RELIGIOUS TECHNOLOGY CENTER and Bridge Publications, Inc., Plaintiffs,
NETCOM ON-LINE COMMUNICATION SERVICES, INC., Dennis Erlich, and Tom Klemesrud,
No. C-95-20091 RMW.
United States District Court, N.D. California.
Feb. 23, 1995.
Andrew H. Wilson, Wilson, Ryan & Campilongo, San Francisco, CA.
Thomas M. Small, Jamet A. Kobrin, Small, Larkin & Kidde, Los Angeles, CA.
Helena K. Kobrin, North Hollywood, CA.
Richard Allen Horning, Horning, Janin & Harvey, San Francisco, CA.
Dennis Erlich, Glendale, CA.
Randolf J. Rice, Barbara R. Shufro, Melissa A. Burke, Pillsbury, Madison &
Sutro, San Jose, CA.
AMENDED TEMPORARY RESTRAINING ORDER
WHYTE, District Judge.
*1 On February 10, 1995, this court issued a temporary restraining order
("TRO") against defendants Dennis Erlich ("Erlich"), Netcom On-Line
Communication Services, Inc. ("Netcom"), and Tom Klemesrud ("Klemesrud"). At a
hearing to show cause why a preliminary injunction should not be issued held on
February 21, 1995, the court dissolved the temporary restraining order as to
defendants Netcom and Klemesrud and denied plaintiffs' request for a
preliminary injunction against them. As to those defendants the plaintiffs
have not established a sufficient continuing threat of irreparable harm or a
probability of success on the merits. Further, the threat of harm to those
defendants and the public outweighs any further threat of harm to plaintiffs,
particularly in light of the seizure order and the continuing TRO against
The TRO, as modified below, remains in effect as to defendant Erlich pending
the court's decision on whether to issue a preliminary injunction as to him and
good cause supports continuing that TRO. Plaintiffs have raised serious legal
questions and the balance of hardships tips sharply in plaintiffs' favor in
that the hardship to defendant Erlich, if the temporary restraining order set
forth below is granted, is outweighed by the potential hardship to plaintiffs
if it is not granted. The court has ordered plaintiffs to provide by February
24, 1995, an inventory of the items seized and the basis for claiming that each
is copyrighted or protected as a trade secret. Defendant Erlich has been given
until March 3, 1995, to respond. The court will then determine whether the
TRO, or a modification of it, will be converted into a preliminary injunction
pending trial or further order of the court.
The court amends the existing TRO to read as follows:
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
1. 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
exhibit A to the complaint.
a. 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 file containing a copyrighted work from the computer to a
bulletin board system or other server; "downloading" a digitized 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.
*2 b. Nothing in this paragraph 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
2. From disclosing, displaying or reproducing, or causing to be disclosed,
displayed or reproduced, any of L. Ron Hubbard's unpublished, confidential
copyrighted works which are found to be, for the purposes of this order only,
those works identified in exhibit B to the complaint; and
3. From destroying, altering, or 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 has not been seized, or any
remaining copies of work that was seized, and that is in defendant Erlich's
possession, custody, or control. No further seizure shall take place without
prior court approval.
The bond in this matter in the amount of $25,000 shall remain in place. A
condition of this TRO is that plaintiffs' counsel safely retain in their
possession any seized items turned over to them by the marshal or the law
officer pursuant to the seizure order.