June 9 1999
IN THE NAME OF THE QUEEN!
kv Cause list number 96/1048 Judgement date: 9 June 1999
THE DISTRICT COURT OF THE HAGUE Civil Law Sector, Chamber D
Ruling in the case with cause list number 96/1048 of:
1.The Church with a legal personality under foreign law CHURCH OF SPIRITUAL TECHNOLOGY, established in Los Angeles, United States of America,
2.The Church with a legal personality under foreign law RELIGIOUS TECHNOLOGY CENTER, established in Los Angeles, United States of America, 3.The legal personality under foreign law NEW ERA PUBLICATIONS INTERNATIONAL APS, established in Copenhagen, Denmark,
plaintiffs, attorney: mr. R. Laret, counsel: mr. R Hermans in Amsterdam,
1.The private company DATAWEB B.V., established in The Hague,
2.The foundation STICHTING XS4ALL, established in Amsterdam,
3.The foundation STICHTING DE DIGITALE STAD, established in Amsterdam,
4.The private company CISTRON INTERNET SERVICES BV, established in Alphen aan den Rijn,
5.The private company INTERNET ACCESS EINDHOVEN B.V., established in Eindhoven,
6.The private company under foreign law EURONET INTERNET INC. established in Wilmington, United States of America,
7.The private company WIREHUB INTERNET B.V., established in Rotterdam,
8.The foundation STICHTING INTERNET ACCESS, established in Slochteren,
9.RONALD WALTER VERGEER h.o.d.n. B-ART MIDDEN NEDERLAND B.V, I.O., residing in Leidschendam,
10.The company under the firm name of LUNATECH RESEARCH, established in Rotterdam,
11.MICHAEL DAVID PENTOWSKI, member of v.o.f. Lunatech Research, residing in Rotterdam,
12.PETER FIRTH MUNRO, member of v.o.f. Lunatech Research, residing in Workingham, United Kingdom,
13.STEFAN MARK ARENTZ, member of v.o.f. Lunatech Research, residing in Schagen,
14.PETER ALEXANDER KAAS, member of v.o.f. Lunatech Research, residing in Odijk, municipality of Bunnik,
15.The company under the firm name of SPIRIT INTERACTIEVE DIENSTEN B.V. I.0., residing in Rotterdam,
16.The limited liability company N.V. ENECO, member of Spirit Interactieve Diensten B.V. i.o., residing in Rotterdam,
17.The private company ROTTERDAMS DAGBLAD B.V., member of Spirit Interactieve Diensten B.V. i.o., residing in Rotterdam,
18.The GEMEENTE ROTTERDAM (ONTWIKKELINGSBEDRIJF ROTTERDAM), member of Spirit Interactieve Diensten BV i.o., based in Rotterdam,
19.The private company METROPOLIS INTERNET B.V., established in Dordrecht,
20.KARIN SPAINK, residing in Amsterdam,
defendants, attorney: mr J.C.H. van Manen, counsel: mr Van Manen, aforementioned, and mr P.H. Bakker Schut in Amsterdam,
21.The private company B-ART NOORD NEDERLAND B.V., established in The Hague, 22.The foundation STICHTING TELEBYTE, established in Nijmegen,, 23.The company under foreign law DUTCH CHANNEL LIMITED, acting under the name of GLOBAL XS, established in Margate, Kent, United Kingdom,
defendants, not appearing.
The court has examined the following documents:
The writs of summons; The statement of claim, with exhibits; The defence, with exhibits; The reply, with exhibits; The rejoinder, with exhibits; The deed submitting the exhibits of 8 March 1999 of the defendants.
In the session of this court and chamber of 8 March 1999 the parties argued the case through their respective counsels. The memoranda of these oral pleadings are among the exhibits.
1.Between the parties the following has been established on the one hand, and not contradicted (with sufficient reasons) on the other, as shown by the exhibits submitted.
1.L. Ron Hubbard is the founder of the Church of Scientology hereinafter CoS).
2.The doctrine of the CoS is described in various works. These works include the unpublished “Operating Thetan I” to “Operating Thetan VII” inclusive (hereinafter the OT works) and the published “The Scientologist Ability Major I” (hereinafter “Ability”).
3.Hubbard died in 1986. He passed on the copyright to his work by will to the Trustee of Author’s Family Trust B.
4.The Trustee granted a licence to the plaintiff under 2 (hereinafter RTC) relating (among others) to the OT II and OT III which form part of the OT works and to the plaintiff under 3 (hereinafter NEPI) relating (among others) to Ability.
5.According to the CoS doctrine, the OT works are only accessible to certain select members of the CoS and these members are bound to keep the OT works confidential on the grounds of a statement of confidentiality signed by them. The OT works are registered with the United States Copyright Office. With regard to the confidential nature of them, only masked copies have been deposited in accordance with requirements.
6.Ability is also registered with the United States Copyright Office under the name “Ability”. Ability is published by NEPI as part of the so-called “Technical Bulletins”.
7.In legal proceedings in the United States, the former CoS member, Fishman, submitted an affidavit (hereinafter: “the Fishman Affidavit”) which included (parts of) the OT works and Ability in appendix.
8.The defendants under 1 to 19 inclusive and 21 to 23 inclusive (hereinafter: “the Service Providers”) provide access to the Internet and offer services on the Internet, including enabling users to set up a home page and provide information on their servers.
9.The defendant under 20 (hereinafter “Spaink”) has two Internet connections. To this end it uses the services of the defendant under 1 and of Planet Internet BV (no longer a party in this action). Spaink has two home pages on the Internet which displayed the Fishman Affidavit until 23 February 1996. On this date Spaink changed its home pages and the appendices to the Fishman Affidavit were removed from it. Since then there have indeed been quotations from this appendix.
10.According to a comparison made at the request of the plaintiff by notary J.F. Renes in Amsterdam and junior notary J.L.M van Erp, between the original OT II and OT III works and the text of the parts of OT II and OT III in the printouts from the Internet relating to Web site www.xs4all.nl/~kspaink, these respective texts are largely identical.
2.The plaintiffs demand, phrased concisely,
1.To rule that the Service Providers, by placing a copy of the works that the CST has copyright to on their computer systems that is accessible to third parties, without the consent of the plaintiffs, are infringing this copyright and/or acting unlawfully if they have been informed of the presence of them;
2.To rule that the Service Providers, by placing a link on their computer systems that is accessible to third parties, without the consent of the plaintiffs, which when activated displays a copy of the works that the CST has copyright to on the computer screen of the user, are infringing this copyright and/or acting unlawfully if they have been informed of the presence of this;
3.To rule that the OT works have not been lawfully published, at least not in the sense of art; 15a, sub 1 of the 1912 Copyright Act;
4.To order Spaink to suspend all infringements of the copyright of CST, on penalty of a fine;
5.To order the Service Providers, principally, to suspend all infringements of the copyright of CST, and alternatively, as soon as the presence of documents on their computer systems has been pointed out to them, to immediately see to the removal of them, and as a second alternative, as soon as the presence of infringing documents on their computer systems has been pointed out to them, to request the user concerned to immediately remove them and in the absence of complying with this request to deny the user concerned further access to their computer system, all on penalty of a fine;
6.To order the Service Providers, within three days of the judgement or a request to this effect by the plaintiffs, to inform the plaintiffs of the names of third parties who have published and/or reproduced these infringing documents via their computer systems or who will publish and/or reproduce them after the judgement, again on penalty of a fine.
3.To this end they state that Hubbard is the author of the OT works and Ability, and that the CST has received the copyright to these works, transferred from the Trustee. They state, moreover, that Spaink, and a number of anonymous users of the Service Providers, are publishing and/or reproducing the Fishman Affidavit in their home pages on the Internet, without the consent of the plaintiffs, and this Affidavit includes substantial parts of these works. As copies of the home pages with the Fishman Affidavit are stored in the computer system of the Service Providers concerned and as these Service Providers provide a copy to third parties who consult these home pages, whether or not by using a link in these home pages, it is also a case of an infringing publication and/or reproduction by the Service Providers. The defendants are thus acting unlawfully with respect to the plaintiffs, as a result of which the plaintiffs have suffered and are in danger of suffering damage, according to the plaintiffs.
4.The defendants have provided a reasoned defence.
5.The defendants dispute that CST has the copyright to the OT works and Ability.
6.To this end they state in the first place that these works do not have any copyright because they are banal texts without any coherence, story line, or structure. The court presupposes that the assessment of whether the works are copyright protected in the Netherlands – the place where the said infringement is taking place – must be done according to Dutch law. According to the Bern Convention that both the Netherlands and the United States (the country that Hubbard was a subject of) are parties to, the author has a right in each country that is a signatory to the convention, irrespective of whether or not there is protection in the country of origin, that is equal in extent and effect to that which the domestic legislation of that country gives to its own subjects in direct application of this legislation. Solely in view on the quotations from the OT works and Ability on the home page of Spaink, the Court believes that these works have a unique original, character bearing the personal mark of the author. They are thus subject to copyright protection.
7.The defendants further deny, in particular by citing the memorandum opinion of Judge J. Kane (District Court or the District of Colorado) of 5 November 1998, that Hubbard is the author of the works. The court will pass over this argument. On the title page of the Technical Bulletins submitted by the plaintiffs, L. Ron Hubbard is stated as the author. Pursuant to article 15, paragraph 1 of the Bern Convention, Hubbard must be considered as the author of this work, unless the defendants provide proof to the contrary. Insofar that Hubbard’s name is not mentioned in the OT works, it follows from the consideration under 13 that CST has published these works (apparently in its own name), such that it represents the author pursuant to art. 15 paragraph 3 of the Bern Convention.
8.The defendants further adopt the position that Attachment B of the deed with which the Trustee transferred the copyright to CST, does not mention OT IV to OT VII inclusive, nor the Technical Bulletins that Ability forms part of. The court notes that in this deed the copyright to OT 1 to OT III inclusive is indeed mentioned. In the light of this it has to be accepted that the copyright to OT I, II, III was transferred to CST. “ABILITY I MAJOR” also appears in Attachment B. In the light of the full name of the work registered as “Ability” – see 1.2 above – it has to be accepted that this relates to Ability. The form in which this work is published by NEPI is not relevant in this respect. The plaintiffs also rightly point out that the rights to the “Works”, covering all works of Hubbard according to the definition, were transferred with the deed, and that Attachment B is a statement of “some of the Works” that are registered with the Copyright Office. This provides an assumption, or at least the beginning of evidence, that OT IV to VII inclusive were included in the transfer. A judgement in this respect – for which (counter) arguments would have to be heard – can indeed be left out because, for the reasons arising from the consideration under 12 hereinafter, the plaintiffs attach no importance to it.
9.The defendants further state that insofar that the copyright has already been transferred (to CST), the electronic rights are not included in an ordinary copyright transfer, under both Dutch and American law. The court believes that the question as to what rights the copyright transfer to CST included has to be answered according to American law. Whether CST is authorised to act in law in the Netherlands has to be assessed under Dutch law. The defendants do not state that the copyright to the texts concerned was transferred with restrictions, and this is not shown by the transfer deed either, so it cannot be seen that CST is lacking the authority to act against the electronic reproduction or publication of these texts. Therefore in this action the court will assume that CST is authorised to act against a copyright infringement in electronic form. It therefore follows that the claim of CST is admissible.
10.The defendants dispute, moreover, that the claims of RTC and NEPI are admissible, because as licensees they do not have any right to act against copyright infringements. The court finds that the extent of the licence is also governed by American law, but the admissibility by Dutch law. Article 8 of the licence agreement between the Trustee and RTC stipulates that RTC may act on its own initiative and authority against copyright infringements, notwithstanding the right of the Trustee to participate in such an action or to commence proceedings on its own initiative. From article 28 of the licence agreement between the Trustee and NEPI, it follows that in the event of a copyright infringement the Trustee and NEPI are entitled to act jointly in proceedings and if one of them does not wish to participate, the other party may institute proceedings independently. These provisions must be taken as a (prior) power of attorney to the respective licensees to act jointly with the copyright holder, or otherwise, against infringements, in which case according to Dutch law the licensee is authorised to act in law independently. In these proceedings CST is also the legal successor of the Trustee. As licensees the claims of RTC and NEPI are thus admissible.
11.Then the question arises as to whether the defendants are infringing or have infringed the copyright of CST.
12.As the court has accepted that CST has the copyright to OT II and OT III and Ability this also means, in view of the consideration under 1.10 above, that during the time that Spaink placed the Fishman Affidavit, which these works form a part of as an appendix, on her home pages on the Internet, she was infringing this copyright. The plaintiffs do not support their thesis that Spaink also infringed the copyright to the other OT works, such that this point can be passed by.
13.With regard to the question of whether Spaink is still infringing the copyright of CST by quoting from the appendices to the Fishman affidavit in her home pages, the parties dispute the question of whether the OT works have been lawfully published in the sense of art. 15a of the Copyright Act. The court first notes that this question must be answered according to the law of the location of publication. CoS has distributed the courses that the OT works relate to on a large scale among its members – according to the defendants and this is not contested – a minimum of 25,000 people. It follows from this that the works have appeared in print with the consent of the author. As the publication has been done with the consent of the rightful claimant, the lawfulness of the publication is a given fact, irrespective of its location, and the fact that the members to whom these works were distributed to were bound to keep them confidential does not detract from this. It can be left aside whether the OT works had already been lawfully published by copies of the Fishman Affidavit having been available for some time against payment from the library of the United States District Court for the Central District of California. The claimed judgement, as given above under 2c, thus cannot be pronounced.
14.That NEPI’s publication of the Ability work was lawful is not in dispute. This means that on the basis of art. 15a paragraph 1 of the Copyright Act Spaink is free to quote from OT I and OT II and from Ability in her home pages. That quoted by Spaink from the works concerned – only a relatively small part of the works to illustrate its argument, without it being a case of exploiting the works – stays within the bounds set by the law in this respect. She is thus not infringing the copyright of CST at present. The claimed order as shown above under 2d cannot be granted. Before 23 February 1996 Spaink had indeed published these works in full on her home pages, but she had removed them from her home pages after the summons of CST, while there is no fear of a repetition. The plaintiffs thus have no interest in this claim.
15.It also follows from this that the primary order claimed under 2e cannot be granted.
16.To close, the question arises (in brief) as to how far the Service Providers themselves are infringing copyright if users of their services place infringing documents on the Internet. The court first notes that the activities of the Service Providers with regard to this case are limited to providing information from and/or to its users and the storage of this information. The Service Providers do not select the information and do not process it either. They only provide the technical means to enable publication by others. Together with its presiding judge (summary judgement of 12 March 1996) the court believes that in these circumstances the Service Providers do not do the publishing themselves, but only provide the opportunity for publication. The court further believes that the activities of the Service Providers do not involve a copyright relevant reproduction. It concerns here reproductions dictated by technology that arise not so much as a result of the action of the Service Provider but from the holder of a home page or the consumer who consults this information at home. The court finds support for this position in that stipulated in art. 5 paragraph 1 of the amended proposal for a Directive of the European Parliament and Council on the harmonisation of certain aspects of copyright and related rights in the information society, submitted by the Commission of the European Communities on 21 May 1999. In this respect it is not important whether the information is accessible via an Internet address or via a hyperlink (a clickable electronic referral from a home page). This does not detract from the fact that the Service Provider, who does not reproduce or publish material himself, nevertheless can be bound to assist and take adequate measures, on the grounds of the care that is fitting in the conduct of society, if he is notified that one of the users of his computer system is infringing copyright or otherwise acting unlawfully through the use of his home page. A certain degree of care may thus be expected from the Service Provider with regard to the occurrence of further infringements. Also in view of the fact that the Service Providers operate in a business capacity, the possibility available to them of denying access to the home page, and the damage that could result >from further infringements, it must be judged that the Service Provider who has been notified that a user of his services is infringing copyright or otherwise acting unlawfully on his home page, is himself acting unlawfully if he does not then intervene when the correctness of the notification of this fact cannot be reasonably doubted. It may be expected of the Service Provider to remove the infringing documents from his computer system, and to inform the copyright holder, on his request, of the name and address of the user concerned.
17.It cannot thus be seen that the right of the freedom of expression, as laid down in art. 10 of the ECHR, is violated.
18.The foregoing means that the claimed judgements, as given under 2a and b above, can be granted, albeit in amended form. In view of the copyright infringements accepted by the court in the past, the plaintiffs have sufficient interest in their claim. There is no question of an abuse of law.
19.The defendants v.o.f. Lunatech Research and its members, Metropolis Internet BV and Dutch Channel Ltd, dispute that the infringing information has ever been present on their servers. With regard to v.o.f. Lunatech Research and its members, and Dutch Channel Ltd the plaintiffs have provided no proof of this and have not supported their claim in this respect. As the other defendants do not dispute that the infringing information has been present on their servers, the orders claimed alternatively, as set out above under 2c can be granted against them, again in an amended form. With regard to the claimed order given under 2d the court believes that the plaintiffs have no rightful interest that should be respected in now being informed of the users of the services of the Service Providers who at the time had placed the Fishman Affidavits on their home pages, if indeed the Service Providers are actually in a position to do so. The plaintiffs have provided no grounds for the liability of these users towards them for the damage suffered by them. The court will moderate the claimed penalties.
20.As the parties on both sides have been found partially in the wrong, the court shall divide the costs of the proceedings.
DECLARES it to be the law that by having a reproduction of the works that CST has the copyright to on their computer systems without the consent of the plaintiffs, the Service Providers are acting unlawfully if and insofar that they have been notified of this, and moreover the correctness of the notification of this fact cannot be reasonably doubted, and the Service Providers have then not proceeded to remove this information from their computer system at the earliest opportunity, or at least to make this information inaccessible;
DECLARES it to be the law that by having a link on their computer systems which when activated brings about a reproduction of the works that CST has the copyright to on the screen of the user, without the consent of the plaintiffs, the Service Providers are acting unlawfully if and insofar that they have been notified of this, and moreover the correctness of the notification of this fact cannot be reasonably doubted, and the Service Providers have then not proceeded to remove this link from their computer system at the earliest opportunity;
ORDERS the Service Providers, with the exception of v.o.f. Lunatech Research and its members and Dutch Channel Ltd, as soon as they have been informed of the presence of documents on their computer systems whereby it cannot be reasonably doubted that they are infringing the works that CST has the copyright to, to see to the immediate removal of them on penalty of a fine of HFl 5000 for each day that this order is not complied with;
ORDERS the Service Providers, with the exception of v.o.f. Lunatech Research and its members and Dutch Channel Ltd, to inform the plaintiffs, within three days of a request to this effect, of the names and addresses of the third parties who publish and/or reproduce the said documents via their computer system, on penalty of a fine of HFl 5000 for each day that they do not (promptly) satisfy this request;
DISMISSES that which is claimed otherwise or in excess of the above;
DIVIDES the costs of the proceedings so that each party shall bear its own costs.
Thus judged by E.J. Numann, C.J. Verduyn and E.J. Arkenbout, pronounced in public on 9 June 1999, in the presence of the court clerk.