I don't *know* this is in retaliation for my amicus brief to Judge Schaeffer, but the timing is about right, following by 6 days the final version.
The May 9, 2002 posting had *3* lines of NOTs 34 in it. I pointed people to xenu.net where they could read it legally in the context of a fair use article.
There is an aspect to this motion, the citing of NOTs 56, which is side splitting funny. *I* am the author of NOTs 56, a parody made by a lengthy editing process on the output of "Travesty," a chunk of Perl code which used a word list from Hubbard to generate something which reads superficially like LRH/David Mayo crap.
NOTs 56 has been up on Google since 1998/11/09
Helena K. Kobrin, SBN 152546
MOXON & KOBRIN
3055 Wilshire Blvd., Suite 900
Los Angeles, CA 90010
Samuel D. Rosen PAUL,
HASTINGS, JANOFSKY & WALKER
75 East 55th Street
New York, NY 10022-3206
Attorneys for Plaintiff
RELIGIOUS TECHNOLOGY CENTER
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
RELIGIOUS TECHNOLOGY CENTER, CASE NO. C 96-20271 RMW
a California non-profit[sic] corporation,
MOTION FOR ISSUANCE OF AN
ORDER TO SHOW CAUSE RE
DATE: Aug. 2 2002
CTRM: Hon. Ronald M. Whyte I
H. KEITH HENSON, an individual, Defendant.
TO DEFENDANT H. KEITH HENSON:
PLEASE TAKE NOTICE, that on 8/2/02 at 0:00 am or as soon thereafter as this matter may be heard, plaintiff, Religious Technology Center ("RTC") will, and it hereby does, move this Court to issue an Order to Show Cause directing that defendant H. Keith Henson ("Henson") appear at an evidentiary hearing before this Court on a date certain and to there and then show cause why he should not be adjudicated in civil contempt of the Permanent Injunction entered by this Court on June 16, 1997 in this action.
The grounds for this motion are that defendant Henson has made postings to the Internet that contain matters infringing RTC's copyrights in NOTs 56 and in NOTs 34, the same work for which he was previously adjudicated as liable for copyright infringement in the action in which he was also previously held in contempt by this Court for posting a sealed transcript with portions of the work to the Internet. Additional grounds for this motion are that in violation of the 1997 Injunction, Henson has been inducing and encouraging others to infringe. The motion is based on the accompanying Declaration of Warren McShane ("McShane Dec.") and all of the proceedings heretofore in this action.
MEMORANDUM OF POINTS AND AUTHORITIES
Apparently believing that because he has fled the United States (to avoid serving the sentence of incarceration imposed upon him by a California State Court), and therefore is no longer constrained by the Permanent Injunction entered in this action, Henson has openly and arrogantly violated that Injunction. RTC believes otherwise, and on this motion, asks the Court to issue an Order setting an evidentiary hearing and directing Henson to appear and show cause why he should not be adjudicated in civil contempt of the Permanent Injunction.
FACTS A. BACKGROUND
On June 16, 1997, this Court entered a Permanent Injunction against Henson in this action. That Permanent Injunction restrained and enjoined Henson from certain conduct, including, inter alia:
1) "directly or indirectly, in whole or in part, publishing, reproducing, distributing, performing. . ." any of RTC's copyrighted Advanced Technology works (Permanent Injunction, Tl(a));
2) "directly or indirectly, engaging in the unauthorized solicitation and/or acquisition of [RTC's] works or parts thereof. . ." (Permanent Injunction, T1(b));
3 ) "Causing or inducing any other person to engage in any of the foregoing acts." (Permanent Injunction, ~1(d)).'
Following issuance of that Permanent Injunction, Henson not only continued his earlier conduct of harassment, including harassing picketing, of several Scientology facilities, but began a stepped-up campaign of threats to and harassment of individual Scientologists, including those living, working and studying their religion at a major Scientology facility in Riverside County, California. As a result, the Riverside County District Attorney pressed criminal charges against Henson and on April 26, 2001, a jury convicted Henson of engaging in religious bigotry - hate crimes in violation of California Criminal Code § 422.6. (McShane Dec., Ex. 2.)
The Riverside Criminal Court continued Henson's personal recognizance bail and scheduled his sentencing for May 16, 2001. Henson, however, did not then appear. Instead, he had already fled to Canada and, shortly before his scheduled sentencing, he publicly advised the Riverside Court that he had no intention of appearing for his sentencing:
"I will not be in Riverside May 16. In fact I would have to be a
complete idiot to be in Riverside May 16! Bon Soire! Eh? Keith Henson
(McShane Dec., Ex. 3.)"
[Of course, the court was in Hemet and Riverside is some 35 miles away. Naturally, scientology lawyers either are too stupid to get the joke or are deliberately trying to mislead the court. Take your choice. hkh]
The Riverside Court ultimately sentenced Henson in absentia to one year incarceration and, thereafter, the appellate division of the California Superior Court dismissed Henson's appeal of his conviction under the principles of the fugitive disentitlement doctrine. (McShane Dec., Exs. 4 and 5.) The Riverside Court also issued a "no bail" arrest warrant for Henson, and in addition, initiated further criminal charges against Henson for his refusal to appear for sentencing. (McShane Dec., Ex. 6.) The Canadian authorities also arrested Henson for concealing his conviction when he entered Canada, and thereafter issued a "Deportation Order." (McShane Dec., T 4, Ex. 7, at 4-5.)
' For the Court's convenience, a true copy of the Permanent Injunction is annexed as Exhibit I to the accompanying declaration of RTC's President, Warren McShane.
That order, however, has not been executed because Henson promptly filed a request to the Canadian government for political asylum, alleging that both the United States of America and the State of California have violated Henson's basic human rights. (McShane Dec., T 4, Ex. 8.) Thus, until his asylum request is heard and finally determined, a process which takes two years or more (McShane Dec., T 4), Henson remains in Canada, a fugitive from the State of California.'
Henson, of course, is no stranger to contempt. By Order to Show Cause dated May 14, 1998 (McShane Dec., Ex. 9), this Court directed Henson to appear and show cause why he should not be punished in criminal and civil contempt for violation of this Court's non-disclosure Order. It was only because of RTC's research and its own advices, given to this Court against RTC's self-interest, that criminal contempt did not lie (see, RTC's Brief dated June 4, 1998, Ex. 11, at 3-4), that those proceedings against Henson went forward solely in civil contempt.' By Order dated June 23, 1999 (McShane Dec., Ex. 12), this Court adjudicated Henson in civil contempt. The instant motion is, therefore, one to hold Henson in civil contempt again, as a recidivist.
2 Brazenly, from his Canadian hideaway, Henson continues to pursue the rights and benefits of the federal bankruptcy law by maintaining and pursuing his pending Chapter 13 petition for relief from his creditors, i. e. RTC, and, despite the clearly established fugitive disentitlement doctrine, the bankruptcy court has not only allowed Henson to pursue that petition, but has bent over backwards to aid and abet Henson to maintain his fugitive status by, inter alia, excusing Henson from appearing for deposition in the United States. He has, instead, ordered that Henson could respond to interrogatories so as not to interfere with his remaining as a fugitive in Canada, while denying RTC its right to cross-examine Henson's responses. The bankruptcy court's conduct, including its unprecedented accommodation to Henson's fugitive status, is more fully discussed in RTC's Motion to Withdraw the Reference, filed in the bankruptcy action. (McShane Dec., Ex. 10.)
3 Parenthetically and ironically, when this Court thereafter re-determined the amount of attorneys' fees to be awarded to RTC, it specifically identified and rejected RTC's request for its legal fees incurred to its attorneys, who, acting responsibly as officers of the court, were obliged to inform this Court that its intended criminal contempt proceeding against Henson was improper. (See Order dated September 18, 2001, Ex. 15, at 6. )
B. HENSON'S LATEST CONTEMPT From his Canadian fugitive haven, on October 24, 2001, Henson made a posting to the alt.religion.scientology newsgroup ("ARS") on the Internet soliciting for people to send him a copy of NOTs 56. (McShane Dec., Ex. 13.) Then, on May 9, 2002, from the same location, Henson posted to ARS the following:
Here is my original letter to Judge Whyte less most of NOTs 34 (which I could stick in since I have been made apolitical refugee and am no loner under the authority of the US courts.) You can find the rest of NOTs do dozens of places on the net, for example:
http ://home. online. no/-heldal/CoS/archive/events/9805henson case/nots34 anal2.html
(McShane Dec., Ex. 14.)
Following that introductory statement, Henson included the text of the "Open Letter to Judge Whyte" that he had originally posted in March 1996 with all of NOTs 34, this time including a portion of NOTs 34 and the URL as shown above where the entirety of the work could be found. (Id.)
That posting manifestly induces and encourages others to visit the site he references, and to, inter alia, view, acquire, download and/or reproduce a copy of NOTs 34, one of the RTC works specifically enumerated in the Permanent Injunction and the very work that this Court found Henson had infringed.
On its face, Henson's October 24, 2001 posting violates T 1(b) of the Permanent Injunction by soliciting for others to send him one of the NOTs works. Similarly, Henson's May 9, 2002 posting directly violates ~ 1(d) of the Permanent Injunction in that NOTs 34 does, in fact, appear in full text at the referenced site, and he has actually included part of NOTs 34 itself (McShane Dec., T 5, and Ex. 14.) It also violates T 1(a) by including part of NOTs 34. As his posting itself makes clear, Henson knows full well that this posting of NOTs 34 violates the Permanent Injunction entered in this case, and that inducing others to infringe is also a violation, but Henson takes solace in his mistaken belief that because he is committing his contemptuous conduct while in Canada, this Court is impotent when it comes to remedying it. RTC asks this Court to disabuse Henson of this belief by granting this motion and setting a date for Henson to appear at an evidentiary hearing in civil contempt.'
I. HENSON'S POSTING CONSTITUTES PRIMA FACIE CONTEMPT OF THE PERMANENT INJUNCTION
Preliminarily, it is important to note that the Court need not adjudicate direct infringement or inducing infringement by Henson under the United States Copyright Act, 17 U.S.C. § 101, et seq. Rather, the far narrower issue here at bar is whether Henson has violated the Permanent Injunction. To be sure, the Permanent Injunction (T 2), expressly provides that a use of RTC's work which satisfies fair use standards, 17 U.S. C. § 107, would not violate the Permanent Injunction, but apart from that issue, RTC does not here have the burden to prove a case of copyright infringement. For example, because Henson is here charged with violating the Permanent Injunction, not with infringement under the statute, RTC need not prove up its ownership, nor its registration of the NOTs works. Rather, it need only prove that Henson is, or is "causing or inducing" others, to engage in an act prohibited by the Permanent Injunction, and then leave to Henson, if he is so inclined, to defend his conduct as a "fair use." See, Chere Amie, Inc. v. Windstar Apparel Corp., 175 F. Supp.2d 562 (S.D.N.Y. 2001)(plaintiff "has established by clear and convincing evidence that [defendant] failed to comply with this Court's preliminary injunction"); National Research Bz.trean v. Krtcker, 481 F. Supp. 612, 614 (S.D.N.Y. 1979) ("the issue here is whether a court order [preliminary injunction] has been violated, and it has."); see also Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1022 (9th Cir. 1985)(upholding civil contempt order against parties who violated a preliminary injunction based on evidence injunction was violated), cent. denied, 474 U.S. 1059, 106 S.Ct. 802 (1986); Musidor, B. h v. Great Anaerican Screen, 658 F.2d 60, 62-63 (2nd Cir.
RTC does not here ask directly for an immediate adjudication of contempt because it believes Henson should be afforded an evidentiary hearing to present whatever evidence/defense he may have.
1981)(same re criminal contempt order), cent. denied, 455 U.S. 944, 102 S.Ct. 1440 (1982).
II. HENSON'S PHYSICAL PRESENCE IN CANADA DOES NOT SHIELD HIM FROM THIS COURT'S CONTEMPT POWERS
Henson's posting (McShane Dec., Ex. 14) offers his belief that because he is committing acts of contempt from outside the United States, this Court is powerless. Henson is wrong.
It is black letter law that where, as here, a court had in personam jurisdiction over Henson in the underlying action when it issued the Permanent Injunction, the restraints operate against Henson's person and enjoin him from committing any prohibited act regardless of his physical location, whether within or without the United States where the prohibited act results in a violation in the United States. See Playboy Enterprises, Inc. v. Chuckleberry Publishing, Inc., 939 F.Supp. 1032 (S.D.N.Y. 1996); A. V by versace, Inc. v. Gianni Versace, S.p.A., 87 F.Supp.2d 281, 294-295 (S.D.N.Y. 2000).
In Chuckelberry, the court enforced a trademark injunction entered 15 years earlier against the publication and distribution of a "PLAYMEN" magazine in the United States by an Italian company. The court held the Italian company in contempt for creating a website in Italy that permitted access to its online content by persons in the United States. After noting that the court had retained jurisdiction (15 years later) to enforce its injunction (id. at 1036, n. 4), the court found it irrelevant that the U.S. "user `pulls' these images from [the] computer in Italy, as opposed to [the defendant] `sending' them to this country. By inviting United States users to download these images, [the defendant] is causing and contributing to their distribution within the United States." (Id. at 1044.) Furthermore, even though the court found that, while it could not exercise jurisdiction over every user of the Internet just because their postings could be accessed locally, such rules
[do] not extend to ignoring court orders and injunctions. If it did, injunctions would cease to have meaning and intellectual property would no longer be adequately protected. In the absence of enforcement, intellectual proper laws could be easily. circumvented through the creation of Internet sites tat permit the very distribution that has been enjoined. Our long-standing system of intellectual property protections has encouraged creative
minds to be productive. Diluting those protections may discourage that creativity.
(Id. at 1040.)
Here, Henson not only was enjoined by this Court, but his latest posting is nearly a repeat of the posting that resulted in his being enjoined in the first place, made on the same Internet newsgroup, bluntly undertaken outside the United States for the very purpose of circumventing this Court's authority. In addition, regardless of where Henson pushed the button to send his posting to ARS, it is the same as if it had been made in California, since Henson's infringing posting was available to anyone accessing the Internet in the United States, and did, in fact reach computers and persons in the United States and in the State of California - which is how RTC learned of the infringement.' (McShane Dec., T 6.) Henson plainly knew that the posting could and would be accessed in California and around the United States. In the Ninth Circuit, such an infringement is actionable where it is received. See Allarcom Pay Television, Ltd. v. General Instr. Corp., 69 F.3d 381, 387 (9th Cir. 1995)(copyright infringement consisting of broadcast of signals only completed when the signal is received and viewed at its destination, and court where it arrives has jurisdiction over infringement; rejecting jurisdiction over infringement that was not completed until it arrived with consumers in Canada); Los Angeles News Service v. Conus Conimzinications Co. Ltd. Partnership, 969 F.Supp. 579, 583 (C.D.Cal. 1997)(denying motion to dismiss by Canadian defendant that broadcast infringing transmissions in Canada which ended up being displayed "on American television sets"; that without such a finding, "[b]roadcasters could deliberately transmit potentially infringing material from locations across the U.S. borders for display in the United States without regard to the rights of copyright owners set forth in the U.S. Copyright Act."); see also The 3DO Co. v. Poptop Software, Inc., 1998 U.S. Dist. Lexis 21281, * 6-* 10, 49 U.S.P.Q.2d 1469 (N.D. Cal.)(finding jurisdiction over nonresident company with interactive web site which
5 This is further proven by the fact that Henson received a response to his posting from an ARS participant located in the United States. (McShane Dec., T 6 and Ex. 16.)
encouraged and facilitated users in California and elsewhere to download material from its site, where defendant knew its activities were directed at California companies and would have an effect in California).
Based upon the foregoing, RTC respectfully asks this Court to issue an order to show cause directing Henson to appear for an evidentiary hearing on a date certain and to there show cause why he should not be adjudicated, yet again, in civil contempt.
Dated: June 24, 2002 Respectfully submitted,
PAUL, HASTINGS, JANOFSKY & WALKER, LLP
Samuel D. Rosen [actually signed by Tomas Hogan]
Attorney' s for Plaintiff RELIGIOUS TECHNOLOGY CENTER