RELIGIOUS TECHNOLOGY CENTER, et al., Plaintiffs,
v.
Robin SCOTT, et al., Defendants.
RELIGIOUS TECHNOLOGY CENTER, et al., Plaintiffs,
v.
Larry WOLLERSHEIM, et al., Defendants.
Nos. CV 85-711 MRP, CV 85-7197 MRP.
United States District Court,
C.D. California.
March 9, 1987.
Exclusive licensee and church brought action against alleged copyright
infringers that used allegedly infringing documents in their church and
religious practice. Licensee and church moved for preliminary injunction. The
District Court, Pfaelzer, J., held that: (1) expression of ideas in
copyrighted religious documents and allegedly infringing religious documents
was not substantially similar for purpose of determining licensee's likelihood
of success on merits and right to preliminary injunction to prevent copyright
infringement, and (2) hardship to alleged infringers as result of preliminary
injunction against use of religious documents outweighed hardship to licensee
and church and prohibited preliminary injunction to prevent possible copyright
infringement.
Motion denied.
[1] COPYRIGHTS AND INTELLECTUAL PROPERTY
Alleged infringers failed to rebut presumption of authorship of religious
documents by copyright holder and presumption of validity established by
copyright registration. 17 U.S.C.A. ss 201(b), 410(c).
[2] COPYRIGHTS AND INTELLECTUAL PROPERTY
Failure of exclusive licensee and church to assert copyright claim earlier did
not estop them from seeking preliminary injunction to prevent alleged copyright
infringement, where licensee and church asserted copyright claim shortly after
dissolution of preliminary injunction on other legal theories, and where
copyright in unpublished, nonpublic materials was not registered until after
dissolution of preliminary injunction. 17 U.S.C.A. s 502(a).
[3] COPYRIGHTS AND INTELLECTUAL PROPERTY
Copyright could be infringed by copying from memory or with originals in front
of alleged infringers. 17 U.S.C.A. s 102(b).
[4] COPYRIGHTS AND INTELLECTUAL PROPERTY
Similarities of expression dictated by nature of process described do not
constitute copyright infringement. 17 U.S.C.A. s 102(b).
[5] COPYRIGHTS AND INTELLECTUAL PROPERTY
Test for substantial similarity that is sufficient to establish copyright
infringement, if access is shown, requires application of extrinsic test to
determine whether ideas expressed in works are similar and application of
intrinsic test to determine whether expression of ideas is substantially
similar. 17 U.S.C.A. s 102(b).
[6] COPYRIGHTS AND INTELLECTUAL PROPERTY
Religious scriptures meeting statutory formalities must receive same copyright
protection as other works. 17 U.S.C.A. s 102(b).
[7] CONSTITUTIONAL LAW
Establishment clause did not prohibit district court from determining whether
substantial similarity existed between copyrighted religious documents and
allegedly infringing religious documents, whether ideas expressed in two
religious works were similar, and whether copyright was infringed, where
district court was not required to evaluate religious significance of
any differences and was making linguistic, rather than theological
interpretations. 17 U.S.C.A. s 102(b); U.S.C.A. Const.Amend. 1.
[8] COPYRIGHTS AND INTELLECTUAL PROPERTY
Copyrighted religious documents and allegedly infringing documents expressed
substantially same ideas for purpose of determining whether copyright was
infringed, where procedures prescribed in both sets of documents treated same
conditions in same ways by use of same commands and steps. 17 U.S.C.A. s
102(b).
[9] COPYRIGHTS AND INTELLECTUAL PROPERTY
Expression of ideas in copyrighted religious documents and allegedly infringing
religious documents was not substantially similar for purpose of determining
exclusive licensee's likelihood of success on merits and right to preliminary
injunction to prevent copyright infringement, even though similarities existed
throughout documents, where bulk of allegedly infringing documents consisted of
text not found in copyrighted documents. 17 U.S.C.A. ss 102(b), 502(a).
[10] COPYRIGHTS AND INTELLECTUAL PROPERTY
Hardship to alleged copyright infringers as result of preliminary injunction
against use of religious documents outweighed hardship to exclusive licensee
and church and prohibited preliminary injunction to prevent possible copyright
infringement, where injunction could prevent alleged infringers from practicing
religion, where licensee did not make showing of reasonable likelihood of
success on merits, where alleged infringers expressed opposition to
publication, where licensee could be compensated for pecuniary damages through
loss of parishioners' fees, and where injury to church's reputation could
result from alleged infringers' ability to employ procedure that was expressed
in documents and that was not subject to copyright protection. 17
U.S.C.A. s 502(a); U.S.C.A. Const.Amend. 1.
*516 Gary Bright, Bright & Powell, Carpinteria, Cal., Charles B. O'Reilly,
Green, O'Reilly, Broillet, Paul, Simon, McMillan, Wheeler & Rosenberg, Los
Angeles, Cal., Michael J. Treman, Santa Barbara, Cal., Jerold Fagelbaum, Shea &
Gould, Los Angeles, Cal., for defendants.
Joseph A. Yanny, Herzig & Yanny, Los Angeles, Cal., John G. Peterson,
Peterson & Brynan, Beverly Hills, Cal., Earle C. Cooley, Cooley, Manion,
Moore & Jones, Boston, Mass., for plaintiffs and counterdefendants.
MEMORANDUM OF DECISION
PFAELZER, District Judge.
I. INTRODUCTION
Plaintiffs' application for a preliminary injunction under 17 U.S.C. s
502(a) was argued on January 26, 1987 before the Honorable Mariana R.
Pfaelzer. Having considered the oral and written arguments made and the
evidence filed in this case, the Court has concluded that plaintiffs have not
made a sufficient showing of likelihood of success on the merits, and have not
shown that the balance of hardships justifies the preliminary injunction they
seek.
II. BACKGROUND
This case originated in the theft in 1983 by Robin Scott of certain documents
belonging to the plaintiff Church of Scientology International, Inc. ("the
Church"). Plaintiffs and some defendants (David Mayo, The Church of the New
Civilization, defendants Haber, Nelson, Zegel, Hartog and Reisdorf--
collectively "the new Church") regard these documents as religious scriptures,
embodying part of the advanced technology practiced by Scientologists. In
particular, the documents stolen included a series of bulletins describing a
procedure known as "New Era Dianetics for Operating Thetans," "NED for OTs" or
"NOTs" ("NOTs"). These stolen materials were eventually returned to the
Church, but not, plaintiffs charge, before they had been passed to and copied
by various defendants.
*517 Plaintiffs brought this suit in 1985, alleging, inter alia, theft of
trade secrets and RICO violations. At that time, plaintiffs sought and were
granted a preliminary injunction prohibiting use by the new Church of materials
derived from the stolen documents. Defendants appealed the granting of the
preliminary injunction and, in August 1986, the Ninth Circuit ruled that the
injunction must be dissolved because injunctions are not available to private
plaintiffs under civil RICO and because the documents at issue, as religious
scriptures, did not have the independent economic value required to be
protected by California's law of trade secrets. Religious Technology Center
v. Wollersheim, 796 F.2d 1076, 1088, 1090 (9th Cir.1986), cert. denied,
--- U.S. ----, 107 S.Ct. 1336, 94 L.Ed.2d 187 (1987). The court noted
that "the higher level materials at issue in this suit have neither copyright
nor trademark protection," id. at 1078 n. 2. The court also expressed "no
view whether the new Church's materials are copies of the Church materials
stolen by Scott," id. n. 3.
Following the dissolution of the preliminary injunction, Norman Starkey, as
Executor of the Estate of L. Ron Hubbard dba L. Ron Hubbard Library ("the
Hubbard Estate"), registered a copyright in the NOTs materials with the United
States Copyright Office (Registration Number TXU 257 326, November 10, 1986).
On November 20, 1986, the Hubbard Estate executed a license agreement granting
plaintiff Religious Technology Center ("RTC") an exclusive license to
reproduce, distribute and utilize NOTs and "[t]he right to pursue, litigate,
settle, compromise, or deal with in any way, any and all actions and causes of
action ... for the infringement or violation of any copyright" in the
materials. On December 5, 1986, this Court granted plaintiffs leave to file an
amended complaint stating a new claim for copyright infringement. This
application for a preliminary injunction under 17 U.S.C. 502(a) followed.
III. DISCUSSION
To obtain a preliminary injunction, plaintiffs must show either (1) a
likelihood of success on the merits and the possibility of irreparable injury,
or (2) the existence of serious questions going to the merits and the balance
of hardships tipping in plaintiff's favor. Apple Computer, Inc. v. Formula
International, Inc., 725 F.2d 521, 523 (9th Cir.1984). The more this balance
of hardships weighs against the movants and in favor of defendants, the more
robust must be the showing of movants' likelihood of success on the merits to
justify an injunction. See Aleknagik Natives Ltd. v. Andrus, 648 F.2d 496,
502 (9th Cir.1980).
A. Likelihood of Success on the Merits
Defendants argue that plaintiffs have no more than a remote chance of success
on the merits. They base this argument on two grounds: first, that the
copyright is invalid; and second, that the new Church's materials do not
infringe the NOTs materials.
1. The Validity of Plaintiffs' Copyright
[1] Plaintiffs' certificate of copyright registration is prima facie
evidence of the validity of the NOTs copyrights, 17 U.S.C. s 410(c).
Defendants have the burden of overcoming this presumption of validity, Apple
at 523. Defendants attempt to carry this burden by pointing, first of all, to
the testimony of defendant Mayo at the evidentiary hearing before the first
injunction was issued that he and not L. Ron Hubbard was the author of the NOTs
materials. The NOTs copyright registration application ("the application")
lists L. Ron Hubbard as the author of the work in question, and defendants thus
hope to raise sufficient doubt as to the truthfulness of the application for
registration to overcome the presumption of the copyright's validity. However,
there are a number of problems with Mayo's testimony, not the least of which is
that the evidence shows him to have publicly attributed the NOTs materials to
L. Ron Hubbard on more than one occasion, see, e.g., Reporter's Transcript,
November 21, 1985, at 34. Also, this Court did not find Mayo to be a credible
witness. Even if believed, Mayo's testimony is not inconsistent with
plaintiffs' application. *518 NOTs is registered as a compilation. Mayo
indicated that, while a number of people, including L. Ron Hubbard, worked on
NOTs, Hubbard revised and approved the final product before it was issued,
id. at 50-51. Each NOTs series bears a copyright notice reading "Copyright
Copr. [date]/by L. Ron Hubbard/ALL RIGHTS RESERVED." Defendants, in short,
have not succeeded in rebutting the presumption that L. Ron Hubbard was indeed
the author of each NOTs series and of the compilation as a whole. At most,
defendants have created some doubt as to whether Hubbard owned the copyright as
author or as the employer in a work-for-hire situation, see 17 U.S.C. s
201(b).
[2] Defendants' other challenges to the validity of the copyright are easily
disposed of. Defendants contend that the Hubbard Estate perpetrated a fraud on
the Copyright Office by representing the materials as a "secure test" to get
around the deposit requirement of 17 U.S.C. s 407(a), 37 C.F.R. Ch. 11 s
202.19. Plaintiffs, however, provide convincing evidence that they applied for
and were granted "special relief" from the deposit requirement under 37
C.F.R. s 202.20(d) and did not misrepresent the nature of their materials.
Defendants also argue that plaintiffs are estopped from seeking this injunction
by their failure to assert the copyright claim earlier. However, plaintiffs
were not dilatory in the filing of this suit, and haste, rather than delay,
marks the registration and assertion of the copyright following the dissolution
of the injunction on plaintiffs' other legal theories. The Hubbard Estate
cannot be faulted for its failure to register earlier its copyright in
unpublished materials that were never meant to be distributed to the public.
B. Do Defendants' Materials Infringe the NOTs Copyright?
Defendants' claim that the new Church materials do not infringe the NOTs
materials poses a somewhat more difficult problem. To establish copying by the
new Church, plaintiffs must show that the new Church had access to the
copyrighted materials and that there is substantial similarity between NOTs and
defendants' materials. Sid & Marty Krofft Television Productions, Inc. v.
McDonald's Corp., 562 F.2d 1157, 1162 (9th Cir.1977).
[3] Clearly, the new Church had access to the NOTs materials. Even if
plaintiffs cannot ultimately establish that the new Church received the stolen
NOTs package or copies thereof, it is undisputed that Mayo and other officers
of the new Church were intimately familiar with NOTs and had earlier assisted
in writing or been trained through the use of the NOTs materials. Mayo himself
described his efforts to "reconstruct" NOTs from memory in creating the new
Church's "Advanced Ability V" ("AAV") materials. Reporter's Transcript,
November 21, 1985, 28-30. For the purposes of a claim for copyright
infringement, it does not matter whether defendants, if they copied NOTs, did
so with the originals in front of them or from memory.
Given defendants' undeniable access to NOTs, the question to be answered is
whether AAV is substantially similar to NOTs. This inquiry is complicated by
two characteristics of the copyrighted material: (1) NOTs describes a process
or procedure which cannot itself be copyrighted, see Mazer v. Stein, 347
U.S. 201, 74 S.Ct. 460, 98 L.Ed. 630 (1954); Baker v. Selden, 101 U.S. (11
Otto) 99, 25 L.Ed. 841 (1879); 17 U.S.C. s 102(b); and (2) NOTs is alleged
to be the sacred scripture of a religion. Neither feature, of itself, requires
the conclusion that NOTs is not protected by copyright or that AAV does not
infringe that copyright, but taken together these features do serve to make the
determination more difficult. [FN1]
FN1. To make this determination, the Court compared NOTs to the AAV
materials contained in Volume 1 of defendants' exhibits in opposition to
the first preliminary injunction. This version of AAV seems to be the
final one, and bears a copyright notice, " Copr. Church of the New
Civilization 1984."
Defendants argue that, as a process or procedure, NOTs is not subject to
copyright *519 protection at all. This assertion by defendants is somewhat
disingenuous, since each series of the AAV materials, like NOTs, is clearly
marked with a copyright notice. It is, however, true that copyright protection
does not extend to the ideas expressed in a work. Presumably, it was for this
reason that plaintiffs originally relied on the laws of trade secret, not
copyright, as the basis of their suits against defendants. The Church has
already failed in its attempt to obtain a preliminary injunction on its trade
secret theory. While plaintiffs are not foreclosed from pursuing this theory
at trial, see City of Anaheim v. Duncan, 658 F.2d 1326, 1328 n. 2 (9th
Cir.1981); 11 Wright & Miller, Federal Practice and Procedure, Civil s 2962 at
630-31 (1973), it cannot form the basis of the injunction they now seek.
[4] Even if an idea, procedure or discovery is in the public domain, it is
well established that the expression of the idea can be protected by copyright,
see, e.g., Sid & Marty Krofft at 1163. The nature of the procedure
described in NOTs and in AAV, however, requires a certain level of similarity
of expression. The NOTs procedure, briefly, treats a particular condition of
the adherent through the use of a structured sequence of questions, dictated in
part by the adherent's response to the questions as registered on a device
known as the Hubbard E-meter. It appears that the wording of the questions
must conform to a standard; in addition, there is a fairly large vocabulary of
specialized terminology used to describe phenomena that might be encountered
during the procedure. It can also be assumed that the use and behavior of the
needles or dials on an E-meter can be described only in a limited number of
similar ways. Similarities of expression dictated by the nature of the process
described do not constitute infringement, cf., Frybarger v. International
Bus. Mach., Inc., 812 F.2d 525, 529-530 (9th Cir.1987); Apple Computer,
Inc. v. Formula International, Inc., 725 F.2d 521, 525 (9th Cir.1984). In
comparing NOTs with AAV, this Court has taken care to look for similarities
that are not the result of the similarity of the procedures being described.
Due in part to the indirect style in which both works are written, there is
ample text to compare.
[5] The religious nature of the ideas expressed in NOTs and AAV also renders
comparison difficult. AAV is not identical to NOTs, but substantial
similarity, not identity, is all that plaintiffs must show. The test for
substantial similarity is two-fold: first, an "extrinsic" test is applied to
determine whether the ideas expressed in the two works are similar; and
second, an "intrinsic" test is used to determine whether, given similarity of
ideas, the expression of these ideas is substantially similar, Sid & Marty
Krofft at 1164. The extrinsic test may require analytic dissection of the work
or even expert testimony, id.
[6][7] Defendants argue that this Court cannot apply the extrinsic test to
determine whether NOTs and AAV express the same or similar ideas, because to do
so would impermissibly entangle the Court in determining religious doctrine,
see, Serbian Orthodox Diocese for the United States of America and Canada v.
Milivojevich, 426 U.S. 696, 708-09, 96 S.Ct. 2372, 2380, 49 L.Ed.2d 151
(1976); Presbyterian Church in the United States v. Mary Elizabeth Blue
Hull Mem. Presby. Church, 393 U.S. 440, 449, 89 S.Ct. 601, 606, 21 L.Ed.2d 658
(1969). Defendants' argument is a troubling one, because it seems to lead to
the conclusion that religious scriptures cannot be protected by copyright.
This result is untenable, however. Where the statutory formalities have been
met, scriptures must receive the same protection as other works. Not only
would any other result offend the first amendment's guarantee of freedom of
religion, it would also inevitably involve courts in deciding whether various
works are or are not religious scriptures--an inquiry of even greater
constitutional infirmity. Where "neutral principles of law" are available to
resolve religious property disputes, see Jones v. Wolf, 443 U.S. 595, 604,
99 S.Ct. 3020, 3026, 61 L.Ed.2d 775 (1979), courts can, and in this case must,
apply them.
*520 [8] Defendants also overstate the constitutional pitfalls involved
in comparing these two works. This Court need not evaluate the religious
significance of any differences between NOTs and AAV. It is only necessary to
determine whether such differences exist and, if they do, whether similarities
or differences predominate. The inquiry is one of linguistic, not theological,
interpretation. The difficulty of this inquiry is also reduced by the nature
of the procedures described in NOTs and AAV. Both works deal, not with
abstract matters of religious principle, but with concrete applications laid
out step-by-step. If A happens, the student auditor is told, do B. At this
level of examination, the similarities between NOTs and AAV overwhelm any
differences between them. The AAV and NOTs procedures treat the same
conditions in the same ways by use of the same commands and steps. The two
works clearly express substantially the same ideas.
Defendants, in any event, have rendered the application of the extrinsic test
unnecessary by admitting, at least for the purposes of this application for a
preliminary injunction, that the procedure described in AAV is substantially
similar to that described in NOTs. For example, the Advanced Ability Center
("AAC"), run by the new Church, published a price list in its Journal in which
the "Name Used by Church of SCN" is given for each "Name of Service at AAC,"
see, e.g., The Journal of the Advanced Ability Center, Vol. 1 No. 4, May-
June 1984 at 31. On this list, under "Training," item seven is the AAC's
"Advanced Ability 5 Pro Auditor's Crse." The corresponding Church of
Scientology entry is "NOTs Auditor Course." As another example, at the
November 21, 1985 hearing on plaintiff's first application for a preliminary
injunction, a videotape was played in which defendants Mayo and Zegel both said
that the techniques and procedures offered at the AAC were standard Scientology
services, Reporter's Transcript at 56-57, but had to be given different names
because the Church of Scientology had registered their trademark in the name
"Scientology," id. at 58-59. On the tape, Zegel explained that "[i]t's not
an interpretation or a reinterpretation of the material; a very precise
application and exactly the way the material was laid out, just legally we will
be in jeopardy if we call it Scientology," id. at 59. Mayo claimed that the
tape was made under false pretenses, but did not deny the truth of the
statements made in it.
Having determined that NOTs and AAV express substantially the same idea, the
Court must apply the intrinsic test for similarity of expression. See Sid &
Marty Krofft, at 1164. Defendants argue that, by this test, the two works are
not substantially similar because NOTs contains more headings than AAV, the
discussions of individual issues vary in length between the two works, and the
order and sequence of subject matter are not alike. New Church defendants'
Memorandum of Points and Authorities in Support of Motion to Dismiss at 7.
This analysis, however, resembles the extrinsic test, cf. Sid & Marty Krofft
at 1166; the intrinsic test depends not on dissection of the works, but on
"the response of the ordinary reasonable person," id. at 1164.
Keeping in mind the similarities required by the subject matter of the two
works, and scrupulously avoiding any evaluation of the religious doctrine
contained therein, this Court cannot conclude that the ordinary reasonable
person would find NOTs and AAV substantially similar in expression. This
finding is different from but not inconsistent with the Court's finding of
substantial similarity that led to the imposition of the first preliminary
injunction in this case in November 1985. At that time, the Court concluded,
as above, that the two documents described the same procedure. The Court
further concluded, and remains convinced, that nobody could have created AAV
without having a copy of NOTs at hand. Such a conclusion does not necessarily
imply a finding of substantial similarity of expression justifying an
injunction under 17 U.S.C. s 502(a).
NOTs and AAV do share a number of similarities of expression. Like NOTs, AAV
consists of numbered "series"; while NOTs is apparently in this format because
*521 it was originally issued piecemeal in a series of bulletins as research
on the technology progressed, there is no evident reason for AAV to be in this
format except to more closely resemble NOTs. While the sequence of topics
dealt with in AAV and NOTs is similar, there are differences. Whether the
sequence is dictated by the demands of the subject matter is not clear.
[9] AAV is written in much the same informal style as NOTs, and the two
works have a number of sentences and images in common. For example, NOTs notes
that "stress is also a heavy button," NOTs Series 6, page 1, while AAV says
that "Stress can be a heavy button," AAV Series 8. In NOTs, certain entities
are described as saying "Yah, yah, I'm your nemesis ...," NOTs Series 7, page
3; in AAV they say " 'Yeah, I'm your nemesis' or whatever," AAV Series 8.
Similarities like these are found throughout the documents. However, the bulk
of AAV consists of text not found in NOTs. The actual percentage of text that
appears to have been copied verbatim is very small, although a much larger
proportion of AAV seems to be a paraphrase of NOTs. In summary, the
similarities between the two documents raise serious questions going to the
merits of plaintiffs' claim of copyright infringement, but are not so clear as
to require a finding of a reasonable likelihood of success.
IV. The Balance of Hardships
[10] Since plaintiffs have shown only a possibility of eventual success on
their claim of copyright infringement, they must demonstrate that the hardship
to defendants that would result from the granting of an injunction is exceeded
by the hardship to plaintiffs should their application be denied. Apple
Computer, Inc. v. Formula International Inc., 725 F.2d 521, 523 (9th
Cir.1984). A preliminary injunction could and very likely would cause
irreparable injury to defendants. Defendants and the adherents of the new
Church are likely to be prevented from practicing their religion by the
issuance of an injunction. While in theory the new Church would be permitted
to practice--and could not, of course, be enjoined from practicing--the
auditing procedures described in AAV, in practical effect they would find this
practice significantly chilled by the fear that whatever materials they used
might violate an injunction. The first preliminary injunction in this case
apparently put the new Church's Advanced Ability Center out of business. A
very strong showing of hardship to plaintiffs would be required to justify the
imposition of an injunction so severely affecting defendants' constitutional
rights to practice their religion unhindered.
Balanced against this harm of constitutional proportions is plaintiffs' fear
that their confidential scriptures will be made public. However, defendants
have repeatedly expressed their own opposition to the publication of the
advanced technology of Scientology, so the risk of this injury seems remote.
In addition, if it was defendants' intention to make the technology public,
they could do so without infringing plaintiffs' copyright by creating and
publishing a noninfringing description of the procedure.
Plaintiffs also expect to suffer pecuniary damage through the loss of
parishioners' fees if the lack of an injunction allows the new Church to lure
adherents away by offering the same services more cheaply. It is apparent that
many new Church adherents were once members of the Church, and that there is
competition for members and for the fees that they pay for services, between
the two groups. Until enjoined in November 1985, defendant Mayo and the new
Church offered adherents standard Scientology services for less than the prices
charged by the Church. The Church will undoubtedly lose revenues if the new
Church is once again able to compete for parishioners. It is unclear how much,
if any, of this loss could be traced to copyright infringement and how much to
defendants' ability to offer the same procedures. In any event, monetary
damages are available to redress such injury.
Finally, plaintiffs fear the loss of control over the integrity of their
materials. They claim that defendants are modifying the procedure by revising
NOTs, resulting not *522 only in spiritual harm to adherents of the new
Church, but also in damage to the Church's reputation. The new Church clearly
advertises its procedure to be the same as that offered by the Church; if the
procedure actually delivered by the new Church is somehow less effective than
that offered by the Church, plaintiffs' reputation may suffer injury. Again,
however, this injury would result more from defendants' ability to employ a
procedure not subject to copyright protection than from infringement of the
copyright.
On balance, it appears that the potential hardship from interference with
defendants' religious freedom that would result from a preliminary injunction
in this case exceeds the possible injury to plaintiffs if the injunction does
not issue. In the absence of a showing of a reasonable likelihood of
plaintiffs' success on the merits of their claim of copyright infringement,
plaintiffs' application for a preliminary injunction must be, and hereby is,
denied.
IT IS SO ORDERED.