RELIGIOUS TECHNOLOGY CENTER, Plaintiff,
Arnaldo Pagliarina LERMA, Defendant.
CIV.A. No. 95-1107-A.
United States District Court, E.D. Virginia, Alexandria Division.
Oct. 4, 1996.
MEMORANDUM OPINION ON RELIGIOUS TECHNOLOGY CENTER'S AND ARNALDO P. LERMA'S
MOTIONS FOR SUMMARY JUDGMENT
BRINKEMA, District Judge.
*1 This matter comes before the Court on plaintiff Religious Technology
Center's ("RTC") Motion for Summary Judgment for Copyright Infringement Against
Defendant Lerma ("Lerma"). Also under consideration is defendant Arnaldo P.
Lerma's (Cross-) Motion for Summary Judgment and/or to Dismiss. Both parties
seek final resolution of the allegation that Lerma infringed RTC's copyright
when he copied to his computer and/or posted to the Internet sections of sacred
and properly copyrighted documents belonging to the Church of Scientology.
Summary judgment is appropriate when the record shows that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986). In ruling on such motions, the court must construe the
facts and all inferences drawn from those facts in favor of the non-moving
party. Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).
Based upon the arguments tendered in the briefs and at the hearing, as well as
the mass of evidence in this substantial record, the Court finds that Lerma
infringed RTC's copyright and that summary judgment should be entered in favor
of RTC and against Lerma.
History of the Case
The dispute in this case surrounds Lerma's acquisition and publication on the
Internet of texts that the Church of Scientology considers sacred and protects
heavily from unauthorized disclosure. Founded by L. Ron Hubbard, the
Scientology religion attempts to explain the origin of negative spiritual
forces in the world and advances techniques for improving one's own spiritual
well-being. Scientologists believe that most human problems can be traced to
lingering spirits of an extraterrestrial people massacred by their ruler, Xenu,
over 75 million years ago. These spirits attach themselves by "clusters" to
individuals in the contemporary world, causing spiritual harm and negatively
influencing the lives of their hosts.
The texts at issue, the "Advanced Technology" or the "Operating Thetan"
Documents ("OT Documents"), were written by founder Hubbard and allegedly
provide a detailed program for warding off these evil influences through the
creation of "free zones." The OT Documents outline a process that must be
executed precisely according to the procedures laid out by Hubbard and under
the guidance of an assisting church official in order to be efficacious.
Church doctrine teaches that improper disclosure of the OT Documents, both to
non-Scientologists and even to church members if done prematurely, prevents
achievement of the desired effect. Unauthorized disclosure also risks further
harm of global proportions. See Religious Technology Center v. Lerma, 908
F.Supp 1353, 1358 (E.D.Va. 1995). Hubbard explicitly directed that the OT
Documents be released only in strict accordance with his guidelines, and that
they remain otherwise secret and secure.
Consequently, the church has charged RTC, the plaintiff in this case, with
securing the sacred texts and aggressively policing any breaches in security or
unauthorized disclosures that may occur. RTC has enacted a comprehensive
protection plan that includes locked vaults, numerous guards, key cards, and
signed nondisclosure statements by all church members. RTC has also been
relentless in tracking down suspected offenders and vigorously pursuing legal
remedies against them.
*2 This litigation initially consisted of both trade secret and copyright
infringement counts against multiple defendants, including Lerma, Digital
Gateway Systems (Lerma's access provider to the Internet), The Washington
Post (which published a story about the case which quoted fractions of the OT
Documents), Marc Fisher (a Washington Post reporter), and Richard Leiby (a
Washington Post reporter). However, the Court earlier dismissed the trade
secrets count as to all defendants and the copyright infringement count as to
the Washington Post and its reporters. RTC voluntarily dismissed its claims
against Digital Gateway Systems. Therefore, the only issue remaining in the
case is RTC's copyright infringement claim against defendant Lerma. Even that
issue has been progressively honed, with RTC moving for summary judgment on
only a subset of the copyrighted works originally contested in RTC's
FN1. RTC initially alleged that Lerma infringed the copyright of multiple
works from several different series or collections of the OT Documents.
With its summary judgment motion, RTC now seeks a ruling only on materials
excerpted from "OT II", "OT III", "Power", "NOTs", and "the Sunshine
Rundown," referred to all the in this motion as the "Works." The Second
Amended Complaint contained additional allegations regarding infringement
of other materials from "OT I", "OT IV", "OT V", "OT VI", and "OT VIII",
however these allegations are not included in RTC's instant Motion for
Bases for Copyright Infringement
To establish copyright infringement, two elements must be proven: (1)
ownership of a valid copyright, and (2) unauthorized copying of constituent
elements of the copyrighted work. Feist Publications, Inc. v. Rural
Telephone Service Company, Inc., 499 U.S. 340, 361 (1991). Copyright
infringement occurs when there is "substantial unauthorized copying of
protected materials from a copyrighted work." Harry G. Henn, Henn on Copyright
Law, s27.6 (1991).
The first element is effectively uncontested by Lerma. Filed in conjunction
with RTC's motion for summary judgment was a set of exhibits (the "G-Series
Exhibits") containing 33 comparisons of RTC's copyrighted works and the
"copies" allegedly in Lerma's possession and/or posted by him to the Internet.
Each of these exhibits includes the written segment allegedly copied by Lerma,
the corresponding Hubbard original, a certificate of copyright registration, a
certified photocopy of the masked work on file at the Copyright Office of the
United States, and a full (i.e. unmasked) "translation" of that photocopy.
Lerma does not dispute that Hubbard followed the appropriate procedures in
obtaining the maximum copyright protection of his original works and that these
same Works have now been produced in the G-Series Exhibits with the appropriate
validating documentation. Nor does he dispute that RTC properly owns the
copyright interest in these Works.
The Idea/Expression Dichotomy
Lerma launches a collateral attack on the appropriateness of the copyright.
Distinguishing between idea and expression, Lerma argues that material
contained in the Works is "uncopyrightable." Copyright law promotes the
advancement of human knowledge and thought by providing limited legal (and
therefore economic) protection to an author's original expression. The author's
temporary monopoly, however, does not include the ideas contained within his
work. As stated by the Third Circuit, "the purpose of copyright law is to
create the most efficient and productive balance between protection (incentive)
and dissemination of information, to promote learning, culture and
development." Whelan Associates v. Jaslow Dental Laboratory, 797 F.2d 1222,
1235 (3rd Cir. 1986). These intentions have spawned the idea/expression
dichotomy in copyright law, protecting the latter while still permitting access
to the former. "The [Copyright] Act is thus able to protect authors without
impeding the public's access to that information which gives meaning to our
society's highly valued freedom of expression." Harper & Row Publishers,
Inc. v. Nation Enterprises, 723 F.2d 195, 202 (2nd Cir. 1983).
*3 This idea/expression distinction is codified under 17 U.S.C. s102(b)
In no case does copyright protection for an original work of authorship
extend to any idea, procedure, process, system, method of operation, concept,
principle or discovery, regardless of the form in which it is described,
explained, illustrated, or embodied in such work.
Courts have therefore held that wherever an author's expression of an idea is
closely intertwined with the idea itself, the expression has "merged" with the
idea and is therefore uncopyrightable. Under this "merger doctrine," where the
author's ideas and procedures can be properly expressed in so few ways that
"protection of the expression would effectively accord protection to the idea
itself," Kregos v. Associated Press, 937 F.2d 700, 705 (2nd Cir. 1991),
courts have found the expression not copyrightable. Copyrighting the expression
in these instances would effectively prohibit discussion and analysis of the
idea itself and grant the owner a monopoly on all uses of the very concept.
Lerma argues that this merger doctrine applies and that RTC's claim of
copyright protection is therefore invalid. He also argues that Hubbard
describes the OT Documents as primarily factual, and he insists that their
contents must be followed exactly as written. Under the merger doctrine, even
if Hubbard had followed all procedural requirements, the Works would still be
uncopyrightable if protecting the expression would effectively grant a monopoly
on the idea itself.
Despite this argument, the Court finds that merger of idea and expression has
not occurred in this case. The ideas and concepts of the Scientology religion
can be discussed independently of the OT documents. This has been amply
demonstrated in the voluminous record accompanying the case and in all parties'
numerous briefs. Indeed, theological musings on the sources of (and remedies
for) spiritual harm have dominated discussion about religion for centuries.
Whether achieved through animal spirits, witches, demons, curses, Satan,
angels, or "body thetans," spiritual healing is clearly not a concept
inherently tied to the OT Documents.
To the extent that the OT Documents supply a technique or "process" for
achieving spiritual well-being, their copyright arguably violates a strictly
literal reading of s102(b). However, as RTC has argued, virtually all works
convey to some extent ideas and processes that are uncopyrightable. See Hr'g,
January 19, 1996, at 23 et seq. While such creations may contain "procedure[s],
process[es], [or] system[s]", 17 U.S.C.A. s102(b), they are not thereby
rendered de facto uncopyrightable. As an example, RTC cites programs which
essentially describe a "process" but are nonetheless copyrightable. Other
examples include cookbooks and automobile mechanics' repair manuals. Each of
these documents purports to describe a precise method for achieving a desired
end, whether it be the creation of a spinach souffle or the rebuilding of a
defective carburetor. Hubbard's instructional directions for spiritual healing
are no less-deserving of protection than the admittedly copyrightable "recipe"
in a cookbook or copyrightable "repair steps" in a maintenance manual.
*4 Lerma attempts to distinguish the Works from these examples because the
Works require specific, precise repetition of the exact text. While a recipe,
repair instructions, or a computer program may permit some variation, Hubbard
claims that the Works provide the only correct method for reaching complete
spiritual health. If not followed exactly, the process will fail. However,
literary works such as a poem or haiku and musical works such as a symphonic
score possess the same quality -- the desired effect cannot be achieved without
precise repetition. This does not make poems, haikus, and musical scores
uncopyrightable, and it should likewise not preclude copyrightability of the
Works. Denying copyright protection to RTC on this basis would rapidly destroy
the protection and incentive for the likes of Wagner and Brahms -- an outcome
that is most certainly contrary to the goals of copyright law.
The Court, therefore, finds the merger clause inapplicable to the Works.
Fair Use Defense
Lerma freely admits that he copied portions of the Works by downloading or
scanning them into his computer and by posting segments of this material to the
Internet. He argues that even if the works are copyrightable and copyrighted,
this copying was lawful because it was "fair use."
In determining whether the use of a copyrighted work constitutes fair use, the
Court must consider four factors:
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
17 U.S.C. s107. These four statutory factors may not be "treated in
isolation, one from another. All are to be explored, and the results weighed
together, in light of the purposes of copyright." Campbell v. Acuff-Rose
Music, Inc., 510 U.S. 569, 578 (1994).
Lerma urges us, when conducting the fair use analysis, to evaluate his actions
in the special context of modern communication on the Internet. He describes
the unique characteristics of computer interaction and argues for special
treatment under copyright law. While the Internet does present a truly
revolutionary advance, neither Congress nor the courts have afforded it unique
status under the fair use standard of s107. The law of copyright has evolved
with technological change, with each new technological advancement creating
complicated questions of copyright interpretation and application.
Nevertheless, the new technologies -- from television, to video cassette
recorders, to digitized transmissions -- have been made to fit within the
overall scheme of copyright law and to serve the ends which copyright was
intended to promote. See Sony Corp. v. Universal City Studios, Inc., 464
U.S. 417 (1984). The Internet is no exception, and postings on it must be
judged in reference to the already flexible considerations which fair use
*5 Purpose and Character of the Use: The first fair use factor is the
purpose and character of the use made by the alleged infringer. 17 U.S.C. s
107(1). Lerma posits that his use of the Works falls within several of the
classic fair use categories listed in the first paragraph of s107, namely,
that his copying and posting of the Works constitutes "criticism", "comment",
"news reporting", and "scholarship." "[T]here is a strong presumption that
factor one favors the defendant if an allegedly infringing work fits the
description of uses described in section 107." Wright v. Warner Books,
Inc., 953 F.2d 731, 736 (2nd Cir. 1991).
Lerma argues that his Internet posting of the Fishman Declaration originated
from publication of information in a California court record that was open to
the public and which the court refused to seal. Lerma asserts that he merely
gathered that information like a news reporter and then published it on the
Internet to unveil for the Internet community the "foibles" of Scientology in
the same spirit of the modern news expose.
This analogy fails. The full record clearly shows that Lerma's motives, unlike
those of news reporters, were not neutral and that his postings were not done
primarily "for public benefit." MCA, Inc. v. Wilson, 677 F.2d 180, 182 (2nd
Cir. 1981). When judged in light of the degree of copying and the use to which
the infringing material was ultimately put, Lerma stands in a position
significantly different from the Washington Post and its employees earlier
dismissed from this suit. Even if Lerma were a newspaper reporter, the mere
fact that a copyrighted document was in a public court file in no respect
destroys its copyright protection.
Lerma also describes himself as a dedicated researcher delving into the theory
and scholarship of Scientology. He claims to be performing academic work of a
"transformative" nature, providing materials which "add new value to public
knowledge and understanding, thereby advancing the goals of copyright as set
forth in the Constitution." Opp'n Br. at 24. That argument does not justify the
wholesale copying and republication of copyrighted material. The degree of
copying by Lerma, combined with the absence of commentary on most of his
Internet postings, is inconsistent with the scholarship exception. Even
assuming, arguendo, that Lerma's copying to his hard drive was done solely in
the name of academic research, this does not end the fair use analysis. Such
uses are only "presumptively" permissible; there is a limit to the extent of
reproduction that can be undertaken even by the bona-fide researcher. See
American Geophysical Union v. Texaco, Inc., 802 F.Supp. 1, 17 (S.D.N.Y. 1992),
aff'd., 60 F.3d 913 (2nd Cir. 1994)(archival photocopying of scientific
journals for internal use by for-profit research laboratory and is not fair
use) See also Marcus v. Rowley, 695 F.2d 1171, 1176 (9th Cir. 1983) ("[W]
holesale copying of copyrighted material precludes application of the fair use
doctrine."), 3 Nimmer s 13.05[A]  (1996) ("[Generally] it may not constitute
a fair use if the entire work is reproduced").
*6 Lerma argues that his "research" conducted via downloads from newsgroups
on the Internet provides a particularly strong argument for fair use. Because
newsgroup output is by its nature ephemeral, Lerma asserts that saving such
postings for later review is indistinguishable from the temporary storage on a
VCR tape that was upheld by the Supreme Court in Sony Corp. of America v.
Universal Studios, Inc., 464 U.S. 417 (1984). Lerma's analogy fails because
the "time-shifting" approved in Sony concerned the reproduction of
television programs that were implicitly licensed at no charge to the viewer
who then copied them for purposes of convenience. These critical factors are
absent in the instant case. Lerma is not licensed to view or copy the Works,
and his reproduction of the Works on his disc served purposes beyond
convenience. The proper analogy of Lerma to Sony would be if the Sony
defendant obtained an unauthorized copy of a television movie from a premium
cable channel and then re-broadcast that movie on a public access channel,
something that would be clearly prohibited.
It may be true that Lerma's intent in posting the Works was not "commercial"
in the traditional sense. He was not in direct competition with the church, and
he did not place a surcharge on, or receive any other "private commercial gain"
from, the information contained within the Works. Under the fair use doctrine,
commercial use of an allegedly infringing work is disfavored whereas
noncommercial use is not. See Sony Corp., 464 U.S. at 449. Nonetheless,
while there is no evidence that Lerma has profited directly from the postings,
this factor alone is not dispositive of the fair use issue.
"[T]hough it is a significant factor, whether the profit element of the fair
use calculus affects the ultimate determination of whether there is fair use
depends on the totality of the factors considered; it is not itself
controlling." Rogers v. Koons, 960 F.2d 301, 309 (2nd Cir. 1992). In viewing
the totality of factors discussed above, the Court finds that the noncommercial
character of Lerma's copying and posting does not outweigh Lerma's non-neutral
and non-scholarly motives in publishing the Works.
Nature of the Copyrighted Work: The second factor for consideration under the
fair use analysis is the nature of the copyrighted work. 17 U.S.C.A. s
107(2). "This factor calls for recognition that some works are closer to the
core of intended protection than others, with the consequence that fair use is
more difficult to establish when the former works are copied." Campbell v.
Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994).
In opposing RTC's Motion for Summary Judgment, Lerma relies upon two aspects
of the Works which favor his position: 1) the factual vs. the creative nature
of the Works, and 2) their publication status.
The fair use defense is broader with respect to factual works than to creative
or literary works. "The law generally recognizes a greater need to disseminate
factual works than works of fiction or fantasy." Harper & Row Publishers,
Inc. v. Nation Enterprises, 471 U.S. 539, 563 (1985). Hubbard's works are
difficult to classify in this respect and courts dealing with this issue have
differed in their conclusion. As the Second Circuit stated in New Era
Publications Int'l v. Carol Publishing Group, 904 F.2d 152, 158 (2nd Cir.
1989), cert. denied, 493 U.S. 1094 (1990), "reasonable people can disagree
over how to classify Hubbard's works." In the case at bar, however, RTC has
characterized the Works as training materials, stressing their utility over
their creativity. The Court has previously resolved this question by holding
that the Works are "intended to be informational rather than creative" and that
a broader fair use approach is therefore appropriate in this regard.
Religious Technology Center v. Lerma, 908 F.Supp. 1362, 1367 (E.D.Va. 1995).
*7 Lerma's second argument regarding the nature of the copyrighted Works
pertains to their publication status. Courts have consistently found that "the
scope of fair use is narrower with respect to unpublished works." New Era
Publications v. Carol Publishing Group, 904 F.2d 152, 157 (2nd Cir. 1990)
(quoting Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539,
564 (1985)). The Works in question clearly have not been "published." RTC has
not released these materials to the public and does not plan to release them.
Nevertheless, Lerma insists that for purposes of a fair use analysis the term
"publication" means "whether the work has been widely disseminated or is widely
available, regardless of technical 'publication'." Opp'n Br.at 41 (citing
Harper & Row, 471 U.S. at 555)(emphasis in original). Because much of the
materials which he copied and posted to the Internet were already available in
an open court file or on the Internet, Lerma asserts that they are deserving of
less protection because he has not usurped RTC's right to first publication.
Lerma's reliance upon the argument is not convincing. Although Harper & Row
weighs the "de facto publication ... or dissemination" of a work in determining
whether another's utilization of the material constitutes fair use, this only
applies where the author has given "implied consent" through such action as
performance or dissemination. 471 U.S. at 551. In those circumstances, the
author has made the work publicly available and has implicitly invoked his
right to first publication. The copyright owner is denied this opportunity when
actions of a third party usurp the right to first publication, as happened both
in Harper & Row and in this case. Posting without the owner's consent cannot
constitute a "first publication" under fair use principles.
Lerma also argues that the unpublished status of the Works is entitled to even
less weight because the RTC never intends to publish them. He claims that the
"central purpose of distinguishing between disseminated and undisseminated
works is to preserve for the author the commercial value of the right to first
publication." Opp'n Br. at 44. Relying on Harper v. Row, Lerma suggests that
where a copyright owner intends never to exploit the right of first
publication, the need to protect that right diminishes and the scope of fair
use correspondingly expands.
Lerma misreads his authorities on this point. Harper & Row clearly
recognizes that "[t]he right of first publication encompasses [also] the choice
whether to publish at all." 471 U.S. at 564. See also Salinger v. Random
House, Inc., 811 F.2d 90, 98 (2nd Cir. 1987) (Potential harm to value of
plaintiff's works "is not lessened by the fact that their author has disavowed
any intention to publish them during his lifetime ... [h]e is entitled to
protect his opportunity to sell his letters"). This approach is not illogical.
*8 Thus, while the factual nature of the Works weighs in Lerma's favor, the
unpublished nature of the Works and RTC's intention to keep the Works
unpublished weigh against him. As held in Harper & Row, 471 U.S. at 564,
"[t]he fact that a work is unpublished is a critical element of its 'nature."'
Unpublished works "normally enjoy complete protection against copying any
protected expression." Salinger v. Random House, Inc., 811 F.2d 90, 97 (2nd
Cir. 1987). On balance, the second fair use factor tips in favor of RTC.
Amount and Substantiality of Copying: The third factor addresses the amount
and substantiality of the portion copied by the defendant in relation to the
copyrighted work as a whole. 17 U.S.C. s107(3). "There are no absolute rules
as to how much of a copyrighted work may be copied and still be considered a
fair use." Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1263 (2nd Cir.
1986). This factor has both quantitative and qualitative components, so that
courts have found a use to be unfair where the quoted materials formed a
substantial percentage of the copyrighted work or where the quoted material
was "essentially the heart of" the copyrighted work. New Era Publications v.
Carol Publishing Group, 904 F.2d 152, 158 (2nd Cir. 1990)(citations omitted).
The parties dispute whether the segments excerpted by Lerma represent "the
heart of" the Works under the qualitative component. The Court is unable to
evaluate this component because many of the copyrighted materials are
incomprehensible. However, because the quantitative analysis weighs so
overwhelmingly in RTC's favor, it is not necessary to make this qualitative
The 33 exhibits in RTC's G-Series Exhibits indicate extensive copying and
posting. A majority of these 33 exhibits contain vertabim copying, as if Lerma
obtained the copyrighted materials and summarily transferred them into
cyberspace. In many cases, Lerma uploaded a complete, self-contained OT
Document with a recognizable beginning, body, and end. Over two-thirds of the
G-Series Exhibits represent virtually a total reproduction of the work on file
at the Copyright Office.
The wholesale copying of copyrighted material often precludes the application
of the fair use doctrine. Marcus v. Rowley, 695 F.2d 1171, 1176 (9th Cir.
1983)(citations omitted). Such blatant reproduction has been prohibited even in
the context of educational instruction. See, e.g., Wihtol v. Crow, 309 F.2d
777, 780 (8th Cir. 1962) ("whatever may be the breadth of the doctrine of 'fair
use', it is not conceivable to us that the copying of all, or substantially
all, of a copyrighted song can be held to be a 'fair use' merely because the
infringer had no intent to infringe"), Encyclopedia Britannica Educational
Corp. v. Crooks, 447 F.Supp. 243 (W.D.N.Y. 1978) (although defendants were
involved in noncommercial educational copying of films to promote science and
education, the taping of entire copyrighted films was too excessive for the
fair use defense to apply).
*9 Lerma opposes RTC's percentage calculations by arguing a different
interpretation of what represents the "whole" copyrighted work as defined
under s107(3). RTC has registered the OT Documents with the copyright office
in batches as part of a series. Lerma argues that the "whole" work refers to
the entire series listed on a registration certificate, while RTC argues that
the term refers to each component of these copyrighted series. Thus, where RTC
registered on one form the OT III collection of documents A, B, C, D, & E,
Lerma asserts that all five documents constitute the "whole copyrighted work"
for purposes of comparison, whereas RTC maintains that each subpart constitutes
a "whole copyrighted work."
Whether or not the "whole copyrighted work" is viewed as the entire
collection (as Lerma prefers) or as the individual works (as RTC prefers) is
critical to the fair use assessment, and indeed may be the determining factor.
Under RTC's interpretation, if Lerma copied document A in toto he performed a
100% copy. Under Lerma's interpretation, the same action amounts to copying
only a small portion of a larger work. In this way Lerma maintains that he
reproduced only 13 of 213 pages from OT II, 25 of 326 pages of OT III, 12 of 30
pages from "the Power," and 10 of 350 pages of the NOT's. Opp'n Br. at 47.
RTC's approach is supported by the Code of Federal Regulations, which states
inter alia that the following shall be considered a "single work":
In the case of unpublished works: all copyrightable elements that are
otherwise recognizable as self-contained works, and are combined in a single
37 C.F.R. s202.3(b)(3)(B). That subsection proceeds to list the factors to
be used in determining whether a set of works can be considered a "collection,"
1) are the elements assembled in an orderly form;
2) do they bear a single title identifying them as a whole
3) is the copyright claimant the same in each of the elements and in the
collection as a whole; and
4) are the elements by the same author.
Id. When judged by these factors, we find that the Works at issue in this
case are combined in "collections" and that each subpart must be considered a
"single work" for the purposes of fair use analysis.
Courts have followed this approach and found that components of a "collection"
constitute single works for fair use purposes. In Szabo v. Errison, 68 F.3d
940 (5th Cir. 1995), the court granted copyright protection to the component
elements of a collection of recordings despite the fact that the elements were
not individually listed on the copyright registration. RTC's claim is even
stronger because it undertook an individualized listing. See also Hustler
Magazine v. Moral Majority, 796 F.2d 1148, 1154 (9th Cir. 1986) ("[e]ach
component of a composite work is capable of individual copyright protection and
need not bear a separate copyright notice"); American Geophysical Union v.
Texaco, 802 F.Supp. 1, 17 (S.D.N.Y. 1992)(each article within a copyrighted
journal constituted a single work for fair use purposes).
*10 Although Lerma did not post the entirety of OT II, OT III, NOT's, or
Power, he did post the entirety of certain discrete subparts of these series.
Under the Code of Federal Regulations and under case law, these subparts
constitute single works and are the benchmark against which to compare Lerma's
actions. Following this analysis, Lerma's infringement is clear.
As a final defense under this fair use factor, Lerma urges this Court to
consider the Internet postings in their unique newsgroup context. Rather than
viewing each individual posting in isolation, Lerma contends that each posting
must be considered within the context of the ongoing dialogue he has conducted
on the newsgroup. The qualitative analysis would then include the multiple
communications posted before and after the alleged infringements,
communications which are likely to contain greater commentary and analysis than
the postings at issue.
This approach would permit a would-be infringer to participate in blatant
theft of a copyright yet still escape punishment via the subsequent posting of
subsequent commentary -- a commentary that may not always be seen in tandem
with the infringing work. Under this argument "cyberbandits" could easily cover
The third fair use factor therefore weighs heavily against Lerma. His direct
copying and posting of certain "single works" registered within collections,
almost totally devoid of discussion and commentary, nearly are sufficient to
preclude a fair use defense.
Effect on the Market of the Copyrighted Work: The fourth and final part of the
fair use defense considers the effect which the allegedly infringing use had on
the potential market for, or value of, the copyrighted work. 17 U.S.C.A. s
Courts have frequently identified this as the most important element of a fair
use analysis. See, e.g., Harper & Row, 471 U.S. at 566; New Era
Publications v. Carol Pub. Group, 904 F.2d 152, 159 (2nd Cir. 1990). However,
the 1967 House Report cautions that it "must almost always be judged in
conjunction with the other three criteria." Marcus v. Rowley, 695 F.2d 1171,
1177 (9th Cir. 1983)(citing H.R. Rep. No. 83, 90th Cong., 1st Sess. 33, 35
(1967)). Lerma correctly argues that any economic harm befalling the Church of
Scientology as a result of legitimate commentary is permissible under the fair
use doctrine. The Supreme Court found in Campbell v. Acuff-Rose Music, Inc.,
510 U.S. at 592 (1994), that we must "distinguish between '[b]iting criticism
[that merely] suppresses demand [and] copyright infringement[, which] usurps
it"' (brackets in original)(citation omitted). It is extremely difficult to
address the issue of market impact in this case because it is unlikely that
excerpts of the Works posted by Lerma thus far, although substantial, would
provide a sufficient basis for would-be parishioners to defect from
Scientoloty. However, RTC's inability to prove a decrease in Scientology
enrollment does not justify Lerma's actions. "The mere absence of measurable
pecuniary damage does not require a finding of fair use." Marcus v. Rowley,
695 F.2d 1171, 1177 (9th Cir. 1983).
*11 The potential for economic harm to RTC must also be considered. "[T]o
negate fair use one need only show that if the 'challenged use should become
widespread, it would adversely affect the potential market for the copyrighted
work'." Harper & Row, 471 U.S. at 568 (citing Sony Corp. of America v.
Universal City Studios, Inc., 464 U.S. at 451). RTC correctly notes that a
substantial expansion of Lerma's current activities presents an identifiable
risk of harming RTC. In Bridge Publication, Inc. v. Vien, 827 F.Supp. 629,
633 (S.D.Cal. 1993), the court found such a risk in another case involving the
Church of Scientology. In Vien, unpermitted copying of RTC's literary works
and sound recordings was held to violate copyright law in part because the
copies fulfilled the demand for the original works and diminished or prejudiced
their potential sale. Id. at 636. The infringer in Vien actually competed
with the Church of Scientology. RTC argues that Lerma poses some competitive
risk to RTC, supports this argument with a communication which states that the
"[p]ublic are [sic] encouraged to use a workable technology ... The complete
works of all clearing practitioners are made available to all with desire and
courage to apply them. Franchises flourish ..." Ex. 8 to Fifth Lerma Decl.
Overall, however, RTC in this case are far too speculative. RTC is unable to
present specific, identifiable evidence of the effect that Lerma's postings
have had or could have on the Church of Scientology, and cannot establish that
Lerma is operating as a direct competitor of the church. Thus, the Court finds
that the fourth fair-use factor tips slightly in Lerma's favor.
Fair Use Summary: Based upon the four statutory factors listed in s107 for
evaluating the fair use defense, the Court finds that Lerma's copying and
posting of the Works does not constitute fair use.
Misuse of Copyright
Lerma next argues that even if his copying and publications on the Internet
are not protected by the fair use defense, this Court should nevertheless grant
summary judgment in his favor because RTC has misused its copyright. The misuse
of copyright doctrine is an affirmative defense to copyright infringement. Its
goal is to prevent the owner of a copyright from improperly utilizing the legal
rights granted to it under the copyright laws. Lerma is correct that "[a]
successful defense of misuse of copyright bars a culpable plaintiff from
prevailing on an action for infringement of the misused copyright."
Lasercomb America, Inc. v. Reynolds, 911 F.2d 970, 972 (4th Cir. 1990).
Lerma argues two bases for his misuse claim. First, he questions the bona
fides of RTC's copyright infringement law suit, arguing that RTC's true
objective was the impoundment of Lerma's computer-related materials. Lerma
maintains that RTC exercised its options under the Copyright Act as a mere
pretense for gaining access to his computer files, thereby allowing them to
"romp through" his personal materials and investigate and intimidate other
RTC critics. Second, Lerma alleges that RTC utilizes its copyrights and the
litigation process generally "as a means to harass, burden, and punish Mr.
Lerma for his criticism of Scientology."
*12 Even assuming arguendo that such motivations were part of RTC's
litigation strategy, that does not constitute misuse of copyright. Misuse of
copyright applies where the copyright owner tries to extend the copyright
beyond its intended reach, thereby augmenting the physical scope of copyright
protection. It typically arises in situations where it is alleged that the
copyright owner projected his unique rights in a work onto other, unrelated
products or services. See e.g., Lasercomb, 911 F.2d 970 (4th Cir. 1990)
(defense of misuse upheld against plaintiff who attempted to extend control of
its lawfully copyrighted material through the use of a 99-year licensing
agreement); Service & Training, Inc. v. Data General Corp., 963 F.2d 680
(4th Cir. 1992)(alleged misuse of copyright by premising availability of
computer programs on defendant's use of plaintiff's computer repair services);
Electronic Data Systems v. Computer Associates, 802 F.Supp. 1463 (N.D.Tex.
1992)(alleged misuse by tying the purchase of copyrighted software to other
products); United Tel. Co. of Mo. v. Johnson Pub. Co., Inc., 855 F.2d 604
(8th Cir. 1988)(alleged misuse by requiring that plaintiff purchase entire
customer list rather than the copyrighted subset requested by plaintiff). As
these cases demonstrate, misuse is somewhat analogous to the prohibition
against "tying" in patent law. Because copyright is intended to protect only
those works containing the requisite indicia of creativity and originality,
casting the shadow of its virtual monopoly onto other unprotected works would
constitute a "misuse."
The defense of misuse of copyright has also arisen in circumstances where the
plaintiff attempted to restrain defendant from using material over which the
plaintiff itself had no rights, Qad. Inc. v. ALN Associates, Inc., 770
F.Supp. 1261 (N.D.Ill. 1991), where the plaintiff distributed the copyright in
an allegedly discriminatory manner, Supermarket of Homes, Inc. v. San
Fernando Valley Board of Realtors, 786 F.2d 1400 (9th Cir. 1986), or where the
copyright owner refused to supply a list of copyrighted songs as requested by
the defendant, Tempo Music, Inc. v. Myers, 407 F.2d 503 (4th Cir. 1969). In
each of these cases, the misuse concerns the wrongful use of the copyright
powers themselves in ways violative of the Constitution or public policy. In
other words, the proponent of the misuse defense must effectively argue that
the plaintiff is asserting its copyrights in an improper or offensive manner
not intended by the copyright laws. Such a misuse is quite distinct from the
legitimate invocation of one's copyright even though prompted by ulterior
motives. To misuse a copyright, therefore, the copyright owner must use the
copyright in an impermissible way by "extend[ing his] monopoly or otherwise
violat[ing] the public policy underlying copyright law." National Cable
Television v. Broadcast Music, Inc., 772 F.Supp. 614, 652 (D.D.C. 1991).
*13 Lerma fails to make such a showing. This is not a case where RTC
attempted to assert copyrights it did not own, or where RTC attempted to tie
its copyrights to other products. Lerma's infringement is unmistakable, and
RTC's opposition is sound.
Having determined that Lerma has violated RTC's rights to the Works, and
having rejected the defenses of fair use and misuse, the Court finds that Lerma
has infringed RTC's copyright interest in the Works by posting the G-Series
Damages and Remedies
The Court will now preliminarily address the appropriate remedy for Lerma's
infringements. The basis for monetary damages in an infringement action is set
forth in 17 U.S.C. s 594. That section enables a copyright owner to seek
either "actual damages and any additional profits of the infringer" or
"statutory damages." 17 U.S.C. s504(a).
Actual damages and profits are not readily ascertainable in this case because
of a number of factors, including that Lerma was not selling the infringed
material, that he is not a direct competitor of the Church of Scientology, and
that RTC is unable to show lost profits or fewer parishioners with any degree
of certainty. The Court need not determine actual damages, however, because RTC
has indicated its intention to seek only the "statutory minimum damages
afforded by the Copyright Act." [FN2]
FN2. See Plaintiff RTC's Motion for Summary Judgment for Copyright
Infringement Against Defendant Lerma at 46, n. 40.
In determining a final statutory award, the Court must answer three
questions: [FN3] 1) to what degree do the relevant postings (from the G-Series
Exhibits) infringe RTC's copyrights; 2) how many acts of infringement occurred
and 3) to what extent was the infringement willful.
FN3. The Court initially indicated to the parties that it would entertain
supplemental briefing on all damages and remedies issues following the
issuance of this Memorandum Opinion. Upon further analysis, the Court no
longer requires additional argument regarding statutory damages.
Supplemental briefs pertaining solely to the award of attorney's fees shall
be submitted within 11 days of this Memorandum Opinion.
To What Extent do the Works Infringe -- The Court has reviewed in detail the
allegedly infringing Works submitted by RTC in conjunction with its summary
judgment motion. Without exception, each of the 33 binders tendered as the G-
Series Exhibits demonstrates infringement of the RTC's copyrights in the
documents at issue.
None of the exhibits can be considered fair use under the analysis outlined
above. Lerma's copies typically consist of verbatim copying wholly devoid of
criticism or other commentary. Lerma often reproduces the exact text of the
copyrighted work so that the two versions are virtually indistinguishable. Some
indicia of his direct copying include identical use of titles, subheadings,
section markers, quotation marks, capitalization, hyphenation and underlining.
In addition to these grammatical similarities, Lerma's postings often reveal
identical numbering and lettering schemes to separate the text. See, e.g., RTC
Exs. G-17 & G-18. At times the copying goes so far as to reproduce the actual
visual layout of the copyrighted text, so that the division of characters and
their placement into similar columns matches that of the copyrighted Work. See,
e.g., RTC Ex. G-18. Many exhibits include Lerma's blatant reproduction of L.
Ron Hubbard's authorship line. See, e.g., RTC's Exs. G-26, G-27, & G-28)
*14 Several of the disputed Works include hand-drawn illustrations which
are not produced in Lerma's copies. See, e.g., RTC Exs. G-13. G-21 & G-22.
These illustrations are omitted from Lerma's versions of the document,
omissions which make his infringement even more glaring because much of Lerma's
verbatim text refers to the illustrations that are absent. Other omissions
which the Court finds particularly troubling occur in verbatim copies of
certain RTC "bulletins" where Lerma appears to have transferred everything
except the "Confidential" heading and the copyright markers. See, e.g., RTC
Exs. G-26 through G-30.
The amount and substantiality of the relevant sections of the RTC and Lerma
documents also support a finding of infringement. In the vast majority of
exhibits, 100% of Lerma's document is simply a direct copy of 100% of RTC's
copyrighted document. See, e.g., RTC Exs. G-1 through G-13, G-17 through G-19,
G-26 through G-30, & G-32 through G-33. When there are slight variances, they
appeared to be typographical errors or insignificant word substitutions. In a
few cases, the excerpted section of the copyrighted work was significantly less
than a total copy, but that section nonetheless constituted the entirety of
Lerma's reproduction. See, e.g., RTC Exs. G-14, G-15, G-16, & G-20. If 60% of
an RTC copyrighted document is copied to form 100% of a Lerma document, without
any change or commentary whatsoever, this still does not constitute fair use.
Number of Infringing Acts -- Although each of the 33 binders contained in
RTC's G-Series Exhibits are infringing, this does not necessarily indicate 33
acts of infringement. The Copyright Act clearly states that for purposes of
calculating statutory damages for copyright infringement, "all the parts of a
compilation or derivative work constitute one work." 17 U.S.C. s504 (1996).
Each of the 33 exhibits in this case arise from one of five different
compilations filed with the Copyright Office of the United States. Exhibits G-1
through G-15 arise from the copyright registration entitled "OT III SERIES"
(Copyright Registration Number TXu 290-496, Jan. 30, 1987); Exhibits G-16
through G-25 arise from the copyright registration entitled "OT II SERIES"
(Copyright Registration Number TXu 303-388, September 17, 1987); Exhibits G-26
through G-29 arise from the copyright registration entitled "NED FOR OTS
SERIES" (Copyright Registration Number TXu 257-326, November 10, 1986; Exhibit
G-30 arises from the copyright entitled "HCO BULLETIN OF 16 NOVEMBER 1981 THE
SUNSHINE RUNDOWN, INSTRUCTION" (Copyright Registration Number TXu 303-384,
September 1, 1987); and Exhibits G-31 through G-33 arise from the copyright
registration entitled "POWER SERIES" (Copyright Registration Number TXu 303-
386, September 1, 1897).
If multiple but distinct works are collected and filed together at the
Copyright Office under the same registration, they are to be considered a
single work for the purposes of damages. This principle is demonstrated in
Stokes Seeds Ltc. v. Geo. W. Park Seed Co., Inc., 783 F.Supp 104 (W.D.N.Y.
1991), where each copying of multiple photographs appearing in a seed company's
seedling reference book did not constitute a distinct infringing transaction.
Instead, the court viewed the work as a compilation constituting "one work" and
therefore "justifying a single award of statutory damages." Id. at p. 107.
For the purpose of the damage calculation, the infringing documents at issue in
this summary judgment motion similarly constitute five works, not thirty-three.
*15 Because statutory damages are to be calculated according to the number
of works infringed and not the number of infringements, Walt Disney Co. v.
Powell, 897 F.2d 565, 569 (D.C.Cir. 1990), the Court will find only five
instances of infringement for the purposes of calculating damages.
This court declines to impose increased statutory damages for a willful
violation. "An infringement is 'willful' if the infringer knows that its
conduct is an infringement or if the infringer has acted in reckless disregard
of the copyright owner's right." Video Views, Inc. v. Studio 21 Ltd., 925
F.2d 1010, 1020 (7th Cir. 1991), cert denied, 502 U.S. 861 (1991), cited in
Superior Form Builders, Inc. v. Chase Taxidermy Supply Co., 74 F.3d 488,
496 (4th Cir. 1988). See also Microsoft Corp. v. Grey Computer, 910 F.Supp.
1077 (D.Md. 1995).
Lerma's actions do not match those of infringers in cases where courts have
found willful violations. In determining whether an infringement was willful,
the court in Superior Form Builders considered the infringer's history of
infringement, noting that "[t]he record supports the conclusion that Dan Chase
Taxidermy became the largest taxidermy supplier in the country by consistently
and deliberately copying competitors' forms in disregard of the copyright
laws." 74 F.3d at 497. The defendant also falsified a copyright on his
product, a mannequin, and was previously sued at least three times for
copyright infringement. 74 F.3d at 497. Finally, the court stressed that
Chase had represented in his product catalogs that his products were
copyrighted and had therefore taken an inconsistent position at trial that the
mannequins were not copyrightable. In contrast, Lerma has no history of
copyright infringement and he made no representation that he owned the
copyright to the Works.
Damages Calculated -- For each instance of non-willful infringement, the
Copyright Act enables the Court to award statutory damages of "not less than
$500 or more than $20,000 as the court consider just." 17 U.S.C. s
504(c)(1) (1996). In light of the five instances of infringement which occurred
in this case, because the penalty is being assessed against an individual of
limited means who has already expended considerable sums in this litigation,
and because RTC has indicated its express desire to seek only the statutory
minimum, provided its copyrights are protected, [FN4] the Court intends to
award the statutory minimum of $500 for each infringement, for a total
statutory award of $2,500 in favor of RTC and against defendant Lerma, unless
the RTC convinces the Court to do otherwise.
FN4. See Plaintiff RTC's Motion for Summary Judgment for Copyright
Infringement Against Defendant Lerma, p. 46, n. 40.
For the above-stated reasons, summary judgment on the copyright claim is found
in favor of plaintiff, RTC, against defendant Lerma.
The Clerk is directed to forward copies of this Memorandum Opinion to counsel
of record and to defendant, pro se.
On January 19, 1996, this Court granted summary judgment to the plaintiff on
its copyright infringement claim. That ruling was made orally, in open court,
with the Court advising the parties that it would explain its reasons in a
written opinion and thereafter give the parties an opportunity to address
remedies. The time in which to appeal the summary judgment ruling was stayed
until the written opinion and damages decisions were issued. The written
opinion has now been issued, thus the remaining matter to be addressed is
*16 The Court is hereby advising the parties, consistent with what it has
previously stated, that it does not intend to impose heavy financial damages on
the defendant. Unless RTC convinces the Court to the contrary, it will not make
a finding of willful infringement in this case. Moreover, unless convinced to
the contrary, for purposes of the damage calculation the Court intends to find
five instances of violation, specifically one violation for the illegal copying
of each of the five works discussed in the Memorandum Opinion. Because RTC has
previously indicated it seeks only the statutory minimum damages provided its
copyrights are respected, these conclusions would lead to total monetary
damages of $2,500.
Defendant is apparently suffering financial hardship and is no longer
represented by counsel. Therefore, unless convinced to the contrary, the Court
does not plan to award attorneys' fees or the costs of litigation against the
Lastly, RTC seeks injunctive relief in this action, to which the Court
believes defendant does not object. The parties should try to agree to the
language of such injunction.
In order to resolve these final issues, it is hereby
ORDERED that RTC file by October 21, 1996, any position on the damages and
injunction issues. Defendant will have fifteen (15) days to respond to RTC.