Title: Disputed Facts re
Ownership filing
Author: inForm@super.zippo.com (Rev. Dennis Erlich)
Date: Tue, 28 Oct 1997 02:48:51 GMT
Faithful Reader,
MoFo filed this as one of several filings presented to the court on October 15th to
counter the scienos' motion for summary judgement which would give them
undisputed/indisputable ownership of the material in question in my case. The rest of the
filings are sealed. Whatever that means.
Excuse the formatting. I could not get it to lay out straight.
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION
RELIGIOUS TECHNOLOGY CENTER, a
California non-profit corporation; and BRIDGE
PUBLICATIONS, INC., a California non-profit
corporation,
Plaintiffs,
v.
DENNIS ERLICH, an individual,
Defendants.
No. C-95-20091 RMW (EAI)
DENNIS ERLICH'S SECOND
REVISED STATEMENT OF
DISPUTED ISSUES OF
MATERIAL FACT IN SUPPORT
OF HIS OPPOSITION TO
PLAINTIFFS' MOTION FOR
PARTIAL SUMMARY
JUDGMENT AS TO OWNERSHIP
Date: To Be Determined
Time: To Be Determined
Ctrm: Hon. Ronald M. Whyte
FILED OCTOBER 15, 1997
AND RELATED COUNTERCLAIMS
DISPUTED ISSUES OF MATERIAL FACT
Defendant Dennis Erlich submits the following Statement of Disputed Issues of
Material Fact in Opposition to the Motion for Partial Summary Judgment filed by
plaintiffs Religious Technology Center ("RTC") and Bridge Publications, Inc. ("BPI") on
the issue of standing and ownership. As set forth in Mr. Erlich's accompanying
memorandum, RTC and BPI have failed to prove they possess the necessary ownership
interest to sue for infringement of the copyrights at issue in this case.
Plaintiffs either have failed to enter any evidence into the record to support their
assertions of ownership or there is
evidence calling the evidence they have provided into dispute. At a minimum, each item
listed below presents a genuine issue
of material fact, which prevents summary judgment in plaintiffs' favor.
Disputed Issue of Material Fact No. 1:
L. Ron Hubbard was not the sole author of the
works ascribed to him.
Evidence:
Final Taff-Rice Decl., Exh. E at 1,
Exh. J at 798:11-802:7, Exh. T
at 2a; Exh. DD, Exh. SS; Additional
Gold Decl., Exh. B.
Disputed Issue of Material Fact No. 2:
At least 25 of the copyrights were not included
in the Inventory & Appraisement of the Estate.
Evidence:
Hawkins Reply Decl. Ownership, Exh.
D; BPI Revised Binders 4-20, Tab 4;
RTC Revised Binders 21-35 Tab 4;
Additional Gold Decl. Exhs. C and D;
Additional Oakley RTC Decl., Exh. C;
Final Oakley RTC Decl. (August 15,
1997), Exh. A (McShane Depo.) at
543:7-14 .
Disputed Issue of Material Fact No. 3:
L. Ron Hubbard's signatures on some copyright
transfer documents and David Miscavige's
Notary Log Book are not authentic.
Evidence:
Final Fisher Decl., 5-8, 10-11;
Final Taff-Rice Decl., Exh. M at 45-56, Exh. GG at 12, Exh. HH at 39,
Exh. II at 2.
Disputed Issue of Material Fact No. 4:
The 1982 Assignment Agreement transferred a
copyright interest to RTC that was not
accounted for in the probate.
Evidence:
Final Taff-Rice Decl., Exh. T, Exh. U
at 1, Exh. V, Exh. J at 803:13-804:25.
Disputed Issue of Material Fact No. 5:
L. Ron Hubbard was not the original author of OT II and OT III.
Evidence:
Additional Gold Decl., Exh. B (Geoffrey Filbert
Declaration); Final Taff-Rice Decl., Exh. K at 1-2,
Exh. O at Bates Nos. 6415-16, 6419-21, 6423-24,
6426-28, 775, Exh. P at 423-424, Exh. BB at Bates
No. 57 (works listed under 17 Aug. 1983), Exh. QQ
at 2; Reply Declaration of Ryland Hawkins
Ownership, dated July 7, 1997, Exh. B at 2; Exh. SS.
Disputed Issue of Material Fact No. 6:
L. Ron Hubbard was not the sole author and owner of NOTs.
Evidence:
Final Taff-Rice Decl., Exh. G at 2, Exh. H at 11:9-12:13, 13:18-14:1, Exh. J at
407:7-18, Exh. DD
at 3,13; Reply Declaration of Ryland Hawkins
Ownership, dated July 7, 1997, Exh. B at 2.
Disputed Issue of Material Fact No. 7:
The 1987 Exclusive License did not transfer ownership of NOTs to
RTC.
Evidence:
Final Taff-Rice Declaration, Exh. G, Exh. H at 11:9-12:13, 13:18-14:1, Exh. OO at 40, 41
B and E, 42
1a.
Disputed Issue of Material Fact No. 8:
The 1978 Assignment did not convey ownership of NOTs
from Church of Scientology of California ("CSC") to
Mr. Hubbard.
Evidence:
Final Taff-Rice Decl. Exh. E at 2, Exh. G, Exh. J
at 759:20-764:14.
Disputed Issue of Material Fact No. 9:
Further discovery will show that Mr. Hubbard's widow was
under undue influence of the beneficiaries of Mr. Hubbard's
estate to surrender her community property interest in the
estate.
Evidence:
Additional Gold Decl., Exh. A.
RESPONSE TO PLAINTIFFS'
STATEMENT OF UNDISPUTED FACTS
Plaintiffs' Purportedly Undisputed Fact No. 1:
"During his lifetime, L. Ron Hubbard created numerous literary works pertaining
to the Scientology religion that are protected by federal copyright law."
Erlich's Response: Disputed in part.
While Mr. Erlich does not dispute that Mr. Hubbard created literary works during
his lifetime, there are material questions of fact regarding the ownership of and
copyright
protection for the works at issue in this case. See Defendant Dennis Erlich's
Memorandum in Opposition to RTC's Motion and Memorandum in Opposition to BPI's
Motion, both filed October 15, 1997, and evidence and arguments submitted therein; see
also Final Taff-Rice Decl., Exh. O at 6415-16, 6419-21, 6423-24, 6426-28, 775, Exh. P
at 423-24, Exh. Q at 1, Exh. R at 1, Exh. DD at 3, 13; Reply Declaration of Ryland
Hawkins Ownership, dated July 7, 1997, Exh. B at 2.
Plaintiffs' Purportedly Undisputed Fact No. 2:
"All but a small percentage of Mr. Hubbard's original written and recorded works
have been published and made generally available."
Erlich's Response: Disputed.
The "works" that plaintiffs claim in this action are, in fact, published both for fair
use purposes and for purposes of determining whether copyright notices were required to
be used. See Final Erlich RTC Opp. Brf., at section IIC2, and Final BPI Opp. Brf., at
section IIC, and evidence and arguments submitted therein.
Plaintiffs' Purportedly Undisputed Fact No. 3:
"Among the unpublished works is a body of special works known as the "Advanced
Technology," which contains confidential and proprietary information organized into
gradient religious counseling levels."
Erlich's Response: Disputed.
The Advanced Technology materials are not confidential and proprietary, nor are
they unpublished, because they have been publicly available in court files, on the
Internet
and other locations and have been possessed outside the Church of Scientology by
numerous individuals. See Final Erlich RTC Opp. Brf., section IIC2, and evidence and
arguments submitted therein; Final Erlich Decl., filed August 15, 1997, 5.
Plaintiffs' Purportedly Undisputed Fact No. 4:
"Mr. Hubbard died on January 24, 1986. His Estate was duly administered in the
California Superior Court, San Luis Obispo County, Case No. 20855."
Erlich's Response: Disputed in part.
Mr. Norman Starkey was named a trustee for life of RTC when it was
incorporated. Final Taff-Rice Decl., Exh. RR at 6-9. There is no evidence in the
record
that Mr. Starkey resigned or was removed as a trustee, so he held this position while
administering Mr. Hubbard's estate and while apparently granting an exclusive license
which lists no fee, to RTC. Final Taff-Rice Decl., Exh. FF at 1 (introductory paragraph
and 1-3), Exh. RR at 6-9. During the same period, Mr. Starkey had a power of
attorney from Mr. Hubbard's heirs in regard to executing the sale of their renewal
copyrights to himself as the executor of Mr. Hubbard's estate. See Plaintiffs' Motion
for
Partial Summary Judgment as to Ownership, Declaration of Sherman Lenske, dated
April 17, 1997 ("Lenske Decl."), Exhs. D-I. To the extent Mr. Starkey had apparent
conflicts of interest during the administration of Mr. Hubbard's estate, this prevented
its
lawful administration.
Also, Mr. Erlich objects to the extent that this purported "fact" is based on argument
and legal
conclusion and not fact.
Plaintiffs' Purportedly Undisputed Fact No. 5:
"Mr. Hubbard's Last Will and Testament specifically recited his intent to dispose
of his copyrights."
Erlich's Response: Disputed in part.
To the extent the will is authentic and Mr. Hubbard had capacity to execute the
will the day before he died, Mr. Hubbard indicated his intent regarding disposal of
copyrights. Evidence shows the will may not be genuine, because Mr. Hubbard's
purported initials on the signature pages of the Will may not be authentic. Final
Fisher
Decl., 8, 10. Hubbard signed the will a day after he died, and a week after
suffering a
stroke. Final Taff-Rice Decl., Exh. X.
Plaintiffs' Purportedly Undisputed Fact No. 6:
"Mr. Hubbard's will named the Author's Family Trust-B (the "Trust"), an inter
vivos trust Mr. Hubbard had established, as the sole beneficiary of his Estate, again
making specific reference to his intent to dispose of his copyrights."
Erlich's Response: Disputed.
Mr. Hubbard does not make specific reference to disposal of his copyrights in the
January 23, 1986, Author's Family Trust-B. Article VI, referenced by plaintiffs states,
"all principal and accumulated income remaining after the distributions provided for in
paragraphs A, B, C, D, E, and F, above, including any lapsed gifts, shall, as soon as is
convenient, be distributed to the CHURCH OF SPIRITUAL TECHNOLOGY . . . ." Final
Taff-Rice Decl., Exh. HH at 15 (Art VI.G) (emphasis added). Additionally, there is
evidence that shows the will may not be genuine, because Mr. Hubbard's purported
initials on the signature pages of the will may not be authentic. Final Fisher Decl.,
8,
10.
Plaintiffs' Purportedly Undisputed Fact No. 7:
"In 1986, subsequent to his appointment as executor of Mr. Hubbard's Estate,
Norman F. Starkey purchased from Mr. Hubbard's statutory heirs his widow and his
children their rights to renew those copyrights of Mr. Hubbard that were in their
initial
28-year term under the 1909 Act."
Erlich's Response: Disputed in part.
Mr. Starkey did not obtain an agreement regarding renewal copyrights from Alexis
Hollister, who was purportedly Mr. Hubbard's daughter, and who was disinherited in the
trust. Lenske Decl., 32 B.
Also, Mr. Erlich objects to the extent that this purported "fact" is based on argument
and legal
conclusion and not fact.
Plaintiffs' Purportedly Undisputed Fact No. 8:
"The Inventory and Appraisement filed in Mr. Hubbard's probate on April 10,
1987, listed various intellectual properties, including all of Mr. Hubbard's copyrights.
The copyright list of titles alone exceeded 800 pages."
Erlich's Response: Disputed in part.
The Inventory and Appraisement does not support the contention that all of the
works at issue in this case went through probate. See Erlich's Memorandum in
Opposition to Plaintiffs' Motion As To Ownership, filed October 15, 1997, section 2C.
There are numerous discrepancies between the title and/or date of works listed in the
Inventory and Appraisement and works listed in the plaintiffs' Second Amended
Complaint ("SAC"). Among the discrepancies are: a document entitled Scientology: A
New Slant on Life in the Inventory and Appraisement is claimed to be the same work as
"HCO Information Letter 10 Dec 1963 Scientology Zero The Dangerous Environment
The True Story of Scientology;" listed in the SAC; a magazine entitled "Ability 158," is
claimed to be the same work as "HCO Information Letter 10 Dec 1963 Scientology Zero
The Dangerous Environment The True Story of Scientology;" a work entitled "HCOB 12
May 85 FPRD Series 10-C, Exec and Staff Members Form," is claimed to be the same as
a work dated almost three years later entitled "HCOB 4 May 1988 False Purpose
Rundown Executive Posting Qualifications Form;" and "HCOPL 1 May 1965 Staff
Member Reports" is claimed to be the same as a work dated ten years later entitled
"HCOPL 1 May 75 Staff Member Reports." Reply Declaration of Ryland Hawkins
Ownership, dated July 7, 1997, 8 and Exh. D Chart.
Moreover, the Inventory and Appraisement merely indicates that a single work entitled
"OT II
Course" was included in the estate. Hawkins Reply Decl. Ownership Exh. D, Tab 4. There
is no
evidence that RTC "works" number 4-20 were included, and the evidence produced to Mr.
Erlich
indicates that only RTC "work" number 3 was included in the OT II Course. Additional
Oakley RTC
Decl., Exh. C (OTII Checksheet). Similarly, there is no evidence that RTC "works" 21,
23, 24, 28
and 35 were included in the "OT III Course listed on the Inventory and Appraisement.
Hawkins Reply
Decl. Exh. D, Tab 4 and chart, see also RTC Revised Binders D21-35, Tab 4.
Also, it appears that the Inventory and Appraisement was filed before Mary Sue Hubbard
purportedly relinquished her community property rights, and lists materials authored by
others. See
Erlich's Memorandum in Opposition to Plaintiffs' Motion As To Ownership, filed
October 15, 1997, section 2B6.
Plaintiffs' Purportedly Undisputed Fact No. 9:
"On January 3, 1989, the probate court entered its judgment of final distribution
(the Order'), distributing all property of Mr. Hubbard's Estate to the Trust,
including:
1. All Copyrights * * * owned by the decedent at his death,
including those more particularly described in the Inventory &
Appraisement filed herein on April 10, 1987 . . . .'
The Order also included an "Omnibus" clause, providing that:
Any other property of the estate, including any property not now
known or discovered, that was owned by decedent at the time of his
death or in which his estate has acquired or may hereafter acquire
any interest is distributed to NORMAN F. STARKEY, TRUSTEE
OF THE AUTHOR'S FAMILY TRUST-B, AN INTER-VIVOS
TRUST ESTABLISHED JANUARY 23, 1986.'"
Erlich's Response: Disputed in part.
The probate court's Judgment of Final Distribution also fails to prove that
copyrights for all of the works at issue went through probate. See Final Taff-Rice
Decl.,
Exh. NN at 3:15-18, see also Erlich's Ownership Opp., section II. Additionally, evidence
shows that Mr. Hubbard did not own all of the subject copyrights at issue at the time of
his death. Final Taff-Rice Decl., Exh. E at 1 8, Exh. G, Exh. T at 2a. See
Response
to Fact No. 8.
Plaintiffs' Purportedly Undisputed Fact No. 10:
"Pursuant to the trust, after providing for his wife and for his descendants, the
residue of Mr. Hubbard's Estate was left to the Church of Spiritual Technology ("CST").
Lenske Dec., 14, Ex. C, Art. VI, G. (Trust Agreement)."
Erlich's Response: Disputed in part.
Mr. Hubbard's trust states "all principal and accumulated income" remaining after
specific distributions to his family should be distributed to CST. Final Taff-Rice
Decl.,
Exh. HH at 15 (Art. VI.G).
Plaintiffs' Purportedly Undisputed Fact No. 11:
"This gift, however, was contingent upon CST securing a determination letter from
the Internal Revenue Service ("IRS") recognizing CST as tax-exempt under
section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code")."
Erlich's Response: Admitted, however, Mr. Erlich objects to the extent that this
purported "fact" is based on argument and legal conclusion and not fact.
Plaintiffs' Purportedly Undisputed Fact No. 12:
"On October 1, 1993, the IRS issued its exemption letter to CST."
Erlich's Response: Disputed.
Plaintiffs have neither produced nor entered into evidence the IRS letter, so
Mr. Erlich cannot verify its existence or contents. Fed. R. Evid. 1002.
Plaintiffs' Purportedly Undisputed Fact No. 13:
"On November 29, 1993, Mr. Starkey, as Trustee of the Trust, transferred to CST
all of the remaining assets of the Trust. One of the transfer documents from the Trust
assigned to CST all of the trust's interests in Mr. Hubbard's copyrights."
Erlich's Response: Admitted in part.
Because Mr. Erlich cannot verify what copyrights may have been probated, he
cannot verify what assets may have been distributed to CST. Also, Mr. Erlich objects to
the extent that this purported "fact" is based on argument and legal conclusion and not
fact.
Plaintiffs' Purportedly Undisputed Fact No. 14:
"On September 17, 1987, Mr. Starkey, as executor of Mr. Hubbard's Estate,
granted RTC an exclusive license to the U.S. copyrights to the Advanced Technology,
Lenske Dec., 22, Ex. K, specifically including the right to seek redress for their
infringement."
Erlich's Response: Disputed in part.
Mr. Starkey executed an agreement purporting to grant an exclusive license in the
Advanced Technology copyrights to RTC. Plaintiffs have not proven that those
copyrights were part of Mr. Hubbard's estate and the exclusive license would be valid
only if the copyrights went through probate. Mr. Hubbard may have assigned the
Advanced Technology copyrights prior to 1987. Final Taff-Rice Decl., Exh. E at 1 8,
Exh. T at 3 2a, Exh. KK at 1.
Also, Mr. Erlich objects to the extent that this purported "fact" is based on argument
and legal
conclusion and not fact.
Plaintiffs' Purportedly Undisputed Fact No. 15:
"On November 29, 1993, in connection with final distribution of the Trust's assets,
CST agreed to assume Mr. Starkey's obligations under the 1987 copyright license to
RTC. Lenske Dec., 27, Ex. N."
Erlich's Response: Admitted, however, Mr. Erlich objects to the extent that this
purported "fact" is based on argument and legal conclusion and not fact.
Plaintiffs' Purportedly Undisputed Fact No. 16:
"On October 1, 1991, Mr. Starkey, as Trustee of the Trust, entered into a Literary
Agreement granting BPI the exclusive license to print, publish and sell Mr. Hubbard's
published religious works in North America. This license included the right to seek
redress for infringement."
Erlich's Response: Disputed in part.
The literary agreement executed between Mr. Starkey, as Trustee of the Trust, and
BPI, is a valid grant of rights only to the extent that copyrights for the referenced
works
went through probate and were subject to administration by Mr. Starkey. Final Taff-Rice
Decl., Exh. EE at 1 (introductory paragraph, A), and 2 ( E). Also, Mr. Erlich
objects
to the extent that this purported "fact" is based on argument and legal conclusion and
not
fact.
Plaintiffs' Purportedly Undisputed Fact No. 17:
"On November 29, 1993, in connection with the final distribution of the Trust
assets, CST assumed Mr. Starkey's obligations under the 1991 Literary Agreement with
BPI and ratified the agreement. Lenske Dec., 27, Ex. N."
Erlich's Response: Admitted, however Mr. Erlich objects to the extent that this
purported "fact" is based on argument and legal conclusion and not fact.
Dated: October 15, 1997
Harold J. McElhinny
Carla B. Oakley
Jana G. Gold
Ronald P. Flynn
Morrison & Foerster LLP
By
Harold J. McElhinny
Attorneys for Defendant
Dennis Erlich
Harold J. McElhinny (Bar No. 66781)
Carla B. Oakley (Bar No. 130092)
Jana G. Gold (Bar No. 154246)
Ronald P. Flynn (Bar No. 184186)
Morrison & Foerster LLP
425 Market Street
San Francisco, California 94105
Telephone: (415) 268-7000
Facsimile: (415) 268-7522
Paul Goldstein (Bar No. 79613)
Stanford Law School
Stanford, California 94305
Telephone: (415) 723-0313
Attorneys for Defendant
DENNIS ERLICH
Be well,
Dennis