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)




   BRIDGE PUBLICATIONS, INC., a California corporation;  Religious Technology
  Center, a California corporation;  and Church of Scientology International, a
                       California corporation, Plaintiffs,
                                       v.
    Enid VIEN, an individual;  and Does 1 through 20, inclusive, Defendants.
                              No. CV 92-1539 H(M).
                          United States District Court,
                                S.D. California.
                                  May 4, 1993.
  Religious organizations brought action against instructor for federal and
 state copyright infringement and misappropriation of trade secrets.  The
 District Court, Huff, J., held that:  (1) instructor violated federal copyright
 laws by copying or directing her students to copy organizations' literary works
 and sound recordings for use in course instructor offered for sale;  (2)
 instructor violated state copyright law with respect to recordings fixed prior
 to 1972;  (3) information contained in organizations' materials was "trade
 secret" which instructor misappropriated;  (4) statutes of limitations did not
 bar claims;  (5) First Amendment did not bar claims;  and (6) instructor's use
 was not "fair use."
  Ordered accordingly.

 [1] FEDERAL CIVIL PROCEDURE
 Any doubt as to existence of any issue of material fact requires denial of
 motion for summary judgment.

 [2] FEDERAL CIVIL PROCEDURE
 On motion for summary judgment, opposing party does not create genuine issue of
 material fact by submitting her own affidavit which contradicts her prior
 deposition testimony.

 [3] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Two elements to be proven in copyright infringement action are ownership of
 valid copyright and copying of copyrighted work.

 [4] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Instructor who offered course for sale violated federal copyright laws by
 copying or directing her students to copy, as part of course, literary works
 and sound recordings, published and unpublished, to which religious
 organizations owned copyrights.

 [4] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Instructor who offered course for sale violated federal copyright laws by
 copying or directing her students to copy, as part of course, literary works
 and sound recordings, published and unpublished, to which religious
 organizations owned copyrights.

 [5] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Alleged infringer's declaration in opposition to copyright holders' motion for
 summary judgment that she never copied or directed copying of copyrighted sound
 recordings did not create genuine issue of material fact;  declaration was
 contradicted by alleged infringer's prior declaration and deposition testimony.

 [6] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Instructor who offered religious course for sale violated California copyright
 law by copying or directing her students to copy, as part of course, sound
 recordings to which religious organizations owned copyrights and which were
 fixed on tape prior to effective date of federal protection for such
 recordings.  West's Ann.Cal.Civ.Code s 980(a)(2).

 [7] TORTS
 Under common law, trade secret is determined by extent to which secrecy of
 information is guarded and according to value of information to possessor and
 its competitors.

 [8] TORTS
 Under California law, information contained in religious organizations'
 materials was "trade secret," so that instructor's use of information in
 courses which she offered for sale was misappropriation of trade secret;
 information was confidential and kept under tight security, was disclosed only
 to those who had acquired requisite level of spiritual training, and could not
 be accessed without first signing agreement to maintain its secrecy and
 confidentiality, instructor knew of confidential nature of information and
 signed confidentiality agreement, and religious organizations used proceeds
 from sale of materials to support churches world-wide.  West's
 Ann.Cal.Civ.Code ss 3426.1, 3426.1(b).
 See publication Words and Phrases for other judicial constructions and
 definitions.

 [9] JUDGMENT
 Dismissal of religious organizations' misappropriation of trade secrets claims,
 in prior action, with respect to specific portion of information contained in
 their material did not bar their trade secret claim against instructor who used
 information in course which she offered for sale;  substantive merits of prior
 trade secret claim were not necessarily and finally adjudicated as prior claim
 was dismissed as discovery sanction, and instructor was not party to prior
 action.


 [9] JUDGMENT
 Dismissal of religious organizations' misappropriation of trade secrets claims,
 in prior action, with respect to specific portion of information contained in
 their material did not bar their trade secret claim against instructor who used
 information in course which she offered for sale;  substantive merits of prior
 trade secret claim were not necessarily and finally adjudicated as prior claim
 was dismissed as discovery sanction, and instructor was not party to prior
 action.

 [10] LIMITATION OF ACTIONS
 Religious organizations' federal and state copyright infringement claims and
 their state misappropriation of trade secret claims, with respect to
 instructor's copying and use of their literary works and sound recordings in
 course which she offered for sale, were not barred by applicable three-year
 statutes of limitations, even though organizations' officers knew that
 instructor left organization to start her own ministry, asked about
 instructor's knowledge of organizations' materials more than three years before
 commencement of action, and were told that she had those materials in her
 possession;  organizations permitted instructor to learn and study materials
 under confidentiality agreement, and there was no evidence that organizations
 knew of potential use instructor had for materials in her ministry.  17
 U.S.C.A. s 507;  West's Ann.Cal.Civ.Code ss 980(a)(2), 3426.3;  West's
 Ann.Cal.C.C.P. s 338(1) (1987).

 [11] LIMITATION OF ACTIONS
 Even if religious organizations had knowledge of instructor's unauthorized
 copying of their literary works and sound recordings, for use in course offered
 for sale, more than three years prior to commencement of their state and
 federal copyright infringement claims, those claims were not barred by three-
 year statute of limitations;  there was substantial, uncontroverted evidence
 that instructor violated copyright through unauthorized copying within three
 years of instant action.  West's Ann.Cal.Civ.Code s 338(1) (1987);  17
 U.S.C.A. s 507.

 [11] LIMITATION OF ACTIONS
 Even if religious organizations had knowledge of instructor's unauthorized
 copying of their literary works and sound recordings, for use in course offered
 for sale, more than three years prior to commencement of their state and
 federal copyright infringement claims, those claims were not barred by three-
 year statute of limitations;  there was substantial, uncontroverted evidence
 that instructor violated copyright through unauthorized copying within three
 years of instant action.  West's Ann.Cal.Civ.Code s 338(1) (1987);  17
 U.S.C.A. s 507.

 [12] CONSTITUTIONAL LAW
 Religious organizations' federal and state claims for copyright infringement
 and misappropriation of trade secrets against instructor who copied and used
 their literary works and sound recordings in course which she offered for sale
 were not barred by religious nature of works, notwithstanding instructor's
 claims that enforcing copyrights and trade secrets rights to materials
 allegedly needed to practice her religion restricted her free exercise of
 religion and unconstitutionally preferred organizations' religion over her
 religion;  neutral application of copyright and trade secret law does
 not offend constitution.  U.S.C.A. Const.Amend. 1.

 [12] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Religious organizations' federal and state claims for copyright infringement
 and misappropriation of trade secrets against instructor who copied and used
 their literary works and sound recordings in course which she offered for sale
 were not barred by religious nature of works, notwithstanding instructor's
 claims that enforcing copyrights and trade secrets rights to materials
 allegedly needed to practice her religion restricted her free exercise of
 religion and unconstitutionally preferred organizations' religion over her
 religion;  neutral application of copyright and trade secret law does
 not offend constitution.  U.S.C.A. Const.Amend. 1.

 [12] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Religious organizations' federal and state claims for copyright infringement
 and misappropriation of trade secrets against instructor who copied and used
 their literary works and sound recordings in course which she offered for sale
 were not barred by religious nature of works, notwithstanding instructor's
 claims that enforcing copyrights and trade secrets rights to materials
 allegedly needed to practice her religion restricted her free exercise of
 religion and unconstitutionally preferred organizations' religion over her
 religion;  neutral application of copyright and trade secret law does
 not offend constitution.  U.S.C.A. Const.Amend. 1.

 [13] COPYRIGHTS AND INTELLECTUAL PROPERTY
 In determining fair use under federal copyright law, it is necessary to balance
 four statutory factors flexibly.  17 U.S.C.A. s 107.

 [14] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Instructor's copying of religious organizations' literary works and sound
 recordings in course which she offered for sale was not "fair use" of those
 materials;  instructor used copyrighted works as integral part of course from
 which she earned up to $12,000 per year for ten years, used works for same
 purpose as organizations, substantially copied each work at issue, and did not
 copy and use works solely for her own use in teaching, copying was extensive
 and methodical and consisted of copying from same author, time after time, and
 works were product of author's creative thought process and not merely
 informational.  17 U.S.C.A. s 107.
 See publication Words and Phrases for other judicial constructions and
 definitions.

 [14] COPYRIGHTS AND INTELLECTUAL PROPERTY
 Instructor's copying of religious organizations' literary works and sound
 recordings in course which she offered for sale was not "fair use" of those
 materials;  instructor used copyrighted works as integral part of course from
 which she earned up to $12,000 per year for ten years, used works for same
 purpose as organizations, substantially copied each work at issue, and did not
 copy and use works solely for her own use in teaching, copying was extensive
 and methodical and consisted of copying from same author, time after time, and
 works were product of author's creative thought process and not merely
 informational.  17 U.S.C.A. s 107.
 See publication Words and Phrases for other judicial constructions and
 definitions.

 [15] COPYRIGHTS AND INTELLECTUAL PROPERTY
 In context of fair use analysis, commercial use of copyrighted material is
 presumptively unfair, while noncommercial use weighs in favor of defendant.
 17 U.S.C.A. s 107.

 [16] COPYRIGHTS AND INTELLECTUAL PROPERTY
 When nature of copyrighted works is creative, as opposed to informational, use
 of those works is less likely to be deemed fair use.  17 U.S.C.A. s 107.
  *631 Toby L. Plevin, Westwood, CA, for defendants.
  Neil F. Martin, Brown, Martin, Haller and McClain, San Diego, CA, Thomas M.
 Small, Small, Larkin, Kidde & Golant, Los Angeles, CA, Helena K. Kobrin,
 Bowles & Moxon, Hollywood, CA, for plaintiffs.
                         ORDER GRANTING SUMMARY JUDGMENT

  HUFF, District Judge.
  The above-captioned matter came on regularly for hearing before the
 Honorable Judge Marilyn L. Huff on April 26, 1993.  Thomas M. Small appeared
 for plaintiffs and Toby L. Plevin appeared for defendant.  Considering all of
 the papers, pleadings, motions and declarations before the court, and after
 hearing the matter, the court finds that no material issue of fact exists and
 plaintiffs are entitled to judgment as a matter of law on the copyright and
 trade secret claims.
  1. Standard for summary judgment
  [1][2] A motion for summary judgment shall be granted where "there is no
 genuine issue as to any material fact and ... the moving party is entitled to
 judgment as a matter of law."  Fed.R.Civ.P. 56(c);  British Airways Bd.
 v. Boeing Co., 585 F.2d 946, 951 (9th Cir.), cert. denied, 440 U.S. 981, 99
 S.Ct. 1790, 60 L.Ed.2d 241 (1979).  Any doubt as to the existence of any issue
 of material fact requires denial of the motion.  Anderson v. Liberty Lobby,
 Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).  The
 opposing party "cannot rest on the mere allegations or denials of his pleading,
 but [the] response, by affidavits or as otherwise provided by this rule, must
 set forth specific facts showing that there is a genuine issue for trial," and
 "must present affirmative evidence in order to defeat a properly supported
 motion for summary judgment."  Anderson, 477 U.S. at 257, 106 S.Ct. at
 2514.  However, the opposing party does not create a genuine issue of material
 fact by submitting her own affidavit which contradicts her prior deposition
 testimony.  Harkins Amusement Enterprises, Inc. v. General Cinema Corp., 850
 F.2d 477, 482 (9th Cir.), cert. denied, 488 U.S. 1019, 109 S.Ct. 817, 102
 L.Ed.2d 806 (1989) (citing Radobenko v. Automated Equipment Corp., 520 F.2d
 540, 543-44 (9th Cir.1975), for the proposition that a party's inconsistent
 affidavit given after deposition testimony, in opposition to a summary judgment
 motion, does not create a genuine issue of fact).
  *632 2. Application of standard
  a. Copyright claims
  [3][4] There are two elements to be proven in a copyright infringement
 action:  (1) ownership of a valid copyright, and (2) copying of the copyrighted
 work.  Data East USA, Inc. v. Epyx, Inc., 862 F.2d 204, 206 (9th
 Cir.1988);  Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th Cir.), cert.
 denied, 484 U.S. 954, 108 S.Ct. 346, 98 L.Ed.2d 372 (1987).  As this court
 has held in its rulings on the temporary restraining order and the preliminary
 injunction issued in this case, there is no issue of fact regarding plaintiffs'
 ownership of the copyrights on the literary works and sound recordings,
 published and unpublished.  See also Declaration of Marilyn Pisani ("Pisani
 Decl."), PP 2, 5, 7, Exhibits C, I, L, O, R, U, X and AA;  Declaration of Allan
 Cartwright ("Cartwright Decl."), PP 2-3, 5, 7, Exhibit B, E, and LLL;
 Declaration of Warren McShane ("McShane Decl."), PP 2, 5, 7, 9, Exhibits D and
 E.
  Nor is there a genuine issue of fact regarding defendant's copying of, or
 directing the copying of, the copyrighted works.  The undisputed evidence shows
 that defendant copied or directed her students to copy plaintiffs' copyrighted
 materials as part of a "Dynamism" course which she offered for sale.  See
 Declaration of Gerri Salinas ("Salinas Decl."), PP 4-5, 8-11;  Pisani Decl., PP
 5, 7;  Cartwright Decl., PP 5, 7;  McShane Decl., PP 7, 9-10.  Specifically,
 defendant would either copy the materials herself, or would give them to her
 students to copy.  See Salinas Decl., P 8;  Deposition of Enid Vien ("Vien
 Depo."), Vol. I, p. 44, lines 3-20, p. 45, lines 15-21;  p. 80, lines 8-19;
 Vol. II, P. 23, lines 2-12;  p. 96, lines 1-12;  p. 143, line 18--p. 144, line
 8;  Deposition of Mary Volk ("Volk Depo."), p. 25, line 17--p. 26, line 11.
 Additionally, defendant admitted in her November 4, 1992 Declaration that she
 must use bootleg or copied materials as part of the courses she offers her
 students.
  [5] Defendant's declaration in opposition to this motion contends that
 she never copied, or directed the copying of, the sound recordings.  However,
 this is contradicted by her prior declaration and deposition testimony and,
 therefore, does not create a genuine issue of material fact.  Harkins
 Amusement Enterprises, Inc. v. General Cinema Corp., 850 F.2d 477, 482 (9th
 Cir.1988).
  b. Sound recordings made prior to February 15, 1972
  [6] There is also no factual dispute that defendant copied, or directed the
 copying of, L. Ron Hubbard's tape recorded lectures which were fixed on tape
 prior to February 15, 1972 and, therefore, are protected under California
 Civil Code section 980(a)(2).  See Goldstein v. California, 412 U.S. 546,
 552, 93 S.Ct. 2303, 2307, 37 L.Ed.2d 163 (1973) (recordings fixed and sold
 prior to February 15, 1972 are not protected under federal copyright law, but
 may be given state protection);  Lone Ranger Television v. Program Radio
 Corp., 740 F.2d 718, 724 (9th Cir.1984).  The uncontroverted evidence shows
 that defendant violated section 980(a)(2) by making copies of the
 recordings, or by having such copies made, without authorization.  See Salinas
 Decl., P 8(b);  Cartwright Decl., P 7.  Again, defendant's declaration in
 opposition to the instant motion does not create a factual dispute in light of
 her earlier declaration and deposition testimony, which admit to copying and
 using "bootleg" L. Ron Hubbard tapes as part of her Dynamism courses.  See
 Harkins Amusement Enterprises, supra, 850 F.2d at 482.
  c. Trade secret claim
  [7] Finally, no genuine issue of fact exists as to whether defendant
 misappropriated plaintiffs' trade secrets in the works known generally as the
 "Advanced Technology."  California Civil Code section 3426.1 defines a
 "trade secret" as information which has independent economic value from not
 being generally known, the secrecy of which has been reasonably protected, or
 reasonably attempted to be protected.  A trade secret is misappropriated when,
 among other things, it is disclosed or used by another without consent, and at
 the time of disclosure or use that person knew the secret was acquired under
 circumstances giving rise to a duty to maintain its secrecy or limit its use.
 Cal.Civ.Code s 3426.1(b).  Similarly, under the common *633 law, a trade
 secret is determined by the extent to which the secrecy of the information is
 guarded, and according to the value of the information to the possessor and its
 competitors.  See Restatement (First) of Torts, s 757, comment 6;  Chicago
 Lock Co. v. Fanberg, 676 F.2d 400, 404 (9th Cir.1982);  Sinclair v. Aquarius
 Electronics, Inc., 42 Cal.App.3d 216, 221, 116 Cal.Rptr. 654 (1974).
  [8] The court finds that as a matter of law, plaintiffs' "Advanced
 Technology" qualifies as a trade secret, and that no factual dispute exists
 regarding defendant's misappropriation of these works through the courses
 offered to her students.  See Vien Depo., Vol. I, p. 97, lines 5-10;  p. 98,
 lines 8-18;  Salinas Decl., P 8;  McShane Decl., PP 7, 10, Exhibit C.
                             1. Secrecy of materials
  There is no factual dispute about whether plaintiffs have used
 reasonable steps to keep the materials secret.  The Advanced Technology is
 confidential and kept under tight security, is disclosed only to those who have
 attained the requisite level of spiritual training, and cannot be accessed
 without first signing an agreement to maintain its secrecy and
 confidentiality.  See McShane Decl., PP 3-4.  Indeed, plaintiff knew of the
 confidential nature of the materials and signed a confidentiality agreement
 prior to their disclosure to her.  See Vien Depo., Vol. I, p. 59 line 18--p.
 60, line 12;  Vien Depo. Vol. II, p. 25, line 5--p. 27, line 10, Exhibits 7 and
 8 thereto;  p. 31, line 4--p. 32, line 15.
  Defendant attempts to create a factual issue about the secrecy of a portion of
 the Advanced Technology called "Power Processes," or "5 and 5a Processing," by
 declaring in opposition that she "studied [that portion] at a time when they
 were not deemed to be secret."  However, this declaration is directly
 contradicted by defendant's earlier deposition testimony and the
 confidentiality agreement and, therefore, does not create a genuine issue of
 material fact.  See McShane Decl., P 12, Exhibits A, B, and C, attached to
 Reply;  Declaration of Howard Gutfeld, PP 3-5, attached to Reply;  Vien Depo.,
 p. 11, line 6--p. 12, line 16, p. 15, line 17, p. 16, lines 1-16, p. 27, lines
 13-14, attached to Reply.
  Defendant also argues that other "issues of fact" remain as to the trade
 secret claim.  These arguments are without merit.  Defendant first claims that
 a certain portion of the Advanced Technology, known as "OT 3," has been
 repeatedly reported in print and broadcast media, thereby stripping its trade
 secret status.  However, plaintiffs claim these publications are distortions of
 the secret materials and, therefore, plaintiffs make no claim of trade secret
 status or confidentiality as to any of these stories.  Moreover, plaintiffs
 concede that any information in these stories should be excepted from any
 injunction this court might order.  See McShane Decl., PP 7-11, attached to
 Reply.
  [9] Defendant next argues that plaintiffs cannot gain trade secret status
 for a portion of the Advanced Technology known as "NOTS," because a previous
 court, in a previous case with different defendants, dismissed trade secret
 claims on that material as a discovery sanction.  Defendant offers no authority
 for this contention.  Indeed, as the substantive merits of the earlier trade
 secret claim were not necessarily and finally adjudicated upon, and defendant
 was not a party to that suit, it appears that case has no res judicata or
 collateral estoppel effect here.  See generally Federated Dept. Stores v.
 Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981);  Guild Wineries
 and Distilleries v. Whitehall Co., Ltd., 853 F.2d 755 (9th Cir.1988).
                          2. Independent economic value
  Finally, there is no factual dispute as to the independent economic value of
 the Advanced Technology.  It clearly has value to plaintiffs, who use proceeds
 from the sale of these materials, as well as other materials, to support the
 operations of Scientology Churches world-wide.  See McShane Decl., P 12.
 Indeed, the Supreme Court has recognized the economic need for churches to
 receive such proceeds, noting that "[i]t is plain that a religious organization
 needs funds to remain a going concern."  Murdock v. Commonwealth of
 Pennsylvania, 319 U.S. 105, 111, 63 S.Ct. 870, 874, 87 L.Ed. 1292 (1943).
 These materials also have value to defendant, *634 a competitor of
 plaintiffs', who uses the Advanced Technology in the delivery of the courses
 for which she is paid.  For example, defendant admitted that she would charge
 $3000 for a course package which includes the Advanced Technology materials
 known as "SOLO," "OT 1," "OT 2," and "OT 3."  See Vien Depo., Vol. I, p. 97,
 lines 5-10;  p. 98, lines 8-18.
  Therefore, as no genuine issue of fact exists, the court finds as a
 matter of California statutory and common law that defendant has
 misappropriated plaintiffs' trade secrets.
  3. Defenses common to all claims
  a. Statute of limitations.
  [10] Defendant argues, for the first time, that all claims in this action
 are barred by the statute of limitations. [FN1]  In support of this argument
 defendant offers evidence that, in 1984, plaintiffs' officers had asked about
 defendant's knowledge of the Advanced Technology materials and were told she
 had those materials in her possession.  See Declarations of Enid Vien and
 Lauren Allen attached to Opposition to Summary Judgment.  However, these
 declarations reveal plaintiffs' representatives were also assured that
 defendant had not distributed or disclosed these materials.  As defendant has
 the burden of proof on this affirmative defense, she must come forward with
 evidence that plaintiffs were on notice of all the elements of a trade secret
 violation.  To the contrary, her evidence actually supports plaintiffs'
 position that they did not have such knowledge.

      FN1. The relevant statute of limitations are:  17 U.S.C. s 507 (3 years
     for federal copyright claims);  Cal.Civ.Proc.Code s 338(1) (3 years for
     state copyright claims based on Cal.Civ.Code s 980(a)(2));
     Cal.Civ.Code s 3426.3 (3 years for trade secret misappropriation).

  Defendant argues plaintiffs must have known about defendant's infringing
 activities because they knew she left the Church of Scientology to start her
 own ministry.  This argument is without merit.  Plaintiffs had always permitted
 Ms. Vien to learn and study the Advanced Technology pursuant to the above-
 referenced confidentiality agreement.  The fact she may have had actual copies
 of the Advanced Technology, as opposed to her own notes and mental impressions,
 does not create an issue regarding plaintiffs' knowledge of all the elements of
 trade secret misappropriation.  The argument that plaintiffs should have known
 that defendant would have disclosed the Advanced Technology to her students is
 also without merit.  There is no evidence that plaintiffs knew of the potential
 use, if any, Ms. Vien might have for the Advanced Technology in her ministry.
  The court finds these declarations fail to establish, or even raise a factual
 issue, that plaintiffs had knowledge, dating back to 1984, of any of the
 violations alleged in the complaint.  The statute of limitations defense is,
 therefore, without merit.  See Intermedics, Inc. v. Ventritex, Inc., 775
 F.Supp. 1258, 1265-66 (N.D.Cal.1991) (plaintiff's prior suit against defendant
 for "having knowledge of" plaintiff's trade secrets was not sufficient
 "discovery of the misappropriation" to start limitations period).
  [11] Indeed, on the federal and state copyright claims, even if defendant's
 declarations establish plaintiffs' knowledge of defendant's unauthorized
 copying in 1984, there is substantial, uncontroverted evidence that defendant
 has violated these copyrights within three years of the instant suit. [FN2]
 Accordingly, these claims were timely filed.  See Hoey v. Dexel Systems
 Corp., 716 F.Supp. 222 (E.D.Va.1989) (where there is a continuing violation of
 the copyright, the action is timely as to infringing acts accruing within the
 3-year limitations period);  cf. Mangini v. Aerojet-General Corp., 230
 Cal.App.3d 1125, 281 Cal.Rptr. 827 (1991) (every continuation of a nuisance
 gives rise to a separate claim for damages under the 3-year limitations period
 in Civ.Proc.Code s 338(1)).

      FN2. It should be noted, however, that defendant's declarations merely
     point to plaintiffs' alleged knowledge of Ms. Vien's possession of portions
     of the Advanced Technology materials.  There is no evidentiary basis to
     find that, dating back to 1984, plaintiffs' knew of defendant's
     unauthorized copying of any of the materials at issue.

  b. First amendment.
  [12] As this court stated in its Order Granting Preliminary
 Injunction, plaintiffs' *635 claims for copyright and trade secret
 protection are not barred by the religious nature of the works.  The court
 expressly held that enforcing plaintiffs' rights in these works violated
 neither the establishment clause nor the free exercise clause.  See United
 Christian Scientists v. Christian Science Bd. of Directors, First Church of
 Christ Scientist, 829 F.2d 1152, 1159 (D.C.Cir.1987) ("normally, a grant of
 copyright on a religious work poses no constitutional difficulty.  Religious
 works are eligible for protection under general copyright laws");  Religious
 Technology Center, Church of Scientology Int'l, Inc. v. Scott, 869 F.2d 1306,
 1309-10 (9th Cir.1989) (religious material can qualify as a trade secret under
 California law if it confers on its owner an actual economic advantage over
 competitors);  Religious Technology Center v. Wollersheim, 796 F.2d 1076,
 1090-91 (9th Cir.), cert. denied, 479 U.S. 1103, 107 S.Ct. 1336, 94 L.Ed.2d
 187 (1987);  see also Jones v. Wolf, 443 U.S. 595, 604, 99 S.Ct. 3020, 3026,
 61 L.Ed.2d 775 (1979);  Order of St. Benedict of New Jersey v. Steinhauser,
 234 U.S. 640, 644, 34 S.Ct. 932, 933, 58 L.Ed. 1512 (1914).
  Defendant argues that because plaintiffs refuse to sell defendant the
 materials she needs to practice her religion, enforcing the copyrights and
 trade secret rights restricts her free exercise of religion, and
 unconstitutionally prefers the religion of Scientology over defendant's
 religion.  Defendant has offered no authority supporting this contention.
 Rather, the case law cited supports the proposition that neutral application of
 copyright and trade secret law to religious works does not offend the
 constitution.
  4. Specific defenses
  a. Fair use of the copyrighted works.
  [13][14] Defendant raises, for the first time, the applicability of the
 "fair use doctrine" to the works at issue.  Section 107 of the Copyright Act
 provides that
   the fair use of a copyrighted work ... for purposes such as criticism,
 comment, news reporting, teaching (including multiple copies for classroom
 use), scholarship, or research, is not an infringement of copyright.  In
 determining whether the use made of a work in any particular case is a fair use
 the factors to be considered shall include--
   (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.
  In determining "fair use" under the statute, it is necessary to balance the
 four factors flexibly.  Fisher v. Dees, 794 F.2d 432, 435 (9th Cir.1986).
 Balancing these factors here results in a finding that defendant's use is not
 protected by the statute.
  [15] The first factor weighs against a finding of fair use.  The
 uncontroverted evidence shows that defendant uses the copyrighted works as an
 integral part of the Dynamism courses she sells to her students.  See Salinas
 Decl., PP 4-5, 6, 8-11, Exhibit B;  Pisani Decl., PP 5, 7;  Cartwright
 Decl., PP 5, 7;  McShane Decl., PP 7, 9-10;  Vien Depo., Vol. II, p. 23, lines
 2-12;  p. 96, lines 1-12;  p. 143, line 18--p. 144, line 8.  Indeed, defendant
 admits to having earned up to $12,000 a year for the ten years she has been
 offering these courses.  See Vien Decl., P 6, attached to Opposition.  In
 general, commercial use of copyrighted material is presumptively unfair
 (Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 449-
 51, 104 S.Ct. 774, 792-93, 78 L.Ed.2d 574 (1984)), whereas noncommercial use
 weighs in favor of the defendant.  See, e.g., Marcus v. Rowley, 695 F.2d
 1171, 1175 (9th Cir.1983).  Defendant's fair use claim is further weakened
 under the first factor because she uses the copyrighted works for the same
 intrinsic purpose as plaintiffs.  See Marcus, 695 F.2d at 1175;
 Weissmann v. Freeman, 868 F.2d 1313, 1324 (2nd Cir.), cert. denied, 493
 U.S. 883, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989).
  [16] The second factor also weighs against a finding of fair use.
 When the nature of the copyrighted works is creative, as opposed to
 informational, use of those works is less likely to be deemed fair.  See
 *636 Abend v. MCA, Inc., 863 F.2d 1465, 1481 (9th Cir.), aff'd 495
 U.S. 207, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990).  The undisputed evidence
 shows that L. Ron Hubbard's works are the product of his creative thought
 process, and not merely informational.
  The third factor also weighs against defendant.  The undisputed facts show
 that defendant has substantially copied each work at issue, and in some cases
 the whole work.  See Pisani Decl., P 7;  Cartwright Decl., P 7;  McShane
 Decl., P 9.  This weighs heavily against a finding of fair use, especially
 considering the commercial nature of the use.  See, e.g., Marcus, 695 F.2d
 at 1176 ("wholesale copying of copyrighted material precludes application of
 the fair use doctrine");  Abend, 863 F.2d at 1481 (wholesale copying for a
 purely commercial purpose may never be a fair use).
  The fourth factor concerns "the effect of the use upon the potential market
 for or value of the copyrighted work."  17 U.S.C. s 107.  As this court
 discussed previously in the trade secret context, 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.  See Hustler Magazine, Inc. v. Moral
 Majority, Inc., 796 F.2d 1148, 1155-56 (9th Cir.1986).  This factor goes
 against defendant as well.
  Finally, the court finds defendant's use does not fit within the special
 guidelines approved by Congress as to fair use in the educational context.  See
 Notes of Committee on the Judiciary, House Rep. No. 94-1476, reprinted in 17
 U.S.C.A. pp. 113-14;  Marcus v. Rowley, 695 F.2d 1171, 1178 (9th Cir.1983).
 Defendant's copying and use of the works was not restricted to one copy for her
 own use in teaching.  Additionally, the undisputed evidence shows defendant's
 copying was not limited and spontaneous, but was extensive and methodical, and
 consisted of copying from the same author, time after time.  This is clearly
 not within the letter or spirit of the Congressional guidelines.
  Under the circumstances of this case, and after balancing the four statutory
 factors, as well as the Congressional guidelines on fair use in the educational
 context, the court finds as a matter of law that defendant is not entitled to
 fair use protection.  See Marcus, 695 F.2d at 1178-79 (summary judgment may
 be granted on the fair use issue);  Hustler Magazine, 796 F.2d at 1150-51
 (same).
  5. Permanent injunction
  Plaintiffs have requested permanent injunctive relief on the four claims at
 issue.  As plaintiffs are entitled to summary judgment on those claims, the
 court will grant such relief.  See 17 U.S.C. s 502 ("[a]ny court having
 jurisdiction of a civil action arising under this title may ... grant ... final
 injunctions on such terms as it may deem reasonable to prevent or restrain
 infringement of a copyright");  Cal.Civ.Code s 3426.2(a) ("[a]ctual or
 threatened misappropriation [of a trade secret] may be enjoined");  Chicago
 Lock Co. v. Fanberg, 676 F.2d 400, 404 (9th Cir.1982) (common law trade secret
 misappropriation enjoinable under purview of 'unfair competition' under
 Cal.Civ.Code s 3369);  see generally A & M Records v. Heilman, 75
 Cal.App.3d 554, 142 Cal.Rptr. 390, appeal dismissed and cert. denied 436
 U.S. 952, 98 S.Ct. 3063, 57 L.Ed.2d 1118 (1978) (affirming grant of motion for
 summary judgment and injunction as to defendant's unauthorized copying and sale
 of tape recordings).
  IT IS SO ORDERED.

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