PLAINTIFF'S CONTINUED MOTION FOR INJUNCTIVE RELIEF

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 10, 1999

PLAINTIFF'S CONTINUED MOTION FOR INJUNCTIVE RELIEF
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 MORNING. WE'RE HERE IN THE MATTER OF INTELLECTUAL RESERVE INCORPORATED VERSUS UTAH LIGHTHOUSE MINISTRY, A CONTINUED HEARING ON THE PLAINTIFF'S APPLICATION FOR INJUNCTIVE RELIEF. REPRESENTING THE PLAINTIFF IS MR. TODD ZENGER, MR. BERNE--AM I SAYING THAT CORRECTLY NOW?

THE COURT: BERNE BROADBENT, AND I NOTE THE PRESIDENT OF THE PLAINTIFF, MR. WILLIAM NELSON. REPRESENTING THE DEFENSE IS MR. BRIAN BARNARD, AND I NOTE THE PRESENCE OF MR. AND MRS. TANNER.

I'VE READ YOUR MATERIALS, AND IT SEEMS TO ME--AND I CERTAINLY WILL WANT TO HEAR YOU FULLY ON IT--THAT NOW KIND OF THE GIST OF WHAT PLAINTIFF CLAIMS THE DEFENSE HAS--DEFENDANTS HAVE DONE, IT'S CHANGED. NOW WE'RE TALKING MORE ABOUT CONTRIBUTING TO AN INFRINGEMENT TO SOME DEGREE, WHICH IS I THINK A FAIRLY NEW THEORY, UNLESS I'M MISTAKEN.

MR. BARNARD: THE ISSUE THAT YOU JUST MENTIONED IS THIS NEW THEORY. I ONLY RECEIVED THIS NEW THEORY, HAND DELIVERED, LAST FRIDAY AFTERNOON. I'M NOT PREPARED TO GO FORWARD AND TALK ABOUT A NEW THEORY. THE MOTION FOR PRELIMINARY INJUNCTIONS WAS VERY CLEAR. IT WAS SERVED UPON US A MONTH AGO. NOW THEY'VE COME IN AND SAID, "WELL, WE WANT SOME OTHER THINGS ARGUED." I DON'T THINK THAT'S APPROPRIATE.

THE COURT: AND YOU'VE CERTAINLY GOT A POINT, AND I'LL HEAR YOU ON THAT, MR. ZENGER.

ALTHOUGH THERE IS ONE ISSUE, AND THAT HAS TO DO WITH THE INDEX ON YOUR CLIENTS' WEB SITE THAT WAS PART OF MY INITIAL ORDER TO BE REMOVED. ALLEGATION IS THE PLACE MAY HAVE CHANGED BUT IT'S STILL THERE.

BUT, MR. ZENGER, THERE MIGHT BE A POINT TO BE MADE. ONE POSSIBILITY IS THAT I WOULD, AFTER I HEAR YOU, ASK FOR ADDITIONAL BRIEFING AND HEAR THIS LIKE AT THE FIRST OF NEXT WEEK BUT MEANWHILE PERHAPS TREAT THE ISSUE OF CONTRIBUTING TO INFRINGEMENT AS ONE OF A T.R.O. IN OTHER WORDS, ANY RELIEF THAT I MIGHT GIVE WOULD BE TEMPORARY PENDING RESOLUTION AT A PRELIMINARY. IS THAT CLEAR OR IS THAT CONFUSING?

MR. ZENGER: I UNDERSTAND EXACTLY WHAT YOU'RE SAYING, AND WE'RE HAPPY TO ADDRESS THOSE POINTS, AND I THINK THAT THEY WOULD BE BEST ADDRESSED AND CAN BE ADDRESSED THIS MORNING IN RATHER SHORT ORDER.

MR. ZENGER: I THINK WE ALL UNDERSTAND THAT FOR AT LEAST FROM THE STANDPOINT OF A PRELIMINARY INJUNCTION, THERE ISN'T ANY CONTEST TO A PRELIMINARY INJUNCTION. THERE'S BEEN NO CONTEST THAT WE DON'T HAVE A PATENT. THERE'S NO CONTEST THAT THERE ISN'T COPYING. THERE'S BEEN NO SUBSTANTIVE DEFENSE PROFFERED TO THIS COURT. WE HAVE A T.R.O. THEY'VE CONCEDED THAT THE PRELIMINARY INJUNCTION SHOULD FOLLOW.

THE ONLY ISSUE IS WHAT IS THAT PRELIMINARY INJUNCTION GOING TO BE? OR AS THE COURT--IF THE COURT WOULD LIKE TO SAY, IS THERE A NEW ISSUE? WE DON'T BELIEVE THERE'S A NEW ISSUE AT ALL, AND LET ME EXPLAIN WHY.

INFRINGEMENT--WE HAVE ALLEGED IN THIS CASE INFRINGEMENT. YOU CAN INFRINGE IN A NUMBER OF DIFFERENT WAYS. YOU CAN BE A DIRECT INFRINGER OR A CONTRIBUTORY INFRINGER. WE'VE NEVER LIMITED OUR CAUSE OF ACTION TO DIRECT INFRINGEMENT, AND TO SAY THIS A NEW CAUSE OF ACTION IS A STRETCH. IN 1976 THE LEGISLATIVE HISTORY FOR THE COPYRIGHT ACT ADDRESSING INFRINGEMENT EXPRESSLY STATED THAT IT WAS DESIGNED TO REACH CONTRIBUTORY INFRINGEMENT, EXPRESSLY STATED IN THE LEGISLATIVE HISTORY IN 1976.

AND WHY DID THEY DO THAT? BECAUSE THE EARLIER CASES HAD ALL RECOGNIZED THAT CONTRIBUTORY INFRINGEMENT WAS JUST THE SAME AS INFRINGEMENT. AND WE HAVE PROVIDED THE COURT TWO CASES JUST AS EXAMPLES, A 1971 CASE FROM THE SECOND CIRCUIT IN THE CASE OF GERSHWIN PUBLISHING CORPORATION VERSUS COLUMBIA ARTISTS MANAGEMENT AT 443 F. 2ND 1159.

IN 1971 THE SECOND CIRCUIT CLEARLY STATED WHAT IS AND ISN'T INFRINGEMENT. THEY SAID, "ONE WHO WITH KNOWLEDGE OF THE INFRINGING ACTIVITY INDUCES, CAUSES OR MATERIALLY CONTRIBUTES TO THE INFRINGING CONDUCT OF ANOTHER." THAT'S PLAIN OLD--

THE COURT: YOU KNOW, AND I AGREE WITH WHAT YOU SAY, AND THE LEGAL THEORY, BUT THERE'S SOME EVIDENTIARY DIFFERENCES. I MEAN IT'S QUITE ONE THING TO LOOK AT WHAT WAS ON THE TANNERS' WEB SITE AND SAY THAT'S COVERED BY YOUR COPYRIGHT, YOUR CLIENT'S COPYRIGHT. BUT THEN AS FAR AS EVIDENCE, IT'S QUITE ANOTHER TO SAY IS THERE SUFFICIENT EVIDENCE TO GRANT THE RELIEF YOU'RE SEEKING? IS THERE SUFFICIENT EVIDENCE THAT THE TANNERS ARE CONTRIBUTING TO THE INFRINGING CONDUCT OF ANOTHER? AND, YOU KNOW, I'VE GOT THE WHOLE QUESTION OF THIS OTHER AND WHAT'S THERE. SO IT'S NOT THAT--AND I AGREE WITH YOU. IT'S NOT IT'S A DIFFERENT THEORY, THERE'S JUST SOME DIFFERENT EVIDENCE.

MR. ZENGER: THERE IS SOME DIFFERENT EVIDENCE. AND I THINK THAT UNDERSCORES THE REASON WHY EITHER THE COURT NEEDS TO STATE THAT THE EARLIER TEMPORARY RESTRAINING ORDER IS NOW MADE INTO A PRELIMINARY INJUNCTION, AND THAT THAT COVERS CONTRIBUTORY AS WELL, OR THAT THE LANGUAGE NEEDS TO BE CLARIFIED. I DON'T THINK IT NEEDS TO REALLY ACTUALLY BE EXPANDED BECAUSE CONTRIBUTORY INFRINGEMENT IS COVERED--OR INFRINGEMENT COVERS CONTRIBUTORY INFRINGEMENT. SO WE WOULD HOPE THAT EITHER THE COURT WOULD STATE THAT THE EARLIER ORDER WILL CONTINUE, AND IT COVERS CONTRIBUTORY INFRINGEMENT, OR ADOPT THE CLARIFICATION LANGUAGE THAT WE'VE SUGGESTED. AND WHY?

THE COURT: LET ME STOP YOU. AND I AGREE PRETTY MUCH WITH WHAT YOU SAY, AND I WAS THINKING ABOUT SIMPLY ENLARGING THE ORDER TO SAY, "YOU SHALL NOT CONTRIBUTE TO THE INFRINGEMENT. BUT I DON'T KNOW HOW HELPFUL THAT'S GOING TO BE, BECAUSE SURE ENOUGH WE'D BE IN HERE IN A WEEK OR TWO AND THE QUESTION WOULD BE IS WHAT THE TANNERS ARE DOING CONTRIBUTING?

SO I THINK I HAVE TO GET MORE OF A FACTUAL GRASP ON THINGS TO MAKE A DECISION THAT SPECIFIC ACTS ARE NOT CONTRIBUTING OR ARE CONTRIBUTING. I AGREE WITH YOU, NO ONE CAN CONTRIBUTE TO THE INFRINGEMENT, BUT WHAT I HAVE TO KNOW IS IF SOMEBODY IS DOING SOMETHING, IS THAT CONTRIBUTING? THAT'S WHERE I'M KIND OF PUZZLED.

MR. ZENGER: EXACTLY. AND I THINK THAT'S WHY IT'S APPROPRIATE THAT THE COURT CAN HANDLE THAT TODAY, AND HERE IS THE REASON WHY. WE HAVE STATE--THE PAPER THAT THEY FILED WITH THE COURT CONCEDING THAT A PRELIMINARY INJUNCTION IS NECESSARY, THEY SAID THEY SHOULD GET THE SAME LANGUAGE OF THE T.R.O. AND NOTHING ELSE. BUT WHY IS THAT NOT HELPFUL TO US, NOT HELPFUL TO REFRAIN OR PREVENT FURTHER INFRINGEMENTS? BECAUSE WHAT WE'VE SEEN IS THE COURT ORDERS THEM, "TAKE IT OFF." AND CONTRIBUTORY INFRINGEMENT CAN BE ANALOGIZED AS INFRINGING USING SOMEONE ELSE'S HANDS.

SO THE COURT ORDERS THEM, "TAKE IT OFF." THEY TAKE IT OFF, AND THEY RUN OUT AND GET SOMEBODY ELSE'S HANDS AND GUIDE THEM TO INFRINGEMENT. AND SO WE HAVEN'T OFFERED (A) A NEW THEORY, ALL WE'VE DONE IS SHOWN THE COURT THAT THEY ARE CONTINUING TO DO AND ENGAGE IN INFRINGING CONDUCT BY NOW SAYING, "WELL, WE'RE NOT DOING IT," BUT, "HERE, WE'LL HELP THIS PERSON DO IT, AND WE'LL HELP THIS PERSON," AND THEY SIMPLY AFFECT THE INFRINGEMENT USING SOMEONE ELSE'S HANDS.

THE COURT: TELL ME, MR. ZENGER, TYING IT TO THESE SPECIFIC FACTS, WHAT IS IT THAT YOU ALLEGE THE TANNERS ARE DOING THAT IS CAUSING OR MATERIALLY CONTRIBUTING TO THE INFRINGEMENT? EXACTLY--TELL ME IN THE ACTS THAT YOU THINK MEET THE TEST.

THE COURT: I HAVE TO TELL YOU, IT WAS SO WHITED OUT, I HAD A LITTLE BIT OF TROUBLE FIGURING OUT WHAT WAS WHAT.

MR. ZENGER: WE WORRIED ABOUT THAT BECAUSE, AS YOU KNOW, WE'RE COMPLAINING ABOUT THIS BEING PUBLISHED AND WE DIDN'T WANT TO CONTRIBUTE TO THAT ANY MORE, IF YOU WILL. SO IF YOU LOOK AT EXHIBIT 1, WE--AS WE STATE IN OUR PAPER, WE REDACTED OUT THE INTERNET ADDRESSES THAT GUIDE A PERSON TO THE COPIES OF THE HANDBOOK. AND THIS--THIS IS A ANNOUNCEMENT ON THE TANNERS' WEB SITE: "THE CHURCH HANDBOOK OF INSTRUCTIONS IS BACK ON LINE," AND THEN ADDRESS ONE, ADDRESS TWO, ADDRESS THREE. AND THAT IS ADVERTISING INFRINGEMENT AND TELLING PEOPLE WHERE TO GO. AND AS I INDICATED TO YOU BEFORE, WE GAVE YOU SOME EXAMPLES OF CASES. AND THE OTHER CASE THAT WE HAD CITED IN OUR MATERIALS--

THE COURT: AND LET ME JUST ASK YOU THOUGH. THOSE THREE WEB SITES THAT WERE LISTED ON THE TANNERS'--THE TANNERS', ARE THOSE INFRINGING WEB SITES?

MR. ZENGER: THEY PROVIDE FOR DISPLAY AND IMMEDIATE DOWNLOAD THE ENTIRE CHURCH HANDBOOK--NOT JUST A PORTION, BUT THE ENTIRE HANDBOOK, NEARLY TEN TIMES AS MUCH AS THE TANNERS' HAD HAD UP.

SO NOW THEY'RE SIMPLY SAYING, "OKAY, WE WON'T POST CHAPTER 10, BUT HERE IS WHERE YOU CAN GO FIND THE WHOLE THING. NOW, I WOULD LIKE TO POINT OUT SOME OTHER CONDUCT. IF YOU WOULD TURN OVER TO TAB TWO, EXHIBIT TAB TWO TO OUR MOTION. THIS IS A PRINTOUT OF INFORMATION CURRENTLY ON THEIR WEB SITE AS OF EVEN TODAY. THE FIRST NOTE ON OCTOBER 30TH, 1999--THIS IS AFTER THE COURT'S ORDER--SOMEONE WROTE TO THEM AND SAID THEY HAD SEEN THE ARTICLE. AND THEN THE THIRD LINE FROM THE BOTTOM IT SAYS--OR THE FOURTH LINE FROM THE BOTTOM IT REPORTS WHERE THE WEE SITE WAS FROM THE TRIBUNE AND THEN IT SAYS, "I TRIED TO SEARCH FOR THIS SITE AND MY COMPUTER SAID THAT THERE WAS NO WEB SITE FOUND. IF YOU HAVE ANOTHER WEB SITE THAT I COULD OBTAIN THIS INFORMATION AND E-MAIL ME WITH A SITE ADDRESS IT WOULD BE VERY MUCH APPRECIATED."

AND THEN THE WEB EDITOR, WHO IS SANDRA TANNER, SAYS, "OH, YOU FORGOT"--AND THEN SHE TELLS THEM WHAT THEY FORGOT. AND THEN SHE SAYS, "WRITE OUT THE WHOLE THING." I MEAN THEY ARE SAYING, "HERE. GO RIGHT HERE AND YOU CAN GET THE WHOLE THING. THIS IS CONTRIBUTORY INFRINGEMENT.

THE COURT: THIS SECOND WHERE MS. TANNER ALLEGEDLY TELLS THEM HOW TO REMEDY THEIR ERROR, WHICH ONE IS IT ON TAB ONE? IS IT NUMBER ONE, TWO OR THREE?

MR. ZENGER: SO WE HAVE THEM ADVERTISING INFRINGING WORKS, AND WE HAVE THEM PROACTIVELY HELPING OTHERS. AND NOW I WANT TO PUT EXHIBIT 2 IN CONTEXT. THIS ISN'T JUST SOME AFTERTHOUGHT OF THE--OF LIGHTHOUSE MINISTRY AND THE TANNERS BECAUSE IN THEIR--THEY HAVE ADMITTED THAT THEY HAVE REVIEWED AND COLLECTED INFORMATION FROM THE INTERNET. THEY HAVE ADMITTED IT.

AND SO WHAT THEY DO IS THEY GO OUT, GATHER ALL THE INFORMATION THEY NEED TO TELL PEOPLE, AND THEN WHEN THE PEOPLE MAKE AN INQUIRY, THEY HELP THEM OR THEY SIMPLY ADVERTISE IT AS, "HERE IS A GO-TO. WE'RE NOT DOING IT, BUT HERE IS HOW YOU DO IT." WE BELIEVE THAT TO BE DEAD-ON CONTRIBUTORY INFRINGEMENT.

YOUR HONOR, WE BELIEVE THAT'S ENOUGH. WE BELIEVE THERE'S MORE, AND I'D LIKE TO TOUCH ON PERHAPS ONE OTHER. BUT WE ALSO WANT TO INDICATE WHY THIS IS SO DAMAGING. WE HAVE ALSO PROVIDED TO THE COURT A REPORT OF THE WEB SITE OWNER OF ADDRESS NUMBER ONE, IF YOU WILL, WHO STATES THAT, "BOY, I SUDDENLY HAD 6,000 HITS ON THIS SITE."

MR. ZENGER: SO WE DON'T KNOW HOW MANY OF THESE HAVE DONE THE SAME THING. AND THAT IS ONGOING INFRINGEMENT BEING INDUCED, CAUSED OR MATERIALLY CONTRIBUTED TO BY LIGHTHOUSE AND THE TANNERS.

THE COURT: IS THIS WEB SITE NUMBER ONE THE SAME ONE THAT WAS PRINTED IN THE NEWSPAPER? I UNDERSTAND THAT ONE OF THE WEB SITES IN A NEWS STORY APPEARED IN THE NEWSPAPER ARTICLE.

THE COURT: HOW THEN DO I KNOW THAT ALL THESE HITS, THE 5,888 HITS AND 400 OR SO IN THE LAST FIVE HOURS, HOW DO I KNOW THAT SOME OF THAT ACTIVITY OR A GREAT DEAL OF THE ACTIVITY MIGHT NOT BE A RESULT OF THE NEWSPAPER'S STORY?

MR. ZENGER: I'M NOT CLAIMING, YOUR HONOR, THAT THOSE 6,000 HITS ARE NECESSARILY EVERY SINGLE ONE ATTRIBUTED TO THE TANNERS. ALL I'M SAYING IS THAT WHEN PEOPLE GET THAT ADDRESS, THAT'S WHERE THEY GO. AND WHAT WE'RE SAYING IS THE TANNERS NOW PROVIDE THAT ADDRESS, AND WE'RE GOING TO GET THE SAME RESULT.

WE CANNOT STAND HERE AND SAY THOSE 6,000 HITS ARE ATTRIBUTABLE TO THEM. BUT IT ESTABLISHES WHAT HAPPENS WHEN THE ADDRESS IS MADE KNOWN, AND THEY ARE MAKING THE ADDRESS KNOWN AND THAT'S CONTRIBUTING.

THE COURT: IS IT CORRECT THAT UNDER COPYRIGHT LAW, IF I FIND THAT THERE'S A SUBSTANTIAL LIKELIHOOD OF INFRINGEMENT, DIRECT OR CONTRIBUTING, THAT THAT ESTABLISHES THE PRESUMPTION OF IRREPARABLE HARM?

MR. ZENGER: SO WE HAVE THESE ONGOING ADDITIONAL ACTS OF CONTRIBUTORY INFRINGEMENT NOW THAT THE COURT HAS ORDERED THEM NOT TO DIRECTLY OR THEMSELVES INFRINGE.

I WANT TO ADDRESS THE POINT YOUR HONOR ALSO MADE ABOUT RE-POSTING OF THE INDICES.

MR. ZENGER: THE INDICES INVITE INQUIRIES THAT IS JUST A GIVEN. IF THEY WEREN'T THERE--I MEAN THAT'S WHY THEY'RE THERE, TO INVITE INQUIRY. IF THEY'RE SUBSTANCELESS AND THERE'S NO CONTENT TO THEM, THEN TAKE THEM OFF. WHAT THEY'RE DOING IS, AS WE STOOD HERE ON THE 18TH OF OCTOBER, THEY HAD IN FACT AT THAT TIME TAKEN THE TEXT OFF AND LEFT THE INDICES UP. THEY WERE NOT CLICK-ON ACCESSIBLE, AND YOUR HONOR SAID, "TAKE THEM OFF. TAKE THE REFERENCES AND THE INDICES OFF," AND THEY DID AND NOW THEY'RE BACK ON IN AT LEAST TWO PLACES, AND WE THINK THAT IS JUST AN ABSOLUTE, DIRECT VIOLATION OF THE COURT'S ORDER. WE BELIEVE THEY'RE IN DISOBEDIENCE OF THE T.R.O.

THE COURT: THEY'RE NOT QUITE IN THE SAME PLACE THOUGH, ARE THEY? THERE'S JUST BEEN SORT OF A RESHUFFLING OF WHERE THEY ARE. WHAT'S THE CHANGE, MR. ZENGER?

MR. ZENGER: THEY JUST MOVED THE INDEXES FROM ONE PAGE TO ANOTHER, AND ACTUALLY NOW THEY'RE IN TWO PLACES ON THEIR SITE. SO WHAT IS OUR REMEDY? WELL, WE BELIEVE THEYRE IN CONTEMPT. WE HAVE NOT DEMANDED OR REQUESTED THAT THE COURT ISSUE CONTEMPT SANCTIONS. BUT WHAT WE WANT, WE WANT THE ORDER, THE PRELIMINARY INJUNCTION, AS CONCEDED TO CONTINUE, AND WE WANT THE COURT TO EITHER ORDER THAT THE SCOPE OF THAT INJUNCTION INCLUDES CONTRIBUTORY INFRINGEMENT, OR THAT THE COURT ADOPT THE CLARIFICATION LANGUAGE WHICH WE HAVE PROPOSED AND SUBMITTED, PRELIMINARY INJUNCTION.

IT ISN'T AN EXPANSION. IT'S A CLARIFICATION TO INDICATE THAT THEY WILL NOT PUT INTERNET ADDRESSES OR OTHER REFERENCE MATERIALS ON THAT GUIDE PEOPLE TO THE LOCATION OF UNAUTHORIZED COPIES. THAT IS A CONTRIBUTORY ACT, AND WE THINK THAT'S STATED CLEARLY.

WE THINK THAT THEY SHOULD NOT BE ABLE TO POST OTHER LISTINGS WHICH WILL INVITE OTHER INQUIRIES. AND WE THINK THAT THE COURT SHOULD STATE IT STRAIGHT UP THAT THEY SHALL NOT INDUCE, CAUSE OR MATERIALLY CONTRIBUTE TO THE REPRODUCTION, DISTRIBUTION OR DISPLAY BY ANOTHER. WE BELIEVE THAT'S CLARIFICATION LANGUAGE, AND WE REQUEST THE COURT TO ISSUE THAT PRELIMINARY INJUNCTION FORTHWITH, EITHER INDICATING THE SCOPE INCLUDES CONTRIBUTORY INFRINGEMENT OR WITH THEIR ADOPTED CLARIFICATION LANGUAGE. THANK YOU.

MR. BARNARD. MR. BARNARD, LET ME JUST ASK YOU ONE QUESTION BEFORE YOU START, AND IT'S JUST SORT OF A MATTER OF MY OWN PERSONAL CURIOSITY. WHY WHEN YOU FILED YOUR REPLY YESTERDAY DID YOU PUT--THE ONE THING THAT IS ALL BOLD IN YOUR REPLY--DID YOU PUT THAT WEB SITE? WHAT WAS THE REASON FOR THAT?

MR. BARNARD: THAT'S THE WAY MY COMPUTER PRINTS WEB SITES. WHEN I TYPE A WEB SITE INTO MY COMPUTER, IT PUTS IT IN BOLD.

MR. BARNARD: AND I'D ALSO INDICATE I THINK THAT'S ALSO PRACTICE IN THE TRIBUNE AND THE DESERET NEWS. I THINK IN THE ARTICLE THAT THE TRIBUNE PRINTED WITH REGARD TO THE WEB SITE, I THINK THAT BOTH WEB SITES--WELL, TWO WEB SITES WERE MENTIONED IN THERE, AND I THINK BOTH OF THEM WERE ALSO PRINTED IN BOLD.

THE COURT: AND I ACCEPT THAT, BECAUSE I HAVE TO SAY WHEN I READ YOUR REPLY, I THOUGHT, MY HEAVENS, HERE MR. BARNARD IS ADVERTISING THIS ALLEGED INFRINGING WEB SITE HIMSELF, BUT I ACCEPT YOUR EXPLANATION THAT THAT'S SIMPLY THE WAY YOUR MACHINE REPRODUCES IT, SO YOU GO AHEAD.

MR. BARNARD: AND THE OTHER MATTER, YOUR HONOR--AND CONTRARY TO WHAT OPPOSING COUNSEL SUGGESTS--THE MERE FACT THAT I STATE OR MY CLIENTS STATE THAT WEB SITE, OR THE TRIBUNE STATES THAT WEB SITE WHERE THIS INFORMATION MAY BE FOUND IS NOT CONTRIBUTORY INFRINGEMENT. THE FACT THAT I STATE TO THIS COURT OR I FILE A PLEADING WITH THIS COURT SAYING THIS INFORMATION IS AVAILABLE ON A WEB SITE, THAT DOES NOT CONSTITUTE CONTRIBUTORY INFRINGEMENT.

THE COURT: DO YOU AGREE THOUGH, MR. BARNARD--AND I'VE LOOKED AT THE CASES--AND KNOWING HOW WELL PREPARED YOU ARE, I KNOW YOU HAVE TOO--THAT ONE WHO ADVERTISES AN INFRINGING WORK CAN BE A CONTRIBUTORY INFRINGER, AN ADVERTISER? ISN'T THAT THE GIST OF SOME OF THESE CASES?

MR. BARNARD: THAT'S CORRECT, YOUR-HONOR, BUT THE WORD ADVERTISING--WELL, LET ME BACK UP. THERE ARE DIFFERENT ELEMENTS REQUIRED TO PROVE CONTRIBUTORY INFRINGEMENT THAN THERE ARE FOR SIMPLE INFRINGEMENT. ONE OF THE THINGS HAS TO BE THAT IT HAS TO BE FOR PROFIT. THERE ARE DIFFERENT ELEMENTS REQUIRED.

THE COURT: WHERE DO YOU GET THE PROFIT? I DON'T SEE THAT FRANKLY. TELL ME WHAT YOUR AUTHORITY IS, BECAUSE I DO NOT FIND THAT, MR. BARNARD.

MR. BARNARD: AND ONE OF THE PROBLEMS I HAVE IN THAT REGARD, YOUR HONOR, IS I WOULD HAVE LIKED TO HAVE HAD AN OPPORTUNITY, AND I WOULD ASK THE COURT AN OPPORTUNITY TO FILE A WRITTEN BRIEF DEALING WITH THIS NEW ISSUE.

THE COURT: AND LET ME TELL YOU WHAT I'M PROBABLY GOING TO DO. AT THE VERY MOST WHAT I WOULD PROBABLY DO WOULD BE, IF I BELIEVE IT'S WARRANTED, I WOULD EXTEND THE T.R.O., BECAUSE BEFORE--AND I WOULD MAKE THE LANGUAGE SUFFICIENTLY BROAD THAT IT WOULD COVER CONTRIBUTORY NEGLIGENCE--CONTRIBUTORY INFRINGEMENT. BUT I DO NOT BELIEVE THAT I COULD ENTER A PRELIMINARY INJUNCTION WITHOUT GIVING YOU A CHANCE TO PRESENT, YOU AND YOUR CLIENTS, YOUR SIDE AND YOUR VERSION OF THE LAW, AND SO THAT I WOULD DO. BUT I HAVE TO TELL YOU, I DIDN'T FIND ANYWHERE THE PROFIT ELEMENT. AND I'M NOT SAYING IT'S NOT THERE, I JUST DIDN'T FIND IT.

MR. BARNARD: --TO BRIEF THAT. AND ALTHOUGH OPPOSING COUNSEL SAYS HE'S ASKING FOR THE SAME THING TODAY THAT HE ASKED FOR A MONTH AGO, THAT'S NOT ACCURATE. WHAT HE'S ASKING FOR NOW IS BASED UPON CONDUCT THAT HAS SUPPOSEDLY OCCURRED IN THE LAST MONTH, AND IT'S MUCH DIFFERENT THAN HE ASKED FOR INITIALLY.

HE'S NOW ASKING THAT ALL INTERNET ADDRESSES AND OTHER REFERENCES TO MATERIALS THAT GUIDE OTHERS TO THE LOCATION OF THE UNAUTHORIZED COPIES BE REMOVED FROM MY CLIENTS' WEB SITE. THAT IS NOT APPROPRIATE IN A TEMPORARY ORDER. THAT IS ALSO NOT APPROPRIATE IN THAT IT IS NOT AN INFRINGEMENT, AS I SAY, TO SIMPLY SAY THAT THIS INFORMATION IS AVAILABLE IN THESE OTHER WEB SITES. THAT'S NOT AN INFRINGEMENT. IT'S NOT APPROPRIATE.

THE COURT: YES. I MEAN THAT'S--THAT'S A PUZZLER, MR. BARNARD. IT JUST SEEMS TO ME LIKE I WAS REAL SPECIFIC IN WORDS AND IN WRITING TO SAY TAKE THAT OFF, AND THEN IT SHOWS UP--SHOWS UP ON A DIFFERENT PAGE. HOW CAN THAT BE ANYTHING BUT VIOLATING MY ORDER.

MR. BARNARD: THE QUESTION, YOUR HONOR, INITIALLY IS WHAT IS A TOPICAL INDEX? WHAT MY CLIENTS HAD ORIGINALLY ON THE WEB SITE WAS THEY HAD THE WORDS, "CHURCH HANDBOOK OF INSTRUCTION," AND THEY HAD IT LISTED IN A TABLE OF CONTENTS AREA. AND IF YOU WENT TO THAT TABLE OF CONTENTS AREA AND YOU CLICKED ON, THERE WAS A LINK, MID THAT LINK TOOK THE PERSON TO THAT TEXT. THAT IS THE TOPICAL INDEX. THAT IS WHAT A TOPICAL INDEX IS. THERE IS NO SIMILAR TOPICAL INDEX ON MY CLIENTS' WEB SITE. THERE HASN'T BEEN SINCE YOU ENTERED THAT ORDER.

MR. BARNARD: THE WORDS ARE THERE. IT SAYS, "CHURCH HANDBOOK OF INSTRUCTION, BOOK ONE. EXCERPTS FROM CHAPTER 14," I BELIEVE, IS THE OTHER ONE. THE WORDS ARE THERE. AND THE WORDS ARE THERE IN REFERENCE TO A CHRONOLOGY WITH REGARD TO THIS LAWSUIT. MY CLIENTS HAVE PUT ON THEIR WEB SITE VARIOUS PLEADINGS, VARIOUS DOCUMENTS WITH REGARD TO THIS LITIGATION. MID IN THAT WEB SITE, THAT PAGE REGARDING THIS LITIGATION, THEY HAVE PUT THE WORDS IN THERE, "CHURCH HANDBOOK OF INSTRUCTION," AND EXCERPTS REGARDING REMOVING ONE'S NAME. THOSE WORDS ARE IN THERE. THOSE WORDS ARE ON THE WEB SITE. YOUR HONOR DID NOT TELL US TO REMOVE THOSE WORDS FROM THE WEB SITE. THOSE WORDS ARE ON THE WEB SITE. WHAT WE DID WAS WE REMOVED FROM THE INDEX, FROM THE TOPICAL INDEX, THE WORDS, AND WE REMOVED THE LINK. THE WORDS ARE ON--AS OPPOSING COUNSEL INDICATED, THOSE WORDS ARE ON THE WEB SITE AT LEAST TWICE; ONCE IN THEIR DEMAND LETTER WHERE IT SAYS, "TAKE THESE--TAKE THIS MATERIAL OFF THE WEB SITE. WE HAVE POSTED THEIR DEMAND LETTER. THOSE WORDS DESCRIBING "CHURCH HANDBOOK OF INSTRUCTION" ARE THERE, AND THEY'VE BEEN THERE.

THE OTHER PLACE THAT IT LISTS, AS I SAY, IS IN THE CHRONOLOGY OF THIS LITIGATION. AND IT SAYS ESSENTIALLY, "THIS LITIGATION IS ABOUT CHURCH HANDBOOK OF INSTRUCTION VOLUME ONE," AND THESE EXCERPTS. SO WHEN YOUR HONOR SAYS, "REMOVE THE TOPICAL INDEX," THAT'S WHAT WE DID. THE WORDS ARE STILL THERE. YOUR HONOR DID NOT ORDER US TO REMOVE THE WORDS "CHURCH HANDBOOK OF INSTRUCTION BOOK ONE" FROM THE INTERNET SITE. IT'S NOT ON AN INDEX. IT'S NOT ON A TABLE OF CONTENTS. YOU CAN'T CLICK ON IT AND GO TO THE TEXT.

MR. BARNARD: WITH REGARD TO THEIR SUGGESTION THAT MY CLIENTS HAVE INDUCED, CAUSED OR MATERIALLY CONTRIBUTED TO REPRODUCTION, DISTRIBUTION OR DISPLAY BY ANOTHER, MY CLIENTS HAVE NO CONTACT WITH, DO NOT KNOW THE PERSON THAT POSTED THAT 160 PAGES ON THE INTERNET SITE IN AUSTRALIA.

THE COURT: DO YOU THINK THAT'S NECESSARY? I MEAN DO THEY HAVE TO KNOW IT? I MEAN IF THEY LOOK AND THEY SEE THAT IT'S A REPRODUCTION OF THE WORK AND THEY SAY, "GO THERE," DO YOU THINK THE FACT THAT THEY DON'T HAVE PERSONAL CONDUCT IS NECESSARY? ISN'T WHAT IS IMPORTANT IS THE FACT THAT THEY DIRECT OTHERS TO WHAT THEY KNOW TO BE AN INFRINGING WORK?

MR. BARNARD: I DO NOT THINK THAT CONSTITUTES CONTRIBUTORY INFRINGEMENT. THE MERE FACT--THAT BEING THE CASE, OPPOSING COUNSEL HAS ANNOUNCED TO THE WORLD THAT IT'S ALSO ON AN INTERNET SITE. HE HASN'T PROVIDED THE SITE, BUT HE'S TOLD THE WORLD THAT IT'S ON AN INTERNET SITE.

THE COURT: LET ME JUST TELL YOU THOUGH. AND I RECOGNIZE FULLY--AND I'M NOT GOING TO DO ANYTHING PERMANENT OR LONG-LASTING WITHOUT HEARING YOUR FULL SIDE OF THE STORY--BUT I AM LOOKING AT THE CASES THAT WERE GIVEN TO ME BY THE PLAINTIFF, AND WHICH YOU DID HAVE SOME OPPORTUNITY TO DISPUTE--AND I RECOGNIZE IT WAS SHORT, BUT YOU HAD SOME--AND WHAT IT SAYS--WHAT THESE CASES STAND FOR IS ONE WHO WITH KNOWLEDGE OF THE INFRINGING ACTIVITY INDUCES, CAUSES OR MATERIALLY CONTRIBUTES TO THE INFRINGING CONDUCT OF ANOTHER MAY BE HELD LIABLE AS A CONTRIBUTORY INFRINGER. AND IT REFERS TO SUCH THINGS AS PEOPLE WHO ADVERTISE, ETCETERA.

AND, YOU KNOW, I'M GOING TO TELL YOU FRANKLY, THAT AT MY LOOK AT THIS CASE--THE CASES NOW, I THINK THEY ARE CONTRIBUTORILY INFRINGING IN WHAT I HAVE IN FRONT OF ME NOW.

MR. BARNARD: AND I WOULD SUGGEST THAT IT'S A DIFFERENT CAUSE OF ACTION, AND THAT THE PLAINTIFF, IF THEY SEE FIT, NEEDS TO FILE A NEW COMPLAINT ALLEGING THAT NEW CAUSE OF ACTION AND POSSIBLY NAME THE SALT LAKE TRIBUNE AS A DEFENDANT. BECAUSE BASED UPON WHAT YOUR HONOR JUST SUGGESTED, AND WHAT THE PLAINTIFFS HAVE SUGGESTED, THE SALT LAKE TRIBUNE IS IN THE SAME SITUATION AS MY CLIENTS.

THE COURT: YOU THINK THE SALT LAKE TRIBUNE BY PRINTING IT HAS ENCOURAGED PEOPLE TO GO THERE?

MR. BARNARD: ABSOLUTELY. AND IN FACT THE DOCUMENTS THAT ARE ATTACHED TO THE REPLY MEMO--AND, AGAIN, FOR LACK OF TIME, THE DOCUMENTS THAT ARE ATTACHED TO THE REPLY MEMO, SOME OF THEM ARE FROM MY CLIENTS' WEB SITES; SOME OF THEM ARE NOT. THEY ARE NOT VERIFIED. THERE'S NOT AN AFFIDAVIT TO SUPPORT THEM.

I WOULD ASK THE COURT, SUGGEST TO THE COURT, THAT THEY'RE NOT PROPERLY BEFORE THE COURT FOR LACK OF VERIFICATION. AND WHAT YOUR HONOR SAID IS THAT DIFFERENT EVIDENCE IS REQUIRED TO ESTABLISH CONTRIBUTORY INFRINGEMENT. THERE IS NO EVIDENCE--THESE DOCUMENTS ARE BEFORE THE COURT. THEY'RE NOT BASED UPON ANY SWORN TESTIMONY. THEY'RE NOT BEFORE THE COURT PROPERLY.

THE COURT: MR. BARNARD--AND JUST TO SAVE US THIS EXERCISE--IF I WERE TO ASK THAT ONE OF YOUR CLIENTS GET UP THERE, AND I ASKED HER OR HIM IF THAT WAS FROM THEIR WEB SITE, DO YOU REALLY BELIEVE THAT THEY WOULD SAY NO?

MR. BARNARD: SOME OF THESE ARE NOT FROM THEIR WEB SITE, YOUR HONOR; SOME OF THEM ARE, YES.

MR. BARNARD: NOW, THOSE DOCUMENTS ALSO, YOUR HONOR, ARE E-MAILS THAT MY CLIENTS HAVE RECEIVED--FOR INSTANCE, THE ONE THAT BOLDLY STATES, "CHURCH HANDBOOK OF INSTRUCTION IS BACK ON LINE," THAT IS AN E-MAIL THAT MY CLIENT HAS RECEIVED AND HAS PUT ON THEIR INTERNET SITE. THAT IS NOT THEIR WORDS DIRECTLY. IT IS THEIR WORDS THAT THEY POSTED ON THEIR INTERNET SITE.

MR. BARNARD: THAT'S CORRECT. IT'S OUR POSITION, YOUR HONOR, THAT--AND WE'VE--WELL, ANOTHER MENTION THAT I WOULD LIKE TO MAKE, AND OPPOSING COUNSEL SAID IT TODAY AND SAID IT IN THE PLEADINGS, THAT MY CLIENTS HAVE CONCEDED A COPYRIGHT AND CONCEDED INFRINGEMENT. WE HAVE NOT.

FOR THE PURPOSE OF A TEMPORARY RESTRAINING ORDER AND FOR THE PURPOSE OF A PRELIMINARY INJUNCTION, WE HAVE SAID WE WILL CONSENT TO IT. WE'VE NOT FILED AN ANSWER. OUR ANSWER IS DUE IN TWO DAYS. WE WILL RESPOND. WE HAVE NOT CONCEDED A COPYRIGHT. WE HAVE NOT CONCEDED INFRINGEMENT. WE'VE SIMPLY SAID FOR THE PURPOSE OF A TEMPORARY RESTRAINING ORDER.

THE INITIAL REQUESTED RELIEF THAT THEY'VE ASKED FOR, REMOVING THE INTERNET ADDRESSES FROM MY CLIENTS' WEB SITE, REMOVING THE INDEXES, AGAIN, AS I SAY, THE INDEX--THE INDEX THAT WAS ON THERE AS OF THE PRELIMINARY--OR TEMPORARY RESTRAINING ORDER HAS BEEN REMOVED. MY CLIENTS STILL HAVE THE WORDS ON THERE.

WITH REGARD TO THE INDUCING, CAUSING, MATERIALLY CONTRIBUTING, WE DENY THAT WE'VE DONE THAT. I DON'T THINK THAT'S PROPERLY BEFORE THE COURT, AND THAT IS SUBSTANTIALLY DIFFERENT THAN WHAT WAS ORIGINALLY ASKED FOR. AND I WOULD BE HAPPY TO PREPARE A WRITTEN BRIEF AND SUBMIT THAT TO THE COURT.

MR. ZENGER: BRIEFLY, YOUR HONOR. LIGHTHOUSE'S VERY ARGUMENT THAT THEY WEREN'T ORDERED TO REMOVE CERTAIN WORDS DOES NOTHING BUT MAGNIFY OUR NEED FOR CLARIFIED LANGUAGE THAT IT COVERS CONTRIBUTORY INFRINGEMENT.

THE ONLY OTHER COMMENT I HAVE IS THAT WITH RESPECT TO EXHIBITS 4 AND 5, WE HAVE A WITNESS HERE WHO IS WILLING--MR. NELSON, WHO IS WILLING TO STAND UP, AND I PROFFER HIS TESTIMONY, THAT EXHIBITS 4 AND 5 ARE TRUE AND CORRECT COPIES OF DOCUMENTS DOWNLOADED FROM THE WEB SITE FROM THIRD-PARTY--FROM THIRD PARTIES. THAT'S ALL I HAVE, YOUR HONOR. THANK YOU.

THE COURT: LET ME TELL YOU WHAT I'M GOING TO DO. FIRST OF ALL, I AM GOING TO ENLARGE AND CLARIFY TO SOME EXTENT MY T.R.O., BUT I DON'T WANT TO SAY ORALLY BECAUSE I WANT TO THINK ABOUT IT BECAUSE I NEED TO BE VERY CAREFUL ABOUT IT. I WANT TO TAKE INTO ACCOUNT WHAT I BELIEVE HAS BEEN SHOWN AT THIS STAGE VERSUS WHAT HASN'T BEEN SHOWN. I WOULD ANTICIPATE TOMORROW I'LL GET THAT T.R.O. OUT. IN THE MEANTIME, THE EXISTING T.R.O. STILL STANDS.

THE NEW T.R.O. IS GOING TO COVER SOME ACTIVITIES THAT I BELIEVE AT THIS STAGE THE DEFENDANTS ARE DOING THAT--THAT ARE CONTRIBUTING TO THE INFRINGEMENT. I'M MAKING IT TEMPORARY BECAUSE AS YOU POINT OUT, AND VERY CORRECTLY, MR. BARNARD, YOU HAVE NOT REALLY HAD A FULL TIME TO TELL ME WHAT YOU BELIEVE THE FACTS AND THE LAW SHOW. AND I'M CERTAINLY NOT GOING TO ENTER A PRELIMINARY INJUNCTION THAT WOULD COVER--ALTHOUGH PERHAPS A PART OF INFRINGING, THAT'S COVERED INFRINGING, A DIFFERENT PART, AND I WANT TO KNOW A LITTLE BIT MORE ABOUT THAT.

SO I'M GOING TO REVISE MY TEMPORARY RESTRAINING ORDER. THE OTHER ONE IS GOING TO STAY IN EFFECT UNTIL--UNTIL THE NEW ONE COMES OUT, PROBABLY TOMORROW. AND I'M GOING TO SET THIS DOWN FOR A HEARING, AND I'M GOING TO ASK YOU, MR. BARNARD, FOR ACCELERATED BRIEFING, AS MUCH AS POSSIBLE, OKAY, SO THAT I CAN SEE WHAT YOU HAVE TO SAY.

THE COURT: IT'S KIND OF A CROWDED WEEK, BUT WE'RE GOING TO DO IT NEXT WEEK. CAN YOU GET YOUR WORK DONE, MR. BARNARD, NEXT WEEK--BY THE END OF THIS WEEK AND SO THAT I COULD GET A REPLY SAY BY TUESDAY, WEDNESDAY AND HAVE IT TOWARD THEN? IS THAT A POSSIBILITY?

THE COURT: WHAT'S TODAY, WEDNESDAY? COULD I--I WOULD LIKE TO HAVE THE HEARING ON LIKE THE 17TH OR 18TH FRANKLY.

THE COURT: BUT I NEED TO HAVE YOUR BRIEFING--IF I SET IT AT 9:30 ON THE 18TH, AND I ASK YOU, MR. BARNARD, TO HAVE YOUR MEMORANDA IN TO ME WITH A COPY--NOT MAILED, OKAY? HAND DELIVERED. I'M GOING TO HAVE THE SAME COURTESY EXTENDED TO YOU--HAND DELIVERED TO THE PLAINTIFF NO LATER THAN 5:00 P.M. ON THE 15TH, OKAY? DO NOT DROP IT IN THE MAIL.

AND THEN, MR. ZENGER, I KNOW THAT IT'S A HARDSHIP, BUT I'M GOING TO ASK YOU TO HAVE YOUR REPLY TO ME 5:00 P.M. THE 17TH. NOW, IT DOESN'T HAVE TO BE THE BIGGEST REPLY IN THE WORLD BECAUSE HOPEFULLY I'LL BE ABLE TO HAVE FIGURED IT OUT A LITTLE BIT. AND THEN HAND DELIVER A COPY TO THE DEFENSE.

THE COURT: AND THEN WE WILL HAVE 9:30 THE 18TH A HEARING ON THE PRELIMINARY INJUNCTION AND IT WILL COVER THE QUESTION OF DIRECT AND CONTRIBUTORY INFRINGEMENT.

NOW, I WILL HAVE MY CLERK CONTACT BOTH PARTIES AS SOON AS MY TEMPORARY RESTRAINING ORDER IS READY TO GO, SO YOU WILL HAVE IT PROBABLY TOMORROW MORNING. OKAY?