Summary: Attorneys fees denied by Brinkema, despite last minute affidavit by the cult from Newkid (!). Now they move on to the appeals. There's one or two surprising revelations along the way, the rest of this article is not just boring process.
The sky was gray and the Malibu was sort of maroon-ish. Wait, that's not how I was going to start this. Arnie's '73 Malibu is maroon-ish, but let's stick to the relevant details.
I went to the hearing today before Judge Leonie Brinkema for her to rule on Scientology's motion for half a million dollars in attorney's fees against Arnie Lerma. Arnie was unable to attend. I talked to the guard at the door, so this is totally my own limited understanding of what went on. I scribbled as fast as I could, but I'm not a laywer. It's illegal to bring a recorder into court, even into the building of a federal court.
Scientology sent a bunch of folks. Sylvia Stanard, OSA PR in the DC org, a young blond SO boy that I saw at a picket outside the DC org, Helena Kobrin, Warren McShane, Mike Rinder, Fred Sinclair (lawyer), Bill Hart (lawyer), a little weasel lawyer who participated in Arnie's raid, and another guy I didn't recognize with a black moustache.
For the defendant, attorneys David Masselli and Lane. Masselli did all the talking.
Judge Brinkema is a little older than I expected. She's 53. Gray hair, somewhat round of features. She doesn't seem to take any bull. This is very different from family court. We sat in church pews, not seats, and you have to do an "all rise" like in the movies. The judge sits a long way away, and everybody has to talk on mike to be heard.
Sylvia and SO boy brought in some exhibits for the judge, foam boards and an easel, The weasel lawyer seemed to be in charge of them. The easel was set up at one point, but they never got around to discussing any of the posters. I assume they had to do with Snorri-gate. McShane and Rinder sat by themselves. One or twice, I thought I saw a few signals being exchanged between Hart and one of the LA guys, but I can't be sure.
Fred Sinclair led the discussion for Scientology, with some comments from Hart. Sinclair is the older of the two, with thinning gray hair. Hart looks and talks like Billy Joel. He has kind of spikey hair and a sparse beard. He used the word "ain't" in court. He was like an evil My Cousin Vinny. Brinkema lead off, "I don't intend to hear extensive arguments today." She did anyway. First came discussion of the permanent injunction they want to impose. Masselli objected on two points. First, that it was too broad in covering lawyers and associates. In theory, the defendants in Colorado could win their case outright, but still be bound by this injunction as associates. He also wanted to make sure he had access to the advanced technology materials for use in any appeals. Otherwise, he would be required to turn over all copies to RTC immediately. The hard drive that he just received back last week would be turned over as well, before appeals could be heard.
Hart mentioned Rule 65, which I don't know anything about, then said that there is some evidence that the Fishman documents were first leaked from the sealed court documents by an attorney. So he didn't want attorneys to be exempt from the order forever, but would agree to insert a paragraph to allow possession of the documents until the case has been completely decided. Brinkema had some proposed language, but they'll work it out between themselves.
Brinkema then brought up that the proposed injunction was too broad on first amendment grounds. That Arnie still has his first amendment rights to speak, write, criticize Scientology, and even quote, under fair use, the advanced technology materials as part of his criticism of the church. She had drafted a paragraph to that effect, which she was placing in injunction without further discussion. It seems the only thing Arnie will be prohibited from doing is to posses or distribute the advanced technology materials.
Hart began bringing up the argument that "the Internet is to slippery, too ephemeral", and that we don't even know if Arnie has copies of the material in his possession. Miselli said he didn't think Arnie did, but all materials would be in his possession until the appeals are completely over.
Brinkema's wording, as best I could scribble it down, "Nothing in this injunction precludes Lerma or his associates from exercising their rights of press or speech, nor does it limit his fair use rights." Of course, if they are successful in appealing the loss of trade secrets, this part goes out the window.
Then Hart said an interesting thing. "We acknowledge that there is fair use for both published and unpublished copyrighted documents." But he quoted a ruling from Judge Whyte, who said that cumulative fair use aggregates into copyright violation.
Brinkema said the injunction should be completed by the middle of next week.
Sinclair took over for Scientology. He said he knows the judge thinks they're swimming upstream on this, but he believes there is a misrepresentation that Arnie is unable to pay attorneys fees. The FACTNet directors have 2 million in insurance, the first million may be gone, and F&B may be going after some of the remainder, but there is still a pot of money there. He says Coregis is willing to cover this award.
He said it's not up to the defendants to apportion this pool to whomever they please, leaving Arnie unable to pay the award. Then he went off on different tangents that didn't seem to have any bearing. He said that Arnie was in fact never without representation, even in August when they fired F&B, that Arnie hasn't had to pay a cent from his own pocket to cover the costs of the case, that the confidentiality agreements signed in the 70s were well known, and something about Mr. Jaeger of William Brinks.
He said that Arnie has made numerous postings, and is defiant by networking with other people to help spread the copyrighted materials. He brought up Grady, Keith Henson, Peter Mante and the Sweden case. Hart was apparently sent to Sweden to try to handle that, that the sneaky Internet people are abusing copyright law by exploiting the law in Sweden to get the Parliament to distribute the works. He practically cried that RTC has to spend all this money defending itself around the world, when Arnie doesn't have to pay any money at all, Grady and Keith are pro se, etc. He complained that it's been extremely costly to fight all these battles, with costs estimated at $900,000 so far, which they've been forced to pay from contributions from parishioners.
He called Arnie a highwayman, which comes from a poem Arnie apparently posted, about the asthmatic dwarf, the 'ho of Babylon, and the highwaymen, returned from the ship, etc. etc. He really got worked up. Kobrin made her only statement at this point, to calm Sinclair down, that all of that is first amendment protected speech. Sinclair wouldn't listen to her, said that Internet people were proclaiming the $2500 award a "big win", that everybody was crowing about the victory. He's on a ramble now. That he wants an award so there is a deterrent effect on other Internet people, that the court send a message not to do this copyright infringement, that there is insurance money available to pay this. I think Hart got a signal at this point, and cut him off, "That's enough."
Hart got up to speak, that RTC should get an award out of the insurance money, "It ain't about nasty statements being made about Scientology." That it's a hit-and-run strategy on the Internet, people are popping up and then fleeing quickly, people are representing themselves, not paying lawyers, it's a conspiracy to drain resources from the church. He dared Misselli to get Arnie on the stand and deny that he's in communication with "the people in Sweden."
Now he's even more upset than Sinclair was. "He can call this woman a whore all he wants, but he can just push a button at any time and send out multiple copies of these documents. He's a point man. If we condone this behavior, then we are saying that copyrights are meaningless." He ends his rant.
Masselli gets up to speak. He wants to talk about the newly filed affidavit from Peter Mante, aka Newkid, aka Snorri Helgersson. "My clients have been clamoring for an evidentiary hearing about this, but I think we should not go beyond what has already been discussed in the case." I guess Brinkema agrees, because that's the last we hear about Peter. So much for the foam boards.
Then Sinclair gets back up to quote another of Arnie's postings. About the second amendment and the right to bear arms, "The arms are the truth about Scientology." He says that Internet people can criticize the church without any action, and that nothing happened to Arnie until he posted the Fishman documents.
Back to Masselli. First, Judge Kane says that Coregis has an interim obligation to defend, not to pay all the way to the final disposition. The insurance money is not Arnie's money. It's not his to spend on this attorney award.
Second, that Arnie shouldn't be punished because other people are doing things. He will not deny that Arnie speaks to people in Sweden, but he will deny that he speaks with them to make plans to violate copyrights.
Third, we are dealing with one upload to the Internet of protected documents. While court documents do not have special protection with regard to copyright law, it's easy to see how a non-lawyer would think that. Arnie will never again upload RTC's copyrighted documents, and his life has been dramatically altered by this litigation. If the RTC wants to allege a conspiracy theory, there are statutes that allow for that sort of thing. They should sue under RICO if they feel that way, this conspiracy theory is not a reason to punish Arnie.
Brinkema has heard enough. This last minute flurry of briefs needs to end. Attorneys fees in a copyright violation are not appropriate, and this wasn't a willful violation in any case. The RTC has over-litigated this case, and has indulged in mud-slinging. She is particularly disturbed by the church's teaching that "Courts can be used as a way of stifling criticism."
Lerma's motivations were not willful, and the position of the defense with regards to trade secrets and copyrights was not unreasonable. Using attorneys fees as a deterrent is not reasonable. There is far more deterrence in the threat of being sued by the RTC, and Arnie still has to pay the $2500. That is deterrence enough.
Finally, there is no endless pot of money. She reviewed the insurance arrangement, and the money is not specifically earmarked for Arnie. She reads it to say that they are required to defend, but not to pay attorneys fees. Motion for award of attorneys fees denied.
Or is it? Brinkema said she expected to see this appealed. I guess Scientology will appeal the trade secrets, and Arnie will appeal the copyrights. I think it's called cross-appealing.
- Rod Keller / email@example.com / Irresponsible Publisher Black Hat #1 / Expert of the Toilet / Golden Gate Bridge Club The Lerma Apologist / Merchant of Chaos / Kha Khan countdown: 9 to go Killer Rod / OSA Patsy / Quasi-Scieno / Mental Bully