HAROLD J. McELHINNY CARLA B. OAKLEY MORRISON & FOERSTER 345 California Street San Francisco, California 94104-2675 Telephone: (415) 677-7000 Facsimile: (415) 677-7522 Attorneys for Defendant DENNIS ERLICH IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION RELIGIOUS TECHNOLOGY CENTER, a ) Civ. No. C-95-20091 RMW California non-profit ) corporation; and BRIDGE ) PUBLICATIONS, INC., a ) California non-profit ) corporation, ) DECLARATION OF DENNIS ) ERLICH IN SUPPORT OF Plaintiffs, ) OPPOSITION TO MOTION FOR ) OSC RE CONTEMPT v. ) ) NETCOM ON-LINE COMMUNICATION ) SERVICES, INC., a Delaware ) Date: March 17, 1995 corporation; DENNIS ERLICH, ) Time: 9:00 a.m. an individual; and TOM KLEMESRUD, ) The Hon. Ronald M. Whyte an individual, dba CLEARWOOD ) DATA SERVICES, ) ) Defendants. ) __________________________________) I, DENNIS ERLICH, declare as follows: 1. I am personally familiar with the facts set forth herein and, if called as a witness, could and would testify thereto of my own personal knowledge. 2. On Tuesday, February 21, I attended a hearing regarding the temporary restraining order in this case and the plaintiffs' seizure of property from my home. I was not represented at that hearing and, until Sunday, March 12, 1995, I did not have legal counsel for this case. I am not a lawyer and I do not have legal training. 3. Following the February 21 hearing, I understood that Judge Whyte would be issuing a new order that would make it clear that I would still be entitled to fair use of any of the materials of the Church of Scientology or of Mr. Ron Hubbard for my critical writings and sermons. I was also left the hearing with the impression that Judge Whyte had not been aware before the hearing that I am a writer, satirist and critic of the Church of Scientology and its teachings, but that the order was going to be revised to take this into account. I consider it part of my religious obligation to continue my critical and humorous writings and sermons about various issues, including the teachings of the Church of Scientology. 4. After the hearing, I did not understand that I would be restricted from using fairly any of the materials that the plaintiffs claim are confidential or trade secret materials. I also did not understand that materials claimed to be trade secret or confidential should be treated any differently than other copyrighted materials for purposes of fair use. In other words, based on Judge Whyte's comments at the hearing, I believed that fair use applied to all of the Hubbard and Church of Scientology materials about which plaintiffs had complained, without distinction as to the type of protection plaintiffs were claiming. 5. On Sunday, February 26, 1995, I posted an excerpt of text that I had received on a computer disk anonymously through the U.S. Mail in 1991. As I stated in my message accompanying the posted excerpt, the text seemed consistent with a speech I remembered hearing during my Church of Scientology training in the 1970s. As I also stated in my message accompanying the posted excerpt, I believed that my publishing of the excerpt constituted fair use of this text as it had been described to me by Judge Whyte at the February 21 hearing. 6. With respect to the Internet postings that plaintiffs submitted with their contempt papers, my comments in the discussion section on the first two pages are those indented, without a ">" or ">>" sign in the left margin. 7. On Friday, February 24, I contacted the Court to request that a copy of the new order be sent to me by facsimile. I did not, however, receive the revised order until Monday, February 27, 1995, when it came to me through the U.S. Mail directed to my business address. Once I received and read the amended TRO, I was very surprised to see that the order included a restriction on the fair use of materials that the plaintiffs claimed were confidential and trade secret materials. Overall, the tone of the order was more restrictive than I had anticipated after the February 21 hearing. Upon receipt of the amended TRO, I promptly wrote to the Court expressing my sincere concern regarding the text I had posted on the Internet on February 26 and explaining that I had endeavored to undo any possible error by trying to cancel the post. A copy of my letter to the Court is attached hereto as Exhibit A. 8. Since I received the amended TRO, I have not published quotations of any Hubbard or Church of Scientology materials on the Internet or elsewhere. It is my intention that, for so long as the amended TRO remains in effect, I will not publish any quotations of the materials identified on Exhibit B to the Complaint and I will only publish quotations of the materials identified on Exhibit A to the Complaint to the extent it is consistent with my fair use rights. It is also my intention to obey all orders of this Court to the best of my ability. 9. I understand that plaintiffs have demanded the right to seize my computer as a result of my posting of text on February 26, as described above. Such a seizure would be extremely burdensome to me. For example, I use my computer to run my business and for the preparation of business correspondence. I also use my computer for personal correspondence and for my literary and critical publishing work. If my computer were confiscated, I would suffer serious harm to my business and would feel that my free speech rights had been severely curtailed. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. EXECUTED at GLENDALE, California, this 14th day of March, 1995. ____________________________ Dennis Erlich