April 14, 1995 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, ) ANSWER TO FIRST AMENDED ) COMPLAINT AND COUNTERCLAIMS Plaintiffs, ) ) JURY TRIAL DEMANDED v. ) ) NETCOM ON-LINE COMMUNICATION ) SERVICES, INC., a Delaware ) corporation; DENNIS ERLICH, ) an individual; and TOM KLEMESRUD, ) an individual, dba CLEARWOOD ) DATA SERVICES, ) ) Defendants. ) __________________________________) ) DENNIS ERLICH, ) ) Counterclaimant, ) ) v. ) ) RELIGIOUS TECHNOLOGY CENTER, INC. ) and BRIDGE PUBLICATIONS, INC., ) ) Counterclaim ) Defendants. ) __________________________________) ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 1 Defendant Dennis Erlich hereby responds to the First Amended Complaint for Injunctive Relief and Damages for (1) Copyright Infringement; and (2) Trade Secrets Misappropriation (Cal. Civ. Code { 3426.1). 1. Mr. Erlich admits that he has posted on the Internet excerpts from certain documents that have been identified with the Church of Scientology of California. Mr. Erlich further admits that he has accessed the Internet through the Clearwood Data Services bulletin board service. Except as expressly admitted, Mr. Erlich denies the allegations of paragraph 1. 2. Mr. Erlich admits that plaintiffs have alleged claims for copyright infringement and trade secret misappropriation and that subject matter jurisdiction exists in this Court. Except as expressly admitted, Mr. Erlich denies the allegations of paragraph 2. 3. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 3 and, on that basis, denies the allegations of paragraph 3. 4. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 4 and, on that basis, denies the allegations of paragraph 4. 5. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 5 and, on that basis, denies the allegations of paragraph 5. ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 2 6. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 6 and, on that basis, denies the allegations of paragraph 6. 7. Mr. Erlich admits that he is a resident of the City of Glendale, County of Los Angeles, State of California. 8. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 8 and, on that basis, denies the allegations of paragraph 8. 9. Mr. Erlich denies the allegations of paragraph 9. 10. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 10 and, on that basis, denies the allegations of paragraph 10. 11. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 11 and, on that basis, denies the allegations of paragraph 11. 12. Mr. Erlich admits that plaintiffs came to his home on February 13, 1995, purported to execute a Writ of Seizure, deleted a vast number of documents from his computer's hard drive, took from his home a vast number of documents, computer disks and computer tapes, all without allowing Mr. Erlich an opportunity to catalog the items seized or destroyed. Except as expressly admitted, Mr. Erlich denies the allegations of paragraph 12. ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 3 13. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 13 and, on that basis, denies the allegations of paragraph 13. 14. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 14 and, on that basis, denies the allegations of paragraph 14. 15. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 15 and, on that basis, denies the allegations of paragraph 15. 16. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 16 and, on that basis, denies the allegations of paragraph 16. 17. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 17 and, on that basis, denies the allegations of paragraph 17. 18. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 18 and, on that basis, denies the allegations of paragraph 18. 19. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 19 and, on that basis, denies the allegations of paragraph 19. 20. Mr. Erlich denies that substantial measures have been taken to protect the confidentiality of materials plaintiffs describe as "Advanced Technology." As to the remaining allegations in paragraph 20, Mr. Erlich lacks sufficient information and belief to admit or deny the allegations and, on that basis, denies them. ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 4 21. Mr. Erlich denies the allegations in paragraph 21. 22. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 22 and, on that basis, denies the allegations of paragraph 22. 23. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 23 and, on that basis, denies the allegations of paragraph 23. 24. Mr. Erlich admits that Usenet groups provide information to users and provide a forum for electronic discussions on various topics. As to the remaining allegations in paragraph 24, Mr. Erlich lacks sufficient information and belief to admit or deny the allegations and, on that basis, denies them. 25. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 25 and, on that basis, denies the allegations of paragraph 25. 26. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 26 and, on that basis, denies the allegations of paragraph 26. 27. Mr. Erlich admits that he formerly was a minister for the organization known as the Church of Scientology of California. Mr. Erlich further admits that he became a minister in or about 1968 and served in various capacities in various Church of Scientology of California organizations between 1968 and 1982, when his Scientology membership was terminated. Mr. Erlich further admits that ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 5 between 1968 and 1982 he learned about certain philosophies and rules of Scientology and that he had access to and was freely given materials that specified these philosophies and rules. Except as expressly admitted, Mr. Erlich denies the allegations of paragraph 27. 28. Mr. Erlich admits that his membership in Scientology terminated in 1982. Mr. Erlich further admits that he has been a critic of Scientology's philosophies and rules for many years. Except as expressly admitted, Mr. Erlich denies the allegations of paragraph 28. 29. Mr. Erlich denies the allegations in paragraph 29. 30. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 30 and, on that basis, denies the allegations of paragraph 30. 31. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 31 and, on that basis, denies the allegations of paragraph 31. 32. Mr. Erlich admits that he has posted on the Internet excerpts of certain documents identified with Church of Scientology of California as part of his criticism and satire of Scientology. Except as expressly admitted, Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 32 and, on that basis, denies the allegations of paragraph 32. 33. Mr. Erlich denies that he has infringed any copyright interests of the plaintiffs as alleged herein. As ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 6 to the remaining allegations in paragraph 33, Mr. Erlich lacks sufficient information and belief to admit or deny the allegations and, on that basis, denies them. 34. As to lines 22-27 of page 13 (the introduction to paragraph 34), Mr. Erlich denies that he has infringed any copyright interests of the plaintiffs as alleged herein. As to the remaining allegations in the introduction to paragraph 34, Mr. Erlich lacks sufficient information and belief to admit or deny the allegations and, on that basis, denies them. a. Mr. Erlich denies the allegations of paragraph 34a. b. Mr. Erlich denies the allegations of paragraph 34b. c. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 34c and, on that basis, denies the allegations of paragraph 34c. d. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 34d and, on that basis, denies the allegations of paragraph 34d. e. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 34e and, on that basis, denies the allegations of paragraph 34e. 35. Mr. Erlich denies that he has infringed any copyright interests of the plaintiffs as alleged herein. As to the remaining allegations of paragraph 35, Mr. Erlich ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 7 lacks sufficient information and belief to admit or deny the allegations and, on that basis, denies them. 36. Mr. Erlich admits that plaintiffs repeatedly have attempted to silence his criticism and satire of Scientology and have threatened to sue him. Mr. Erlich admits further that plaintiffs failed to provide him with support for their claims of copyright ownership or trade secret protection, despite his requests for evidence of such claims. Mr. Erlich admits further that he received the letters attached as Exhibit I to the First Amended Complaint that are addressed to him (Bates pages numbers 155-162). Except as expressly admitted, Mr. Erlich denies the allegations of paragraph 36. 37. Mr. Erlich admits that, in response to letters from plaintiffs trying to silence his criticism and satire of Scientology, he requested that plaintiffs provide support for their claims that he was infringing their rights, but that plaintiffs refused to provide support for their claims. Mr. Erlich admits further that he sent the letters attached as Exhibit J to the First Amended Complaint (Bates numbers 172-176) to Thomas Small and that he wrote certain portions of the text on Bates page numbers 177, 179-180 and 183. Except as expressly admitted, Mr. Erlich denies the allegations of paragraph 37. 38. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 38 and, on that basis, denies the allegations of paragraph 38. ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 8 39. Mr. Erlich denies the allegations of paragraph 39. 40. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 40 and, on that basis, denies the allegations of paragraph 40. 41. Mr. Erlich denies the allegations of paragraph 41. 42. Paragraph 42 simply incorporates by reference prior paragraphs of the First Amended Complaint. Mr. Erlich hereby incorporates by reference, as though fully set forth, his response stated above to each of the paragraphs plaintiffs incorporate by reference. 43. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 43 and, on that basis, denies the allegations of paragraph 43. 44. Mr. Erlich denies that he has violated the copyright interest of any plaintiff as alleged herein and, accordingly, denies the allegations of paragraph 44. 45. Mr. Erlich denies the allegations of paragraph 45. 46. Mr. Erlich denies the allegations of paragraph 46. 47. Mr. Erlich denies the allegations of paragraph 47. 48. Mr. Erlich denies the allegations of paragraph 48. ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 9 49. Paragraph 49 simply incorporates by reference prior paragraphs of the First Amended Complaint. Mr. Erlich hereby incorporates by reference, as though fully set forth, his response stated above to each of the paragraphs plaintiffs incorporate by reference. 50. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 50 and, on that basis, denies the allegations of paragraph 50. 51. Mr. Erlich denies the allegations of paragraph 51. 52. Mr. Erlich denies the allegations of paragraph 52. 53. Mr. Erlich denies the allegations of paragraph 53. 54. Mr. Erlich denies the allegations of paragraph 54. 55. Mr. Erlich denies the allegations of paragraph 55. 56. Paragraph 56 simply incorporates by reference prior paragraphs of the First Amended Complaint. Mr. Erlich hereby incorporates by reference, as though fully set forth, his response stated above to each of the paragraphs plaintiffs incorporate by reference. 57. Mr. Erlich admits that between 1968 and 1982 he was a minister of the organization known as the Church of Scientology of California. Mr. Erlich further admits that, during part of this period, he provided services for the ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 10 Church of Scientology Flag Service Organization, a sales and delivery branch of the Church of Scientology of California. Except as expressly admitted, Mr. Erlich denies the allegations of paragraph 57. 58. Mr. Erlich admits that, from time to time between 1968 and 1982, he learned about certain Scientology philosophies and rules, including procedures that the organization called "auditing." Except as expressly admitted, Mr. Erlich denies the allegations of paragraph 58. 59. Mr. Erlich denies that allegations in paragraph 59. 60. Mr. Erlich lacks sufficient information and belief to admit or deny the allegations in paragraph 60 and, on that basis, denies the allegations of paragraph 60. 61. Mr. Erlich admits that his Church of Scientology of California membership terminated in 1982. Mr. Erlich further admits that he has criticized and satirized Scientology. Except as expressly admitted, Mr. Erlich denies the allegations of paragraph 61. 62. Mr. Erlich denies the allegations in paragraph 62. 63. Mr. Erlich denies the allegations of paragraph 63. 64. Mr. Erlich denies the allegations of paragraph 64. 65. Mr. Erlich denies the allegations of paragraph 65. ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 11 66. Mr. Erlich denies the allegations of paragraph 66. 67. Mr. Erlich denies the allegations of paragraph 67. PLAINTIFFS' PRAYER FOR RELIEF Mr. Erlich denies that plaintiffs are entitled to any of the relief for which they pray as to any cause of action. Mr. Erlich instead requests that the Court award him his attorneys' fees and costs, and such other further relief as this Court deems proper. AFFIRMATIVE DEFENSES First Affirmative Defense (Works Not Entitled To Copyright Protection) 68. The works that plaintiffs claim have been infringed are not entitled to copyright protection on the grounds that they are within the public domain and/or they do not constitute copyrightable subject matter. Second Affirmative Defense (Fair Use) 69. To the extent that Mr. Erlich has copied any work that is validly registered with the United States Copyright Office, as is alleged by plaintiffs here, Mr. Erlich's actions constitute "fair use," which is a complete defense to plaintiffs' claims of copyright infringement, and are further are protected by the freedom ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 12 of religion and freedom of speech guaranteed by the First Amendment to the United States Constitution. Third Affirmative Defense (Material Does Not Constitute Trade Secrets) 70. The documents claimed by plaintiffs to be trade secrets are not trade secrets because (i) the content of such documents has been publicly disseminated or is publicly available and therefore cannot qualify as a trade secret; (ii) plaintiffs do not derive an "independent economic value" from the alleged trade secrets "not being generally known to the public or to other persons who can obtain economic value from [their] disclosure or use;" and/or (iii) plaintiffs have failed to undertake reasonable efforts to maintain the secrecy of their alleged trade secrets. Fourth Affirmative Defense (Lack of Valid Copyright Registrations) 71. Plaintiffs failed to obtain valid copyright registrations for each of the works in which they claim a copyright interest that was allegedly infringed by Mr. Erlich. Absent a valid copyright registration, plaintiffs are barred from asserting a claim for copyright infringement. Fifth Affirmative Defense (Lack of Standing) ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 13 72. Plaintiffs lack standing to assert the copyright and/or trade secret claims asserted against Mr. Erlich. Sixth Affirmative Defense (Noninfringement) 73. Mr. Erlich has not infringed upon any one or more of the five exclusive rights (pursuant to 17 U.S.C. { 106) of the owner of any valid copyright for works at issue in this case. Seventh Affirmative Defense (Laches) 74. Plaintiffs claims are barred on the grounds of laches. Eighth Affirmative Defense (Unclean Hands) 75. Plaintiffs claims are barred on the equitable grounds of unclean hands. Ninth Affirmative Defense (Failure to State a Claim) 76. Plaintiffs failed to state a claim upon which relief can be granted. COUNTERCLAIMS 1. Counterclaimant Dennis Erlich is a person within the jurisdiction of the United States and a resident of Glendale, County of Los Angeles, State of California. 2. Mr. Erlich is informed and believes, and on that basis alleges, that counterclaim defendant Religious ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 14 Technology Center, Inc. ("RTC") is a California corporation having its principal place of business in Los Angeles, California. 3. Mr. Erlich is informed and believes, and on that basis alleges, that counterclaim defendant Bridge Publications, Inc. ("BPI") is a California corporation having its principal place of business in Los Angeles, California. 4. Jurisdiction of these counterclaims arises under the Declaratory Judgments Act, 28 U.S.C. {{ 2201 and 2202, under the laws of the United States concerning actions relating to copyrights, 17 U.S.C. {{ 101 et seq.; under 28 U.S.C. Sections 1331 and 1343; and under the doctrines of ancillary and pendant jurisdiction and on the ground that the counterclaims asserted arise out of the same transactions and occurrences upon which the claims of the plaintiffs are based. 5. There is a justiciable controversy between RTC and BPI, on the one hand, and Mr. Erlich, on the other, concerning the validity of certain copyright registrations upon which RTC and BPI have asserted claims of infringement; concerning the existence of valid copyrights for the works claimed to be infringed; concerning the qualification of certain materials as trade secrets; and concerning the standing of RTC and BPI to bring an action for copyright infringement or trade secret misappropriation. ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 15 6. Mr. Erlich is informed and believes, and on that basis alleges, that certain copyright registrations upon which RTC and/or BPI have asserted claims of infringement are invalid on the ground that the works identified therein are in the public domain and/or the works otherwise do not qualify for copyright protection. Mr. Erlich is also informed and believes, and on that basis alleges, that one or more of the works that RTC and/or BPI claim were infringed by Mr. Erlich have not been properly registered with the United States Copyright Office. Mr. Erlich is further informed and believes, and on that basis alleges, that neither RTC nor BPI have standing to assert a claim of infringement of such works. 7. Mr. Erlich is informed and believes, and on that basis alleges, that the documents RTC claims herein constitute trade secrets have been publicly disseminated and do not provide independent economic value from not being known generally to the public or to persons who could obtain economic value from them. Mr. Erlich is further informed and believes, and on that basis alleges, that the Church of Scientology of California, L. Ron Hubbard and/or RTC failed to take reasonable steps to maintain the secrecy of the documents claimed by RTC to constitute trade secrets. 8. Mr. Erlich has not infringed valid copyright interests owned by RTC and/or BPI and has not misappropriated trade secrets owned by RTC. Mr. Erlich has ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 16 never been employed by RTC or by BPI, and has never entered into any agreement with either RTC or BPI. 9. Notwithstanding the foregoing, on February 13, 1995, representatives of RTC and BPI, including but not limited to Warren McShane, Thomas Small and Paul Wilmshurst, a computer operator affiliated with RTC and/or BPI, at about 7:30 a.m., arrived at the home of Mr. Erlich in Glendale, California, and demanded that they be allowed to enter his residence and seize all Scientology materials and works of L. Ron Hubbard. The representatives of RTC and BPI were accompanied by on-duty Glendale police officer Steve Eggett, as well as by three persons who were identified later as Edward Eccles and Mark Fronterotta, off-duty Inglewood police officers, and Robert Shovlin, a retired officer, all of whom purported to be acting under the authority of a Writ of Seizure, dated February 10, 1995. Officer Eggett and off-duty Officer Eccles left Mr. Erlich's home after an hour or two, leaving the remaining individuals to complete the seizure. 10. The February 10, 1985, Writ of Seizure specified that a "United States Marshal or other law enforcement officer" should seize any and all "copies, reproductions, or embodiments of all or any part of the literary works identified in Exhibit A and B to the Complaint . . ., including any 3-1/2" or 5-1/4" computer disks and printed materials; all masters and tapes; any articles and things that appear to be works of L. Ron ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 17 Hubbard protected by copyrights; but excluding all personal computers (including all ancillary equipment and disk drives, found at or within the above-described locations)." 11. Despite the requirement in the Writ of Seizure that the seizure be conducted by a "United States Marshal or other law enforcement officer," Police Officer Eggett, off- duty Officers Eccles and Fronterotta, and Retired Officer Shovlin authorized and allowed representatives of RTC and BPI to execute the Writ of Seizure themselves. Indeed, the RTC and BPI representatives personally copied materials from Mr. Erlich's computer and deleted information from the hard drive of his computer. Also, these representatives damaged one of Mr. Erlich's computers such that it could not be used to run even the most basic functions after they finished with it. 12. When Mr. Erlich protested the removal of materials from his home, Retired Officer Shovlin said removal was permitted under the Writ of Seizure. Thereafter, at Mr. Erlich's request, an on-duty Glendale police sergeant came to Mr. Erlich's home and allowed the RTC and BPI representatives to seize materials from Mr. Erlich's home. 13. Mr. Erlich is informed and believes, and on that basis alleges, that the individuals identified as off- duty and/or retired police officers were hired by RTC and BPI. ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 18 14. The RTC and BPI representatives and persons identified as on-duty, off-duty or retired police officers entered Mr. Erlich's home without his permission. These individuals also seized materials from Mr. Erlich's home and deleted information from his computer hard drive without his permission. The invasion of Mr. Erlich's home by these individuals lasted for about seven hours and, without Mr. Erlich's permission, the RTC and BPI representatives took several pictures of the inside of Mr. Erlich's home and his personal belongings. In addition, these individuals tried to prevent Mr. Erlich from calling counsel or permitting the press to have access to his home during the seizure. 15. The individuals conducting the seizure refused to allow Mr. Erlich to make an inventory of the items taken from his home and refused to allow him to identify the information deleted from his computer hard disk before it was deleted. The materials taken from Mr. Erlich's home and deleted from his hard disk included many, many more materials than are described in Writ of Seizure (see paragraph 10, above), including private and confidential information regarding Mr. Erlich's acquaintances, his taxes, finances and his research efforts, a demo tape of Mr. Erlich's music and a bank statement, as well as approximately 300 computer disks that contained information and various computer programs (such as DOS, Aldus Page Maker, Word Perfect, Turbo Tax, Quicken). ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 19 16. Mr. Erlich is informed and believes, and on that basis alleges, that RTC published a story about its raid on his home in a publication called KSW NEWS and, in that publication, published pictures of the raid and seizure conducted by RTC and others in Mr. Erlich's home. Further, although there has been no decision on the merits of RTC's or BPI's claims of copyright infringement in this action, the RTC publication claimed that the materials seized were "used in what the court order found to be 'copyright infringement.'" FIRST CAUSE OF ACTION (Invasion of Privacy) 17. Mr. Erlich incorporates by reference the allegations in paragraphs 1 to 16 above as though fully set forth herein. 18. The actions of RTC and BPI set forth above constitute a violation of Mr. Erlich's privacy. Mr. Erlich is informed and believes, and on that basis alleges, that the foregoing actions were done with willful disregard for Mr. Erlich's right of privacy and to harass him in retaliation for his criticism and satire of Scientology. SECOND CAUSE OF ACTION (Trespass) 19. Mr. Erlich incorporates by reference the allegations in paragraphs 1 to 16 above as though fully set forth herein. ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 20 20. The actions of RTC and BPI set forth above constitute trespass, as the RTC and BPI representatives were acting beyond the scope of the Writ of Seizure. Mr. Erlich is informed and believes, and on that basis alleges, that the foregoing actions were done with willful disregard for Mr. Erlich's rights and to harass him in retaliation for his criticism and satire of Scientology. THIRD CAUSE OF ACTION (Conversion of Property) 21. Mr. Erlich incorporates by reference the allegations in paragraphs 1 to 16 above as though fully set forth herein. 22. The taking by RTC and BPI of items from Mr. Erlich's home, the deleting of information from Mr. Erlich's computer hard drive and the damage to Mr. Erlich's computer described above all constitute wrongful conversion of Mr. Erlich's property. Mr. Erlich is informed and believes, and on that basis alleges, that the foregoing actions were done with willful disregard for Mr. Erlich's rights and to harass him in retaliation for his criticism and satire of Scientology. FOURTH CAUSE OF ACTION (Declaratory Judgment -- Copyright Invalidity) 23. Mr. Erlich incorporates by reference the allegations in paragraphs 1 to 16 above as though fully set forth herein. ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 21 24. Based on the allegations set forth above, Mr. Erlich seeks a declaration that RTC and BPI lack standing to sue upon the copyright interests asserted in this case, that one or more of the copyright registrations sued upon are invalid, and that RTC and BPI lack proper copyright registrations for one or more of the works either of them claims was infringed by Mr. Erlich. FIFTH CAUSE OF ACTION (Declaratory Judgment -- Documents Do Not Constitute Trade Secrets) 25. Mr. Erlich incorporates by reference the allegations in paragraphs 1 to 16 above as though fully set forth herein. 26. Based on the allegations set forth above, Mr. Erlich seeks a declaration that RTC and BPI lack standing to sue upon the alleged trade secrets asserted in this case and that the documents claimed to qualify as trade secrets cannot, as a matter of law, constitute trade secrets under the California Trade Secret Act, Cal. Civ. Code {{ 3426 et seq. SIXTH CAUSE OF ACTION (Deprivation of Rights Under Color of State Law 42 U.S.C. {§ 1983, 1988) 27. Mr. Erlich incorporates by reference the allegations in paragraphs 1 to 16 above as though fully set forth herein. 28. The actions of RTC and BPI representatives, who were jointly engaged with state officials and acting under color of state law, constitute a violation of ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 22 Mr. Erlich's rights under the Fourth and Fourteenth Amendments to the Constitution of the United States and 42 U.S.C. Section 1983, in that RTC and BPI representatives unlawfully searched Mr. Erlich's home, unlwfully seized materials from his home, and caused him the loss of his personal property through the destruction or removal of property without due process of law. 29. As a proximate cause of RTC and BPI's actions, as alleged above, Erlich was subjected to humiliation and indignity, was prevented from transacting his business, and suffered physical and mental pain and suffering, in an amount according to proof. 30. As a further proximate result of RTC and BPI's actions, Erlich's property was damaged in an amount according to proof. PRAYER FOR RELIEF FOR THE FIRST, SECOND, AND THIRD CAUSES OF ACTION: 1. Damages according to proof at trial; 2. Exemplary and punitive damages according to proof at trial; 3. Such other relief as is determined to be just and proper. FOR THE FOURTH CAUSE OF ACTION: 1. A declaration that copyright registrations relied upon in this action by RTC and/or BPI are invalid; ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 23 2. A declaration that RTC and/or BPI lack standing to state a claim for copyright infringement as to the copyright registrations sued upon herein; 3. A declaration that RTC and/or BPI lack a proper copyright registration for the works they claim were infringed by Mr. Erlich; 4. Reasonable attorneys' fees and costs; 5. Such other relief as is determined to be just and proper. FOR THE FIFTH CAUSE OF ACTION: 1. A declaration that the documents claimed in this action by RTC to be trade secrets do not constitute trade secrets; 2. Such other relief as is deemed just and proper. FOR THE SIXTH CAUSE OF ACTION: 1. Damages according to proof at trial; 2. Exemplary and punitive damages according to proof at trial; 3. Reasonable attorneys' fees and costs pursuant to 42 U.S.C. Section 1988; 4. Such other relief as is deemed just and proper. DEMAND FOR JURY TRIAL Mr. Erlich hereby demands a trial by jury for all claims and counterclaims in this action. Dated: April 14, 1995 HAROLD J. McELHINNY ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 24 CARLA B. OAKLEY MORRISON & FOERSTER By ___________________________ Carla B. Oakley Attorneys for Defendant DENNIS ERLICH ANSWER TO FIRST AMENDED COMPLAINT AND COUNTERCLAIMS 25 371614.MK4