Zenon's court case: day 4 - Children's games
25 Jan 2001
Stockholm, Tuesday January 23 2001
ZENON HAS NEW EVIDENCE and presents it to the court; it is a result of my transcript of McShane's testimony as posted to the internet. Zenon got an e-mail from somebody [thank you! you know who you are] who claims that the NOTs are *also* studied privately and that more people have read the NOTs than McShane claimed in his deposition. The actual evidence is on its way and will be presented to court as soon as DHL allows it: an issue of Source Magazine and a copy of International Scientology News.
9:45 - First Tingsrätt tape.
WE HEAR THE 1988 tape of the deposition in primary court of Thomas Small. The dots represent the questions posed to him. And as we will hear, Small does indeed *not* explain that he is at the time of this deposition actively employed as RTC's attorney. When answering what he does for a living, he replies by delineating his educational background and *only* speaks about his work for RTC as if it were a thing from the past. That makes him rather dishonest: he is far less impartial than he purported to be. He has not told the court that he is giving a testimony about his *boss*.
"I am a patent lawyer and intellectual property lawyer [explains about his education]. ... I compiled the agreement [between CST and RTC] some time before it was signed. ... Yes. … I was at the time representing primarily RTC and to some extent the Trustee as well, because they were co-operating as parties. I attempted to put their wishes on paper in the document. ... Yes. … This document was designed to give all rights to the Advanced Technology Scientology material outside the US to RTC. ... These were rights that were held by the Trustee as the successor of L. Ron Hubbard. … That includes the OTs and NOTs, those are part of the Advanced Technology. ... The grant was intended to transfer all intellectual property. Basically, it consists of two parts. One part is the confidentiality of the documents and the other is the [couldn't hear that, but I assume he refers to the license] ... The protection of this confidential information is generally ruled by the contract. The license gives the right to use and make copies of the material. There are specific terms to it, which I will explain later. ... There's a specific provision in the agreement that RTC would be the enforcer and protector of these rights and, if necessary, enter into litigation to protect these rights. ... This was in RTC's name. They were granted the exclusive right to use the Advanced Technology and they were authorised to sue in their own name. CST can also sue if the need to do so arises. ... [Lots of leafing through papers is audible.] … No, there were none other that I know of; at the bottom of the previous page it says that the Estate has the rights to pull [inaudible] and these serve as directions as to, as to the policy of the ecclesiastic use of the materials. ... This is a religious document between parties who are the leaders of a religious group and there's a number of scriptural limitations on how these materials can be used; confidential limitations, copyright limitations, and ecclesiastic limitations, explaining how RTC as the protector of these materials should protect them. ... No. … Yes. … The rights remain the same. The role of the trustees simply passed to CST when CST became qualified to possess these rights."
Zenon's turn: "Are you saying that RTC and CST were co-operating partners in this?"
Small: "They were co-operating although CST had at that time not yet come directly into [xxx]. … The interests of CST and RTC were the same, yes. ... CST did then not yet have a direct interest in the subject matter of the agreement; that was the Trustee at the time. ... Whether RTC and the Estate had opposing any interest at that time? The answer is no, they had not. ... It was an exclusive license, it was a transfer of copyrights, not to titles, but the right to [tape change] ... The right to use and to authorise others to use were covered by the exclusive license, the copyright remains with the Trustee as the license holder. ... First, because that was the desire of the partners, there was no intent to transfer copyrights to RTC or to anybody else. L. Ron Hubbard very carefully maintained personal rights to his own copyrights and Mr Hubbard made provisions that the rights went to CST and they were entitled to hold the rights into perpetuity. ... The limitations as I intended to state are religious in nature: the Scientology scriptures state that this is the way they the Advanced Technology is to be used, after all it's Mr Hubbard's writings, and it is his wishes that guide the parties."
Zenon asks why the contract - unlike most contracts - does not deal with possible conflicts between the contract partners or between them and third parties, and why RTC's right to sue third parties in its own name is not regulated.
Small: "Well, that right accompanies exclusive licenses as a matter of law in the US, it wasn't necessary to say any more in the license then it now states. ... … That's right. … This contract was made in the US between parties in the US, and according to my understanding any conflict arising from the contract would be covered by and subject to US law."
Zenon: "But the contract states explicitly that is only applies to the use of the copyrights outside the US; in countries with their own law, that might differ. Why was it not explicitly stipulated that the RTC has the right to sue in its own name?"
Small: "I suppose that it would be possible that there is a country where RTC would not have the right to bring suit as an exclusive licensee, and it is against that eventuality that, that in that case CST could do so if it became necessary. … I also add that this is not just a copyright agreement but also a confidentiality agreement and the licensee of confidential information might not automatically have the right to sue, and therefore its important for CST to have this right as a backup right as well.."
10:18 - End tape. Next one: Thomas Vorm's testimony in Tingsrätt.
Vorm was giving his testimony via the telephone. The line is bad. Magnusson asks the questions.
M: How long have you held this position?
Vorm: "Since October 1988. My main task is to oversee the work done by RTC. I archive all [inaudible] to preserve the Scientology religion, including the Advanced Technology."
M: [About the copyright of OT2, OT3 and NOTs and the respective roles of RTC and CST with regard to these copyrights]
Vorm: "Since 1988, RTC is the protector of the copyrights. Mr Hubbard's estate was transferred to CST, and RTC brings litigation in case of infringement."
M: Could you briefly describe CST's position when it comes to the fact that the license has been given to RTC?
Vorm: "In 1993, after the copyrights were turned over, [inaudible]"
M: Which rights?
Vorm: "RTC had three basic rights. To authorise Scientology organisations to use the Advanced Technology and the right to distribute copies to these organisations; the exclusive right to protect and enforce these copyrights; and also to [inaudible]."
M: Does this also mean, according to CST, that RTC can also start litigation or take judicial procedures in its own name?
Vorm: "I'm not sure that I understand your question."
M: According to CST, may RTC take legal action according to this license agreement when it comes to protect this copyrights?
Vorm: "Yes and yes."
M: In RTC's own name?
M: According to the opinion of CST, are there any remaining copyrights to this material that are not included in the license agreement and that are not given to RTC?
Vorm: "No, there are not."
M: Could this mean that CST could take any measures if RTC does not fulfil its obligations?
Zenon: "Why did CST sue Spaink in Holland, if RTC takes care of this?"
Vorm: "-- eh, I don't understand the question."
Magnusson interrupts. Thomas Vorm is not a lawyer and he objects to the question being asked.
Zenon: "If RTC is supposed to sue in its own name and that is sufficient, why did CST sue Karin Spaink and twenty-two Internet providers in Holland in 1995?"
Vorm: "I cannot say."
Zenon: "No further questions."
10:30 - End tape. Break.
10:51 - Third tape: the bailiff in Tingsrätt.
THE BAILIFF WAS responsible for the confiscation and searching of Zenon's data, but did not carry out the search personally. She explains the method that was employed, as described in her protocol. The bailiff searched Zenon's data on his hard disk, floppies and zip drives, but was only able to do so partially, because of encryption. The words that she was looking for as per RTC's instructions, were the following: OT, NOT, NED, BT, Body Thetan, vulcano, volcano, GPM, Ward, Vorlon. Zenon handed her a floppy with the texts that were affected by the court's decision, which helped her to retrieve some material from his hard disk and copy it to diskette. A month later Zenon asked for a copy of the floppy he had handed in, and then the bailiff confiscated it. That was the same floppy that had been in the bailiff's possession all along, but it had not been formally confiscated before.
11:00 - Fourth and last tape: Birgitta Alexandersson, notary public. Since the original testimony was taped behind closed doors, part of the audience is now asked to leave.
Tape: Zenon asks how she selected the 'works' within attachment 126 that she then proceeded to compare to RTC's originals of OT2, OT3 and the NED for OTs Pack (as she insists on calling the NOTs). She claims that she has made a random selection.
The court listens to that statement. Then the tape is rewound and fast-forwarded to another section of Alexandersson's testimony, in which she again explains the procedure that she employed. And indeed again Alexandersson claims that she made a random selection.
This is totally at odds with her testimony of yesterday: there, she claimed that she started at the top of the stack of papers, and "since she knew the material so well by then", she could "easily recognise what was infringing".
11:15 - End of tapes.
Discussion about damages and legal costs. Magnusson again enumerates the instances in which Zenon infringed upon RTC's rights and states the grounds for and the amount of damages that RTC claims:
- Payment for usage: 10,000 SEK the standard tariff being, according to the tariff of the Swedish Writer's Guild, 160,000 SEK. In other words: RTC is being mild here.
- Tort for material damage: 10,000 SEK which includes their economical damage, money spent on guarding the material, loss of customers, market shares and license proceeds.
- Immaterial damages: 5,000 SEK loss of good name, hurt feelings etc.
Apart from that, RTC demands the destruction of any secret and confidential material that Zenon has in his possession, has published or has distributed.
11:30 - Lunch break
13:15 - Court resumes.
ZENON STATES HIS OBJECTIONS to the need to pay damages. One of his grounds is freedom of speech and freedom of religion, based on the European convention on human rights. Scientology is a cult that has been criminally convicted in many Western countries, he explains; only next month a penal case in Madrid will start in which Heber Jentzsch, the president of Scientology, is one of the defendants.
In order to explain and assess what Scientology stands for, it is necessary to have access to their material. Besides, this is a consumer's right worthy to defend: you need to be able to understand what you get into and what you pay for before you join *any* group.
The Chair warns Zenon that he is diverting from the subject of damages.
Zenon explains that there is a strong need for an open debate about Scientology and its beliefs, and that this is sufficient reason to publish their texts. Thus, damages should be waived under the provisions of the convention.
Part of Scientology's claims should be rejected because Zenon is not responsible for them. They hold him accountable for infringements that he has not at all perpetrated, as for instance copies of OTs and NOTs made by the courts, not by him. Part of the damage caused, as for instance loss of revenue, is due to the bad quality of Hubbard's writing and not to Zenon's actions as such. Furthermore, an author's right to compensation for immaterial damage, i.e. his hurt feelings, is personal to him and does not follow the copyrights. As for the legal fees that RTC demands (8 million SEK) and what the primary court ruled that Zenon had to pay (1,2 million SEK), there are important issues to be taken into account, that is, to be subtracted from the bill. He will go into those later.
Regarding the injunction and the destruction order that RTC wishes to impose upon him: not only does he dispute them, he also thinks they should be specified to particular objects and to particular texts, and be limited to apply only within Sweden. As things are now, the injunction is far too wide and neither limited in scope nor in time.
Destruction orders must always be fully specified. Besides, Swedish rulings can be enforced in the Netherlands. As things stand now, making a copy of the scriptures for personal use is infringement in Sweden but not in the Netherlands, where the courts have explicitly ruled that the scriptures are published material. If the Swedish ruling is not limited to apply within Sweden only, the Swedish court would be imposing its ruling on another country against the rulings of the courts of that country. In a country where a ruling is only enforced, it cannot be appealed.
A MORE DETAILED discussion of the legal fees as presented to the primary court is conducted.
Magnusson right now drops two items from the bill: Bill Hart's legal fees and his travelling costs for the primary case: 1,351,350 SEK, and 211,642 SEK respectively. RTC's bill for legal fees has just been reduced from 8 million SEK to 6,5 million SEK.
Zenon disputes various items on Magusson's bill:
- The legal fees: the political lobbying and the guarding of the OTs and NOTs in parliament are on the legal bill. This is not correct; only what is spent *within* a case itself can be charged in the case.
- RTC is charging fees for costs brought about by *other* cases, lawsuits that branched off this one. You can't put those on *this* bill: for instance, when RTC sued the court demanding secrecy, they can't expect Zenon to foot the bill for that. It is simply not part of this case.
- The legal bill is terribly vague where it comes to specifications. None of the costs on the bill can be checked.
- The charges are unreasonable, and Magnusson's fee is outrageous. If you compare what he demands or states that he costs with what Ms. Calissendorff, who for some time acted as Zenon's lawyer, was awarded by the court, you can't but cringe.
- The legal bill is unduly burdened by unnecessary actions (from McShane's affidavit and the translation thereof, to translations of a multitude of US rulings and a flood of legal opinions offered; from travelling and any number of hours worked for lawyers that didn't actually participate in the case; Small's travelling expenses while he could easily have testified by telephone, just like Vorm did; the amount of copies made and the price per copy calculated; the handing in of evidence to prove things that Zenon never questioned or denied; the consistent use of couriers instead of faxes; the aide who has been sitting next to Magnusson for a week while doing nothing much more than leafing through papers and occasionally passing a note on to Magnusson. And let's not forget the ten binder set that Magnusson presented everybody with at the beginning of this case: there was nothing new in it, Magnusson just 're-ordered' his evidence, and surely Z will be expected to pay for that as well.
In short, RTC and Magnusson have deliberately increased their costs and are now pushing that bill unto Zenon. Equality of arms (viz. the European Convention of Human Rights) is surely applicable in this aspect. In the absence of a reasonable bill, RTC's legal costs must be reasonably assessed *and* brought down proportionally according to what RTC has lost.
MAGNUSSON'S REPLY. It is obvious that Panoussis has done everything he could to increase RTC's costs. On alt.religion.scientology, Zenon has in various postings claimed that RTC, by imposing such a enormous sum upon him, has in fact granted him immunity from future claims. And he is actually challenging RTC in that posting - as he has done in other postings - to sue him, while alternatively threatening to post more of RTC's material.
Zenon's claim that equality of arms should be taken into account is ridiculous. Actually, it amounts to discrimination: it means that the strongest party can't spend more than the weaker party can afford.
Zenon replies that Magnusson's last remark about strong and weak parties is of course nonsense. The strong party can spend whatever it wants; the only question at stake is whether it can demand that the weaker party will afterwards *bear* all these costs. He will save his other arguments for his plea.
14:30 - Break.
14:50 - Court resumes.
MAGNUSSON IS GOING TO deposit McShane again. Zenon informs the court that he would like to pose additional questions as well, and explains on what subject: contrary to what he stated, there appears to be a part of NOTs that people *do* study. Apart from that, it would appear from Scientology's own publications that there are much more than just 325 Scientology members who have studied the NOTs, as McShane claimed: some 120 more at least. Does this evidence come from Scientology itself, the Chair asks? Yes, Zenon explains, it comes from Scientology's own publications: Source Magazine and International Scientology News, and copies of those magazines arrive tomorrow. Zenon will provide Magnusson with copies immediately.
Magnusson claims that this is not *at all* relevant, and besides, why are we getting this at the latest moment imaginable?
Short discussion between Chair and Zenon. Zenon explains that NOTs are courses with 'fixed donations' as well. The Chair wants to know since when. It has always been like this, says Zenon.
15:05 - Deposition of McShane
WE KNOW THAT THIS new deposition has been put in to repair some of the damage done previously, where McShane was forced to admit how many people have read OT2 and OT3, and his admittance that people *pay* for those courses. (Any commercial exploitation of a text is in itself sufficient to constitute publication, and thus, under European law, gives every citizen the right to possess copies for private use and allows everybody to quote from it.)
Magnusson: How many copies has RTC itself produced of OT2, OT3 and NOTs?
McShane: Of OT2, RTC has produced about twenty packs for each of the Advanced Churches. That is approximately a hundred copies in total. For OT3 the numbers are a little bit higher, about thirty copies for each Advanced Church. In case of the NOTs it is different, each of the Advanced Churches only has four copies, except for the Advanced Church in Florida that actually is the church that trains the NOTs ministers. They have about seventy copies.
M: That means that all in all there are about a hundred copies of OT2, hundred and fifty of OT3, and seventy or eighty of the NOTs?
McShane: Of the NOTs, that would be about eighty-six copies. Each of them is part of the inventory, is numbered and is plugged into the computer.
McShane: Yes, about [xx] years ago we translated the OTs and NOTs into the four main languages: German, Spanish, French, Italian.
M: Are these translations part of the total amount of copies?
McShane: Yes, those numbers include the translations.
M: [assessing the degree of infringement as perpetrated by Zenon Panoussis]
McShane: I went through how much he infringed and [gets folder, opens it]
M: [can you give us the details?]
McShane: I compared the original work to the infringing copy. I did a word count and determined how many words he took from the originals. For instance, from OT2 he infringed upon 10 individual works and 4 of those works are infringed upon 100%, one is infringed upon for 94%, one for 84%, one for 75%, one for 62%, one for 20%, and the last one for 7%.
I did the same calculations for OT3. 15 works were infringed upon. 13 of those for 100%, one for 66%, and the last one for 29 %.
I also did the same calculations for the NOTs. Of a total of 60 works 53 or 54 of the NOTs series and 4 other works were infringed upon. Just about all of them were infringed 100% There were two, I would say for 99,99% infringed upon, one for 91%, and there was a couple that was infringed upon for 95 % and another 80%. But the majority was taken verbatim.
M: .. summarise .. sentences .. text ..
McShane: I don't follow the question
M: [Are there other texts among the infringements?]
McShane: no there are not.
M: The notary public, Alexandersson said that the distribution list of NOTs 54 mentions "solo NOTs". Can you explain?
McShane: I testified that there was no Solo OT5. There *is* a course called Solo NOTs, but the member or parishioner who does that course does not study the NOTs himself, and although it says "NOTs Pack" on the cover, there is no NOTs issue or NOTs course on OT6.
[Comment: this ping-pong between Magnusson and McShane is the result of Zenon asking about Solo NOTs. Zenon had implied that the Solo NOTs - a course that has been done by plenty of Scientology members - are part of the NOTs pack. Here, McShane tries to refute that.]
M: [can you explain a bit more about the OT-levels]
McShane: Each of the OT-levels were based on research that Mr. Hubbard did into the spiritual nature of man, in order to discover the means, the ways of improving man's spiritual nature, all leading to the ultimate goal of immortality. Each of the OT-levels are an expression of Mr. Hubbard's writings, of what he discovered. And I know that it is hard to understand what those writings mean without prior knowledge, but after my twenty-seven years of being in the church, I'm very familiar with Mr. Hubbard's writings and also from testifying in court cases, that each of those individual works is an expression of what he discovered on those particular subjects. I know that it is difficult for the courts to review this material, because we are dealing with religious scriptures, but the courses and the material contained within those courses impart to the individual that reads them the revelations that Mr. Hubbard discovered; and when you apply that material to yourself, you discover those revelations.
M: [Panoussis being wrong about whether any payment is expected for studying the NOTs]
McShane: Yes, Zenon Panoussis has it totally wrong. OT5 and the NOTs are only available to Scientology ministers and they do not pay for this course. These are employees of the church and it is their training. They do *not* pay for it.
M: [about the additional ministers who studied the NOTs Pack, over and above the 325 ministers that McShane testified have read them]
McShane: My testimony was about the state of affairs at the beginning of the trial at hand. I did not calculate any new ministers, but obviously there have been additional people trained under the same circumstances.
M: [how many additional people have studied the NOTs?]
McShane: Maybe between 50 and 100 additional members. Again, these are church members, they are staff, and they do not pay for this course.
15:27 - Zenon's turn.
Zenon: The percentages that you mention you have calculated pertain to Exhibit 37? [That exhibit is what Zenon filed and what became public: it contains the OTs from the Fishman Affidavit and the NOTs.]
Z: Are these percentages based on calculations per word, or on the amount of words?
McShane: I took your infringing copy and highlighted all the words and then counted all the words that were the same.
Z: Did you count any instances of words in the wrong order as an infringement?
McShane: I found no instances of that.
Z: Do your calculations pertain to individual works or the whole collection?
McShane: To individual works.
Z: With respect to the NOTs, you stated that sixty works were infringed upon. Are these sixty works all parts of the NOTs pack?
[Some discussion ensues as to what is the NOTs pack.]
Z: The sixty works that were infringed upon, are they all part of the binder that you showed here last Friday?
Z: What OT-level have you yourself attained?
Z: That means that you only have personal knowledge about everything up to and including OT6, but not of anything higher?
Z: With respect to the ministers who study the NOTs: you say that they don't pay for this course. But do they have to *donate*?
Z: What is the official title of these ministers, their 'hat'?
Z: Ehm, I mean what *class* of auditors?
McShane: Class IX.
[Z gets up and borrows a Scientology glossy from the court that has been filed as evidence; it contains a price list]
Z: Can you explain what it says here? "Class IX auditing rates - 9250 USD for 12,5 hours".
McShane: That is what auditing *with them* costs.
Z: Is this what the auditors pay, or the auditees?
McShane: The auditees. The price refers to auditing rates for 12,5 hours. So if your a parishioner and you want to do NOTs, that would be the donation rate for 12,5 hours of auditing in Flag Clearwater, which is our Advanced Church in Florida.
Z: Let me rephrase. The people who actually get to see and study the NOTs: are they expected to pay any fixed donations?
Z: In the magazines that are now on their way, Source Magazine issue 132 from 2000, and International Scientology News issue 9, 1999, it is claimed that 57 and 60 new Class IX Auditors respectively are about to get their grades. Is it probable that this many people have participated in NOTs since the previous trial?
McShane: That is possible.
15:40 - McShane's deposition is done
Some discussion about the magazines that are on their way ensues. On behalf of RTC, Magnusson admits that about 100 people have read the NOTs after 1998. As a result, the magazines do not need to be filed as evidence.
Both parties' written evidence is then mentioned and noted - a procedural necessity, brought about by the Swedish legal system that demands that all arguments, grounds and evidence have to be presented verbally.
We are ready at 16:30, and pack our stuff. This time we need to take the extra binders with us with us that Magnusson brought in at the first day. Zenon had just left them in the court room so far; there was no point in dragging them along. Besides, we couldn't carry them with us even if we wanted; but fortunately, this time one of our supporters has shown up and he will carry them for us. We take one of the cartons that Magnusson brought them in and pack.
Only later we look at the box more closely. On the side, it says:
Legal Source, Inc
The Total Litigation Support Company
... based in California. "Total litigation support"? Duh. Do they deliver jails, too?
Outside the court we have a much-needed smoke. The UK guy who approached us yesterday is there waiting for us: yes, he went to visit the local Scientology Org to get a second opinion *and* to fish for information about his grandson. To his great surprise, just before he entered, he saw the guy we had observed at the pub yesterday exit the Org…
We have a drink with our supporter. He gets to carry the extra carton. In the pub, we notice a woman who is slightly out of place. She has seated herself in such a way that she has an excellent view of us and she 'appears' to be reading a newspaper. Since we are tired of being followed, we devise a trick to figure out what is going on. Zenon will leave, and we will observe her.
Within thirty seconds of Zenon having exited the pub, the woman folds her paper and leaves. Our supporter phones Zenon on his mobile: "She's getting out of the door *now*." Our supporter and I continue talking, meanwhile scrutinising the street. After six or eight minutes, we see the same woman in the presence of a man passing the cafe, Zenon just behind them. He points at them and mimics at us. Our supporter gets up and joins Zenon.
After a few minutes, Z and our supporter get back into the cafe. "The street is swarming with Scientologists," Zenon exclaims. "I noticed at least five," and he explains what happened. When he went out, he saw a guy who was loitering and then slowly moved in the direction that Zenon was taking, so then Zenon turned around a corner and stopped; he saw the guy looking at him, pretending that he didn't, and then he exchanged glances with another woman and wandered off, obviously having lost his purpose. This second woman appeared lost when Zenon simply turned and walked back to where he came from. Two guys were sitting in a parked car. On his way back to the café, Zenon saw the woman from the café coming towards him. The moment she noticed him, she turned around and walked back again, walked past the café and stopped at the next shop window. Behind her was a man, obviously unrelated to her, but he stopped at the shop window too and started talking with the woman. Sure enough, Zenon was yet further behind, so the man hadn't seen him.
Zenon continued past the café and reaches the two, overhearing part of the woman's exited explanations to the man. Zenon stopped next to them at the same shop window, whereby the man and the woman immediately departed in the direction they had just came from.
At this point Zenon followed them past the café and stopped them. "Can we stop these stupid little games NOW?" Zenon demande. "I don't know what you are talking about," the woman mumbled. (The natural answer would of course have been: "Games? What the fuck are you talking about? Who are you?") Zenon scolded them severely and returned to the café.
When later all three of us get into a taxi, we are followed by a white Volvo. When we stop to let off our supporter, the white Volvo stops behind a parked bus. Our supporter takes them for a ride from there, while we, just in case, make sure that they have to spend a few hours in the Swedish cold if they manage to follow us.
Karin Spaink Stockholm, January 25 2001
- K -
Never imagine yourself not to be otherwise than what it might appear to others that what you were or might have been was not otherwise than what you had been would have appeared to them to be otherwise. - Lewis Carroll: Alice's Adventures in Wonderland
-- I write, therefore I am: http://www.xs4all.nl/~kspaink/
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