materials that were taken.
A flurry of legal documents and court hearings followed. The temporary restraining
order against Klemesrud and Netcom was quickly dissolved. The CoS filed a
request to have it reinstated, and a motion was then filed to hold Erlich in contempt
of court for reposting one of the articles the CoS objected to in the first place.
Klemesrud's and Netcom's position is that no service provider can police all of its
Internet traffic and stay on the air, especially considering the international
connections--a U.S. federal judge can have no jurisdiction over what people post
in the rest of the world. They would, says Klemesrud, have had to shut down.
"Netcom is the largest provider in the US," says Klemesrud. "It would have crippled
the entire country's telecomms, and there'd have been a backlash throughout the
entire world. The judge didn't even know that--which was kind of strange, because
he's a federal judge in Silicon Valley" (telephone interview, 1995). He characterizes
the raid on Erlich's house as the kind that's reserved for someone running off illegal
copies of Jurassic Park by the thousands.
The Electronic Frontier Foundation found Erlich pro bono defense attorneys: the
high-profile California law firm of Morrison Foerster. An electronic newsletter,
Biased Journalism, started up to publish eyewitness reports from all the court
Court time is geological eras on the Net. In November 1995, Judge Whyte ruled
that Klemesrud could not be found liable for direct infringement. It wasn't until early
August 1996, however, that Netcom, in a move widely criticized on
alt.religion.scientology, announced it was settling out of court with the CoS, with
both parties constrained from discussing the terms. Netcom simultaneously
announced a protocol for handling future intellectual property disputes that involves
restricting access to the disputed material pending investigation; the concern on the
newsgroup was that this protocol would open the company up to the possibility of
constant requests for investigation.
A settlement between Klemesrud and the CoS followed soon after, on August 22,
1996, when attorneys for the RTC agreed to dismiss Klemesrud from the Erlich
lawsuit. Klemesrud wasn't entirely happy--he believed his case had the potential to
set the precedent for all service providers and establish the principle that ISPs are
not liable for contributory infringement. The settlement was, he said, mandated by
his general liability insurance company, which agreed to pay the RTC $50,000. He
did not, however, sign any agreement enjoining him from talking about the case,
something neither he nor his lawyer would have agreed to.
"The insurance company has the right to settle as long as they don't trample on
Klemesrud's rights," said Dan Leipold, Klemesrud's attorney, noting that he had
defended about forty lawsuits brought by the Church of Scientology in the previous
five years. Leipold added that copyright must be revised for the digital world, but
that "it should not be on an ad hoc basis by the courts. It should be revised by
Congress" (telephone interview, 1996).
Said Klemesrud, "I would have liked to stay in there and participate in total
exoneration." The settlement means that the question of whether ISPs can be held
liable for contributory infringement has still not been tested in court. In early 1997
Erlich's case was still awaiting trial, although he hoped for a ruling from Judge
Whyte that the general public availability of the secret documents invalidated the
CoS's claim that they were trade secrets.
There were more raids to come, all grouped around a Net-based anti-cult
information service called FACTnet. Based in Boulder, Colorado, FACTnet is run by
a former Scientologist named Lawrence Wollersheim, who in 1986 won a judgment
of $2.5 million against the CoS for damages relating to his days as a member. In
1994, the U.S. Federal Court upheld this judgment and ordered the CoS to pay the
ordered sum plus interest for a total estimated at approximately $6 million. In May
1996, the California Supreme Court upheld it again. In early 1997 he was still trying
to collect on the debt.
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