HAROLD J. McELHINNY CARLA B. OAKLEY PAUL E. JAHN 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, ) DENNIS ERLICH'S OPPOSITION ) TO PLAINTIFFS' MOTION Plaintiffs, ) FOR AN ORDER TO SHOW CAUSE ) REGARDING CIVIL CONTEMPT v. ) ) Date: March 17, 1995 NETCOM ON-LINE COMMUNICATION ) Time: 9:00 a.m. SERVICES, INC., a Delaware ) The Hon. Ronald M. Whyte corporation; DENNIS ERLICH, ) an individual; and TOM KLEMESRUD, ) an individual, dba CLEARWOOD ) DATA SERVICES, ) ) Defendants. ) __________________________________) INTRODUCTION AND FACTUAL BACKGROUND After more than a dozen years of devout practice as a member and then a minister, Dennis Erlich in 1982 lost faith in Scientology. Since then, Mr. Erlich has been critical of the writings and ways of the Church of Scientology ("CoS") and has endeavored to foster frank public discussion about Scientology and to provide his own commentary, criticism, parody and satire of CoS teachings. Mr. Erlich is one individual, operating a computer out of his home. He is not a competitor of plaintiffs or of CoS. He also is not compensated for his efforts, but rather considers his work an obligation of his personal ministry. To the extent that Mr. Erlich cites or quotes any CoS works, he does not claim to be the author of those works. On the contrary, he frequently includes copyright notices that specify authorship by L. Ron Hubbard. While no longer recognized as a minister by CoS, Mr. Erlich still considers himself a minister, but now with a calling to scrutinize Scientology and stir public discussion through humorous and/or critical writings or sermons. Plaintiffs, the Religious Technology Center and Bridge Publications, Inc., clearly disfavor and actively seek to stop public debate and criticism about Scientology. Indeed, it has been discussed on the Internet that Scientology groups have attempted to cancel messages on the Internet that are critical of Scientology. In direct response to Mr. Erlich's participation in this broad public debate, plaintiffs have used every source of leverage they can to silence him. First, plaintiffs filed this case in San Jose, 400 miles from Mr. Erlich's home, although every party except Net-Com is located in Southern California. They then conducted a search of Mr. Erlich's house and a seizure of his property, all without the presence of a United States Marshall. Plaintiffs' latest tactic is to seek to cripple Mr. Erlich financially by imposing their legal expenses in bringing this motion on him. Plaintiffs also seek to knock Mr. Erlich off his soapbox once and for all by urging the Court to confiscate his computer. The facts reveal that plaintiffs are overreaching. On Tuesday, February 21, Mr. Erlich, though both unrepresented and unversed in the law, attended a hearing before this Court regarding the temporary restraining order in this case. Declaration of Dennis Erlich, filed herewith, ("Erlich Decl.") | 2. During the hearing, the Court repeatedly voiced the concern that Mr. Erlich's right to comment, criticize, and satire be protected (Tr. at 6:21-24; 12:20-22; 31:1-2; 37:7-12) and announced that it intended to modify the TRO accordingly. Tr. at 33:22-23. [Note 1] The Court noted that its intent was to prohibit any publication of confidential matter or any publication of copyrighted matter that was not that which is fair criticism or comment or fair use. Tr. at 30:23-31:2. Confessing that he was "thoroughly confused" (Tr. 33:11), Mr. Erlich later asked if he was restricted from commenting on material "not proven to be copywritten or protected or trade secreted or whatever." Tr. 34:2-3. The Court responded, "I have not read nor do I think the plaintiffs read anything preventing you from fair use. . . . I want to look again at the order to see if I can make that clear, but fair use is something that you're allowed to do under the law." Tr. at 34:2-12. After this interchange, Mr. Erlich understandably believed that the fair use exception the Court contemplated would apply equally to all of the Hubbard and Church of Scientology materials without regard to the form of protection plaintiffs had asserted. Erlich Decl. | 4. Based on that understanding, Mr. Erlich thought that he was permitted to continue to make fair use of Scientology documents in his on-going Internet commentary, a commentary which he considers part of his religious obligation. Id. || 3-4. Since the hearing, however, Mr. Erlich has only once posted a work in which plaintiffs purport to hold rights. That use was on Sunday, February 26, when he posted onto the Internet an excerpt of text that had been sent to him anonymously years earlier. Id. | 5. The next day (Monday, February 27), Mr. Erlich received by mail a copy of the Court's amended order. Id. | 7. When he read the amended order, he was very surprised to learn that the order's fair use exception did not extend to the documents listed on Exhibit B. Id. Recognizing that he had been mistaken as to the Court's intentions and that the excerpt he had posted may have been part of an Exhibit B document, Mr. Erlich immediately wrote a letter to apprise the Court of his act and to apologize if he had made an error. Id. | 7, Exh. A. He sent a copy of the letter to plaintiffs' counsel and posted it on to the Internet. Id. He simultaneously made every effort to have the post cancelled. Id. Mr. Erlich made these efforts to rectify any possible mistake prior to any notice that plaintiffs intended to bring this motion. Id. ARGUMENT I. CIVIL CONTEMPT DOES NOT LIE ON THESE FACTS To be held in civil contempt, a person must have disobeyed a specific and definite court order. Go-Video v. Motion Picture Ass'n of America, 10 F.3d 693, 695 (9th Cir. 1993); Armstrong v. Executive Office of the President, Office of Administration, 1 F.3d 1274, 1289 (D.C. Cir. 1993) (civil contempt lies only if person has violated an order that is clear and unambiguous); Fonar Corp. v. Deccaid Servs., Inc., 983 F.2d 427, 429 (2d Cir. 1993) (same). A person should not be held in contempt if his action appears to be based on a good faith and reasonable interpretation of the court's order. Go-Video, 10 F.3d at 695 (citations omitted). It is the movant's burden to prove civil contempt by clear and convincing evidence. Vertex Distrib., Inc. v. Falcon Foam Plastics, Inc., 689 F.2d 885, 890 (1982); Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 16 (1st Cir. 1991). This burden extends to proving that the putative contemptor's understanding of the court order is unreasonable. See Vertex, 689 F.2d at 690. Any ambiguities or uncertainties as to the scope of the order must be read in a light favorable to the person charged with contempt. Project B.A.S.I.C., 947 F.2d at 16, 18. Here, Mr. Erlich has always complied with what he believed in good faith to be the Court's rulings and intentions. Plaintiffs have failed to introduce evidence of any violation of the original TRO from the time it was entered until the time of the February 21 hearing. [Note 2] Once the hearing had taken place, Mr. Erlich posted excerpts of a single document he had obtained anonymously from a third party several years earlier, but he did so based on a good faith and -- given his lack of counsel or legal expertise -- reasonable interpretation of the Court's comments at the hearing. [Note 3] See Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988) (pro se litigant must be afforded benefit of any doubt in review of pleadings). Indeed, immediately upon receiving the amended order and learning that his interpretation might have been incorrect, Mr. Erlich took every reasonable effort to remedy the situation. Erlich Decl., | 7, Exh. A. In these circumstances, civil contempt will not lie. II. PLAINTIFFS ARE NOT ENTITLED TO THE SANCTIONS THEY SEEK Civil contempt can serve two purposes: to compensate for the costs of the contemptuous conduct or to coerce future compliance with the court order. The Supreme Court recently cautioned, however, that a court must exercise "the least possible power adequate to the end proposed." Spallone v. United States, 493 U.S. 265, 280 (1990) (citations omitted). Plaintiffs have failed to demonstrate that they should be compensated for actual damages or their fees or costs.[Note 4] Mr. Erlich endeavored to retract the post within a day after posting it. Plaintiffs have introduced no evidence of any actual injury due to the posting, presumably because they cannot. Go-Video, 10 F.3d at 696 (award limited to "'actual loss'" for "'injuries which result from the noncompliance'"). Any legal fees they have incurred are due not to Mr. Erlich's behavior, but their own ultra- aggressive litigation strategy. Id. (where injuries are self-inflicted by a "spare-no-expense" strategy and party complies substantially with reasonable interpretation of order, contempt finding is improper). The remedy that plaintiffs seek of confiscating Mr. Erlich's computer is also unjustified. Given the circumstances, it would constitute a prior restraint on Mr. Erlich's speech. Further, as Mr. Erlich relies on his computer for business purposes and research (Erlich Decl., | 9), its confiscation would be extremely burdensome to him and violate the public policy of allowing him to earn his livelihood. CONCLUSION For the foregoing reasons, plaintiffs' motion for an order to show cause regarding civil contempt should be denied in its entirety. Dated: March 15, 1995 HAROLD J. McELHINNY CARLA B. OAKLEY PAUL E. JAHN MORRISON & FOERSTER By ___________________________ Carla B. Oakley Attorneys for Defendant DENNIS ERLICH Notes: [1] A copy of the transcript is attached hereto as Exhibit A for the Court's convenience. [2] It is evident from argument of plaintiffs' counsel at the February 21 hearing that plaintiffs were able "in a fairly short period of time to write a program that allowed us to know when Mr. Erlich and other people were actually logging on to the Internet." Tr. at 10:6-13. It can only be assumed that plaintiffs have been monitoring Mr. Erlich's activity carefully. [3] Plaintiffs have argued that even if Mr. Erlich's interpretation was reasonable, the fair use exception would not have covered his act. Neither the Court's comments at the hearing nor the amended order tackle the question of what constitutes fair use. As such, the order provides insufficient notice to be enforced by a sanction as harsh as contempt. See International Longshoremen's Ass'n, Local 1291 v. Philadelphia Marine Trade Ass'n, 389 U.S. 64, 76; Fonar, 983 F.2d at 429. Further, the question of whether the Copyright Act's fair use exception covers Mr. Erlich's activities regarding purportedly copyright-protected materials lies at the heart of this case. This motion, which plaintiffs have pushed to have heard on an expedited basis, is not the proper vehicle for resolving this issue. [4] In fact, plaintiff Bridge Publications, Inc. does not have standing to bring this motion as it alleges no rights with respect to alleged trade secret information, but instead only alleges rights as to published and copyright- registered materials.