From: Keith Henson <hkhenson@netcom8.netcom.com>
Subject: Petition for certiorari--ASCII-long
Date: 1999/10/03
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I finally got this into ASCII!
Web based documents are really useful. This one at
http://www.xmission.com/~mirele/keithcert.html
has been accessed over 600 times. But they don't lend themselves to
comment or suggestions. As I understand how this works, RTC gets to
reply, and my lawyers get a short reply to RTC. I have not asked them if
they would take suggestions for matters to put in that last shot from the
audience, but I don't think it would hurt. They seemed to be pleasently
surprised that 600 people would access their fine work.
If you think it would be better for RTC not to see your suggestions, you
can email them to me, or if you worry about the Earthlink influence, you
could email them to apark@hewm.com.
I have shifted some the footnote placements in some cases closer to where
they are noted, and made one editorial underlining, but otherwise this is
the way it went. Incidentally, these things are works of art which does
not come through very well in ASCII.
Keith Henson
--------
No. 99-456
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1999
____________
H. Keith Henson,
Petitioner,
v.
Religious Technology Center,
Respondent.
_________________
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
PETITION FOR WRIT OF CERTIORARI
Charles B. Rosenberg
Counsel of Record
Ann I. Park
Heller Ehrman White & McAuliffe
601 South Figueroa Street
Los Angeles, California 90017
(213) 689-0200
Attorneys for Petitioner
September 2, 1999
QUESTIONS PRESENTED
(1) Was the decision of the Ninth Circuit Court of
Appeals so violative of Petitioner's First Amendment right to freedom of
speech that this Court should exercise its power of supervision to (a)
review and correct the clearly erroneous fashion in which the statutory
defense of fair use to copyright infringement was interpreted and applied
and (b) vacate (or order vacated) on First Amendment grounds both the
wrongful injunction against Petitioner and the punitive imposition on
Petitioner of a large statutory damages award and a large legal fees award?
(2) In the alternative, if the Ninth Circuit
correctly interpreted and applied existing precedents, does the First
Amendment require that each of the four factors of the statutory fair use
defense to copyright infringement instead be applied liberally in favor
of an alleged infringer when the alleged infringer has engaged in
political speech and social commentary with no effort at financial gain
and when the alleged infringer can be threatened with a punitive award of
statutory damages?
PARTIES TO THIS PROCEEDING
The names of all parties to this proceeding are contained in the
caption of this case. Petitioner is an individual, not a corporate
entity. See Supreme Court Rules 14.1(b) and 29.6.
TABLE OF CONTENTS
QUESTION PRESENTED
PARTIES TO THIS PROCEEDING
TABLE OF CONTENTS
OPINIONS BELOW
STATEMENT OF JURISDICTION
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
STATEMENT OF THE CASE
REASONS FOR GRANTING THE PETITION
I. The Petition Should Be Granted Because The First Amendment
Requires That The Four Factors of the Statutory Fair Use
Doctrine Be Applied Liberally In Favor Of Defendant When the
Alleged Infringing Speech Has No Commercial Motive Or Impact,
But Consists Purely of Political Protest and Social Commentary.
II. The Petition Should Be Granted Because The Fair Use Analysis
Applied By The Courts Below Failed To Follow The Decisions Of
This Court
A. Petitioner's Use Was Of A Critical, Noncommercial Nature And Was
Transformative Under This Court's Decision In Campbell
B. The Lower Courts Erroneously Held That The "Unpublished" Nature
Of The Work Prevented A Finding Of Fair Use
C. The Lower Courts Mechanically Focused On The Extent Of The
Copying As Preventing A Finding Of Fair Use
D. No "Market Harm" Exists Where Petitioner's Use Was
Non-Commercial And Not Intended To Supplant The Market For
Scientology's Works
CONCLUSION
TABLE OF AUTHORITIES
[moved to end of posting]
No. 99-456
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1999
____________
H. KEITH HENSON, Petitioner,
v.
RELIGIOUS TECHNOLOGY CENTER, Respondent.
___________
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
__________
Petitioner H. Keith Henson hereby petitions this Court to issue a
Writ of Certiorari to review the judgment of the United States Court of
Appeals for the Ninth Circuit.
Pursuant to the Copyright Act, Petitioner has been found liable
for copyright infringement. He has been ordered to pay $75,000 in
non-compensatory penalties plus an additional $75,000 in attorneys' fees
to Respondent, all for a single message posted to the Internet. In that
message, Petitioner protested a TRO issued by a District Court,
criticized the Church of Scientology, and included a two-page, allegedly
copyrighted text to support his assertion that Scientology was engaged in
criminal activity. Respondent Religious Technology Center, the purported
copyright owner, is an affiliate of the Church of Scientology.
The Ninth Circuit Court of Appeals summarily affirmed the
District Court's decision rejecting Petitioner's argument that this
Internet posting constituted a "fair use" under Section 107 of the
Copyright Act. The District Court granted summary judgment to Respondent
on Petitioner's fair use argument even though the court found that
Petitioner's use was noncommercial, constituted "criticism designed to
stimulate discussion," was not intended to supplant the market for
Scientology works, and would likely not result in market harm to
Scientology. Petitioner respectfully submits that the judgment against
him disregards his fundamental constitutional right to free speech, as
well as the decisions of this Court regarding the proper application of
the fair use doctrine, and respectfully requests review by this Court.
OPINIONS BELOW
The opinion of the Court of Appeals for the Ninth Circuit
affirming the decision of the District Court is set forth as Appendix A
to this petition at pages A1-A6, and at 1999 WL 362837. The opinion of
the United States District Court for the Northern District of California
is set forth as Appendix B to this petition at pages A7-A23.
STATEMENT OF JURISDICTION
The Court of Appeals entered its judgment on June 4, 1999. This
court has jurisdiction to review this petition pursuant to 28 U.S.C. §
1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The First Amendment to the United States Constitution provides:
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
Article I, § 8 of the United States Constitution provides:
The Congress shall have Power . . . to Promote the Progress of Science
and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings
and Discoveries.
Section 107 of the Copyright Act of 1976, as amended in 1992, 17
U.S.C. § 107, provides:
§ 107. Limitations on exclusive rights; Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of
a copyrighted work, including such use by reproduction in copies or
phonorecords or by any other means specified by that section, 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.
The fact that a work is unpublished shall not itself bar a finding of
fair use if such finding is made upon consideration of all the above factors.
STATEMENT OF THE CASE
On March 26, 1996, Petitioner, H. Keith Henson, delivered to the
Honorable Ronald M. Whyte, Judge of the United States District Court for
the Northern District of California, a letter he had written protesting a
temporary restraining order ("TRO") that had been issued by the District
Court against Grady Ward, a critic of the Church of Scientology
("Scientology"). The TRO prohibited Mr. Ward from disseminating on the
Internet certain Scientology texts.[1] Respondent Religious Technology
Center ("RTC"), an affiliate of Scientology, alleges that it holds valid
copyrights to those texts.
Petitioner, a computer industry professional, had become
interested in early 1995 in what he regarded as Scientology's attempts to
stifle criticism on the Internet. Petitioner considered Scientology's
attack on its on-line critics a threat to fundamental principles of free
speech. As a result, Petitioner had begun to follow the progress of
lawsuits involving Scientology, including the suit against Grady Ward.
On March 29, 1996, Petitioner attended the preliminary injunction
hearing in the Ward action, during which the District Court stated that
it would issue a preliminary injunction against Grady Ward.
The next day, on March 30, 1996, Petitioner Henson posted to an
Internet newsgroup [2] the open letter critical of the TRO in the Ward
action that he had already delivered to the Court on March 26. The text
of his open letter is reproduced in Appendix C.
Petitioner's letter to the District Court was both an attack on
governmental power and an attack on the Church of Scientology.
With regard to governmental power, Petitioner said that he had
read the TRO against Mr. Ward and considered it a potential violation of
the First Amendment. Specifically, Petitioner was
----------------------------------
[1] Judge Whyte issued the TRO in Religious Technology Center v. Ward, Case
No. 96-20207 RMW (the "Ward action").
[2] A "newsgroup" is "[A]n electronic discussion group, serving as a
bulletin board for users to post universally accessible messages, and to
read and reply to those from others." Religious Technology Center v.
F.A.C.T.Net., Inc., 901 F. Supp. 1519, 1524 n.4 (D. Colo. 1995). As this
Court has noted, "There are thousands of such [news]groups, each serving
to foster an exchange of information or opinion on a particular topic . .
.. ." Reno v. American Civil Liberties Union, 521 U.S. 844, 851 (1997).
The newsgroup to which Petitioner posted this open letter was
alt.religion.scientology, a discussion forum for critics of Scientology.
---------------------------------
concerned that the language in the TRO barring all persons in "active
concert" with Mr. Ward from posting might apply to "random persons on the
Internet" such as himself. In that event, Petitioner wrote to the
District Court that:
[T]he TRO is a violation of my First Amendment Rights to discuss the
criminal activities of the cult of Scientology.
With reference to the Church of Scientology, Petitioner posted
as part of his open letter to the District Court a two-page Scientology
document entitled "New Era Dianetics for Operating Thetans Series 34:
The Sequence for Handling A Physical Condition" ("NOTs 34").[3] NOTs 34
provides instructions for the use of an "e-meter" to "handle" physical
conditions.[4] Of NOTs 34, Petitioner said:
Forbidding discussion of this particular document, including quoting it
entirely, is clearly against the public interest as well as a violation
of my First Amendment rights. Unless, of course, copyright law can be
used to prevent disclosure of instructions for criminal activity.
Petitioner then argued that, in his view, NOTs 34 constituted
proof that the Church of Scientology had violated Court orders
---------------------------------------
[3] NOTs 34 is one of fifty-five works, totaling approximately 700 pages
and copyrighted together as a single collection known as the "Advanced
Technology" materials. Complaint, RTC v. H. Keith Henson, U.S.D.C.
Northern Dist. Case No. C-96-20271, 6-11. RTC alleges it holds valid
copyrights to the Advanced Technology works. Id. However, a district
court in Colorado has recently found that there is a material issue of
fact as to whether the copyrights applying to the Advanced Technology
works are valid. See Bridge Publications v. F.A.C.T.Net, Inc., 183
F.R.D. 254 (D. Colo. 1998). The District Court below, however, rejected
Petitioner's challenge to the validity of the copyright on NOTs 34. App.
B at A9-A11.
[4] The text of NOTs 34 is not included in Appendix C, but is available in
the Excerpts of Record filed by Respondent in the Ninth Circuit below,
which has been sealed at RTC's request. For background material on
Scientology's use of an e-meter and auditing, see generally Church of
Scientology v. Richardson, 437 F.2d 214 (9th Cir. 1971); United States v.
An Article or Device "Hubbard Electrometer," 333 F. Supp. 357 (D.D.C. 1971).
----------------------------------
stemming from FDA actions against the Church in the early 1970s. Those
court orders prohibited the Church from making medical claims involving
the use of so-called "E-meters" as a cure for illness. See United States
v. An Article or Device "Hubbard Electrometer," 333 F. Supp. 357 (D.D.C.
1971).[5]
Petitioner quoted the entire text of NOTs 34 to prevent charges
that he was unfairly quoting parts of the document out of context. See,
e.g., Trial Transcript 353:20-354:1. Referring to NOTs 34 in his open
letter to the District Court, Petitioner said:
I can see why the "Church" of Scientology is trying to suppress this
material. If carried out, the instructions in this particular bulletin
amount to *criminal* acts, to wit, the practice of medicine without a
license. I produce this widely available document in its entirety for
your edification.
In the final two paragraphs of his letter, Petitioner stated, in
part:
I know that taking a stand against Scientology is likely to subject me
and my family to the same abuse Mr. Ward has experienced. But there
comes a point where people of good will *must* stand up to criminals -
even to those who are experts in using the courts to harass. . . .
It is my position that public interest in this matter should override
*all commercial* copyright concerns. The entire corpus of material the
"Church" of Scientology is trying to keep from public view is so at odds
with what cult victims are told when they are suckered into it as to
constitute fraud - thinly disguised as "religion."
-------------------------------------------
[5] In Hubbard Electrometer, the district court noted: "Hubbard and his
fellow Scientologists developed the notion of using an E-meter to aid
auditing. Substantial fees were charged for the meter and for auditing
sessions using the meter. They repeatedly and explicitly represented
that such auditing effectuated cures of many physical and mental
illnesses. . . . All this was and is false-in short, a fraud. Contrary
to representations made, there is absolutely no scientific or medical
basis in fact for the claimed cures attributed to E-meter auditing." 333
F. Supp. at 359.
----------------------------
The same day he posted this open letter to the District Court,
Petitioner received an e-mail message from counsel for Respondent RTC.
The e-mail message informed Petitioner that the document he had posted
was a copyrighted, unpublished work to which RTC held the copyright, and
demanded that Petitioner cease and desist from posting the document.
Petitioner was neither cowed nor repentant. The next day, March
31, 1996, Petitioner re-posted his open letter to Judge Whyte, including
the allegedly copyrighted NOTs 34 document. Petitioner's response also
asked readers of the newsgroup for any other Scientology Advanced
Technology materials discussing criminal activities, and announced his
intention to post the material "in the public interest."
As part of his Internet posting, Petitioner also posted his
responding e-mail to counsel for RTC, which said in part:
[I will] put it a little nicer than Grady [Ward] would, but you can take
your demand, fold it till it is all corners, and stick it where "the sun
don't shine."
Four days later, on April 4, 1996, the Religious Technology
Center filed an action for copyright infringement and trade secret
misappropriation against Petitioner. RTC simultaneously moved for a
temporary restraining order and order to show cause regarding the
issuance of a preliminary injunction. The matter was assigned to Judge
Whyte, who granted a TRO on April 5. The preliminary injunction against
Petitioner was granted on April 12, 1996. Because Petitioner could not
afford legal representation, Petitioner acted as his own attorney during
the TRO, preliminary injunction, and summary judgment phases of the case.
[6]
--------------------------------
[6] While Petitioner remained in pro per throughout most of the District
Court pre-trial action and the appeals (during the "willfulness" damages
trial and motion for a new trial only, Petitioner was represented by a
solo practitioner, Mr. Graham Berry), RTC was represented throughout this
action by up to four law firms: Paul Hastings Janofsky & Walker in New
York, Rabinowitz Boudin Standard Krinksy & Lieberman in New York, Kobrin
& Moxon in Los Angeles, and the Law Offices of Thomas R. Hogan in San
Jose.
------------------------------------
Nearly a year later, on February 28, 1997, RTC filed a motion for
summary judgment on its copyright claims. The District Court granted
RTC's motion on April 15, 1997. In that opinion, which is reproduced in
Appendix B to this Petition, the District Court rejected Petitioner's
fair use defense under Section 107 of the Copyright Act, 18 U.S.C. §
107. A detailed analysis of the District Court's opinion is set forth
below in Section II. As to the four factors enumerated in Section 107,
the District Court held as follows:
· Although the purpose of Petitioner's posting was noncommercial (a point
conceded by RTC) and the posting constituted a *"criticism designed to
stimulate discussion,"* the first factor nevertheless "weighs in RTC's
favor since Henson's use is only minimally transformative and does not
appear to be in good faith."
· Although NOTs 34 is "more informational than creative, the second
factor on the nature of the copyrighted work nevertheless *"weighs
heavily against Henson"* because the work was unpublished.
· Although the 700-page NOTs Series was copyrighted as a "single
collection," NOTs 34 constituted a separate copyrightable element and the
"amount and substantiality of the copying" factor *"weighs heavily in
RTC's favor"* because Petitioner copied NOTs 34 "in its entirety."
· Although "the court is not convinced that Henson's posting of the NOTs
Series 34 will result in decreased marketability of the work," this
factor only *"weighs slightly in Henson's favor."*
App. B at A11-A20 (emphasis added).
Despite finding that the fourth "market harm" factor weighed
slightly in Petitioner's favor, the District Court concluded that
*"plaintiff's strong showing with respect to the other factors requires a
finding of no fair use as a matter of law."* App. B at A-20 (emphasis
added).
Although Petitioner had repeatedly - in his open letter to the
District Court, during the hearings on the TRO and preliminary
injunctions sought by RTC and in his pro per papers opposing RTC's motion
for summary judgment - stated that he believed that the First Amendment
to the United States Constitution protected his right to criticize the
TRO issued in the Ward action and criticize Scientology, the District
Court's summary judgment decision appeared to ignore Petitioner's First
Amendment arguments. The First Amendment went unmentioned in the court's
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
lengthy Memorandum order granting summary judgment to RTC.
On June 28, 1997, Petitioner, still acting as his own attorney,
appealed to the Ninth Circuit the District Court's decision on summary
judgment (Appeal No. 97-16160). In January 1998, the Ninth Circuit
granted Petitioner's motion to file a late opening brief, and accepted
for filing Petitioner's four-page pro se brief. Petitioner's brief
lacked any citation to legal authority but, once again, put forward
Petitioner's First Amendment claim.
In the meantime, the case against Petitioner proceeded to trial
on the issue of the willfulness of the infringement and the amount of
damages. A jury trial on these issues concluded on May 12, 1998.
The jury found that Petitioner had willfully committed copyright
infringement, and awarded RTC $75,000 in so-called "statutory damages"
under the Copyright Act. 17 U.S.C. § 504 (c). None of these damages is
compensatory. All are, in effect, punishment. Scientology has
reportedly touted this $75,000 award as the largest statutory damages
award ever recorded for a single copyright infringement[7]
The District Court entered judgment on the verdict on May 14,
1998, and awarded RTC an additional approximately $13,000 in costs
associated with the case. On September 28, 1998, the District Court
awarded RTC $75,000 in attorneys' fees.[8]
-----------------
[7] See WALL ST. J., July 21, 1998, reproduced at App. D, at A29.
[8] RTC had requested $865,000 in attorneys' fees pursuant to 17 U.S.C. §
505. RTC has appealed the $75,000 attorneys' fees award as being too
low. Appeal No. 98-17120
-------------------
As a result of his inability to pay these judgments against him,
Petitioner has filed for bankruptcy protection under Chapter 13 of the
federal bankruptcy laws.
In June 1998, Petitioner, once again in pro per, filed a second
appeal in the Ninth Circuit, regarding the final judgment and award of
damages against him and certain irregularities in the conduct of the
trial (Appeal No. 98-16146). On October 13, 1998, Petitioner filed a
sixteen-page pro se brief in support of this appeal, again without any
citation to legal authority but again putting forward his First Amendment
defense. Petitioner's second appeal was consolidated with his first appeal.
In November 1998, Heller Ehrman White & McAuliffe ("Heller
Ehrman") agreed to represent Petitioner on a pro bono basis in his
appeals to the Ninth Circuit. On December 16, 1998 Heller Ehrman brought
on Petitioner's behalf a motion to file a formal brief in support of
Petitioner's appeal of the grant of summary judgment on the copyright
infringement claim, requesting the opportunity to properly brief the
issues on appeal, with citation to controlling legal authority on the
applicability of the fair use defense and Petitioner's First Amendment
rights. RTC vigorously opposed Petitioner's motion to file a late formal
brief. On February 16, 1999, the Ninth Circuit denied the motion.
Oral argument on the two appeals was held on March 9, 1999. On
June 4, 1999, the Court of Appeals issued an unpublished Memorandum
Opinion on Petitioner's appeals, reproduced herein at Appendix A. The
Ninth Circuit summarily rejected Petitioner's fair use claim. The
entirety of the Ninth Circuit's fair use analysis is as follows:
Analyzing the four prongs of 17 U.S.C. § 107 (1994), the district court
also properly found that Henson's copying did not constitute a fair use
pursuant to the statute. Notably, Henson copied an unpublished work in
its entirety, and conceded that such copying would lead to market harm.
[9]
--------------------
[9] The Court of Appeals' market harm statement contradicted the District
Court's finding of no market harm. As explained below in
Section II.D., the type of potential market harm conceded by Petitioner
was that his posting "will convince the public not to buy the product
because it is rubbish." App. B at A-19. However, potential market harm
from "biting criticism that suppresses demand" is not actionable under
the copyright laws. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 592
(1994).
-----------------------
As to Petitioner's claim that his speech was protected by the
First Amendment, the Ninth Circuit had only this to say:
Henson argues that copyright law should not protect alleged criminal
material because this would be a violation of the First Amendment. This
argument fails in light of Harper & Row, Publishers, Inc. v. Nation
Enter., 471 U.S. 539 (1985), in which the Court stated that the laws of
the Copyright Act already embrace First Amendment concerns.
REASONS FOR GRANTING THE PETITION
This is an important case. Despite the formal "non-publication" of
the opinions of the Ninth Circuit and District Court below, this case will
have a severe chilling effect on both political speech directed at the
government and critical speech directed at institutions.
The chilling effect will not come from the formal opinions of the
courts below, which will, as a de jure matter, continue to be hidden
beneath the blanket of non-publication. The chill will emanate instead
from the tremendous publicity that the case has received and will receive,
both in the traditional press and on the Internet, where the case was
born.[10]
-----------------------
[10] For example, in its lead editorial on July 21, 1998, the Wall Street
Journal strongly criticized the judgment against Petitioner, saying, in
part: "[The District Court], in short, has turned copyright law on its
head. . . . The essence of the matter before [the District Court], as
anyone not blinded by a Pecksniffian literalness can see, is that the
plaintiffs are using the law to muzzle their critics." App. D, at A31.
This case is known and followed by hundreds of thousands of people. The
alt.religion.scientology newsgroup in which many people follow this case
and others involving Scientology is among the top five to ten
groups in readership on the Internet. An Internet search for information
regarding this case yields over 200 websites discussing this action.
----------------------------
The message that has been communicated to the public by press and
Internet coverage of Petitioner's case is this: The Copyright Act is the
Arctic wind of First Amendment Rights. In the face of that wind, it does
not matter that an individual who reproduces an institution's "secret"
and "unpublished" documents in order to make a political point has
published only a small fraction of an entire work. It does not matter
that the individual will not benefit financially from the publication. It
does not matter that the institution holding the copyright will not be
commercially harmed. It does not matter that copying a small fraction of
the work verbatim, rather than paraphrasing it, serves to give the
accompanying political comment weight and saves it from being sloughed off
as exaggeration or inaccurate paraphrase. Nothing matters except the
property rights of copyright owners.
Anyone who wants in the future to use even a tiny fraction of the
"unpublished" documents of any institution to make a point will have to
keep firmly in mind what has happened to Petitioner. As punishment for
using just two pages of a seven-hundred-page work - all as part of pointed
political and social criticism - Petitioner has so far been assessed
statutory penalties averaging $37,500 per page copied, not to mention the
large legal fees and costs that have been assessed against him.
Respondent, meanwhile, is appealing the legal fees award as too low.
The question of whether the Copyright Act can be used in this
fashion, not only to abridge Petitioner's First Amendment right to
criticize the government and engage in social criticism, but to punish
him, on a vague and confusing willfulness standard, for exercising those
rights, has importance far beyond the particular facts and the particular
parties involved in this case.
I. The Petition Should Be Granted Because The First Amendment
Requires That The Four Factors of the Statutory Fair Use Doctrine Be
Applied Liberally In Favor Of Defendant When the Alleged Infringing
Speech Has No Commercial Motive Or Impact, But Consists Purely of
Political Protest and Social Commentary.
From the earliest days of the Republic, the Copyright Clause and
the First Amendment have been forced to live together in the same
Constitution. Observers of that Constitution, like friends of a troubled
marriage, have often remarked that this co-habitation might well lead to
conflict and crisis. See, e.g., 1 Nimmer on Copyright § 1.10[A] at 1-66.43
(1998).[11]
The Copyright Clause, after all, however dressed up it may now be
in the finery of "promoting the progress of science and useful arts," was
born of governmental censorship. The First Amendment was born of what we
have come to regard as a better lineage - the desire of the People for
robust freedom of speech, particularly as regards political and social
commentary.[12]
To the surprise of many, this potential conflict has been kept at
bay. Instead, the crisis-that-might-have-been has been largely avoided by
inventive legislation and thoughtful judging. Indeed, in the mid 1980s,
this Court appeared to provide some resolution by remarking, in dicta,
that First Amendment protections are "already embodied" in the Copyright
Act's distinction between copyrightable expression and uncopyrightable
facts and in the "latitude for scholarship and comment traditionally
afforded by fair use."
--------------------------
[11] Professor Nimmer has termed the relation between copyright law and
the first amendment a "paradox." For additional articles exploring the
tension between free speech and copyright, see, e.g., S. Fraser, The
Conflict Between The First Amendment And Copyright Law And Its Impact On
The Internet, 16 CARDOZO ARTS & ENT. L.J. 1 (1998): L. Patterson, Free
Speech, Copyright, and Fair Use, 40 VAND. L. REV. 1 (1999); P. Goldstein,
Copyright and the First Amendment, 70 COLUM. L. REV. 983 (1970).
[12] See Fraser, supra note 11, at 19-20 and n.126 (describing history of
adoption of Copyright Clause and First Amendment).
----------------------
Harper & Row Publishers v. Nation Enter., 471 U.S. 539, 560 (1984).
These dicta have been widely interpreted by lower courts to mean
that the fair use analysis, by itself, contains a set of automata that
will resolve First Amendment concerns without the need to look with care
at the demands of the First Amendment itself. See, e.g., New Era
Publications, ApS v. Henry Holt & Co., 873 F.2d 576, 583 (2d Cir. 1989)
("The fair use doctrine encompasses all claims of first amendment in the
copyright field."); Nihon Keizai Simbun, Inc. v. Comline Business Data,
Inc., 166 F.3d 65, 74 (2d Cir. 1999) ("We have repeatedly rejected First
Amendment challenges to injunctions from copyright infringement on the
ground that First Amendment concerns are protected by and coextensive with
the fair use doctrine.").
For cases that involve competing copyright and First Amendment
claims by commercial competitors, the "automatic" features of the Harper &
Row approach may well do the trick. Harper & Row, after all, was just
such a case.
There, The Nation dressed up its fair use claim regarding
publication of excerpts from President Ford's unpublished memoirs in the
language of freedom of speech and the public interest. But this Court
recognized the situation for what it really was: "the piracy of verbatim
quotations" for the purpose of achieving a "scoop." Harper & Row, 471 U.S.
at 559. There is no doubt that such a scoop generated major commercial
advantages for The Nation and a major loss for the owners of the
copyright, who were usurped of their "commercially valuable right of first
publication." Hence, Harper & Row was very much a case about commerce and
competitors. Id. at 562.
Petitioner's case is quite different. The District Court
identified no money-making motive of any kind by Petitioner. Nor did it
find convincing evidence of commercial harm to the copyright owner. In
the normal course, one would imagine that this set of findings would
remove the case from the purview of the Copyright Act and place it
squarely within those First Amendment precedents that encourage political
speech (aimed in this case at the District Court) and social commentary
(aimed at the Church of Scientology).
In the arena of political speech, this Court has many times made
clear that the First Amendment protects all manner of speech.[13] Indeed,
this Court has said, perhaps anticipating Petitioner's comments:
[I]t is a prized American privilege to speak one's mind, although not
always with perfect good taste, on all public institutions.
New York Times Co. v. Sullivan, 376 U.S. 257, 269 (1963).
Or, as Judge Leval of the Southern District of New York put it:
First Amendment protections do not apply only to those who speak clearly,
whose jokes are funny, and whose parodies succeed.[14]
What has been taken away from Petitioner here, then, is his right
to speak his mind, both about the orders of the District Court and the
alleged actions of the Church of Scientology. Were this a case of
commercial competitors, where one had gained financially and the other had
lost, perhaps the restriction on Petitioner's speech would be at least
open to debate. But this is not such a case.
Rather, this is a case in which Petitioner was engaged in clearly
protected political speech and social commentary, using two pages of a
seven-hundred page work to make a point and to
-----------
[13] See, e.g., Gentile v. State Bar of Nevada, 501 U.S. 1030, 1034-36
(1991) (striking down as unconstitutional a rule against extrajudicial
statements of lawyers, on ground that "political speech critical of the
government and its officials" is protected by the First Amendment); see
also Reno v. ACLU, 521 U.S. 844 (1997) (protecting indecent speech on the
Internet; highest level of First Amendment protection accorded Internet
speech); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (holding
unconstitutional an ordinance prohibiting bias-motivated expression).
[14 Yankee Publishing, Inc. v. News Am. Publishing, Inc., 809 F. Supp. 267,
280 (S.D.N.Y. 1992).
------------------------
challenge a judge. Surely, this situation deserved at least a careful
articulation and balancing of the First Amendment and Copyright Act
principles that are at issue.[15]
Indeed, this Court has said that the challenge of copyright law is
to strike the "difficult balance between the interests of authors and
inventors in the control and exploitation of their writings and
discoveries on the one hand, and society's competing interest in the free
flow of ideas, information, and commerce on the other hand." Harper &
Row, 471 U.S. at 580, quoting Sony Corp. v. Universal City Studios, 464
U.S. 417, 429 (1984). Despite that admonition, the District Court seems
to have addressed the First Amendment issues not at all, while the Court
of Appeals has done so in only the most cursory fashion. Certainly
neither court gave much weight in the balance to the information that
Petitioner was trying to convey.
It is unclear whether this situation is the result of Petitioner's
inartfulness in putting forth his First Amendment Claims or the result of
the courts below being lulled into inaction by the seemingly easy-to-apply
dicta in Harper & Row concerning the relationship between fair use and the
First Amendment.[16] Whatever the explanation, Petitioner's First
Amendment rights have been violated, through both prohibition and severe
punishment.
----------------------------
[15] See Chief Judge Lumbard's concurring opinion in Rosemont Enters.,
Inc. v. Random House, Inc., 366 F.2d 303, 311 (2d Cir. 1966), cert.
denied, 385 1009 (1967):
The spirit of the First Amendment applies to the copyright laws at
least to the extent that the courts should not tolerate an attempted
interference with the public's right to be informed regarding matters of
general interest when anyone seeks to use the copyright statute which was
designed to protect interests of quite a different nature.
[16] See Fraser, supra note 11, at 20 ("[M]aintaining the First Amendment
privilege within the fair use doctrine leaves the impression that the
interests found in the Bill of Rights can be balanced away every time the
price to copyholders is too high.").
-------------
Petitioner respectfully requests this Court to correct these
errors by granting the Writ, reviewing the case and either:
(1) Holding that, on the merits, the Court of Appeals, which
adopted wholesale the analysis of the District Court, simply erred as a
matter of law in its application of the statutory factors to be considered
under the fair use defense to copyright infringement. If this finding were
to be made by this Court, Petitioner would prevail and his First Amendment
rights would be vindicated, but the First Amendment constitutional issue
otherwise raised would be avoided; or
(2) Holding that, while First Amendment rights in this context do
not automatically trump a copyright claim, the First Amendment requires
that the four factors of the statutory fair use defense to infringement be
applied liberally in favor of an alleged infringer when the alleged
infringer has engaged in political speech and social commentary with no
effort at financial gain. Under that standard, Petitioner's fair use
defense would clearly prevail since, as pointed out below, the Court of
Appeals, following the lead of the District Court, in fact tilted the
analysis of each factor against Petitioner despite the fact that he
engaged in clear political speech and social commentary with no commercial
gain, and there was no evidence of actionable market harm to Respondent.
II. The Petition Should Be Granted Because The Fair Use Analysis
Applied By The Courts Below Failed To Follow The Decisions Of This
Court
As this Court has repeatedly noted, the fair use doctrine is an
"equitable rule of reason" that "permits courts to avoid rigid
application of the copyright statute when, on occasion, it would stifle
the very creativity which that law is designed to foster." Campbell v.
Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994); Stewart v. Abend, 495
U.S. 207, 236 (1990); Harper & Row, 471 U.S. at 550 n.3; Sony, 464 U.S.
at 448. The fair use doctrine has been termed "a critical safety valve of
copyright. Flexibility and sensitivity are essential to its successful
functioning."[17]
-----------------------------------
(17) W. Patry & S. Perlmutter, Fair Use Misconstrued: Profit,
Presumptions, and Parody, 668 CARDOZO ARTS & ENT. L.J. 667, 668 (1993)
("Patry & Perlmutter").
----------------------
The four factors enumerated in Section 107 are not exclusive, and
the application of the fair use doctrine must be evaluated on a
case-by-case basis, according to the facts of each case. Harper & Row,
471 U.S. at 560; Campbell, 510 U.S. at 577-78 ("The task is not to be
simplified with bright-line rules, for the statute, like the doctrine it
recognizes, calls for case-by-case analysis."). Unfortunately, the
enumeration of the four factors of the fair use analysis in Section 107
has resulted in "mechanistic, formulaic decisions"[18] - of which the
decisions of the courts below are prime examples.
The Ninth Circuit here adopted wholesale the District Court's
flawed analysis, finding that Henson's copying and criticism of NOTs 34
did not constitute a fair use. By its failure to exercise independent
review,[19] the Ninth Circuit has sanctioned a departure by the District
Court so far removed from the accepted and usual course of judicial
proceedings as to call for review by this Court.
A. Petitioner's Use Was Of A Critical, Noncommercial Nature And Was
Transformative Under This Court's Decision In Campbell
Section 107 provides that the first factor a court must look at in
the fair use analysis is "the purpose and character of the use, *including
whether such use is of a commercial nature or is for nonprofit educational
purposes."* 17 U.S.C. §107(1) (emphasis added) The Ninth Circuit did not
even address this critical first factor in adopting the District Court's
judgment. App. A at A-3.
-----------------------------------
(18) Patry & Perlmutter at 670.
(19) See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S.
485, 499 (1984) ("[I]n cases raising First Amendment issues we have
repeatedly held that an appellate court has an obligation to 'make an
independent examination of the whole record' in order to make sure that
'the judgment does not constitute a forbidden intrusion on the field of
free expression.'"); E. Volokh & B. McDonnell, Freedom of Speech and
Independent Judgment Review in Copyright Cases, 107 YALE L.J. 2431 (1998).
---------------------
The District Court, in analyzing the "purpose and character" of
Petitioner's use, gave short shrift to the fact that Petitioner's use was
noncommercial in nature. Although the District Court noted that RTC had
conceded that Petitioner's use was noncommercial (App. B at A14), the
court gave little weight to Petitioner's stated purposes in posting his
open letter - criticism of Scientology and the court's TRO in the Ward
action and concern to protect the public from fraud and quackery.
Instead, the court remarked that "[t]he limited commentary in Henson's
posting does not reveal that Henson's purpose was to educate the public
about the alleged criminal content of NOTs Series 34." App. B at A15.
The court noted only in passing that Petitioner's letter "discusses the
temporary restraining order issued in a related case." Id.
The District Court concluded that "[t]he posting may be viewed, at best,
as a criticism designed to stimulate discussion." Id. at A15 (emphasis
added). Nevertheless, the District Court concluded that the "purpose and
use" factor "weighs in RTC's favor since Henson's use is only minimally
transformative and does not appear to be in good faith."[20] Id. at A16
(emphasis
--------------------------------
[20] The District Court determined that Petitioner's use "does not appear to
be in good faith" because "Henson does not attempt to argue that the
copying was unintentional or inadvertent." App. B at A15. However, this
completely misapprehends the significance of good faith in the fair use
analysis. As Justice Story noted, bad faith exists when a defendant
"cites the most important parts of the work, not to criticize, but to
supersede the use of the original work." Folsom v. Marsh, 9 F. Cas. 342,
344-45 (C.C.D. Mass. 1841) (No. 4,901). Such use "will be deemed in law
a piracy." Id; see Wainwright Sec., Inc. v. Wall Street Transcript
Corp., 558 F.2d 91, 96-97 (2d Cir. 1977), cert. denied, 434 U.S. 1014
(1978) ("This was not legitimate coverage of a news event; instead it was
.. . . chiseling for personal profit.").
Here, there is no evidence that Petitioner quoted NOTs 34 for
personal profit or financial gain. Copyright law allows the intentional
copying or quoting of works for purposes of criticism - this is the
essence of fair use. The District Court was unmoved by the genuineness of
Petitioner's public interest motive; instead, it appears to have been
motivated in its summary judgment determination by the unrepentant,
in-your-face nature of Petitioner's advocacy. Indeed, RTC devoted
substantial portions of its briefs to the District Court and Ninth Circuit
to describing Petitioner's allegedly "arrogant" conduct. See, e.g., RTC's
Brief in Appeal No. 97-16160, at 6-19, 41-42. This, Petitioner submits,
is not a valid basis for the extreme penalty he has incurred. "Zealots
have First Amendment rights too." Pinette v. Capitol Square Review &
Advisory Board, 30 F.3d 675, 680 (1994), aff'd, 515 U.S. 753 (1995).
---------------
added). The District Court's analysis of the "purpose and character of
use" factor, as adopted by the Ninth Circuit, is contrary to law and
cannot stand.
First, Section 107 itself clearly provides that "the fair use of a
copyrighted work, including such use by reproduction . . . for purposes
such as criticism, comment [or] news reporting . . . is not an
infringement of copyright." 17 U.S.C. §107. The very fact the District
Court found Petitioner's use to be "a criticism designed to stimulate
discussion" establishes that Petitioner's use falls "'comfortably within'
[the] statutory categories 'of uses illustrative of uses that can be
fair.'" New Era Publications, Int'l ApS v. Carol Publishing Group, 904
F.2d 152, 156 (2d Cir.), cert. denied, 498 U.S. 921 (1990); see Campbell,
510 U.S. at 578 ("The enquiry [into the purpose and character of the use]
may be guided by the examples given in the preamble to § 107, looking to
whether the use is for criticism, or comment, or news reporting, and the
like. . . ."). [21]
Second, the District Court erred in failing to give adequate
weight to the noncommercial purpose of Petitioner's use. See Harper &
Row, 471 U.S. at 562 ("The fact that a publication was commercial as
opposed to nonprofit is a separate factor that tends to weigh against a
finding of fair use."); Sony, 464 U.S. at 451 ("[A]lthough every
commercial use of the copyrighted material is presumptively an unfair
exploitation of the monopoly privilege that belongs to the owner of the
copyright, noncommercial uses are a different matter."). In the instant
case, there was absolutely no use of NOTs 34 for commercial purposes or
financial gain, and RTC
---------------------
(21) See also New Era Publications, Int'l ApS v. Henry Holt Co., 884
F.2d 659, 661 (2d Cir. 1990) ("If a [work] falls into one of these
categories [criticism, comment, news reporting, etc.], assessment of the
first fair use factor should be at an end.") (Miner, J., concurring in
the denial of rehearing en banc).
-------
conceded as much. App. B at A14. Accordingly, the District Court should
have determined that the noncommercial nature of Petitioner's use
supported a finding of fair use. See Sony, 464 U.S. at 450-51. Third, the
District Court erred in finding Petitioner's use "only minimally
transformative." App. B at A15-16. As this Court unanimously held in
Campbell, "[t]he central purpose of [the purpose and character use]
investigation is to see . . . whether the new work merely 'supersede[s]
the objects' of the original creation . . . or instead adds something new,
with a further purpose or different character, altering the first with new
expression meaning and message." 510 U.S. at 579. The analysis thus
focuses on "whether and to what extent the new work is 'transformative.'"
Id., citing P. Leval, Toward a Fair Use Standard, 103 HARV. L.R. 1105,
1111 (1990) ("Leval").
Despite finding that Henson's open letter to Judge Whyte was
properly characterized as "criticism," the District Court concluded that
Petitioner's use was "only minimally transformative" because Petitioner
quoted NOTs 34 verbatim and "add[ed] little new expression to the work."
App. B at A15. In so doing, the District Court completely misapprehended
what this Court meant by "transformative." See Campbell, 510 U.S. at 579,
citing Leval at 1111. [22]
---------------------------------
[22] A work is transformative if it "employ[s] the quoted matter in a
different manner or for a different purpose from the original," and if it
uses the original work "as raw material, transformed in the creation of
new information, new aesthetics, new insights and understandings - this
is the very type of activity that the fair use doctrine intends to
protect for the enrichment of society." Leval at 1111 (noting that
"[T]ransformative uses may include criticizing the quoted work, exposing
the character of the original author, [or] proving a fact."); see also
Castle Rock Entertainment, Inc. v. Carol Publishing Group., Inc., 150
F.3d 132, 143 (2d Cir. 1998) ("[A] secondary work need not necessarily
transform the original work's expression to have a transformative
purpose.").
-------------------------
Here, it is beyond dispute that Henson's open letter to the
District Court "adds something new, with a further purpose and different
character," altering NOTs 34 with "new expression, meaning, or message."
Id. Petitioner embedded NOTs 34 in a letter openly protesting the
injunction issued by the District Court in the Ward action and added
information about court orders expressly forbidding Scientology to claim
that use of e-meters can heal. He did so to support his assertion that
Scientology was engaged in illegal conduct. Petitioner's open letter thus
transforms NOTs 34 from a set of directions for purportedly "handling
physical conditions" into evidentiary support for a scathing attack on
Scientology for allegedly practicing medicine without a license,
defrauding its converts, and using the courts to harass and intimidate
critics.
Petitioner was not using NOTs 34 to teach people how to "handle
physical conditions," thereby "'supersed[ing] the objects' of the original
creation" or "supplant[ing] [the original] work in the marketplace with
his own." Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1260 (2d Cir.
1986). Rather, Petitioner's aim was to attack Scientology and to
criticize the District Court for restraining the speech of persons
critical of Scientology.[23] Accordingly, the District Court's finding
that Petitioner's use is "only minimally transformative," and that the
first factor "weighs in RTC's favor" cannot, as a matter of law, be
upheld. If the District Court had taken Petitioner's First Amendment
rights into account in applying the fair use doctrine, this "purpose and
use" factor should have been weighed in favor of Petitioner.
------------------------
[23] The location of Petitioner's posting is also highly probative of the
"further nature" and "different character" of the use. Petitioner posted
his open letter to Judge Whyte at the alt.religion.scientology newsgroup
- an "online form for discussion and criticism of scientology." RTC v.
Netcom On-Line Communications, 907 F. Supp. 1361, 1365 (N.D. Cal. 1995).
Because alt.religion.scientology is highly critical of Scientology no one
could mistake the purpose and character of Petitioner's letter.
---------------------------------
B. The Lower Courts Erroneously Held That The "Unpublished"
Nature Of The Work Prevented A Finding Of Fair Use
The second factor a court must examine is "the nature of the
copyrighted work." 17 U.S.C. §107(2). "This factor calls for recognition
that some works are closer to the core of intended copyright protection
than others, with the consequence that fair use is more difficult to
establish when the former works are copied." Campbell, 510 U.S. at 586.
Here, the Ninth Circuit and the District Court erred in adopting a
virtual per se rule against fair use of unpublished works. In his
opinion, the District Court noted that "[t]he scope of fair use is
narrower with respect to unpublished works . . . and the amount of
permissible copying will be less in the case of an unpublished work" and
noted that "[h]ere, the work at issue is unpublished." App. B at A16.
The Ninth Circuit relied upon the fact that NOTs 34 is an allegedly
unpublished work in finding that the District Court had correctly ruled
against Petitioner. App. A at A-3 & n.3 (citing Harper & Row for the
proposition that "[t]he fact that a work is unpublished is a consideration
which cuts against the infringing defendant").
However, the notion that "the scope of fair use is narrower with
respect to unpublished works" is an incorrect statement of the law. In
1992, Congress responded to Harper & Row, as well as to certain Second
Circuit decisions that seemed to lean toward a per se rule against fair
use for unpublished works,[24] by amending Section 107 of the Copyright
Act to add the following provision:
The fact that a work is unpublished shall not itself bar a finding of
fair use if such finding is made upon consideration of all the above
[fair use] factors.
---------------------------
[24] Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.), cert. denied,
484 U.S. 890 (1987); New Era Publications, Int'l ApS v. Henry Holt & Co.,
873 F.2d 576 (2d Cir.), cert. denied, 493 U.S. 1094 (1990).
----------
("1992 Amendment"); see Copyright: Fair Use of Unpublished Works, H.R.
REP. NO. 102-386, 102nd Cong., 2d Sess. (Aug. 11, 1992), reprinted in
1992 U.S.C.C.A.N. 2553 (House Report").
The 1992 Amendment makes clear Congress's intention that, "in
evaluating a claim of fair use, including claims involving unpublished
works, the courts are to examine all four statutory factors set forth in
Section 107, as well as any other factors deemed relevant in the court's
discretion." House Report at 2561. Therefore, unpublished works are to be
treated the same as published works, with a full analysis of the
four-factor test and other relevant factors to determine whether a fair
use exists. See, Wright v. Warner Books, Inc., 953 F.2d 731, 740 (2d Cir.
1991) ("Neither Salinger, Harper & Row, nor any other case . . . erected
a per se rule regarding unpublished works. The fair use test remains a
totality inquiry, tailored to the particular facts of each case."); Norse
v. Henry Holt & Co., 847 F. Supp. 142, 146 (N.D. Cal. 1994) ("In 17
U.S.C. § 107 Congress explicitly provided that the fair use defense may
apply to unpublished work . . . .").[25]
In addition, the District Court erred in its analysis of the
second factor in ignoring the impact of whether the work is factual or
creative. In general, fair use is more likely to be found in factual
works than in fictional works. Stewart, 495 U.S. at 237-38; see,
-----------------------------
[25] See also Religious Technology Center v. Lerma, 897 F. Supp. 260, 264
(E.D. Va. 1995) (in action for infringement based on dissemination of
Scientology works on Internet, unpublished nature of works "plays a
minimal role in this court's consideration"). In this case, it cannot be
said that the work at issue is "unpublished" in the sense understood in
Harper & Row, where the defendant had usurped plaintiff's right of first
publication. 471 U.S. at 564. Here, Scientology has already "published"
the subject text to thousands of persons who have paid the proper fee and
worked their way through the requisite levels of Scientology training.
RTC is thus not attempting to enforce its right of first publication, but
is simply seeking to prevent persons who have not paid the requisite fee
from seeing and criticizing its works. Treating NOTs 34 as "unpublished"
under such factual circumstances is not justified. See, e.g., Copyright
Law Revision - Part 2, 88th Cong., 1st Sess. 27 (1963) (suggesting that
works disseminated to the public in a form not constituting a technical
"publication" should nevertheless be subject to fair use), cited in
Harper & Row, 471 U.S. at 551.
-----------------
e.g., RTC v. Lerma, 908 F. Supp. 1362, 1367 (E.D. Va. 1995) (Advanced
Technology documents "intended to be informational rather than creative
and, therefore . . . a broader fair use approach is appropriate."). The
District Court considered this issue and concluded that NOTs 34 was more
informational than creative. App. B at A16-A17. The District Court,
however, then immediately discounted its own conclusion by noting that
the Court "remains unconvinced that this factor should play a major role
in the context of religious works, which do not easily fit into the
creative/informational dichotomy." Id. Because the District Court
considered only the unpublished nature of NOTs 34, and not its
informational nature, it held that the second factor weighed "heavily"
against Petitioner. Id.
There is, however, no precedent for ignoring a required step in
the fair use analysis merely because the work copied is religious.
Ignoring the creative/informational dichotomy transforms the second fair
use factor into the simple, yet incomplete inquiry: Is the copyrighted
work published or unpublished? More importantly, the District Court's
analysis reduces the second fair use factor to a per se rule favoring the
plaintiff in every copyright infringement action where the defendant makes
use of unpublished material. In addition, it improperly provides
unpublished religious works with more copyright protection than
unpublished secular works.
Again, if the lower courts were required to apply the fair use
defense liberally in favor of noncommercial, political speech, this factor
should have been applied in favor of Petitioner.
C. The Lower Courts Mechanically Focused On The Extent Of The
Copying As Preventing A Finding Of Fair Use
The third factor a court must evaluate in the fair use analysis is
"the amount and substantiality of the portion used in relation to the
copyrighted work as a whole." 17 U.S.C. §107(3).
The District Court rejected Petitioner's argument that he copied
only 1.4% of the collective work registered with the Copyright Office,
which is the 55 works of the NOTs series, registered under the name of
"Advanced Technology." App. B at A18. Instead, the District Court
adopted RTC's argument that each work in the NOTs series is a "separate,
discrete and finite" work, and that Henson, by copying NOTs 34 in its
entirety, had copied the entire work. Id. This holding is erroneous
because there is no showing that each work in the NOTs series is
"separately authored and constitutes a discrete original work[] of
authorship." American Geophysical Union v. Texaco, 60 F.3d 913, 926 (2d
Cir. 1994). In addition, it contradicts the District Court's "market
harm" finding later in its opinion, in which the court states that it "is
not convinced that Henson's posting of the NOTs Series 34 will result in
decreased marketability of the work" because "NOTs Series 34 is just one
work in the collective NOTs Series. . . . Thus, the value to a potential
competitor or parishioner possessing NOTs Series 34 alone is not great."
App. B at A19.
But even assuming that the two-page NOTs 34 could be classified as
a separately copyrighted work, both lower courts erred in analyzing the
third factor. The District Court noted that "copying an entire work
ordinarily militates against a finding of fair use," and "whatever the
use, generally, it may not constitute a fair use if the entire work is
reproduced." App. B at A17. The Ninth Circuit perfunctorily concluded
that Henson's copying did not constitute a fair use because "Henson copied
.. . .[NOTs 34] in its entirety," and noted "[i]t is generally not a fair
use if the entire work is reproduced." App. A at A3 & n.4.
This mechanical application of the third factor is erroneous. As
this Court has noted, the task of analyzing application of the fair use
defense "is not to be simplified with bright-line rules." Campbell, 510
U.S. at 577-78. With respect to the third factor, courts must determine
"whether 'the quantity and value of the materials used' . . . are
reasonable in relation to the purpose of the copying." Id. at 586. The
"extent of permissible copying varies with the purpose and character of
the use." Id.; see also Maxtone-Graham, 803 F.2d at 1263 ("There are no
absolute rules as to how much of a copyrighted work may be copied and
still be considered a fair use.").
Indeed, courts have held that the copying of an original work in
its entirety may constitute fair use. See, e.g., Sony, 464 U.S. at 456
(recording an entire television program for the purpose of watching it at
a more convenient time ("time-shifting") constituted a fair use since the
plaintiff failed to show that this practice would likely cause more than
minimal harm to the potential market for their copyrighted works);
Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1153-56
(9th Cir. 1986) (copying of an entire parody of a liquor advertisement
constituted fair use because the defendant "did not use more than was
reasonably necessary . . .to defend himself against . . . derogatory
personal attacks"). [26]
In the instant case, the Ninth Circuit and the District Court
failed to consider fully the nature and purpose of the open letter to the
District Court: to bring to the public's attention what Henson believed to
be government conduct that violated his First Amendment right to free
speech. Given the obscurity of NOTs 34, its brevity, and Petitioner's
fears that he would be accused of taking the document out of context if he
quoted any less, Petitioner believed that he could not post any less than
he did and persuasively convey his message that the District Court's TRO
prevented Henson and others from notifying the public of what he believed
to be the Church of Scientology's dangerous and criminal conduct.
Perhaps if Petitioner had been more legally sophisticated, he
could have "fair-usified" NOTs 34 in his posting by omitting some portion.
Then, perhaps, the District Court might have found in his favor on this
third factor. But Petitioner's liability for copyright infringement
should not depend on whether he quoted 10%, 50%, or 100% of NOTs 34. The
outcome of the fair use analysis should not depend on such mechanistic
application of the factors. See Sony, 464 U.S. at 449 n.31 (Congress
"eschewed a rigid, bright-line approach to fair use."). Instead, the
judgment should center on
------------------------
[26] See also Harper & Row, 471 U.S. at 564 ("[E]ven substantial quotations
might qualify as fair use in a review of a published work or a news
account of a speech").
---------------------
a sensitive analysis of the context in which the work was quoted, and
the purpose for such quotation - an analysis which clearly requires a
finding of fair use.
D. No "Market Harm" Exists Where Petitioner's Use Was
Non-Commercial And Not Intended To Supplant The Market For
Scientology's Works
The final factor a court must examine is "the effect of the use
upon the potential market for or value of the copyrighted work." 17 U.S.C.
§107 (4). This factor "requires courts to consider not only the extent of
market harm caused by the particular actions of the alleged infringer, but
also whether unrestricted and widespread conduct of the sort engaged in by
the defendant . . . would result in a substantially adverse impact on the
potential market for the original." Campbell, 510 U.S. at 590. This
"market harm" factor has been deemed "the single most important element of
fair use." Harper & Row, 471 U.S. at 566; see also Stewart, 495 U.S. at
238 ("The fourth factor is the 'most important, and indeed, central fair
use factor.").
Analysis of this factor distinguishes between market harm caused
by criticism of the work - which is not actionable under the copyright
laws - from actionable market harm caused when the allegedly infringing
use "supplants the original in markets the original is aimed at." Fisher
v. Dees, 794 F.2d 432, 437 (9th Cir. 1986) ("Copyright law is not
designed to stifle critics."). As this Court stated in Campbell, "the
role of the courts is to distinguish between '[b]iting criticism [that
merely] suppresses demand [and] copyright infringement[, which] usurps
it." 510 U.S. at 591-93; see also New Era, 904 F.2d at 160 ("Harm to the
market for a copyrighted work or its derivatives caused by a "devastating
critique" that "diminished sales by convincing the public that the
original work was of poor quality" is not within the scope of copyright
protection.") (holding that market harm to authorized biography of L. Ron
Hubbard caused by quotations and criticism in defendant's unauthorized
biography is not actionable). [27]
--------------------------------
(27) See also RTC v. Lerma, 908 F. Supp. at 1358: "Regarding the
RTC's concern about potential loss of new parishioners, this is the price
paid in a free society which encourages an open marketplace for ideas.
Free speech protections and the fair use exemption . . . exist to permit
open and educated debate on matters of public importance. . . . Harm from
legitimate criticism is not actionable under either the First Amendment
or the copyright laws."
----------------
Here, there was absolutely no showing that Petitioner's limited
use would supplant the market for Scientology's works, and the District
Court so held. The District Court correctly found that Petitioner's open
letter quoting NOTs 34 would not damage RTC's ability to collect money for
showing NOTs 34 to Scientologists. App. B at A19. Nevertheless, the
District Court concluded that the lack of market harm weighed only
"slightly" in Petitioner's favor and was outweighed by "plaintiff's strong
showing with respect to the other factors," which "requires a finding of
no fair use as a matter of law." Id. at A20.
This finding is in conflict with this Court's decisions that the
lack of market harm almost compels a finding of fair use. As this Court
has noted:
[A] use that has no demonstrable effect upon the potential market for,
or the value of, the copyrighted work, need not be prohibited in order to
protect the author's incentive to create. The prohibition of such
noncommercial uses would merely inhibit access to ideas without any
countervailing benefit.
Sony, 464 U.S. at 450-51; see also New Era, 904 F.2d at 160 ("'Where the
copy does not compete in any way with the original,' copyright's central
concern-'that creation will be discouraged if demand can be undercut by
copiers'- is absent.").
Accordingly, the District Court erred in finding that the fourth
factor only "slightly" favored Petitioner; instead, the lack of market
harm decisively favors a finding of fair use.
Surprisingly, the Ninth Circuit contradicted the District Court's
finding of no market harm by concluding that Henson's copying did not
constitute fair use because Petitioner had "conceded that such copying
would lead to market harm." App. A at A-3. What Petitioner admitted,
however, was only that his conduct "might convince the public not to buy
the product because it is rubbish," "*not* because people will take the
material from the Internet and use it." App. B at A19. This is precisely
the type of market harm resulting from "biting criticism that suppresses
demand" that this Court has held is not actionable. Campbell, 510 U.S. at
592. Although the Ninth Circuit characterized the "market harm factor as
"the single most important element of fair use," App. A at A3, it
completely misapprehended it.
If, as Petitioner alternatively proposes, a rule were established
instructing courts to liberally apply the fair use factors to support
First Amendment interests in cases involving noncommercial, political
speech, this factor, too, would require a finding of fair use.
CONCLUSION
The unprecedented judgment below of $75,000 for a single alleged
act of copyright infringement, for speech that was noncommercial, not
intended to supplant the market for the subject works, and purely for the
purpose of protest and criticism, conflicts with fundamental First
Amendment guarantees as defined by this Court. Accordingly, Petitioner
respectfully requests that this Petition for Writ of Certiorari be
granted.
Respectfully submitted,
CHARLES B. ROSENBERG
ANN I. PARK
HELLER EHRMAN WHITE & MCAULIFFE
601 South Figueroa Street
Los Angeles, California 90017
Attorneys for Petitioner
[moved from top]
Page(s)
Cases
American Geophysical Union v. Texaco,
60 F.3d 913 (2d Cir. 1994) 26
Bose Corp. v. Consumers Union of United States, Inc.,
466 U.S. 485 (1984) 18
Bridge Publications v. F.A.C.T.Net, Inc.,
183 F.R.D. 254 (D. Colo. 1998) 5
Campbell v. Acuff-Rose Music, Inc.,
510 U.S. 569 (1994) passim
Castle Rock Entertainment, Inc. v. Carol Publishing Group., Inc.,
150 F.3d 132 (2d Cir. 1998) 22
Church of Scientology v. Richardson,
437 F.2d 214 (9th Cir. 1971) 5
Fisher v. Dees,
794 F.2d 432 (9th Cir. 1986) 28
Folsom v. Marsh,
9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4,901) 19
Gentile v. State Bar of Nevada,
501 U.S. 1030 (1991) 15
Harper & Row, Publishers, Inc. v. Nation Enter.,
471 U.S. 539 (1985) passim
Hustler Magazine, Inc. v. Moral Majority, Inc.,
796 F.2d 1148 (9th Cir. 1986) 27
Maxtone-Graham v. Burtchaell,
803 F.2d 1253 (2d Cir. 1986) 22, 26
New Era Publications, ApS v. Henry Holt & Co.,
873 F.2d 576 (2d Cir. 1989) passim
Nihon Keizai Simbun, Inc. v. Comline Business Data, Inc.,
166 F.3d 65 (2d Cir. 1999) 14
Norse v. Henry Holt & Co.,
847 F. Supp. 142 (N.D. Cal. 1994) 24
Pinette v. Capitol Square Review & Advisory Board,
30 F.3d 675 (1994), aff'd, 515 U.S. 753 (1995) 20
R.A.V. v. City of St. Paul,
505 U.S. 377 (1992) 15
Religious Technology Center v. F.A.C.T.Net., Inc.,
901 F. Supp. 1519 (D. Colo. 1995) 4
Religious Technology Center v. Lerma,
897 F. Supp. 260 (E.D. Va. 1995) 25, 29
Religious Technology Center v. Ward,
Case No. 96-20207 RMW 4
Reno v. American Civil Liberties Union,
521 U.S. 844, 851 (1997) 4, 15
Rosemont Enters., Inc. v. Random House, Inc.,
366 F.2d 303 (2d Cir. 1966), cert. denied, 385 1009 (1967) 16
RTC v. Netcom On-Line Communications,
907 F. Supp. 1361 (N.D. Cal. 1995) 22
Salinger v. Random House, Inc.,,
811 F.2d 90 (2d Cir.), cert. denied, 484 U.S. 890 (1987) 24
Sony Corp. v. Universal City Studios,
464 U.S. 417 (1984) passim
Stewart v. Abend,
495 U.S. 207 (1990) 17, 24, 28
United States v. An Article or Device "Hubbard Electrometer,"
333 F. Supp. 357 (D.D.C. 1971) 6
Wainwright Sec., Inc. v. Wall Street Transcript Corp.,
558 F.2d 91 (2d Cir. 1977), cert. denied, 434 U.S. 1014 (1978) 19
Wright v. Warner Books, Inc.,
953 F.2d 731 (2d Cir. 1991) 24
Yankee Publishing, Inc. v. News Am. Publishing, Inc.,
809 F. Supp. 267 (S.D.N.Y. 1992) 15
Statutes
17 U.S.C. § 107 passim
17 U.S.C. § 504 9
17 U.S.C. § 505 10
17 U.S.C. §107 (4) 28
17 U.S.C. §107(1) 19
17 U.S.C. §107(3) 25
28 U.S.C. § 1254(1) 2
Other Authorities
1 Nimmer on Copyright
§ 1.10[A] at 1-66.43 (1998) 13
Copyright: Fair Use of Unpublished Works,
H.R. REP. NO. 102-386, 102nd Cong., 2d Sess. (Aug. 11, 1992) 24
E. Volokh & B. McDonnell, Freedom of Speech and Independent Judgment
Review in Copyright Cases,
107 YALE L.J. 2431 (1998). 18
L. Patterson, Free Speech, Copyright, and Fair Use,
40 VAND. L. REV. 1 (1999) 13
P. Goldstein, Copyright and the First Amendment,
70 COLUM. L. REV. 983 (1970) 13
P. Leval, Toward a Fair Use Standard,
103 HARV. L.R. 1105 (1990) 15, 21
S. Fraser, The Conflict Between The First Amendment And Copyright Law And
Its Impact On The Internet,
16 CARDOZO ARTS & ENT. L.J. 1 (1998) 13, 16
W. Patry & S. Perlmutter, Fair Use Misconstrued: Profit, Presumptions,
and Parody,
668 CARDOZO ARTS & ENT. L.J. 667, 668 (1993) 18
Constitutional Provisions
Article I, § 8 2