the copyrighted work for the purpose
 of criticism, news reporting, teaching, scholarship, and research but does not
 include:  (1) use of the material for a commercial purpose where the user
 stands to profit from exploitation of the copyrighted material without paying
 the customary price or giving the usual consideration or use that would have a
 significant effect on the potential market value of the copyrighted work;  (2)
 use which fulfills the demand for the original work;  or (3) use of the heart
 of the work--no more of a work may be taken than is necessary to make any
 accompanying comment understandable.  With respect to unpublished materials,
 the amount of copied material must comprise only a very small percentage of the
 copyrighted works both from a quantitative and a qualitative standpoint.
   iii. The prior postings by defendant Erlich that form the basis of this order
 do not qualify as fair use primarily because of the quantity of the material
 posted and the very limited transformative use made of those materials.
 Identical or similar postings are therefore enjoined.
   b. From destroying, altering, concealing or removing from the district in
 which defendant Erlich resides, any reproduction, copy, facsimile, excerpt or
 derivative of any work of L. Ron Hubbard that is described in Exhibit A or B
 including all such works returned pursuant to this order.  Defendant Erlich or
 his counsel shall safely retain possession of any such items.
   c. A condition of this preliminary injunction is that a $25,000 bond shall be
 posted (or continued in place) pursuant to Federal Rule of Civil Procedure
 65(c).
   2. Plaintiffs' application to expand the TRO is denied without prejudice.
   3. Plaintiffs' motion for a finding of contempt against defendant Erlich is
 denied.
   4. Plaintiffs are ordered to return within ten (10) days of the date of this
 order to defendant Erlich through his counsel all items seized pursuant to the
 writ of seizure issued February 10, 1995.
   5. Plaintiffs' request for sanctions against defendant Erlich's counsel, Ms.
 Carla Oakley, is denied.

End of file...