Opposition Brief — Henson v. Religious Technology Center

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No. 99-456

IN THE

Supreme Court of the United States

H. KEITH HENSON,

Petitioner,

RELIGIOUS TECHNOLOGY CENTER,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RESPONDENT?’S BRIEF IN OPPOSITION

WILLIAM M. Hart Eric M. LIEBERMAN

PROSKAUER Rose, LLP Counsel cf Record

1585 Broadway RABINOWITZ, BOUDIN, STANDARD,

New York. New York 10036 — KRINSKy & LIEBERMAN, P.C.

(212) 969-3000 740 Broadway, Fifth Floor

New York, New York 10003

(212) 254-1111

SAMUEL D. ROSEN

MICHAEL MERVIS

PAUL, HASTINGS, JANOFSKY

& WaLKER, LLP

399 Park Avenue

New York, New York 10022

(212) 318-6000

Attorneys for Respondent

ist

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................ il

OR PO eo ee ee rk ey ii ke l

STATEMENT OF THECASE ...................... 4

1. The Work AtIssue ......................... 4

2. Defendant’s Infringement Of RTC’s

3. Proceedings In the District Court .............. 6

4. Facts Adduced At Trial Relating To The

Willfulness Of Henson’s Conduct ............ 8

5. Proceedings in the Court of Appeals ..........

REASONS WHY THE PETITION SHOULD

I].

Ill.

i boss sips, EEE Ee nee

Petitioner Did Not Raise the Questions Presented

WE ele uae ve cae Cle

Henson's First Proposed Ground For Review Does

Not Raise A Substantial Federal Question, Or A

Question Upon Which There Is A Division of Opinion

Either Among The Circuit Courts Or With The

Decisions Of This Court .......................

Petitioner’s Second Proposed Ground For Review

Fails To Raise A Substantial Legal Question

Justifying The Court’s Exercise of Certiorari

JUPISGICTION 20... ccc cece cece ecccee

OPTI secs cana caveuuvenaccennc 29

TABLE OF AUTHORITIES

Cases Page

American Geophysical Union v. Texaco, Inc.,

60 F.3d 913 (0 Che: FR eat ee ce ew cees 26

American Geophysical Union v. Texaco, Inc.,

802 F. Supp. 1 (S.D.N.Y. 1992), aff'd,

60 F.3d 913 (2d Cir. 1994), cert. dismissed,

516 U.S. 1005: (99S0). eae ee ee pea 4

Atari Games Corp. v. Nintendo of America, Inc.,

975 F.2d 832 Ged. Cael. Fee ee eee fi

Benny v. Loew's, Inc.,

239 F.2d 532, 536 (9th Cir. 1956), aff'd sub nom. Columbia

Broadcasting System v. Loew's, Inc., 356 U.S. 43 (1958) 25

Bose Corp. v. Consumers Union of United States, Inc.,

466 U.S. 485 (9966 6.55 ee ee 18

Bridge Publications, Inc. v. F.A.C.T.Net, Inc.,

183 F.R.D. 234 Gi, Cape a 7

Bridge Publications, Inc. v. Vien,

827 F. Supp. 629 (S.D. Cal. 1993) ................ 24, 28

C.J.D. Rudolph v. United States,

370 U.S. 260-(19G9) 00a eee ae ae 19

Cable/Home Communications Corp. v. Network Productions,

902 F.2d S29 (2 30 Cae Ps ee ee aes 15

Campbell v. Acuff-Rose Music, Inc.,

$10 U.S. 369 (0908) .. ....5..45 ee ge, 21, 22, 25, 27

Craft v. Kobler,

667 F. Sepp. 120 COSA. Foes Wee ec ee sc 27

eee rll

E.E.O.C. v. Federal Labor Relations Authority,

BIG AUS. 19 AGRG) . .- ee ccc tee e eee cree seesee: 13

Founding Church of Scientology v. United States,

409 F.2d 1146 (D.C. Cir. 1969),

cert. denied, 396 U.S. 963(1969) ......---e eer eereee: 12

Harper & Row Publishers, Inc. v. Nation Enterprises,

Oe TR Ua ee ee passim

Lish v. Harper's Magazine F oundation,

807 F. Supp. 1090 (S.D.N.Y. 2 See eee ee 27

Los Angeles News Service V. Tullo,

973 F.2d 791 (9th Cir. 1992) ....--------eeerrttee ee 16

Love v. Kwitny,

706 F. Supp. 1123 (S.D.N.Y. |, See ree ee ie 27

Marcus v. Rowley,

695 F.2d 1171 (9th Cir. 1983) ...------ seer e rr 27

Mitchell Brothers Film Group v. Cinema Adult Theater,

604 F.2d 852 (Sth Cir. 1979) .....----- errr errtt 15

N_L.R.B. v. Hendricks County Rural Elec. Membership Corp..

BOR UE TIOCISE!) «ow - 2 os neem eer eter essere: 19

New Era Publications International, ApS v. Henry Holt & Co..

873 F.2d 576 (2d Cir. 1989) ....----- eee reeset’ 16

New York Times Co. v. Sullivan,

WUE SORCIGGS) oo c5 a cesses sen nce seceseeees 14

New York Times Co. v. United States,

eee he | I ee a 14

Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc..

166 F.3d 65 (2d Cir. 1999) ....------- sees e errr ete’ 16

iil

Pennsylvania Department of Corrections v. Yeskey,

Se te I ee eS es teeta a ues Fer eas 13

Religious Technology Center v. Lerma,

40 U.S.P.Q. 2d 1569 (E.D. Va. 1996) ............ passim

Religious Technology Center v. Netcom,

923 F. Supp. 1231 (N.D. Cal. 1995) ....... 5, 6, 23, 24, 28

Religious Technology Center v. Ward,

No. 96-20207-RMW (N.D. Cal.) .................. 5, 28

Rogers v. Lodge,

Be es so a ea ware eee eee 13

Roy Export Co. Establishment of Vaduz, Liechtenstein v.

Columbia Broadcasting System, Inc..,

Ore eee ee ee es Es ke on he Wa we ec eee 16

Salinger v. Random House, Inc.,

811 F.2d 90 (2d Cir.), supp ‘d on denial of rehearing,

818 F.2d 252, cert. denied, 484 U.S. 890 (1987) ..... 23,27

Supermarket of Homes, Inc. v. San Fernando

Valley Board of Realtors,

oS ee fe a. | rem 21

Szabo v. Errisson,

Oe eee eG, Bs nak cee ee yee seas 4,26

Tennessee Valley Authority v. Hill,

ae a CeO coo koe eres eee eee es 17

United States v. Article or Device,

BIR I FT Ce STUD aes ca dno asda 12

United States v. Ballard,

Pee TE he a ee a ee eS 24

United States v. Rutherford,

GAD UG. SAA CSTD) oi in es as ea ee wa ees 17

United Video, Inc. v. Federal Communications Commission,

890 F.2d 1173 (D.C. Cir. 1989) .... 6.6... ee eee eee eee 15

Walt Disney Productions v. Air Pirates,

581 F.2d 751 (9th Cir. 1978),

cert. denied sub nom., O'Neill v. Walt Disney

Productions, 439 U.S. 1132 (1979) ... 2... 2-225 16, 25

Zobrest v. Catalina Foothills Sch. District,

SOD US. 1 CEGOD) occ ic hie ea ets a ee ete 13

STATUTES

STUSL. « § UCDO nso as es ce te 14

§ 107 Joon ae eb ake

REGULATIONS

37 C.F.R. §202.3(b)(3)(B)(4) ...--- eee ere eee 4,25

OTHER AUTHORITIES

H.R. Rep. No. 90-83, 90th Cong.

ee: Sic. lj eee ere rr rere roe 27

H.R. Rep. No. 94-1476, 94th Cong.

2 Seas, CASTS) cows sc ne hee Kee 7, at

H.R. Rep. No. 102-836, 102d Cong.

he hb) er errr ee 24

Melville B. Nimmer & David Nimmer,

Nimmer On Copyright (1999) ......052552+0 20 es 25

Stern, Gressman, Shapiro & Geller,

Supreme Court Rules: The 1995 Revisions (1997) ... 19

INTRODUCTION

This was a straightforward copyright infringement case.

Its outcome was mandated by the uncontroverted facts, which

were instrumental in the decisions reached by the district and

circuit courts.

1. Petitioner ("Henson") copied, displayed and distributed

("posted") on the internet, on two occasions, the entirety of a

two page copyrighted work of respondent Religious

Technology Center ("RTC").

2. The work was unpublished.

3. The display and distribution of the work was not

accompanied by substantial or meaningful commentary about

the work.

4. Henson knew the work was copyrighted to RTC before

he posted it. He was in court on two prior occasions in two

separate cases in which the same district judge enjoined two

other persons from infringing the same work in a similar

manner.

5. After Henson first posted the work to the internet, RTC

sent Henson a cease and desist letter. Henson’s written

response was: "take your demand .. . and stick it where the sun

don’t shine” (ER 89-91)." He then reposted the work.

6. Atthe time of both of his infringements, and on several

subsequent occasions, Henson openly solicited others to

infringe the copyrights in RTC’s unpublished works, and to

send him copies of such works so that he could do so.

7. Henson admitted in testimony that he undertook the

acts of infringement and solicitation of infringement to increase

his status on the internet, for fun and entertainment, to harass

RTC and drive up its legal expenses, and as revenge for RTC’s

having taken previous legal steps to enjoin several others from

v References to"ER __" are to the excerpts of record in the

court of appeals.

virtually identical acts of infringement. Henson thus

characterized his acts as "dealing with the jerks who pissed in

my sandbox.” (Trial Ex. 10-42).

No case permits such blatant abuse of the rights of a

unpublished work is copied, displayed and distributed

verbatim, there can be no fair use. Nor does the First

Amendment protect such piracy of the expression (as opposed

to the ideas) of a copyright holder, even for the purpose of

criticizing that expression.

The petition thus fails to present legal questions

appropriate for review by the Court for several threshold

reasons: (1) the petition does not even purport to argue that the

decision of the court of appeals conflicts with a decision of

another circuit or of the Court; (2) the petition essentially asks

the Court to review facts and the application of facts to

established law, a task ordinarily not appropriate to the Court’s

certiorari jurisdiction; and (3) the petition raises questions not

raised or preserved in the court of appeals. In addition,

petitioner fundamentally misstates the record below, in

disregard of the jury’s verdict and specific findings of the

district court, as affirmed by the circuit court, and fails to raise

a compelling question requiring the Court’s review.

Thus, while petitioner’s first question presented proposes

a per se rule "instructing courts to liberally apply the fair use

factors to support First Amendment interests is cases involving

noncommercial, political speech" (Pet. at 30), petitioner’s basic

premise underlying that proposal, that he copied the work as a

good faith exercise in public comment and criticism, was

explicitly rejected as a matter of fact by both judge and jury in

the district court. The district court, in granting partial

summary judgment on liability for copyright infringement,

found that petitioner’s "commentary," which accompanied the

copying of the entire work, did not address the contents of the

work to any significant degree, thereby rendering the copying

of tie entire work gratuitous and in apparent "bad faith." The

issue was revisited at the trial on statutory damages, at which

the jury was required to determine whether or not petitioner’s

infringement was "willful." Petitioner’s trial counsel? was

permitted to argue that petitioner’s acts were not willful

because he believed in good faith that his act of posting the

work at issue was an exercise of comment or criticism

constituting fair use; indeed, the district court instructed the

jury that it could find in favor of petitioner on the issue of

willfulness if he established such a good faith belief. Yet the

jury rejected the defense, accepting respondent’s argument that

petitioner acted out of spite, malice, and to enhance his own

status among the group of individuals who regularly participate

on the internet newsgroup to which petitioner posted the work

in question.

Thus, this case does not even begin to present the issue

petitioner attempts to raise: whether his copying of an entire

unpublished work is protected by the First Amendment because

it was necessary to further a purpose of engaging in what

petitioner denominates "political" speech. Indeed, petitioner

did not raise such an issue on appeal, where he merely argued

that he was entitled to copy, display and distribute the entire

work because, in his distorted subjective view, it constitutes a

"criminal instruction manual." The court of appeals’ rejection

2! Contrary to a statement in the petition (Pet. at 7), petitioner

did not act on a pro se basis prior to the jury trial because he could

not afford legal representation. Rather, as petitioner gloated in

various internet postings, he chose to proceed without a lawyer,

despite at least four offers of pro bono assistance and despite the fact

that he was a gainfully employed professional, because he believed

it gave him an advantage in the proceedings, stating, "if 1 had a

lawyer he would crimp my style . . ." (ER 556).

of that baseless argument does not present any question

warranting the Court’s review.

STATEMENT OF THE CASE

1. The Work At Issue

L. Ron Hubbard was the author of numerous original

religious works of the Scientology religion, of which he was

the founder. Many of Hubbard’s works have been published

and made generally available, while others have not. Among

the unpublished works is a body of works referred to as the

NOTs Series (ER 145). The Series is composed of 55 separate

and discrete copyrighted "issues," identified by number, which

are used by specially trained and qualified ministers of the

Scientology religion in providing spiritual counszling to

parishioners at a limited number of advanced Churches of

Scientology (ER 3, 17-20, 73-75, 145-47). Each individual

component of the NOTs Series - such as NOTs Series 34 - is

separate, discrete, and finite, with an individual heading and

closing, a start and a finish. (Jd.

: Although NOTs Series 34 is registered as a component part

of the NOTs Series, as the district court heid, it is entitled to

here, a series of unpublished works is registered as a single

collection, the registration "extends to each copyrightable element

in the collection," 37 C.F.R. §202.3(b)\(3)(B)(4); American

Geophysical Union v. Texaco, Inc., 802 F. Supp. 1, 17 (S.D.N.Y.

1992), aff'd, 60 F.3d 913 (2d Cir. 1994), cert. dismissed, 516 U.S.

1005 (1995) (for purposes of fair use analysis, "copyrighted work"

is individual periodical article, even though copyright covered entire

issue); Szabo v. Errisson, 68 F.3d 940, 943 (Sth Cir. 1995) ("[W]hen

one copyrights a collection, the copyright extends to each individual

After Hubbard’s death in 1986, his estate granted to RTC

an exclusive license in the NOTs copyrights (ER 34-47). RTC

has received from the Register of Copyrights certificates of

registration of these copyrights (ER 51-61). The registration

certificates protect each NOTs issue as a separate work.*

2. Defendart’s ixj;ingement Of RTC ’'s Copyright In NOTs 34

Henson was in the courtroom on March 29, 1996, when

District Judge Ponald M. Whyte, of the Northern District of

California, ruled that he would issue a preliminary injunction

prohibiting one Grady Ward from further infringing RTC’s

copyrights in certain unpublished religious works. Religious

Technology Center v. Ward, No. 96-20207-RMW (N.D. Cal.)

("the Ward case") (ER 4-5). Ward had copied and distributed

RTC’s copyrighted works on the internet, was threatening

imminent additional postings, and had publicly solicited copies

of RTC’s proprietary materials. The Ward injunction

encompassed NOTs 34.2

work in the collection even though the names of each work are not

expressly listed in the copyright registration," collecting cases).

Henson does not argue that either Texaco or Szabo are incorrect as

a matter of law, only that the district court somehow incorrectly

applied them to the facts of this case.

+ The NOTs issues are of immense value as well as spiritual

significance to RTC, which has taken extraordinary measures to

protect their confidentiality (ER 4). See Religious Technology

Center v. Netcom, 923 F. Supp. 1231, 1254 (N.D. Cal. 1995).

y Henson previously had attended a preliminary injunction

hearing in another case before the same court, following which

Judge Whyte enjoined one Dennis Erlich from infringing RTC’s

The next day, Henson electronically copied, transmitted

and displayed ("posted") on an internet newsgroup called

alt.religion.scientology, or "a.r.s.," a copy of NOTs 34 in its

entirety. At the same time, Henson posted "An Open Letter to

Judge Whyte," stating that he was in the courtroom at the Ward

hearing and, in effect, daring the district court to enjoin him as

well. Henson solicited additional copies of the NOTs Series,

"stolen or not," to be sent to him (ER 73-87, 146). Only two

sentences of Henson’s two page "open letter" were directed at

the contents of NOTs 34, and those sentences referred to only

one paragraph, consisting of 33 words, of the two page work,

which Henson nevertheless copied and displayed verbatim.

RTC immediately sent Henson a cease and desist letter

(ER 181). Henson responded by: (a) telling RTC’s counsel

that she could "take [her] demand, fold it till it is all corners,

and stick it where ‘the sun don’t shine’"; (b) reposting a copy

of NOTs 34 on the internet; (c) soliciting additional copies of

the NOTS Series "acquired by legal, or *illegal* means"® from

any and all internet users; and (d) threatening to post some or

all of the NOTs Series works to the internet (ER 89-91).

3. Proceedings In the District Court

On April 4, 1996 RTC filed this copyright infringement

action against Henson seeking injunctive and declaratory relief,

statutory damages, and attorneys’ fees. The district court

issued a temporary restraining order on April 5 (ER 776), and

a preliminary injunction on April 12, 1996 (ER 109-116).

Religious Technology Center v. Netcom, 923 F. Supp. 1231 (N.D.

Cal. 1995).

v The use of asterisks around words in postings to usenet

newsgroups is the customary method of signaling emphasis.

On May 6, 1997, the district court granted RTC’s motion

to expand the preliminary injunction to encompass all of the

copyrighted unpublished works of L. Ron Hubbard ‘or which

RTC is the exclusive copyright licensee (ER 302-310). The

Court acted because on February 24, 1997, Henson had posted

yet another message to the internet soliciting "various secret

cult crap,” which he explicitly threatened to post to the internet,

and daring RTC to "get your act in gear and get my injunction

extended" (ER 245).

On April 15, 1997, the district court granted RTC’s motion

for partial summary judgment on its copyright claims (ER 286-

301). The court held that RTC owned an existing, valid and

registered copyright interest in NOTs 34,7 and that Henson

admitted copying it, knowing that it was copyrighted. The

court rejected Henson's fair use defense, because inter alia,

Henson's use "is only minimally transformative and does not

appear to be in good faith" (ER 293); the work was

unpublished; and Henson copied the work in its entirety.

The district court specifically rejected Henson’s argument

that his verbatim postings of the entire NOTs 34 work was

justified under the fair use doctrine, or otherwise, because,

according to Henson, the document encourages the illegal

practice of medicine:

Henson suggests that where there is a matter

Accord, Religious Technology Center v. Lerma, 40 U.S.P.Q.

2nd 1569, 1572 (E.D. Va. 1996). Henson falsely claims that the

validity of the copyright in NOTs 34 was called into question in

Bridge Publications, Inc. v. F.A.C.TNet, Inc., 183 F.R.D. 254 (D.

Colo. 1998). (Pet. at 5, n.3.) As Henson’s counsel is well aware, the

F.A.C.T.Net decision only addressed published Scientology works

owned by a different plaintiff, Bridge Publications. The validity of

the copyrights in the unpublished NOTs 34 most certainly was not

at issue in F.A.C. 7. Net.

of public safety involved, the concept of fair

use should be extended... . The 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. Further, Henson does not

sufficiently explain why he needed to post the

entire text of NOTs Series 34 to educate the

public.

(ER 291-92).

The district court issued a permanent injunction to prevent

Henson from further infringing activity. The court reserved for

trial determination of whether Henson’s infringements were

willful and the amount of statutory damages.

Trial commenced on May 5, 1998. The jury returned a

verdict finding that Henson acted willfully in infringing RTC’s

amount of $75,000. The district court entered judgment on

May 14, 1998 (ER 318). On June 9, 1998, Henson filed a

motion for a new trial (ER 671), which the district court denied

on September 28, 1998 (ER 763).

4. Facts Adduced At Trial Relating To The Willfulness Of

Henson's Conduct

The trial focused on two matters: (1) if Henson’s

infringement of RTC’s copyright was willful; and (2) the

amount of damages to be awarded. Henson was the only

witness; he was called by both sides. In addition, RTC

introduced videotaped excerpts of Henson’s deposition

testimony.

RTC demonstrated that Henson knew his actions were in

violation of federal copyright law; that he considered his

infringements to have been committed for fun, entertainment,

and recreation; and that he used his copyright infringement to

enhance his status among fellow participants in the "a.r.s."

internet newsgroup, who regularly engaged in virulent attacks

upon the Scientology religion.

When Henson posted NOTs 34, he knew it was

copyrighted (ER 395). He stated, "I figured that there was a

very fair probability that I was breaking a copyright law" (ER

465). In spite of his suspicions, Henson did not contact a

lawyer, even though as a gainfully employed professional, he

could afford to do so, and even though he had retained

attorneys in the past with regard to other legal matters (ER

488). Nor did Henson bother to contact RTC to ask for

permission to post NOTs 34 (ER 423-24).

Henson testified that he set out to taunt RTC because it

was "a lot of fun" (ER 634) and "screamingly funny" (ER 613).

In internet postings, Henson referred to RTC as a "punching

bag" (ER381, 547) and an "expendable sparing[sic] partner"

(ER 383-84, 550) that was to be used in preparation for other,

apparently more formidable, opponents. Henson believed

taunting RTC was fun. "If they take a hard line and sue, well,

there is a limit on how many of these suits [RTC] can keep

going, not to mention there is a certain degree of amusement

value" (ER 406, 560). Indeed, Henson acknowledged that one

of his motives was to drive up RTC’s legal costs (ER 546,559-

60).

Henson also volunteered that his actions were undertaken

to enhance his status amongst those who participated in the

"a.r.s." internet discussion group. According to Henson,

depending on the level of engagement with RTC, an ars.

participant would increase his status (ER 412-13, 614, 617-18,

620-21, 623-25). Henson testified that when he received a

cease and desist letter from RTC it was "a major increment in

status." (ER 614). Henson’s efforts to increase his status on

a.r.s. knew no bounds. He acknowledged that once he went so

i |

far as to announce his desire to receive a status-enhancing

cease and desist letter from RTC:

Q: Did you let people know you'd received

the letter?

A: Oh, yes. Matter of fact, | printed it up

and posted it on . . . the cork board

where | work.

Q: Right. And before you received the

letter, did you indicate that you wanted

to receive such a letter?

A: I might have. It was quite a status

symbol at that point.

(ER 618).

Finally, as already noted, Henson stated that he infringed

RTC’s works out of spite, to avenge RTC’s successful efforts

to enjoin others from similar acts. Trial Ex. 10-42. Indeed, at

the conclusion of his trial testimony, when asked by his own

counsel whether his "experience with this lawsuit ha[d]

deterred [him] from ever posting such materials again," Henson

could only answer, "I wouldn't do it openly" (ER 502)!

In the face of this evidence and his own testimony, Henson

attempted to convince the jury that his copying of NOTs 34

was undertaken as an act of public criticism in a good faith

belief that it was protected as fair use and under the First

Amendment. His trial counsel was permitted to argue that

defense to the jury (Tr. at 0358, 475-79, 679-80), and the court

so instructed the jury (Tr. at 714).

The jury wasted little time in rejecting that defense. The

combination of Henson’s gratuitous and unnecessary posting

of the entire work, his attitude toward RTC, the "entertainment"

value he derived from his taunts, his interest in achieving

enhanced status among the a.r.s. participants, and his vengeful

motive led the jury to the only logical conclusion: that his

good faith effort to use the work "fairly" in furtherance of

public debate or criticism. As the district court concluded:

the evidence presented and attitude exhibited

by Henson . . . during trial left the jury with

little choice but to find that Henson’s

infringement was willful.

ER 765.

5. Proceedings in the Court of Appeals

Henson separately appealed the district court’s permanent

injunction order and its final judgment, which incorporated the

jury's verdict. The court of appeals consolidated the two

appeals.

In his brief in the appeal from the permanent injunction,

Henson raised only one issue: that "plaintiff can make no

Congress has no authority under the Constitution to extend

activity." Henson did nof argue that the fair use doctrine

otherwise protected his copying NOTs 34, or that the fair use

doctrine insufficiently protects First Amendment rights to

"political" speech. Nor did he argue that his verbatim copying

of NOTs 34 did not constitute copying an entire unpublished

work.

The only issues Henson raised in his appeal from the jury

verdict were the alleged insufficiency of evidence of

willfulness, the alleged excessiveness of the verdict, several

evidentiary rulings, and a frivolous claim of misconduct by

plaintiff s trial counsel.

In a single opinion, the court of appeals rejected all of

Henson’s arguments and affirmed the judgment in its entirety.

It held that Henson’s verbatim copying of an entire unpublished

work constituted infringement that was not justified as fair use.

REASONS WHY THE PETITION

SHOULD BE DENIED

I. Petitioner Did Not Raise the Questions Presented

Below

As we have shown, Henson did not raise any of the

grounds presented in his Petition in his briefs to the court of

appeals. The only question he raised in his appeal from the

permanent injunction was whether copyright protection can

extend to a document that Henson subjectively and falsely

characterized as a "criminal instruction manual," an argument

petitioner does not even attempt to raise here.* In particular,

petitioner did not raise in his briefs on appeal any question

concerning the purported tension or conflict between the

argue that the district court’s fair use analysis was incorrect or

flawed.

This failure constitutes a waiver, and is fatal to the

: Henson makes passing reference (Pet. at 6) to a district court

decision, United States vy. Article or Device, 333 F. Supp. 357

(D.D.C. 1971), which he mischaracterizes as forbidding "the

Church" from claiming that its practices can help alleviate medical

conditions. In fact, that decision and the decision of the court of

appeals in the same case, Founding Church of Scientology v. United

States, 409 F.2d 1146 (D.C. Cir. 1969), cert. denied, 396 U.S.

963(1969), upheld the right of the Founding Church of Scientology

to make representations in a religious context concerning the value

of its practices. Scientologists believe that certain of their religious

practices can assist in recovery from what they perceive to be the

spiritual causes and effects of medical ailments, in a way that

complements, but does not supplant, traditional medicine (ER 93-94,

103-107).

petition.-

Il. Henson’s First Proposed Ground For F.eview Does Not

Raise A Substantial Federal Question, Or A Question

Upon Which There Is A Division of Opinion Either

Among The Circuit Courts Or With The Decisions Of

This Court

Henson posits an inherent conflict between the Copyright

Clause and the First Amendment that must be resolved by this

case. But as even his petition implicitly acknowledges, both

the Court and the circuit courts have encountered little

difficulty in accommodating both constitutional provisions

within the scope of traditional fair use doctrine, without

creating the per se type rule Henson demands. The decision of

the Ninth Circuit below is consistent with the decisions of other

circuits and of the Court. If any potential conflict exists

between the two provisions, it can be addressed if and when it

arises, rather than in a wholly inappropriate case such as this.

: See, e.g., Pennsylvania Department of Corrections v.

Yeskey, 524 U.S. 206 (1998) (declining to address issue not raised in

or considered by court of appeals); Zobrest v. Catalina Foothills

Sch. Dist., 509 U.S. 1, 8 (1993) ("Where issues are neither raised

before nor considered by the Court of Appeals, this Court will not

ordinarily consider them"), quoting Adickes v.S.H. Kress & Co..398

U.S. 144, 147, n.2 (1970) (declining to consider issue considered by

district court but not raised before or considered by the court of

appeals), E.E.O.C. v. Fed. Labor Relations Auth., 476 U.S. 19, 24

(1986) ("Our normal practice . . . is to refrain from addressing issues

not raised in the Court of Appeals"; dismissing writ of certiorari as

improvidently granted); Rogers v. Lodge, 458 U.S. 613, 628, n.10

(1982) ("This contention was not properly raised in the Court of

Appeals and was not addressed by that court. We therefore do not

address it").

where the defendant knowingly and willfully infringed a

it in its entirety without significant commentary addressed to

the content of the work.

That the First Amendment creates no conflict with the

infringement was expressly noted by Justice Brennan in New

York Times Co. v. United States, 403 U.S. 713 (1971):

[Cjopyright cases have no pertinence here:

the Government is not asserting an interest in

the particular form of words chosen in the

documents, but is seeking to suppress the

ideas expressed therein. And the copyright

laws, of course, protect only the form of

expression and not the ideas expressed.

403 U.S. at 726 (Brennan, J., concurring). See also id., 403

U.S. at 731, n.1 (White, J., concurring) ("no one denies that a

newspaper can properly be enjoined from publishing the

copyrighted works of another").

The critical distinction, identified by Justice Brennan, is

between speech concerning the ideas of a work, which is

broadly protected, and appropriation of the expression of the

“uninhibited, robust and wide-open" debate on public issues

which lies at the heart of the First Amendment, New York

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), has never

been deemed to be furthered by the wholesale theft of the very

words of a previous speaker. "It should not be forgotten that

the Framers intended copyright itself to be the engine of free

expression . . . [by] suppl[ying] the economic incentive to

create and disseminate ideas." Harper & Row Publishers, Inc.

v. Nation Enterprises, 471 U.S. 539, 558 (1985). Indeed, in

Harper & Row, the Court expressly rejected virtually the

identical argument petitioner posits now "for expanding the

—————————

doctrine of fair use to create what amounts to a public figure [or

public interest] exception to copyright,” holding that First

Amendment protections are "already embodied" in the Act’s

expression/ideas dichotomy and the fair use doctrine. 471 U.S.

at 560. The petition here constitutes nothing less than a frontal

assault on Harper & Row, and a plea to overturn it.

Petitioner, however, can point to no reason, compelling or

otherwise, to revisit the issue now, let alone in this case. The

lower federal courts have consistently applied the

idea/expression dichotomy and the fair use doctrine to protect

both copyrightable expression and the free exchange of ideas.

No conflict in the circuits has arisen, or is likely to arise. The

courts of appeals have uniformly rejected the argument that the

First Amendment trumps the copyright protection afforded by

Article 1, § 8, cl. 8 of the Constitution.“ To the contrary, every

~ See, e.g, Cable/Home Communications Corp. v. Network

Prod., 902 F.2d 829, 849 (llth Cir. 1990) ("With respect to

trammel on legally recognized rights in intellectual property’ ....

Since the Copyright Act is the congressional implementation of a

constitutional directive . . . copyright interests must also be guarded

under the Constitution") (quoting Dallas Cowboys Cheerleaders,

Inc. v. Scoreboard Posters, Inc., 600 F.2d 1184, 1188 (Sth Cir.

1979)); United Video, Inc. v. Federal Communications Commission.

890 F.2d 1173, 1190-91 (D.C. Cir. 1989) ("The Constitution grants

Congress the power to secure for limited times to authors the

exclusive right to their works, and this power generally supersedes

the first amendment rights of those who wish to use another’s

copyrighted work"); Mitchell Bros. Film Group v. Cinema Adult

Theater, 694 F.2d 852, 857. n8& (Sth Cir. 1979) ("The first

amendment and copyright are . . . mutually supportive. The

financial incentive provided by copyright encourages the

development and exchange of ideas which furthers the first

amendment’s purpose of promoting the “exposition of ideas’")

federal court that has considered the issue has held that the fair

use defense already encompasses First Amendment

principles. Petitioner can point to no resulting diminution in

the rights of expression of the citizens of the Republic.

Henson does not claim that there is ambiguity in Section

107 of the Copyright Act or need for interpretation of that

provision, nor does he point to legislative history that would

support his proposed new per se rule.“ Indeed, the legislative

(quotations omitted); Walt Disney Productions v. Air Pirates, 581

F.2d 751, 759 (9th Cir. 1978) ("the idea-expression line represents

an acceptable definitional balance as between copyright and free

speech interests") (quotation omitted), cert. deniedsub nom., O'Neill

v. Walt Disney Productions, 439 U.S. 1132 (1979).

+ See, e.g., Nihon Keizai Shimbun, Inc. v. Comline Bus. 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"); Los

Angeles News Serv. v. Tullo, 973 F.2d 791, 795 (9th Cir. 1992)

("First Amendment concerns are . . . addressed in the copyright fieid

through the ‘fair use’ doctrine"); New Era Publications Int'l, ApS v.

Henry Holt & Co., 873 F.2d 576, 584 (2d Cir. 1989) ("the fair use

doctrine encompasses all claims of first amendment in the copyright

field"); Roy Export Co. Establishment of Vaduz, Liechtenstein v.

Columbia Broadcasting Sys., Inc., 672 F.2d 1095, 1099 (2d Cir.

1982) ("No Circuit that has considered the question . . . has ever held

that the First Amendment provides a privilege in the copyright field

distinct from the accommodation embodied in the ‘fair use’

doctrine").

- The only "authority" that he offers consists of the

ruminations of a few law review article authors who have observed

that there is a potential "tension" between the Copyright Act and the

First Amendment. Of course, the Court does not sit to hear

history of the Copyright Act of 1976 emphasizes that the fair

use doctrine is an"equitable rule of reason" requiring a "case-

by-case" analysis, that "precludes the formulation of exact

rules." H.R. Rep. No. 94-1476, 94th Cong., 2nd Sess. (1976)

at 65-66. Contrary to Henson’s contentions, the commercial.

non-profit, or purported critical nature of a use is "not

conclusive with respect to fair use,... and should be weighed

along with other factors in fair use decisions." Jd. at 66. See

Harper & Row, 471 U.S. at 560. What Henson is really asking

the Court to do is to usurp the legislative function and

effectively amend Section 107. It is, of course. plainly

improper to seek such relief from the judicial branch.

theoretical cases about potential "tensions" or to resolve potential

conflicts between a unanimous federal judiciary and a handful of law

review article authors.

u See, e.g., United States v. Rutherford, 442 U.S. 544, 555

(1979) ("Under our constitutional framework, federal courts do not

sit as councils of revision, empowered to rewrite legislation in

accord with their own conceptions of prudent public policy");

Tennessee Valley Auth. v. Hill, 437 U.S. 153, 194-95 (1978) ("Our

individual appraisai of the wisdom or unwisdom of a particular

course consciously selected by the Congress is to be put aside in the

process of interpreting a statute. Once the meaning of an enactment

is discerned and its constitutionality determined, the Judicial process

comes to an end. We do not sit as a committee of review, nor are we

vested with the power of veto... . [I]n our constitutional system the

commitment to the separation of powers is too fundamental for us

to pre-empt congressional action by judicially decreeing what

accords with ‘common sense and the public weal.’ Our Constitution

vests such responsibilities in the political branches").

III. Petitioner’s Second Proposed Ground For Review Fails

To Raise A Substantial Legal Question Justifying The

Court’s Exercise of Certiorari Jurisdiction

Petitioner’ s second proposed ground for review essentially

argues that the district and circuit courts misapplied established

legal doctrine to the facts and circumstances of this case.

Petitioner makes no argument that the district or circuit courts

applied a rule of law in conflict with the decisions of the Court

or of other circuits. No such conflict is stated or identified.

Petitioner merely argues that the lower courts in this case erred

in applying the established fair use doctrine, and that they

should have found that petitioner’s acts constituted fair use.

= To the contrary, petitioner pointedly ignores the decision in

Religious Technology Center v. Lerma, 40 U.S.P.Q. 2nd 1569

(E.D.Va. 1996), which found copyright infringement of various RTC

unpublished works, including NOTS works, in a context similar to

that obtaining in this case. Petitioner’s citation (Pet. at 25) to an

earlier interlocutory decision of the district court in Lerma thus is

less than candid.

= Petitioner attempts to elevate his argument to one worthy of

certiorari by conclusorily asserting that the court of appeals did not

exercise independent review of the record, citing Bose Corp. v.

Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984).

Putting aside the question of whether Bose-type independent review

is required in a copyright case, there is nothing in the court of

appeals’ opinion to suggest that it did not exercise independent

review. To the contrary, the court expressly stated that its review of

the district court's grant of summary adjudication was de novo. The

court provided a well-reasoned, albeit brief, opinion, which was

justified by the lack of substance to Henson’s arguments. Indeed, no

case has ever found fair use where, as here, the defendant copied an

entire unpublished work verbatim.

As we show below, petitioner is wrong, indeed clearly

wrong. But even if the courts below blinked in their

application of established law to the facts or in their fact

finding, that would not be a proper basis to invoke this Court’s

certiorari jurisdiction. As recognized in Supreme Court Rule

10, "a petition for writ of certiorari is rarely granted when the

asserted error consists of erroneous factual findings or the

misapplication of a properly stated rule of law." Indeed, Rule

10 reflects what:

has always been the Court’s practice, but so

many petitions have been premised on just

such asserted errors that reiteration of their

likely futility has been thought necessary. The

Court does not sit simply to correct such

errors. For a variety of reasons, the Court

must concentrate on those cases that present

issues of truly national importance, for which

there is some "compelling" reason for

invoking the Court’s jurisdiction.

Stern, Gressman, Shapiro & Geller, Supreme Court Rules: The

1995 Revisions at 9 (1997). See C.J.D. Rudolph v. United

States, 370 U.S. 269, 270 (1969); N.L.R.B. v. Hendricks County

Rural Electric Membership Corp., 454 U.S. 170, 176. n.8

(1981).

In any event, the courts below properly applied established

fair use doctrine in finding that Henson’s infringement was not

fair use, a finding confirmed by the jury’s rejection of Henson’s

claim that he had even a good faith belief that his acts were

protected by fair use. As the Court repeatedly has emphasized,

the four standard fair use factors, as well as any other, are to be

considered together, not in isolation; in fact, they overlap to a

considerable degree. Harper & Row, 471 U.S. at 560-61:

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994).

The courts below properly found that the first fair use

factor — the purpose and character of the use — militates

against a finding of fair use for three critical reasons. First, the

fact that Henson copied the entire work verbatim is highly

relevant, "for it may reveal a dearth of transformative character

or purpose under the first factor [in addition to the third]. . ."

Campbell, 510 U.S. at 587.

Second, especially when analyzed in conjunction with

Henson’s verbatim taking of the whole work, his limited

commentary relating to the work itself substantially undercuts

his claim to fair use. Petitioner attempts to make much of

Henson's two page "open letter," characterizing it as "political

speech" and "social commentary" directing criticism both at the

district court and at the Church of Scientology. But the "open

letter" dealt hardly at all with the work Henson gratuitously

copied in its entirety. Only two sentences of Henson’s "letter"

address the content of NOTs 34, and they are directed at a

single paragraph of the work consisting of 33 words; indeed,

Henson makes his "point" by quoting eight words from the

work.*£ Such limited commentary cannot by any stretch of the

imagination justify copying and displaying the entire two page

work verbatim:

If... the commentary has no critical bearing

on the substance or style of the original

composition, which the alleged infringer

merely uses to get attention or to avoid the

drudgery of working up something fresh, the

claim to fairness . . . diminishes accordingly

(if it does not vanish)...

Campbell, 510 U.S. at 580. To justify a use as fair, a copier,

even a parodist (which Henson was not), must show that the

Indeed, the "open letter" by itself demonstrates that it was

unnecessary for Henson to copy and dispiay the entire work to

engage in his public "commentary" and "criticism."

extent of the use was necessary to achieve his purpose: no

more of a work may be taken than is "necessary to make the

accompanying commentary understandable." Supermarket of

Homes, Inc. v. San Fernando Valley Bd. of Realtors, 786 F.2d

1400, 1409 (9th Cir. 1986). Here, Henson quoted eight words,

commented on 33, but then proceeded to copy and display an

entire two page work.

It was on this basis that the district court held that:

The 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 34. Further Henson does not

sufficiently explain why he needed to post the

entire text of NOTs 34 to educate the public.

Pet. at AIS.“ Accord, Religious Technology Center v. Lerma,

40 U.S.P.Q. 2nd at 1574 ("The degree of copying by Lerma,

combined with the absence of commentary on most of his

internet postings, is inconsistent with the scholarship

exception").

Third, the district court properly found that Henson’s use

"does not appear to be in good faith" (Pet. A1l6), a finding

resoundingly reaffirmed by the jury. See Harper & Row, 47]

U.S. at 562 ("Fair use presupposes ‘good faith’ and ‘fair

dealing’"). Henson not only ignored but defied RTC’s cease

and desist letters. He repeated his infringement, solicited

others to infringe, and threatened to do so again himself2 He

L The Petition does not accurately reproduce the district

court’s opinion; critical language in the above quoted passage was

omitted from the reproduced opinion. The quotation in the text

above is accurate.

& Indeed, Henson’s open solicitation of additional unpublished

NOTs works "acquired by . . . illegal means" (ER 89-91) so that he

failed to consult with an attorney, and he made no contact with

law enforcement officials despite his bogus claim that NOTs 34

was a "criminal instruction manual." He knew that two other

individuals had been enjoined from posting the very work he

posted. He admitted that he copied the work out of spite

(against "the jerks who pissed in my sandbox"), to achieve

enhanced status, for fun and entertainment, and to impose

substantial litigation and financial burdens on RTC. His

attempt to drape himself in the banner of the First Amendment

was properly rejected by the jury and the lower courts.

In light of these elements, the fact that Henson sought not

fortune, but fame, and that his use was not essentially

"commercial" does not render incorrect the lower courts’

determination that the first fair use factor tilts decidedly against

Henson: "the commercial or nonprofit educational purpose of

a work is only one element of the first factor enquiry into its

purpose and character." Campbell, 510 U.S. at 584. The lower

courts undoubtedly were correct in finding that Henson’s bad

faith verbatim copying of the entire work, without substantial

commentary on the entire work itself, was not a fair use.

The district and circuit courts also properly found that the

unpublished nature of NOTs 34% is decisive in this case with

could copy, display and distribute them on the internet is precisely

the kind of behavior the Court condemned as bad faith in Harper &

Row, 471 U.S. at 563 (defendant "knowingly exploited a purloined

manuscript"). See also, Atari Games Corp. v. Nintendo of America,

Inc., 975 F.2d 832, 843 (Fed. Cir. 1992) ("To invoke the fair use

exception, an individual must possess an authorized copy of a

literary work"). However Henson obtained his copy of NOTs 34, it

incontrovertibly was not an "authorized copy."

i9.

= Henson contends, in a footnote, that NOTs 34 is not really

unpublished because "Scientology has already ‘published’ the

respect to the second fair use factor, the nature of the work.

The right to withhold publication of an unpublished work

is a fundamental right of a copyright holder. Harper & Row

Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 551

(1985) ("[p]ublication of an author’s expression before he has

authorized its dissemination seriously infringes the author's

right to decide when and whether it will be made public"):

Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.). supp 'd

on denial of rehearing, 818 F.2d 252, cert. denied, 484 U.S.

890 (1987) (issuing preliminary injunction barring publication

of excerpts from unpublished letters and recognizing value and

importance of author’s right of first publication).

Henson argues that under the 1992 amendment to Section

107 “unpublished works are to be treated the same as published

works. . . ." (Pet. at 24.) This assertion is contrary to the

language and legislative history of the amendment. The statute

merely states, "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." 17 U.S.C. § 107

(emphasis added). As the House Report explained:

The word "itself" is designed to ensure that

the courts do not erect a per se rule barring

any fair use of unpublished works .. .

At the same time, it is not the Committee’s

subject text to thousands of persons who have paid the proper

fee... ." (Pet. at 24, n.25.) As is true of many of the "factual"

assertions in the Petition, no evidence is proffered or exists in the

record to support this statement, which is contrary to the findings of

the courts below (Pet. at A3, A16), and is, in all events. untrue. See

Religious Technology Center v. Netcom, 923 F. Supp. 1231, 1245

(N.D. Cal. 1995); Religious Technology Center v. Lerma, , 40

U.S.P Q. 2nd at 1575 ("The works in question clearly have not been

‘published”").

intention to alter the weight currently given by

the courts to the unpublished nature of a work

under the second fair use factor. The general

principles regarding fair use of unpublished

works set forth by the Supreme Court in

Harper & Row v. Nation Enterprises still

apply.

H.R. Rep. No. 102-836, 102d Cong. 2d Sess. (1992) at 9

Thus:

[[]n making any evaluation of a claim of fair

use of unpublished material, the Supreme

Court’s holding that for purposes of the

second statutory factor, the unpublished nature

of the work 1s a "*key, though not necessarily

determinative’ factor tending to negate a

defense of fair use,” remains the law.

Id.

The district court properly discounted the relevance of the

creative/factual distinction with respect to NOTs 34, on the

ground that the distinction does not retain utility with respect

to such a religious work. See also, Religious Technology

Center v. Netcom, 923 F. Supp. 1231, 1246 (N.D. Cal. 1995).

[his derives from the fact that while the author of a religious

work will assert its factual truth or validity, a non-believer is

more likely to read it as creative. See Bridge Publications, Inc

v. Vien, 827 F. Supp. 629, 635-36(S.D. Cal. 1993) ("Hubbard's

works are the product of his creative thought process, and not

merely informational"). The courts should not, indeed cannot,

attempt to resolve such differing perspectives by characterizing

arcligious work as either factual or non-factual. (/nited States

v. Ballard, 322 U.S. 78 (1944).

The third fair use factor — the amount and substantiality of

the portion of the work taken in relation to the entire work —

decisively militates against a fair use finding because Henson

copied the entire work. This he cannot do under virtually any

circumstance. Even in parody cases, where the parodist is

permitted somewhat greater leeway to "conjure up" the original

work, the exact or near verbatim copying of the original

precludes fair use. Benny v. Loew's, Inc., 239 F.2d 532, 536

(9th Cir. 1956), aff'd by an equally divided Court sub nom

(Columbia Broadcasting System v. Loew's, Inc., 356 U.S. 43

(1958), Walt Disney Productions v. Air Pirates, 581 F.2d 751,

757-58 (9th Cir. 1978). See Campbell, 510 U.S. at 579-80. As

Professor Nimmer has stated, summarizing the cases,

“whatever the use, generally, it may not constitute a fair use if

the entire work ts reproduced." Melville B. Nimmer & David

Nimmer, 3 Nummer On Copyright § 13.05(A)(3) at 13--184-85

(1999) 28

Henson argues here (but did not argue in the court of

appeals) that the district court erred in rejecting his contention

that all of the 55 collectively-registered NOTs works constitute

"the work as a whole" for purposes of the third fair use factor”!

But the district court simply followed the clearly applicable and

controlling copyright law, including the specifically applicable

regulation which provides that where, as here, a series of

unpublished works is registered as a collective work, the

registration extends to each copyrightable element in the

collection. See 37 C.F.R. § 202.3(b)(3)(1)(B). Although

Henson argues that the district court's holding was "erroneous

”)

: Henson's argument that his “liability for copyright

infringement should not depend on whether he quoted 10%, 50%, or

100% of NOTs 34" (Pet. at 27) thus is contrary to well-established

law.

-' Henson repeatedly and misleading|ly states that he copied

only 2 pages of a 700 page work, contrary to the explicit factual

findings of the district court

because there is no showing that each work in the NOTs series

is ‘separately authored and constitutes a discrete original work

of authorship’" (Pet. at 26, citing American Geophysical Union

v. Texaco, Inc., 60 F.3d 913, 926 (2d Cir. 1994), the district

court, of course, had a copy of the work-in-suit and was

perfectly capable of determining that it was discrete and finite,

with an individual heading and closing, a start and a finish. It

is wholly inappropriate for Henson to now ask this Court to

review such a finding of fact by the trial court, a finding that he

did not even challenge on appeal.

Henson also argues that even if the district court’s

determination as to what constitutes the "work as a whole" was

not erroneous, the courts below nonetheless erred in not

crediting Henson's contention that he "believed that he could

not post any less of [NOTs 34] than he did and persuasively

convey his message. .. ." (Pet. at 27.) But even :f Henson

legitimately held this "belief" — and, as shown above,

Henson's true purpose in posting NOTs 34 in its entirety was

personal amusement and the acquisition of status among his

fellow Internet denizens — it would not constitute a defense to

= Notably, the district and circuit court opinions in American

Geophysical recognized the very legal principle upon which the

district court relied in this case, i.e., "the ‘work’ analyzed for the

purposes of the third fair use factor of ‘amount taken’ is the

individual work, not the collective work." Pet. A18, citing American

Geophysical. Accord, Szabo v. Errisson, 68 F.3d 940, 943 (Sth Cir.

1995); Religious Technology Center v. Lerma, 40 U.S.P.Q. 2d at

1577 ("The works at issue [including works in the NOTs series] are

combined in collections and . . . each subpart must be considered a

‘single work’ for purposes of fair use analysis"). Thus, once again,

Henson does not raise a question of law, but merely a question, of no

merit, concerning the district court’s application of established law

to the facts at hand.

1123, 1133(S.D.N.Y. 1989) (defendant’s use of "huge portion"

of copyrighted work to "give his readers the ‘full flavor’ and

lend ‘an air of authenticity’ to his work "does not make his use

‘fair’ for copyright purposes"); Craft v. Kobler, 667 F. Supp.

120, 126 (S.D.N.Y. 1987) ("The claim of fair use would. of

course, be abused by quoting an entire chapter to support the

argument that the writing style suggested Craft’s and not

Stravinsky’s authorship"); Salinger v. Random House, Inc.,811

F.2d 90, 96 (2d Cir. 1987) (there is "no inherent right to copy

the ‘accuracy’ or the ‘vividness’ of [an author’s] expression").

Petitioner fastens on the fourth fair use factor — "the effect

of the use upon the potential market for or value of the

copyrighted work" — as mandating a finding of fair use, no

matter what or how the other factors weigh in the analysis.

That is not the law. The fourth factor, like the others, "must

always be judged in conjunction with the other three criteria."

Marcus v. Rowley, 695 F.2d 1171, 1177 (9th Cir. 1983), citing

H.R. Rep. No. 90-83, 90th Cong. Ist Sess. (1967) at 35. See

also, H.R. Rep. No. 94-1476, 94th Cong. 2d Sess. (1976) at 65-

66. Courts have found no fair use even where the copyright

holder failed to prove that the infringing use would have any

effect on either the present or future market for the work. See.

e.g., Lish v. Harper's Magazine Foundation, 807 F. Supp.

1090, 1104 (S.D.N.Y. 1992).

Here, the district court found that the fourth criteria

"weighs slightly in Henson’s favor" (Pet. A20), but that RTC’s

"strong showing with respect to the other factors requires a

finding of no fair use as a matter of law." /d. The district court

properly considered not only whether Henson’s act itself would

cause RTC market harm, but also, following Campbell, 510

U.S. at 590, "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. See also Harper & Row, 471 U.S. at 568 ("to negate

fair use one need only show that if the challenged use ‘should

become widespread, it would adversely affect the potential

market for the copyrighted work’").

RTC showed that Henson's copying paralleled that of

other participants on the a.r.s. newsgroup, that other persons

had misappropriated RTC’s unpublished copyrighted works to

engage in for profit activities that did cause RTC economic

harm, and that RTC had been forced to institute a number of

successful legal actions against such infringers.* Thus, if the

acts of Henson and others were not enjoined, the potential for

widespread adverse impact upon RTC would be exacerbated

exponentially. Indeed, the district court pointedly noted that

"Henson does not dispute this point" (Pet. A1l9), an implicit

concession noted by the court of appeals. Given that danger,

the district court certainly did not clearly err in finding that, at

most, the fourth factor weighs only slightly in Henson's favor,

and was strongly outweighed by the other factors and equitable

considerations. Similarly, the court of appeals’ reference to

Henson's implicit concession was properly considered by it in

weighing all the fair use factors. There can be no reason for the

Court to revisit this essentially factual analysis in a case such

as this, where the evidence of intentional, willful, and bad faith

infringement is overwhelming.

= See, e.g., Religious Technology Center v. Ward, No. 96-

20207-RMW (N.D. Cal.), (granting preliminary injunction,

subsequently converted to permanent injunction); Religious

Technology Center v. Netcom, 923 F. Supp. 1231 (C.D. Cal. 1995)

(granting preliminary injunction, subsequently converted to

permanent injunction); Religious Technology Center v. Lerma, 40

U.S.P.Q.2d 1569 (E.D. Va. 1996) (granting permanent injunction

and damages); Bridge Publications, Inc. v. Vien, 827 F. Supp. 629

(S.D. Cal. 1993) (granting RTC permanent injunction and damages).

CONCLUSION

For the foregoing reasons, the petition for writ of certiorari

should be denied.

WILLIAM M. Hart

PROSKAUER Rose, LLP

1585 Broadway

New York, NY 10036

(212) 969-3000

Respectfully submitted,

Eric M. LitBeRMAN

Counsel of Record

RABINOW!ITz, BoupIN, STANDARD.

KRINSKY & LIEBERMAN, P.C.

740 Broadway, Fifth Fioor

New York, NY 10003

(212) 254-1111

SAMUEL D. Rosen

MICHAEL MERVIS

PAUL, HasTINGS, JANOFSKY

& Wacker, LLP

399 Park Avenue

New York, NY 10022

(212) 318-6000

Attorneys for Respondent

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.