Monday, March 21, 2005

Scientology Set for Defeat at Dutch Supreme Court

The Church of Scientology must have had a sour celebration of the birthday of their founder L. Ron Hubbard, last Friday. On that day the advice of the main legal counsel to the Dutch Supreme Court, the "Advocaat-Generaal" D.W.F. Verkade, was published, which reads as a preamble to a likely defeat of the Church in a court case over copyright and freedom of information.

The case started ten years ago, when on 5 September 1995 the Church raide the ISP XS4ALL and confiscated computer equipment, because one of its customers had published the so-called Fishman Affidavit on its website. The Fishman Affidavit is a witness account from 1993 submitted to the library of the District Court for the Central District of California, where it was available for two years. It is a testimony of former member Fishman on the practices of the Church against opponents of the Church. The testimony contained copyrighted texts of Hubbard, which the Church demanded to be removed from the library, as was done. However, the document already circulated on the internet, and Dutch writer Karin Spaink published it on her (XS4ALL) website, leading to the aforementioned raid and a long winding court case in The Netherlands.

In 2003 a Court of Appeals in The Hague recognized the copyright of Scientology, but found that Spaink's publication should be allowed on the basis of article 10 ECHR (freedom of speech). Especially since it has an informative, non-commercial character, and the Church of Scientology shows anti-democratic objectives. This decision has been appealed, and now the Dutch Supreme Court will give its decision on July 8, more than likely taking over the advice by D.W.F. Verkade.

In his advice to the Dutch Supreme Court Verkade notes that under certain circumstances copyright, which also falls under 10 ECHR, has to yield for the freedom of information, protected by the same article. Verkade thinks that the Church cannot rely on its copyright, mainly basing his argument on article 15b of the Dutch Copyright Act (Full English Version):
The further communication to the public or reproduction of a literary, scientific or artistic work communicated to the public by or on behalf of the public authorities shall not be deemed an infringement of the copyright in such a work [...]
Verkade argues that the American Court is part of the public authorities mentioned in the article and that with the initial submission of the contested texts to the American Court's library, where it was available to the public, the Church can no longer prohibit the "further communication to the public or reproduction". That the texts were made available against the copyrightholders will and by a foreign public authority has no influence on the applicability of article 15b (compare pp. 31-38).

Verkade also notes the important role of the internet, echoing some of the sentiments over journalism and blogging, currently fueled by the court case of Apple against bloggers in the United States:
To my opinion it does not need argumentation that the position of information providers on the internet is in many aspects comparable to that of the press. The press has its classically defined, but in the 20th century further evaluated and expanded contours. The 'press' is not a closed concept. The internet has given a further expansion to the possibilities for individuals and organisations to play a role (...) that was was factually limited to restricted groups before the internet era. (p. 44) [translation mine - RL]
Verkade also writes that hyperlinking should not be judged by copyright law, but by (secondary) liability laws as applied to ISPs (p. 68).

This 80+ pages advice is very interesting, giving a broad analysis of the relation between copyright and the freedom of information, while shining some light on other important topics related to internet publication. At the expense of the repressive (mis)use of copyright by the Church of Scientology the Dutch Supreme Court will likely judge in favour of the freedom of information on the internet this summer.
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Advice D.W.F. Verkade: 1 [2.2 MB], 2 [2.3 MB] [PDFs, Dutch]
Dutch (news) sources: SOLV, XS4ALL press release, WebWereld
Later: XS4ALL English press release

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