PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

INTELLECTUAL RESERVE, INC.,

PLAINTIFF,

VS.

UTAH LIGHTHOUSE MINISTRY, INC.,
A UTAH CORPORATION, ET AL.,

DEFENDANT.

CIVIL NO. 2:99-CV-808C

SALT LAKE CITY, UTAH
NOVEMBER 23, 1999

PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION
BEFORE THE HONORABLE TENA CAMPBELL
UNITED STATES DISTRICT JUDGE

KIRTON & MC CONKIE
BY: TODD E. ZENGER, ESQ.
BERNE S. BROADBENT, ESQ.
1800 EAGLE GATE TOWER
60 EAST SOUTH TEMPLE
SALT LAKE CITY, UTAH 84111
(801) 328-3600

UTAH LEGAL CLINIC
BY: BRIAN M. BARNARD, ESQ.
214 EAST FIFTH SOUTH
SALT LAKE CITY, UTAH 84111
(801) 328-9531

THE COURT: GOOD AFTERNOON. WE'RE HERE IN INTELLECTUAL RESERVE VERSUS UTAH LIGHTHOUSE MINISTRIES, 99-CV-0808, HERE TODAY ON A HEARING FOR PRELIMINARY INJUNCTION. REPRESENTING THE PLAINTIFF IS MR. TODD ZENGER, MR. BERNE BROADBENT, MR. WILLIAM NELSON, PRESIDENT OF THE PLAINTIFF. DEFENSE IS REPRESENTED--THE DEFENDANTS ARE REPRESENTED BY MR. BRIAN BARNARD, AND I NOTE THE PRESENCE OF MR. AND MRS. TANNER.

I LITERALLY JUST GOT, AS I STARTED OUT HERE, CERTAIN MATERIALS, SO I WANT YOU TO KNOW THAT I'VE NOT HAD A CHANCE TO REVIEW THEM. SO AS YOU MAKE YOUR ARGUMENTS BEAR THAT IN MIND. I JUST RECEIVED THE SECOND AFFIDAVIT OF JERALD TANNER; THE THIRD AFFIDAVIT OF SANDRA TANNER; A REQUEST FOR INITIAL SCHEDULING CONFERENCE; THE DEFENSE MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION TO STRIKE EXHIBITS, AS WELL AS THE MOTION TO STRIKE EXHIBITS; AND THE OBJECTION TO THE ORDER OF NOVEMBER 19TH, 1999.

THE ONE THAT I THINK IS PROBABLY GOING TO BE THE MOST IMPORTANT, MR. BARNARD, IS YOU'RE GOING TO HAVE TO TELL ME IN YOUR ARGUMENT WHAT'S CONTAINED IN YOUR MOTION TO STRIKE THE EXHIBITS AND THE AFFIDAVITS, OKAY? BECAUSE I JUST HAVEN'T HAD A CHANCE TO READ THEM.

THE COURT: THIS IS YOUR MOTION FOR INJUNCTIVE RELIEF, DEFENSE, AND WITH THAT I'M GOING TO GO AHEAD AND LET YOU GO FIRST.

MR. ZENGER: YOUR HONOR, WE HAVE BEEN HERE THREE OR FOUR TIMES ALREADY, AND WE HAVE SINCERELY APPRECIATED YOUR INDULGENCE IN THIS MATTER.

THE COURT: WELL, MR. ZENGER, THAT'S WHAT I DO. THAT'S MY JOB HERE, BUT THANK YOU.

MR. ZENGER: WE KNOW, BUT FOUR TIMES IN TWO WEEKS--OR IN THAT MANY WEEKS IS A LOT. WE HAVE TALKED ABOUT THE SAME ISSUES, YOUR HONOR, WITH RESPECT TO TEMPORARY RESTRAINING ORDER ON THREE SEPARATE OCCASIONS, AND WE'RE HERE NOW FOR THE PRELIMINARY INJUNCTION.

WE HAVE MADE ARGUMENTS OF FACT AND LAW WHICH WE THINK THE COURT HAS WELL IN MIND FROM OUR PAPERS AND FROM OUR PREVIOUS ARGUMENTS. THE ONLY REMINDERS THAT WE WOULD LIKE TO MAKE ARE THOSE THAT KIND OF LET US STAND BACK AND TAKE A BIG PICTURE LOOK AT WHAT THIS CASE IS ALL ABOUT.

WE HAVE A WORK WHICH BY THE COPYRIGHT LAW IS DEFINED AS UNPUBLISHED, AND LIGHTHOUSE AND TANNERS HAVE TAKEN IT UPON THEMSELVES TO PUBLISH THAT WORK. AS AN UNPUBLISHED WORK UNDER THE HARPER AND ROW CASE AT 471 U.S. AT 564, WE HAVE THE RIGHT--OR I.R.I. HAS THE RIGHT TO CONTROL ITS FIRST PUBLICATION, IF IT PUBLISHES, WHERE IT PUBLISHES, HOW IT PUBLISHES AND WHEN IT PUBLISHES, AND THOSE RIGHTS HAVE ALL BEEN APPROPRIATED.

WE HAVE SEEN SOME CHANGE IN LIGHTHOUSE'S CONDUCT AND IN THE TANNERS' CONDUCT, BUT WE NOW HAVE CLEARLY OF RECORD THEIR EXPRESS INTENT AND DESIRE SHORT OF A COURT ORDER TO CONTINUE TO PUBLICIZE AND ADVERTISE THE AVAILABILITY, LOCATION AND MEANS TO OBTAIN UNAUTHORIZED COPIES. EVERYBODY KNOWS THAT ALL THE COPIES OUT THERE IN ELECTRONIC FORM ARE UNAUTHORIZED. EVERYONE IS ON NOTICE OF THAT, AND THEY CONTINUE TO DESIRE TO ADVERTISE AND CONTRIBUTE OR INDUCE INFRINGEMENT OF THOSE UNAUTHORIZED COPIES BY HELPING PEOPLE MAKE ADDITIONAL COPIES.

YOUR HONOR, I COULD REPEAT WHAT I'VE SAID BEFORE, BUT I DON'T WANT TO, UNLESS THE COURT HAS ANY QUESTIONS. WE WOULD SIMPLY ASK--AGREE WITH THE COURT THAT YOUR ORDER OF NOVEMBER 19TH WAS CORRECT. IT IS CORRECT, AND WE BELIEVE IT SHOULD BE ADOPTED TODAY AS THE PRELIMINARY INJUNCTION. IF YOU HAVE ANY QUESTIONS, I'M HAPPY TO ANSWER THEM.

THE COURT: NO. I THINK THAT COVERS IT. CERTAINLY I'LL LISTEN TO YOU AFTER MR. BARNARD SPEAKS AND THERE MIGHT BE SOME QUESTIONS THAT WE NEED TO GO OVER.

MR. BARNARD: WHEN WE WERE BEFORE YOUR HONOR ON OCTOBER 18TH, MY CLIENTS CONSENTED TO A T.R.O. AT THAT TIME THE 17 PAGES THAT ARE AT ISSUE HAD ALREADY BEEN REMOVED FROM MY CLIENTS' WEB SITE. IT'S OUR POSITION NOW, AND IT WAS OUR POSITION THEN, THAT THE T.R.O. WAS UNNECESSARY BECAUSE THE DOCUMENTS HAD ALREADY BEEN REMOVED FROM THE WEB SITE.

WE CAME BACK AGAIN AND A NEW ISSUE WAS RAISED, AND THAT IS AN ISSUE OF CONTRIBUTORY INFRINGEMENT. IT'S NOT PLED IN THE PLAINTIFF'S COMPLAINT. IT'S NOT BEFORE YOUR HONOR IN THE NATURE OF A MOTION. IT IS SIMPLY PLED IN A--I BELIEVE IN A REPLY MEMO THAT THE PLAINTIFF ISSUED--OR FILED WITH THE COURT RATHER.

THE BRIEFING ON THAT HAS BECOME RATHER MUDDLED IN THAT THE PLAINTIFF RAISED THE ISSUE; DIDN'T BRIEF IT TO ANY LARGE EXTENT; CITED THE GERSHWIN CASE. WE THEN FILED A MEMORANDUM. AND YESTERDAY I RECEIVED AN EXTENSIVE MEMORANDUM FROM THE PLAINTIFF CITING MANY MANY NEW CASES THAT I DIDN'T--WASN'T AWARE OF THAT THEY CLAIMED AS SUPPORTING UNTIL LAST NIGHT. SO JUST BY WAY OF REFERENCE, THE BRIEFING ON THAT ISSUE, CONTRIBUTORY NEGLIGENCE, IS A LITTLE BALD IN STYLE.

BUT WITH REGARD TO CONTRIBUTORY INFRINGEMENT, THE MAIN ISSUES, THE MAIN POINTS THAT I WANT TO MAKE, IS THAT THERE CANNOT BE CONTRIBUTORY INFRINGEMENT UNLESS THERE IS A PRIMARY INFRINGER. THERE IS SPECULATION AS TO WHETHER OR NOT THERE IS A PRIMARY INFRINGER. THERE IS NO PROOF THAT THERE HAS BEEN PRIMARY INFRINGEMENT. PRIMARY INFRINGEMENT MAY WELL HAVE OCCURRED IN THIS CASE. WE DON'T KNOW THAT. THERE'S NO PROOF. THERE'S NO EVIDENCE AS TO THE PRIMARY INFRINGERS WITH REGARD TO THOSE THREE U.R.L.'S.

THE COURT: BY THAT YOU MEAN, WHAT, NO ONE HAS GONE INTO THAT WEB SITE AND PRINTED THE COPIES OR--EXPAND ON THAT FOR ME IF YOU WOULD, MR. BARNARD. WHAT DO YOU MEAN?

MR. BARNARD: AND YOUR HONOR JUST USED THE TERM NO ONE HAS. MY QUESTION TO THE PLAINTIFFS IS WHO IS THE PRIMARY INFRINGER? GIVE ME A NAME. TELL ME WHO THE PRIMARY INFRINGER IS. WE DO NOT HAVE THE NAME OF A PERSON THAT IS THE PRIMARY INFRINGER.

WE HAVE THREE U.R.L.'S WHICH MAY CONTAIN THE HANDBOOK. WE DON'T KNOW THAT IT CONTAINS THE HANDBOOK. MY CLIENTS HAVE NOT LOOKED AT IT BEYOND LOOKING AT THE FIRST PAGE. MY CLIENTS HAVE BEEN TOLD THAT THOSE THREE U.R.L.'S CONTAIN THE HANDBOOK. WE DON'T KNOW THAT. THERE IS NO AFFIDAVIT BEFORE YOUR HONOR. THERE IS NO EVIDENCE BEFORE YOUR HONOR AS TO WHAT THOSE U.R.L.'S CONTAIN.

THE COURT: SO THAT IS REALLY YOUR PRIMARY POINT. IT'S NOT SO MUCH THAT WE DON'T KNOW WHO THEY ARE; YOU'RE SAYING THERE'S NO EVIDENCE OF WHAT'S UP THERE; AM I RIGHT?

MR. BARNARD: NO. IT'S BOTH. THOSE ARE NOT SEPARATE ITEMS. WE DON'T KNOW WHO PUT THEM UP.

THE COURT: DOES THAT REALLY MATTER. IF THE MATERIAL INFRINGED, WHY DO WE CARE WHO? ISN'T IT THE WHAT THAT WE NEED TO--I MEAN WHY DO WE CARE WHO AS LONG AS WE HAD THE WHAT?

MR. BARNARD: BECAUSE THEY MAY NOT BE INFRINGEMENTS OF THE UNITED STATES COPYRIGHT LAW. IF IN FACT--WE HAVE THIS INFORMATION WHICH LEADS US TO BELIEVE THERE'S A WEB SITE IN AUSTRALIA. IF IN FACT THE HANDBOOK IS ON THAT WEB SITE IN AUSTRALIA, IT IS NOT A VIOLATION OF U.S. COPYRIGHT LAW.

THE COURT: EVEN IF THE INFRINGING--YOU ARE SAYING THAT IT IS--IN AUSTRALIA IT WOULD NOT BE A VIOLATION TO POST IT ON A WEB SITE?

THE COURT: BUT WHAT ABOUT READING IT HERE? WOULDN'T IT--I MEAN THE DOWNLOADING--THE DOWNLOADING ONTO THE VIEWERS' P.C. HERE OCCURS IN THE UNITED STATES. HOW WOULD THAT PLAY IN?

MR. BARNARD: AGAIN, THIS DEPENDS ON WHO WE'RE GOING TO CONSIDER TO BE THE PRIMARY INFRINGER. IF THE PRIMARY INFRINGER IS WHOEVER PUT IT ON THE WEB SITE IN AUSTRALIA, THAT HAS OCCURRED IN AUSTRALIA. IT'S NOT SUBJECT TO U.S. COPYRIGHT LAW.

AND YOUR HONOR SAYS, "WELL, WHAT IF SOMEBODY DOWNLOADS IT HERE?" OKAY. WHO HAS DOWNLOADED IT HERE? GIVE ME THE NAME OF SOMEONE--AND PLAINTIFFS CAN'T DO THIS--WHO HAS DOWNLOADED THAT WEB SITE? WHO HAS LOOKED AT THAT WEB SITE? MY GUESS IS THAT PLAINTIFF'S COUNSEL HAS LOOKED AT IT. MY GUESS IS THAT PLAINTIFF'S SECRETARY HAS LOOKED AT IT. WE DO NOT HAVE THE NAMES OF ANYONE WHO HAS DOWNLOADED THAT SITE. WE DON'T HAVE A PRIMARY INFRINGER.

AND IN ORDER TO HAVE CONTRIBUTORY INFRINGEMENT, WE HAVE TO HAVE A PRIMARY INFRINGER. YES, THERE'S SPECULATION THAT SOMEBODY HAS DONE THAT. THERE'S A SUGGESTION THAT SOMEBODY HAS DONE THAT. WE DO NOT HAVE THE NAME OF SOMEBODY WHO IS A PRIMARY INFRINGER OF ANY OF THOSE THREE SITES. IN ORDER--

THE COURT: BY PRIMARY INFRINGER, YOU ARE NOT SAYING THE PERSON WHO POSTED IT--OR ARE YOU? OR ARE YOU SAYING IT'S THE PERSON WHO MAY HAVE DOWNLOADED IT? TELL ME WHAT YOU MEAN BY PRIMARY INFRINGER.

MR. BARNARD: AND YOUR HONOR--YOUR HONOR HAS HIT THE NAIL ON THE HEAD. I DON'T KNOW. IT SEEMS TO ME THAT WHOEVER POSTED IT MAY WELL BE INFRINGING. AND THE CASE LAW SEEMS TO SAY IF YOU HAVE A COPYRIGHTED MATERIAL AND YOU PUT IT ON A WEB SITE, YOU MAY BE A PRIMARY INFRINGER.

THEN THE QUESTION IS HAVE MY CLIENTS MATERIALLY AIDED THAT PRIMARY INFRINGEMENT? AND I THINK THE ANSWER IS NO, THEY HAVEN'T. MY CLIENTS HAVE HAD NO CONTACT WITH THOSE THREE PEOPLE. THEY DON'T KNOW WHO THEY ARE. THEY DIDN'T ENCOURAGE THEM TO PUT THAT INFORMATION ON THE WEB SITE.

SO THE NEXT QUESTION IS, OKAY, DO PEOPLE WHO ACCESS THAT MATERIAL, ARE THEY THE PRIMARY INFRINGERS? IF WHEN SOMEBODY, JOHN Q. PUBLIC, GOES TO THAT WEB SITE AND LOOKS AT THE MATERIAL, IS THAT PERSON THE PRIMARY INFRINGER? AND IT SEEMS TO ME THAT THAT IS QUESTIONABLE AS TO THE WHETHER OR NOT A USER, SOMEBODY THAT SIMPLY IS BROWSING THE NET AND LOOKS AT THAT MATERIAL, WHETHER OR NOT THEY CONSTITUTE A PRIMARY INFRINGER.

THE COURT: THOSE CASES THOUGH THAT I CITED IN MY ORDER SEEM TO SAY THAT GIVEN THE WAY THE TECHNOLOGY WORKS TODAY, YOU DON'T JUST READ, YOU MAKE A BRIEF--NOT NECESSARILY A PERMANENT COPY, THAT THOSE CASES SAID YES, IT WAS INFRINGING, OR DO YOU DISAGREE WITH HOW I READ THE CASES OR THEIR REASONING? TELL ME THAT.

MR. BARNARD: THOSE CASES, YOUR HONOR, DID NOT INVOLVE A USER. THOSE CASES DIDN'T INVOLVE JOHN Q. PUBLIC WHO CALLS THAT INFORMATION UP. THE MAI CASE, THE M.A.I., VERSUS PEAK, WAS SOMEBODY THAT WAS SERVICING COMPUTERS THAT HAD THAT INFORMATION, HAD IT PROGRAMMED, PUT IT ON A COMPUTER AND USED THE DIAGNOSTIC SYSTEM ON IT.

NONE OF THE CASES THAT YOUR HONOR CITED, NONE OF THE CASES THAT THE PLAINTIFF HAS CITED DEAL WITH JOHN Q. PUBLIC LOOKING SOMETHING UP ON AN INTERNET SITE. AND IF--IF, AS PLAINTIFF'S COUNSEL SUGGESTED, WE STEP BACK AND LOOK AT THE LARGER PICTURE, IF WE HAVE A PERSON, IF WE HAVE JOHN Q. PUBLIC, WHO HAS TWO HOURS TO SPEND ON A SATURDAY AFTERNOON AND STARTS THE INTERNET UP ON HIS COMPUTER AND STARTS LOOKING THROUGH MATERIAL AND SUDDENLY COMES UPON A WEB SITE THAT HAS COPYRIGHTED INFORMATION ON IT THAT IS INFRINGING, HAS THAT PERSON, JOHN Q. PUBLIC, VIOLATED THE COPYRIGHT LAW?

THE COURT: NO, NOT UNLESS JOHN Q. PUBLIC KNEW WHAT JOHN Q. PUBLIC WAS DOING. ISN'T THERE AN ELEMENT OF KNOWLEDGE? I MEAN IT'S NOT A STRICT LIABILITY. YOU HAVE TO KNOWINGLY--THERE HAS TO BE A KNOWING ELEMENT, ISN'T THERE, MR. BARNARD?

MR. BARNARD: THAT'S CORRECT. FOR CONTRIBUTORY INFRINGEMENT THERE HAS TO BE KNOWING. THE QUESTION THOUGH WITH REGARD TO PRIMARY INFRINGEMENT, PRIMARY INFRINGEMENT--WELL, COPYRIGHT LAW IS A STRICT LIABILITY LAW. THERE DOESN'T HAVE TO BE A MENTAL INTENT. AND, AGAIN, WE'RE TALKING ABOUT PRIMARY INFRINGEMENT.

AND THE ANALYSIS THAT WE'RE TALKING ABOUT IS JOHN Q. PUBLIC CALLS UP A WEB SITE AND SEES A PICTURE OF ELIZABETH TAYLOR THAT IS A COPYRIGHTED PICTURE THAT SHOULDN'T BE ON THAT INTERNET SITE. HAS JOHN Q. PUBLIC VIOLATED THE COPYRIGHT HOLDER'S RIGHTS WITH REGARD TO THAT PICTURE OF ELIZABETH TAYLOR? AND IF SO, THAT'S FRIGHTENING PROSPECTS FOR PEOPLE THAT WANT TO USE THE INTERNET.

AND THE SUGGESTION IS MADE IN THE CASE THAT WE CITED, THE NETCOM CASE, THAT THAT THE KIND OF SITUATION, WHERE A MEMBER OF THE PUBLIC SIMPLY HAPPENS ON A WEB SITE OR GOES TO A WEB SITE WHERE THERE'S INFRINGING INFORMATION, THAT THAT--OR COPYRIGHTED INFORMATION, THAT THAT MAY WELL BE FAIR USE.

AGAIN, FOR MY CLIENTS TO BE GUILTY OF CONTRIBUTORY INFRINGEMENT, HAS TO BE A PRIMARY INFRINGER. WHO IS THAT PRIMARY INFRINGER? IT MAY WELL BE THE PEOPLE WHO CREATED THE WEB SITE. MY CLIENTS HAVE NOT IN ANY WAY AIDED THE PEOPLE THAT CREATED THE WEB SITES. IT MAY BE THE PEOPLE THAT USING THE INTERNET GO TO THAT WEB SITE AND LOOK AT THAT INFORMATION. THAT'S WHAT PLAINTIFFS HAVE SUGGESTED. THE PROSPECTS OF THAT BEING A COPYRIGHT INFRINGEMENT AND BEING SUFFICIENT FOR A PRIMARY INFRINGER, I WOULD SUGGEST THAT WOULD BE A DANGEROUS PRECEDENT FOR THIS COURT TO SO RULE AND WOULD BE GREATLY DAMAGING TO THE WHOLE CONCEPT OF THE INTERNET. AND I'M SUGGESTING THAT THAT IS NOT THE KIND OF RULING THAT THIS COURT SHOULD MAKE AS A PRELIMINARY MATTER AT THE VERY BEGINNING OF A LAWSUIT BEFORE WEVE HAD AN OPPORTUNITY TO DEVELOP THE LAW AND THE FACTS IN THIS SITUATION.

IT IS OUR POSITION THAT AS TO WHETHER OR NOT THERE HAS BEEN A PRIMARY INFRINGER, IF THAT PRIMARY INFRINGER IS IN FACT PEOPLE THAT HAVE ACCESSED THOSE THREE U.R.L.'S, IT IS SPECULATIVE. WE HAVE NO PROOF OF WHO THOSE PEOPLE ARE. WE HAVE NO PROOF THAT THEY DOWNLOADED IT. WE HAVE NO PROOF THAT THEY'VE LOOKED AT IT AT ALL.

FOR THERE TO BE CONTRIBUTORY INFRINGEMENT, THE ASSISTANCE BY THE CONTRIBUTOR TO THE PRIMARY INFRINGER NEEDS TO BE SUBSTANTIAL AND NEEDS TO BE MATERIAL. ALL OF THE CASES THAT ARE CITED ESTABLISH SOME SORT OF A CONNECTION BETWEEN THE PRIMARY INFRINGER AND THE CONTRIBUTORY INFRINGER. THERE IS SOME RELATIONSHIP, SOME CONNECTION, BE IT A MONETARY FINANCIAL RELATIONSHIP, BE IT CONTROL, IT HAS TO HAVE SOME SORT OF A RELATIONSHIP.

AT BEST, MY CLIENTS HAVE GRATUITOUSLY ADVERTISED THOSE OTHER WEB SITES. THERE'S NO CONNECTION. MY CLIENTS DON'T KNOW WHO THOSE PLAINTIFFS--WHO CREATED THOSE U.R.L.'S. THEY DON'T KNOW WHO OPERATES THEM. THEY HAVEN'T HAD ANY CONNECTION. MY CLIENTS HAVE NOT ENCOURAGED THOSE PEOPLE TO DO THAT.

WITH REGARD TO PEOPLE THAT COME TO MY CLIENTS' WEB SITE AND SEE THOSE U.R.L.'S, AGAIN, THERE'S NO CONNECTION. THERE'S NO RELATIONSHIP. THERE'S NO ADVERTISING AGENCY INVOLVED. THERE IS NO MANAGEMENT INVOLVED. THERE'S NO RELATIONSHIP OTHER THAN THE PEOPLE SIMPLY ACCESS MY CLIENTS' WEB SITES, DISCOVER WHAT THOSE U.R.L.'S ARE, AND THEY MAY OR THEY MAY NOT DO SOMETHING WITH IT.

AGAIN, JOHN Q. PUBLIC LOOKS UP THE INTERNET SITE FOR UTAH LIGHTHOUSE MINISTRY, SEES THOSE U.R.L.'S. JOHN Q. PUBLIC MAY GO TO THOSE WEB SITES; MAY NOT GO TO THOSE WEB SITES; MAY DOWNLOAD THEM; MAY NOT DOWNLOAD THEM. AND IT'S PURELY SPECULATIVE AS TO WHAT THOSE PEOPLE HAVE DONE. WE DON'T HAVE A PRIMARY INFRINGER IN JOHN Q. PUBLIC. NOBODY HAS BEEN IDENTIFIED AS HAVING DONE THAT.

AGAIN, THE GRATUITOUS ADVERTISING BY MY CLIENTS IS NOT THE KIND OF ASSISTANCE THAT IS CONTEMPLATED IN THE GERSHWIN CASE OR THE SUBSEQUENT CASES. IT HAS TO BE MATERIAL. IT HAS TO BE SUBSTANTIAL. ALL OF THE CASES THAT HAVE BEEN CITED AGAIN REQUIRE SOME SORT OF A RELATIONSHIP, SOME SUBSTANTIAL AID.

T.R.O., PRELIMINARY INJUNCTION, THEY ARE--THOSE ARE BOTH DRASTIC REMEDIES. NO CASE HOLDS--NO REPORTED CASE IN WHAT THE COURT HAS FOUND OR WHAT PLAINTIFFS HAVE FOUND OR THAT I HAVE FOUND, NO REPORTED CASE GOES AS FAR AS THE CURRENT ORDER IN THIS CASE. NO REPORTED CASE GOES AS FAR AS SAYING A PERSON CANNOT GRATUITOUSLY PROVIDE AN ADDRESS TO SOMEBODY ELSE.

AND WHAT YOUR HONOR HAS CURRENTLY ORDERED, AND WHAT THE PLAINTIFFS REQUEST YOU TO ORDER AS A PRELIMINARY INJUNCTION IS A GREAT AND SUBSTANTIAL EXTENSION OF THE LAW, AND I WOULD SUGGEST THAT IT'S NOT APPROPRIATE TO DO THAT IN A PRELIMINARY INJUNCTION.

OF THE FOUR ELEMENTS THAT ARE REQUIRED FOR THE ISSUANCE OF A PRELIMINARY INJUNCTION OR A T.R.O., THE TWO CRUCIAL ONES THAT I BELIEVE ARE WHETHER OR NOT THE PLAINTIFF STANDS A GOOD CHANCE OF WINNING.

I'VE MADE A MOTION TO DISMISS. I THINK THE PLAINTIFFS COMPLAINT IS DEFECTIVE. THE PLAINTIFF HAS ALLEGED A COPYRIGHT AND A COMPILATION. THAT PROTECTS THE ARRANGEMENT AND SELECTION OF WORKS. THAT DOES NOT PROTECT THE TEXT OR THE CONTENT OF THE COMPILED WORK. THE COMPLAINT IS DEFECTIVE.

I DON'T THINK THAT WHEN THIS CASE IS DONE THAT THE COURT WILL ENTER AN ORDER AS DRASTIC AND AS STRONG AS IS CURRENTLY IN EFFECT. SO EVEN IF THE PLAINTIFF DOES WIN, I DON'T THINK THAT THIS COURT IS GOING TO ENTER AN ORDER THAT MY CLIENTS CANNOT EXERCISE THEIR FIRST AMENDMENT RIGHT TO SIMPLY TELL PEOPLE WHERE INFORMATION IS HELD.

AND THAT CONSTITUTES THE CONCERN OF THOSE FOUR ELEMENTS WITH REGARD TO HARM TO MY CLIENTS. MY CLIENTS' FIRST AMENDMENT RIGHTS WILL BE HARMED IF THIS COURT MAINTAINS AND ALLOWS TO STAND THE CURRENT ORDER THAT'S IN EFFECT. MY CLIENTS ARE SIMPLY PROVIDING INFORMATION TO PEOPLE. THEY ARE SAYING, "THIS IS A U.R.L. ADDRESS. THERE'S INFORMATION ON IT. YOU MAY WANT TO GO SEE THAT. THERE'S INFORMATION THAT MAY BE INTERESTING TO YOU." THAT IS--THAT KIND OF A COMMENT IS PROTECTED BY THE FIRST AMENDMENT.

THE FIRST AMENDMENT IS NOT USUALLY RAISED IN LITIGATION BETWEEN INDIVIDUALS. HOWEVER, IN THIS SITUATION, IF YOUR HONOR ENTERS AN ORDER THAT RESTRICTS WHAT MY CLIENTS CAN SAY, THEN THE FIRST AMENDMENT IS IMPLICATED. AND I THINK THE CURRENT ORDER THAT'S IN EFFECT INFRINGES UPON MY CLIENTS' FIRST AMENDMENT RIGHTS TO SIMPLY PROVIDE INFORMATION. MY CLIENTS ARE NOT GUILTY OF CONTRIBUTORY INFRINGEMENT.

AGAIN, WE CONSENTED TO THE ORIGINAL T.R.O. WE WILL CONTINUE TO ABIDE BY THE ORIGINAL T.R.O. IT'S OUR SUGGESTION THAT THIS COURT SHOULD REVERT TO THAT, AND THAT THE AMENDED T.R.O., TWICE AMENDED NOW, WHICH PROHIBITS MY CLIENTS FROM PROVIDING THOSE U.R.L.'S SHOULD BE LIFTED.

THE COURT: MR. ZENGER. FIRST I WANT TO MAKE SURE--AND I THINK THAT MR. BARNARD HAS RAISED SOME MERITORIOUS QUESTIONS, AND THE FIRST ONE THAT I'D LIKE YOU TO TALK ABOUT, MR. ZENGER, IS IT'S NOT JUST THE WHO PUT THE MATERIAL ON THE THREE SITES BUT WHAT? AND WHAT EVIDENCE DO I HAVE THAT THE MATERIAL IS INFRINGING MATERIAL? THAT'S A CONCERN.

MR. ZENGER: THANK YOU, YOUR HONOR. WE HAVE HERE WITH US TODAY TWO PEOPLE WHO ARE WILLING TO TAKE THE STAND TO SAY THAT THEY HAVE ACCESSED THESE SITES AND THAT THEY INCLUDE THE HANDBOOK OF MATERIAL. I BELIEVE THAT MR. WILLIAM NELSON IS PREPARED TO TESTIFY TO THAT REGARD, AND I BELIEVE THAT ALSO MR. DENNIS SMITH, WHO HAS ALSO ACCESSED THOSE SITES, ARE READY TO TAKE THE OATH AND SAY THAT THEY CONTAIN THE INFRINGING MATERIAL. I THINK THAT IS EASILY TAKEN CARE OF. I WOULD PROFFER THE TESTIMONY OF BOTH MR. NELSON AND MR. DENNIS SMITH.

THE COURT: MR. BARNARD, DO YOU THE WANT THEM TO BE CALLED SO THAT THEY CAN--AND I WOULD LIMIT IT TO THAT BECAUSE I THINK WHAT ALL THEY'RE GOING TO BE ABLE TO SAY, UNLESS I'M WRONG, MR. ZENGER, IS THEY LOOKED AT IT. THEY HAVE KNOWLEDGE OF THE CHURCH HANDBOOK. IT'S ON IT. THAT'S WHAT IT IS, SO MANY PAGES OF IT.

THE COURT: SO CAN WE TAKE IT AS A GIVEN THAT ON THOSE SITES, WITHOUT ANY REFERENCE TO WHO PUT THEM ON, THE EVIDENCE WE HAVE SO FAR IS THERE'S NO CONNECTION BETWEEN--SO FAR BETWEEN THE TANNERS AND WHOEVER DID IT, BUT JUST IF ONE VIEWED THE SITES, IT WOULD CONTAIN INFORMATION FROM THE CHURCH--IT WOULD CONTAIN PORTIONS OF THE CHURCH HANDBOOK. IS THAT ACCEPTABLE, MR. BARNARD?

MR. BARNARD: MY UNDERSTANDING, YOUR HONOR, IS AT LEAST ONE OF THE WEB SITES ONLY HAS PORTIONS ON IT, AND THAT THE OTHER TWO WEB SITES PURPORT TO CONTAIN THE ENTIRE HANDBOOK, YES.

THE COURT: AND THEN THE OTHER ONE HAS PORTIONS. AND YOU WOULD AGREE THAT IF THE WITNESSES WERE CALLED, THAT'S WHAT THEY WOULD SAY?

THE COURT: OKAY. THEN WE GET TO THE WHO. WHO IS THE PRIMARY INFRINGER? AND HOW, THEN AGAIN--AND MR. BARNARD RAISES A POINT THAT I HADN'T THOUGHT OF. IF COPYRIGHT INFRINGEMENT--IF INFRINGEMENT OF COPYRIGHT, IF IT'S STRICT LIABILITY, AND IF SOMEONE--JOHN Q. PUBLIC, AS MR. BARNARD SAYS--BUT IF SOMEONE HAPPENS UNWITTINGLY TO GET INTO AN INFRINGING SITE, IS THAT PERSON TRULY A PRIMARY VIOLATOR? I MEAN THAT IS A LITTLE BIT SCARY.

MR. ZENGER: YOUR HONOR, THEY ARE INFRINGERS, BUT THE COPYRIGHT STATUTE HAS PROVISION FOR THAT. THEY HAVE PROVISIONS FOR INNOCENT INFRINGERS, AND IT GOES SIMPLY LIKE THIS: IF SOMEONE INNOCENTLY INFRINGES AND THEY'RE PUT ON NOTICE OF IT AND THEY CORRECT IT, THEN THEY'RE BASICALLY OFF THE HOOK.

BUT THAT'S NOT WHAT WE HAVE HERE. WE HAVE PEOPLE WHO KNOW THE COPIES OUT THERE ARE UNAUTHORIZED, WHO KNOW THAT THEY--THAT I.R.I. DOES NOT WANT THE COPIES REPRODUCED, AND WHO KNOW THAT THEY ARE--THAT COPIES THAT ARE BEING MADE ARE UNAUTHORIZED, AND THEN WHO GO OUT AND INDUCE AND CAUSE OTHER PEOPLE TO DO IT.

THIS ISN'T THE INNOCENT INFRINGER CASE, AND THERE'S PLENTY OF ROOM IN THE COPYRIGHT LAW FOR INNOCENT INFRINGERS NOT NEEDING TO FEEL LIKE THE FEDERAL COURT IS GOING TO COME POUNCING ON THEM EVERY TIME THEY--IF THEY INADVERTENTLY OR INNOCENTLY INFRINGE.

THE COURT: WHERE IS THAT PROVISION FOR INNOCENT INFRINGERS? IS IT STATUTORY OR CASE LAW?

MR. ZENGER: SO THAT IS A--THAT'S A NONISSUE. CERTAINLY WE DON'T HAVE THAT CASE. WE HAVE ASKED AND ASKED AND ASKED AND ASKED FOR THEM TO STOP, AND THEY JUST SAY, "NO. WE'RE GOING TO KEEP GOING." THIS ISN'T THE INNOCENT INFRINGER CASE.

NOW THEY SAY, "WHO? THERE'S NO EVIDENCE WHO. I'LL TELL YOU WHY THERE'S NO EVIDENCE WHO, BECAUSE THEY HAVE WITHHELD THE NAMES. THEY POST ON THEIR WEB SITE, AS SET FORTH IN OUR MEMORANDUM IN EXHIBIT 2, TWO PEOPLE WHO SAID, "THANKS. WE GOT A COPY." OR, "WE TRIED TO GET A COPY AND WE JUST DIDN'T GET IT RIGHT. WHAT DID WE DO WRONG?" AND THEN THEY TELL THEM HOW TO DO IT RIGHT. OKAY. RIGHT AT THE TOP OF THIS LIST OF E-MAILS THEY SAY, "NAMES WITHHELD."

OKAY. TELL ME RIGHT NOW WHO ARE THE E-MAIL SENDERS OF OCTOBER 30, 1999? AND AS SOON AS THE TANNERS TELL US, THEN YOU'LL HAVE AT LEAST TWO FOR SURE, BECAUSE IT'S RIGHT IN THEIR OWN STUFF. SO AS SOON AS THEY TELL US, WE'LL BE HAPPY TO TELL THE COURT.

BUT THERE'S AN INTERESTING THING GOING ON HERE. THE TANNERS HOLD THEMSELVES OUT AS RELIABLE RESEARCHERS, ACCURATE IN STATING THE FACTS. WELL, THEY SAY HERE THAT PEOPLE HAVE MADE COPIES. THEN WE NEED TO HAVE THEM TELL US IF THESE ARE MADE UP E-MAILS OR IF THESE ARE TRUE OR FACTUAL E-MAILS. AND IF SO, WHO SENT THEM THESE E-MAILS? THEY WITHHELD THE NAMES. THAT'S THE ONLY REASON WE HAVEN'T GIVEN YOUR HONOR THE NAMES IS BECAUSE THEY'VE WITHHELD THEM FROM US.

SECONDLY, THE POSTERS, THE PEOPLE WHO POST THE UNAUTHORIZED COPIES, YES, WE BELIEVE THEY'RE INFRINGERS. THERE'S NO DOUBT ABOUT IT. AND SO WE HAVE TWO SETS OF PRIMARY INFRINGERS; THOSE WHO HAVE POSTED THE INFORMATION AND NOW THOSE WHO GO, KNOWING THAT THE COPIES ARE UNAUTHORIZED, KNOWING THAT THERE'S NO AUTHORIZATION TO MAKE FURTHER COPIES, GO AT THE INSTRUCTION AND BEHEST AND ENCOURAGEMENT OF LIGHTHOUSE AND THE TANNERS TO GO MAKE THOSE ADDITIONAL COPIES, TWO OF WHICH WE HAVE RIGHT HERE FROM THEIR OWN WEB SITE. THIS IDEA OF THEY DON'T KNOW WHO IT IS IS RIDICULOUS.

THEY TALK ABOUT MR. JOHN Q. PUBLIC STUMBLING ACROSS THESE MATERIALS. AGAIN, THEY'RE ARGUING SCENARIOS THAT ARE NOT THIS CHASE. THIS ISN'T THE CASE OF SOMEONE JUST INNOCENTLY BEING OUT THERE SURFING THE WEB AND FINDING THEM. THIS IS THE TANNERS HOLDING UP A GREAT, BIG SIGN SAYING, "UNAUTHORIZED COPIES OF THE CHURCH HANDBOOK ARE ON THE WEB. COME AND GET IT. AND HERE IS HOW YOU GET IT."

MR. BARNARD ARGUES THAT--OR EXCUSE ME--LIGHTHOUSE ARGUES THAT THEY HAVEN'T DONE ANYTHING MATERIAL OR SUBSTANTIAL. WELL, AS WE CITED IN THE FORD KNIGHTLY CASE, THAT EMPHASIS IS NOT ON HOW MANY ACTS HAVE THEY DONE BUT WHAT HAS BEEN THEIR FUNCTION IN THE INFRINGING ACTIVITY OR ENCOURAGING OR HELPING THE INFRINGING ACTIVITY?

AND IN THIS CASE, AS WE'VE STATED IN OUR PAPERS, WE'RE NOT PUTTING ON A PUBLIC PERFORMANCE WHERE WE HAVE MONTHS AND WEEKS OF ACTIVITIES AND EVENTS LEADING UP IN THE MANAGEMENT OF PEOPLE AND PERSONNEL AND MATERIALS TO PUT ON A PUBLIC PERFORMANCE. THIS IS WHAT WE HAVE. AND THIS IS WHY I REMINDED YOUR HONOR THAT THE HANDBOOK HAS BEEN DISTRIBUTED ONLY INTERNALLY IN PRINTED FORM, AND NOW IT HAS BEEN CONVERTED TO ELECTRONIC FORM, AND THAT ELECTRONIC FORM CAN BE COPIED INSTANTANEOUSLY WITH THE MERE TOUCH OF A MOUSE BUTTON.

AND WHAT LIGHTHOUSE AND THE TANNERS HAVE DONE HAVE TAKEN THE PERSON ALL THE WAY UP, AND DONE EVERYTHING BUT PUT THEIR HAND ON TOP OF THE OTHER PERSON'S AND SAY, "CLICK HERE." THEY HAVE FACILITATED EVERYTHING NECESSARY TO MAKE THOSE ADDITIONAL, UNAUTHORIZED COPIES HAPPEN BY DOING TWO THINGS. FIRST--ACTUALLY, THREE THINGS. TELLING EVERYONE THAT THERE ARE UNAUTHORIZED COPIES OUT THERE. TWO, TELLING THE PEOPLE WHERE THEY ARE, NOT JUST ON THE WEB. LIGHTHOUSE ARGUES THAT THEY CAN'T TELL PEOPLE THAT COPIES ARE OUT THERE. WELL, SAY JUST THAT. THERE ARE COPIES OUT THERE. GO FIND THEM YOURSELF, BUT THEY DON'T DO THAT. WHAT DO THEY DO? THEY TELL THEM EXACTLY AND PRECISELY WHERE TO GO TO GET THESE COPIES. AND THEN, THREE, WHAT DO THEY DO? IF PEOPLE DON'T GET IT RIGHT, THEY HELP THEM GET IT RIGHT.

WELL, THIS IS EVERYTHING YOU NEED TO DO IN THE CONTEXT OF MAKING COPIES OF ELECTRONIC COPIES TO MAKE ONE HAPPEN. THEIR CONDUCT IS NOT ONLY MATERIAL AND SUBSTANTIAL BUT ALMOST CONSUMMATES THE ACT ITSELF BUT FOR SOMEONE ELSE PUSHING THE BUTTON OR THE KEY STROKE ON THE COMPUTER.

NOW, THAT HAS TO DO WITH THEIR INDUCING INFRINGEMENT. BUT SEPARATE AND APART FROM INDUCING INFRINGEMENT, WE FINALLY HAVE THE ADMISSION TODAY THAT THEY'VE ADVERTISED WEB SITES. THEY'VE TRIED TO AVOID THAT, BUT WE HAVE IT TODAY. THEY HAVE ADVERTISED WEB SITES, WHICH WE NOW HAVE IT CONCEDED THAT HAVE INFRINGING WORK ON IT TODAY.

WELL, WE'VE CITED YOUR HONOR A NUMBER OF CASES THAT SAY ADVERTISING KNOWINGLY INFRINGING WORKS IS SUFFICIENT TO BE AN INFRINGER. AND SO THIS IDEA THAT THEY CAN QUOTE GRATUITOUSLY ADVERTISE IS ALSO RIDICULOUS. THEY KNOW THE COPIES ARE UNAUTHORIZED, AND NOW THEY ADMIT THAT THEY'RE ADVERTISING THE LOCATIONS, THOSE LOCATIONS.

YOUR HONOR, WE BELIEVE THAT, AGAIN, YOUR ORDER WAS RIGHT. IT'S GROUNDED IN FACT AND LAW, AND WE BELIEVE THAT IT SHOULD BE ADOPTED AS A PRELIMINARY INJUNCTION. IF YOU DON'T HAVE ANY OTHER FURTHER QUESTIONS, THAT'S ALL I HAVE.

MR. BARNARD: THE TWO E-MAILS THAT MR. ZENGER IS REFERRING TO ARE EXHIBITS 2 ATTACHED TO THEIR REPLY MEMORANDUM. BOTH OF THEM REFER TO HAVING GOTTEN THE INFORMATION FROM THE TRIBUNE. THEY BOTH SAY, "I SAW THE ARTICLE IN THE TRIBUNE. I WAS ABLE TO ACCESS THE INFORMATION FROM THE TRIBUNE."

AND, AGAIN, OUR POSITION IS SIMPLY GIVING PEOPLE AN ADDRESS IS NOT THE KIND OF CULPABLE CONDUCT CONTEMPLATED BY GERSHWIN AND THE CASES FOLLOWING IT CONTEMPLATED UNDER THE CASE LAW DEALING WITH CONTRIBUTORY INFRINGEMENT. THANK YOU.

THE COURT: ALL RIGHT. THANK YOU, COUNSEL. THIS ISN'T AN EASY CASE. I'M GOING TO NEED SOME TIME TO THINK THIS OVER. I WILL GET THIS OUT TO YOU SOMETIME--WELL, AS QUICKLY AS I CAN NEXT WEEK. THE ORDER THAT I ENTERED LAST WEEK WILL STAY IN EFFECT UNTIL I GET THIS OUT, BUT I WILL DO MY VERY BEST TO BE PROMPT ABOUT IT.

ANYTHING ELSE? AND WE HAVE A MOTION TO DISMISS SET DOWN FOR HEARING, DON'T WE? OH, YES. THAT ISN'T GOING TO WORK. IT'S JANUARY 6TH AT 4:00?

THE COURT: 3:30? I CAN'T DO IT THEN, BUT THE 4TH OR 5TH AT 4:00 I CAN DO. EITHER ONE OF THOSE WORK FOR YOU?

THE COURT: TUESDAY THE 4TH AT 4:00, OKAY? IF YOU'LL CHANGE THAT. YOU WON'T GET A WRITTEN NOTICE, BUT IT'S TUESDAY THE 4TH AT 4:00 WE'LL HEAR THE MOTION TO DISMISS. AND THAT'S BASED ON THE COMPILATION ARGUMENT; AM I CORRECT, MISTER--THE COMPILATION, ETCETERA, THAT YOU ALLUDED TO VERY BRIEFLY HERE; AM I RIGHT?