nettime-nl: Unbiased columnism #2: Zenon in court

[Karin Spaink <kspaink@xs4all.nl>]

Stockholm,
Monday, 25 May 1998


			"The material"
			aka. "NOTS? _Which_ NOTS?"


And of course, during the weekend, both of us worked less
than we wanted (and needed) to. There were friends to see,
places to go, sleep to catch up with. I did some work on a
play I�m supposed to have finished by the end of the month,
Zenon did some work on the computer we would need so badly
in the upcoming week.
	On Monday morning we left early. Or at least tried to.
There was no free taxi to be found in the whole of
Stockholm, it would appear: Z was on the phone for almost
half an hour and then finally decided that he would try to
find one on the street. It was a quarter to nine by then;
the court session was to start at 9:30, traffic was still
busy _and_ we needed to buy extension electricity cables for
our gear.

9:20. We arrive and dump & connect some of our stuff in the
courtroom which then needs to be cleared of anything human,
so that the judge can make a proper entrance. We walk
through the corridor, to the smoking room, passing some
people who stand there, talking. A couple of steps removed
from them, standing apart from the rest, is McShame. I
recognise him immediately. He recognises us, too, without
missing a beat. We pass him and look him in the face. He
looks straight back at us and says, dead-pan voice, only
slightly rising his tone while uttering the last syllable:
"Panoussis.... Spaink...." We _should_ have acknowledged him
by saying "McShane..." using this same flat tone, but we
didn�t.
	Court opens. There are seven Scientologists who flock
together on one side of the courtroom. Lots of dark suits.
The only one who stands out is McShane himself, the only one
in a light grey suit and the only one who doesn�t wear
glasses. Next to him is one of Magnusson�s colleagues; he is
to act as interpreter. Tarja Vulto is there: Swedish OSA.
Immediately behind the lawyer/translator is an American
wearing cowboy boots, a four-days stubble and a partially
opened shirt, who will often lean forward when something
interesting occurs, in order to catch the translator�s words
as he relays them to McShane. There is a small man with a
rodent appearance: short dark hair; Swedish. Another man:
blond, nearly bald, Swedish. And another American dark hair,
striking tie. Plus me, since the power outlet is on that
side of the room. There are two people who take seats in
what would become the critic�s section of the audience.
Later, more people join them. Bid  (Birgitta Dagnell),
Swedish a.r.s.-regular and former Scientology member --;
Anti-Cult, a.r.s.-regular and also from Sweden; Karsten,
from the Dialog Centre in Copenhagen (which provides
information about cults and offer support to former cult
members and their families -- "I thought you were a
CoS-goon," he later tells me); and, much to our surprise and
delight, Joe Harrington from the US. And us, from the
Netherlands. Oooh! This was turning out to be an
international suppressive convention.
	When we re-enter the courtroom, the judge is sitting there.
As it turns out, Ingrid Forsstr�m is indeed _presiding_ the
court. She carries a formal, severe and most attentive
expression on her face. Her attitude makes it overtly clear
that she is not going to buy _anything_ from _anybody_.
(Especially not a bridge.) She wants information; she wants
it to be presented to her in a precise, concise and
clear-cut manner; she wants answers, and she is not to be
toyed with. (Somehow she is the personification of what I
have always imagined Judge Brinkema to be like.) The clerk
is the man we had met earlier, last Friday, while we were
going through the sealed documents. He smiles at us.
	This case concerns itself whether or not Z has violated the
Temporary Restraining Order he was subjected to in1996, for
instance when he handed in copies of the NOTS to parliament,
to the administrative court, and to the Court of Appeals.
Magnusson stipulates that Z has violated the TRO. Z
maintains he hasn�t; that besides, it is most unclear to
_which_ materials the term "the materials" the TRO bar him
from publishing exactly refer to, and moreover that he
hasn�t _published_ these NOTS after getting the TRO, but
just provided the three institutes mentioned with copies.
The case is a  semi-penal one: while the alleged copyright
infringement is a civil case, violating a TRO is not, but it
could cost Z 50.000 crowns.

The judge asks Magnusson a great deal of questions.
Magnusson may be well versed in law (although Z believes he
isn�t), but he surely isn�t endowed with the gift of the
gab. He stutters, he hesitates, he sometimes cringes when
asked to give a clarification -- and the judge wanted a
_lot_ of them --, he flushes when being rebuked or proven
wrong, needs to look up stuff in his files and binders
almost continuously, and generally does not strike one as
being very effective or convincing. His definition of
presenting a coherent and motivated argument seems to be to
refer to documents, to mention dates and numbers, and to
subsequently start leafing through files. Magnusson refers
to postings, to Z�s statements on the net, and to his
generally �provocative� behaviour.
	While the judge is directing her questions at Magnusson,
the lawyer/translator has an easy job. When he _does_
whisper something in McShane�s ear, McShane never looks at
him but keeps staring right in front of himself, nodding
slowly. His face is devoid of all expression.
	The judge now turns her attention towards Z. He needs to
explain a lot about the net: the difference between e-mail
and postings; that the name of the sender of e-mail or
postings cannot be taken at face-value, because anybody can
put any name there; that therefore, one needs to scrutinise
the headers of postings and e-mail; that even these can be
faked and that therefore a more solid proof of authorship,
such as an ISP log, is needed when accusations are brought
before court; and that whatever somebody says on the net
does not automatically reflect on their actual behaviour, be
it past, present or future, because words and acts are two
separate things and that moreover, everybody has the right
to lie or to _not_ do what they said they would do.

10:30. Break. We -- by now �we� is Anti-Cult, Karsten, Z, a
journalist and me -- make a dash for the smoking room. When
we open the door, we discover the little room to be crammed
with Scientologists and their lawyers. We enter. You want a
smoke or you don�t, eh, and all of us are heavy addicts.
Immediately, the plaintiff and their representatives clear
the room. (Could they only clear the planet as easily!) "All
of you running away, for only two SP�s?" Z teases them.

10:45. It�s Z�s turn to present his arguments. While
Scientology refers to _all_ materials -- the NOTS he posted
to a.r.s. and got the TRO over, the NOTS-pack he handed over
to parliament, the NOTS-pack filed at the administrative
court, the NOTS-pack sealed by the Court of Appeals
(Attachment 126) -- simply as "the NOTS" or "the material"
and has identified each and every of these packs to be
_their_ copyrighted material, Z argues that these
purportedly identical packs (which, in RTC vs Panoussis, are
each referred to by their file attachment number) do, as a
matter of fact, differ. Some even differ _widely_. The
translator/lawyer tries to keep track of Z�s argument,
jotting down file numbers, and goes cabalistic on McShane. I
see notes such as: 

	126 != 37 + 24
 or
	24 != 37

McShane seems a tad upset. The lawyer/translator is by now
slightly raising his voice. Instead of staring in front of
him as per usual, McShane looks straight at Z. 
	Z postulates that it is impossible to determine exactly
_which_ materials are "the" materials, since the various
packs differ. What makes such a determination even more
difficult is that Scientology appears to be claiming
_everything_ to be theirs, as long as there are a few
recognisable Hubbard-sentences in it,s  I catch McShane
making an ugly face towards Z.

12:00. Another break. Bid and Joe join us when we have
lunch.
	Shortly after lunch, there�s a typical May-25th scene. The
issue at stake is the masked NOTS. Magnusson maintains that
they are identical to attachment 24, 37 and 126. The judge
poses Magnusson a question (sorry, didn�t catch that. My
Swedish is too bad). Magnusson hesitates, is silent for a 
while, and then proceeds to give a short answer. "How do you
_know_?" Z interrupts. "Yes," the judge says, redirecting
her stern and unwavering gaze at Magnusson, "how _do_ you
know?" 
	13:30. The notary who made a comparison between "the
material", in this case, the purportedly original NOTS, and
file attachment 126, and then claimed the latter material
was the same as the former and thus copyrighted by RTC, is
called in as a witness.
	Since this part of today�s session is surely dealing with
actual quotes taken from "the material", the doors will
close and the audience is requested to vacate the room.
Magnusson, McShane, the translator/lawyer, Z and the court
are the only ones allowed to hear what Birgitta
Alexandersson, the notary, has to relay.
	We leave. As it turns out, we have the smoking room to
ourselves; it will remain ours in the days to follow. The
Scientologists either hang around in the corridors or sit in
the court�s cafeteria. We wait. Karsten entertains us with
myriad stories, Joe explains why he dislikes big cities, we
make lot of ARSCC and Prozac jokes and wait. Oh and we
smoke, of course.
	A break during the closed hearing allows Z a smoke and him
and me a short conference. The notary/witness claims to have
made a random selection, in this way arriving at seven NOTS
from attachment 126, which she then proceeded to compare to
RTC�s purportedly "originals", and found that yes, they were
the same. I have _seen_ attachment 126 and know what is
amiss with it. Attachment 126 is most certainly not an
original NOTS pack. 
	We�re only allowed back in the court room after two hours,
perhaps three, of closed hearing. As it turns out, Z was
able to challenge the notary statement. Many, if not most,
of the NOTS included in attachment 126 are, erm, let me put
it this way, mocked up. There are Borkified versions of
purportedly original NOTS. (Yes, RTC claimed these to be
their own.) There are Soul-Bro�ified versions of purportedly
original NOTS. (Yes, RTC claimed these to be their own.)
There are cut-up and re-montaged versions of purportedly
original NOTS. (Yes, RTC claimed these to be their own.) 
	I myself have seen at least ten versions of NOTS 1, each
one different, all of them making no sense, not even in the
Hubbardian meaning of the word, because the order of
paragraphs, the order of sentences and sometimes even
_parts_ of sentences have been completely reshuffled. (Hmmm.
Didn�t Alice end a courtcase in which the prosecutor
demanded that her head be cut off, simply by calling her
opponents �a deck of cards�?) Yes, RTC claimed these
montaged version of NOTS 1 to be their own. "Look," they had
said during the closed session, "this sentence here"
(pointing at a file included in attachment 126) "is exactly
the same as this sentence there" (pointing at a purportedly
original NOTS 1). At this point, everybody -- the
notary/witness, the lawyer/translator, Magnusson, McShane,
Zenon -- had gathered around the judge�s table and were
leaning over her shoulder. "But the sentence preceding it
_and_ the sentence following it, are _not_ the same as in
your supposed original," Zenon pointed out. "Yeah but
well..." McShame said, "_those_ sentences appear _elsewhere_
in the same scrambled NOTS."
	They even claimed (as we found out last Friday), copyright
to one of _my_ articles.  In the list the notary had
provided Magnusson and the court with, it says: "File
Attachment 126, no. 143, OT III Course". This file 126/143
was however most certainly not the original OT3 course but
my summary and comment of OT3, the one that has been on my
homepage ever since February 1996
<http://www.xs4all.nl/~kspaink/fishman/ot3.html>. "But it
contains Hubbard quotes," McShane said. "_Quotes_," Z
repeated. "They are even _ascribed_ to Hubbard. But the
copyright of this article, of the entire article itself,
resides with Karin Spaink. It even says so at the end. It�s
not copyrighted by RTC but by her." "But we�re suing her
over that," McShane argued. "Until now, you�ve lost," Z
kindly reminded him, "and the Dutch court has approved of
this article and has stated that it is not to be considered
a copyright infringement."
	[I wonder whether I should sue RTC over falsely claiming
copyright over something I wrote.]

16:00 or so. Scientology was to call another witness -- a
Scientology-member who was going to state that Z had handed
out copies of the NOTS on the street -- but RTC by now
decides that they will drop this witness. Perhaps they were
afraid Z would grill him about _which_ NOTS Z allegedly
handed out. Or perhaps they were scared that Z would ask the
witness to explain _how_ he ascertained that these NOTS were
original. (Z was really looking forward to the witness
saying: "well, my superiors told me".) Or perhaps this
Scientology member had by now defected. You never know. Shit
happens.

Time for both parties� final plea.
	Magnusson is first. By now McShane is getting a
sentence-by-sentence translation and is far more interested
than he was earlier this morning; he even sits askance in
his chair to not miss a word. The cowboy-boots man listens
closely as well. Magnusson is as eloquent as usual, that is:
not. Z listens attentively, sometimes making a note or
asking for a clarification.
	Zenon�s turn. He argues. Calmly. He speaks. Rather
fluently. He talks again about the net and about the NOTS --
"the NOTS? _Which_ �the� NOTS?" -- and argues that giving a
copy of the NOTS -- any NOTS -- to parliament doesn�t equal
publishing or distributing it, and so on and so forth; he
uses a certain amount of rhetoric, but presents his
arguments in a concise, and it would seem convincing way.
Then again, I�m prejudiced.
	The court wraps up. How much will each party request as for
legal costs if they win, she wants to know. "30.000 kronor,"
Magnusson says; which translates to plm. 4000 US$, a very
small amount compared to what RTC has requested in the US in
similar cases, although for Swedish courts, it�s much in
cases like these. The court asks Z how much he requests.
"Erm, some copies, and phone calls, and other stuff.... let
me see.... Well, 500 kronor." (Equals 70 US$.)
	He�s not in it for the money, that�s for sure.
	The court adjourns. Verdict due on June 8th.

17:30. We�re outside the courtroom. I�m disconnecting (now
don�t you take me wrong. There were just so many plugs to
undo: Z� computer, mine, an MD recorder, a microphone,
extension cables) and repacking the gear. McShane walks by,
and Z asks whether he could have a word with him. (He�d
asked earlier, during lunch. "Of course," McShane had
answered.) "Public or private?" Z asks. "I don�t care,"
McShane answers. They go to the next couch and sit down.
	Z restates his previous proposal. _If_ RTC would admit to
the NOTS having been legally published -- and thereby
subject them to _all_ the privileges, rules and exceptions
to copyright law, not just the ones they like; meaning:
granting the right to individuals to keep and make copies
for their private use, and allow the right to quote -- he
would gladly admit to having committed copyright
infringement. He is prepared to pay a symbolical tort for
this infringement and both parties will pay their own legal
costs. McShane flatly refuses. "But take a pragmatic point
of view," Z says. "By accepting such a settlement, you could
bow out graciously while you still have room to move and
even claim -- you do value your public image, that much I
know -- that I have committed copyright infringement. You
may even get some money out of me."
	"But if you _don�t_ accept, this will happen. I might lose
part of tomorrow�s case. You might lose part of tomorrow�s
case. Nobody knows. It is not up to us. But what I will
surely win is the court stating that the NOTS have been
legally published. You might even lose more than that. Now
of course you will appeal this part of the decision anyway,
even if it is the only part you lose, and perhaps _then_ you
can undo it. But meanwhile, people are in their full right
when they abide by _this_ ruling. They will start quoting.
They will have legal copies. They will start quoting more.
And there�s nothing you can do about it."
	"And if you win this _whole_ case, you�re perhaps even
worse off. People will get angry over my losing this case,
and I predict that more havoc will ensue."
	"Now, if you yourself, of your own free will, without the
court forcing you, grant others this right, you will re-earn
some of the respect you�ve lost, prevent another stage of
escalation, and earn yourself some peace. What do you say?"
[All this is my summary. Don�t bind Z to this.]
	Again, McShane refuses. "What do you win if you _do_
continue?" Z insists. "There�s no money to be gotten out of
me. I�m broke. I will not pay you. I _cannot_ even pay you."
	McShane refuses. Scientology has basic tenets of belief,
and keeping the NOTS secret is part of that, he explains.
"But apart from the fact that they _are_ being spread via
the net and that secrecy has already been broken, if it ever
existed, and apart from the fact that by now this secrecy
has become legally void -- there�s copies from parliament,
from the court that everybody can request; as a matter of
fact, one member of today�s court audience bought a copy of
a NOTS pack here today -- you will only get yourself more
adulterated copies if you do not admit to your NOTS having
been published and putting out an original version yourself.
Everybody will attempt to post everything they can get their
hands on, they will claim it�s yours, and you have no way to
control that," Z argued. [Perhaps they want adulterated
copies floating around, I tend to think. That way only RTC,
and Scientology, can exert this hold over their followers
and are able to disavow anything else somebody else claims
to be an original OT or NOTS.]
	"And it will remain a _sport_ to find them and publish them
on the net and you will never rid yourself of this struggle.
Don�t you realise that by being so rigid, you create your
own opposition? I�m offering you a way out of that. The more
you fight, the more opposition you create."
	I join them. Z explains to McShane that he had stumbled
upon my homepages, had found this fight regarding the
Fishman Affidavit interesting, read up, and had decided to
join. Out of which sprung this case, which has by now
already resulted in open copies of NOTS in court and in
parliament. McShane seemed to disbelieve this. It can�t have
been an accident that Z started his homepage; there must
have been more to it than that. I explain that there wasn�t;
nor was there in my case; there was nothing except
Scientology�s own utter rudeness which had gotten me into
this net fight. 
	We argue a bit more. And then leave.

Karsten, Bid Joe, Z and I go for a drink. Then we have
another one. It turns into dinner. Joe can�t get enough of
this image of Zenon all by himself fighting RTC and have
them all worked up and nervous and ... and ... At twelve, we
get back home, get our asses into bed and fall asleep.



---------
Erratum:
 
Previously I wrote, concerning my recently acquired status
as bitr�de, that I was presented with a TRO regarding my
disclosure of whatever I learned during my study of the
closed files: "the first thing that officially happened to
me while in Sweden was that the court presented me with a
Temporary Restraining Order". That was a Restraining Order,
not a Temporary one.


-- more later --



- K -

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