# Opposition Brief — Henson v. Religious Technology Center

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0040%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 1105

## Text

~

No. 99-456

IN THE

Supreme Court of the United States

H. KEITH HENSON,
Petitioner,
v.
RELIGIOUS TECHNOLOGY CENTER,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

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
Copyright In NOTs 34 ...................... 5
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

il

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
iV

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.

2

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
copyright holder. Where, as here, the entire body of an
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

3

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).

4

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.

3

: Although NOTs Series 34 is registered as a component part
of the NOTs Series, as the district court heid, it is entitled to
copyright protection as a separate work (ER 288 at n.3). Where, as
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

5

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
copyright in several unpublished works, including NOTs 34.

6

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.

7

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

7/

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.

8

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
copyright in NOTs 34, and assessed statutory damages in the
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,

9

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 |

10

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
copyright infringement was willful, and not undertaken in a

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
copyright claims [for infringement of NOTs 34] because
Congress has no authority under the Constitution to extend
copyright protection to instructions for organized criminal
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.

12
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
copyright law and the First Amendme:, nor did he attempt to
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).

13
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").

14

where the defendant knowingly and willfully infringed a
copyright in an unpublished work by copying and distributing
it in its entirety without significant commentary addressed to
the content of the work.

That the First Amendment creates no conflict with the
Copyright Act and provides no per se safe harbor for copyright
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
copyright holder, which is not. See 17 U.S.C. § 102(a). 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

—————————

15
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
copyright protection, ‘[t}he first amendment is not a license 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’")

16

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

17

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").

18

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.

19

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

a

20

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

16

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."

Se

21

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

22

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

23

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”").

24

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

25

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

26

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.

27

copyright infringement. See, e.g., Love v. Kwitny, 706 F. Supp.
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

28

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.

3

= 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).

29

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0040%3A2. Public record. Not legal advice.