Saturday, December 17, 2005

Scientology v. XS4ALL: Supreme Court Poops Party

Friday the Dutch Supreme Court gave its long-awaited decision in the lawsuit between Scientology and ISP XS4ALL. The legal battle that had the (tense) relationship between copyright an freedom of expression at its centre, ended somewhat disappointing.

On the left is the "Final Victory"-shirt XS4ALL gave away to 5000 of its subscribers. The 0-4 refers to XS4ALL's legal victories over Scientology. The latest (0-3) was in the Court of Appeals (2003), which recognized the copyright of Scientology on the texts of its founder L. Ron Hubbard that were included in a witness account used in an American court. Writer Karin Spaink published the account on her website, hosted by XS4ALL, leading to a copyright infringement claim by Scientology in 1995. While recognizing Scientology's copyright, the Court of Appeals 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. Scientology appealed the decision to the Supreme Court.

The Supreme Court's legal counsel advised that the appeal should be rejected, not so much because copyright had to yield for the freedom of speech, but because 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" under provision 15b of the Dutch Copyright Act [English Version].

After this advice Scientology asked the Supreme Court to grant a withdraw of the appeal, if not to avoid another condemnation . In a reaction XS4ALL wrote that "It's in line with Scientology's strategy to withdraw itself from lawsuits it has started. XS4ALL hopes that the Supreme Court will not accept this tactic."

The Supreme Court has accepted the tactic, and dismissed the appeal as requested by Scientology [decision, Dutch]. While this means that the decision of the Court of Appeals stands, it also means that the case has not really been judged by the highest instance. For XS4ALL this may not have brought the broadest "Final Victory" they hoped for, but final it is and its sweetness must take away some of the bitterness of the last ten years.


Anonymous Branko Collin said...

"While recognizing Scientology's copyright, the Court of Appeals found that Spaink's publication should be allowed on the basis of article 10 ECHR (freedom of speech)."

This is not the whole story, and without the whole story it sounds a bit funny (IMVHO, as IANAL), because it sounds like a recognition of copyright means that the court had to drag in some weird European rule to find for Spaink. As if there are no forms of fair dealing in the Netherlands.

From what I understand, the law only allows quotation from works that have been legally made public before. The court found that even though tens of thousands of people have been extorted, er, I mean, given the opportunity by the CoS to read these documents, that does not mean the documents have been made public. Rather, the fact that all readers so far are members of a closed society, namely the CoS, would suggest that the documents had not been made public.

From the ruling: "De eis van een rechtmatig openbaarmaking in artikel (thans) 15a is ontleend aan artikel 10, eerste lid van de Akte van Parijs van de Berner Conventie betreffende het citaatrecht en wordt daar gesteld omdat men het citaatrecht niet wilde laten gelden voor manuscripten of werken voor een beperkt publiek, maar alleen voor werken die tot het gehele publiek gericht zijn."

In other words, since the CoS had no intention to address the entire public with the disputed documents, the documents could not legally be quoted from.

And that's where article 10 ECHR enters the picture, because it is an exception to the exception.

Strange; if copyright exists to enrich the public domain ultimately, would that not mean that all works are aimed at the general public?

27/12/05 03:59  
Anonymous AhmNee said...

Isn't by trying to enforce these copyrights and claiming their puplications are not for the public taking the CoS dangerously close to being a business and not a religion? How far can they push this before their practices are deemed beyond the scope of a church and they lose their tax-exempt status?

27/12/05 21:18  
Blogger the Flying Wonder Monkey said...

Im glad that XS4ALL won. The CoS is very shady and I think they need a little humbling.

Side Note: Can we order one of those T-Shirts from somewhere?

29/12/05 17:07  
Anonymous tin295 said...

Are there any other colors available? Yellow makes me look so dull and boring. Does the yellow shirt signify something? Just curious. Could have be better with red.

4/9/06 10:37  
Blogger Guy Barry said...

I have to trust that the courts are fair

8/11/06 15:59  
Anonymous Anonymous said...

Hi congrats on the winning of XS4ALL. It was really nice to read ur blog.

Thanx & Regards,
Free web site submission

19/5/07 07:00  
Blogger OneEar said...

I can see why a religion would not want its message spread willy-nilly.

13/9/07 13:27  
Anonymous nick said...

New post?

10/10/08 16:25  
Anonymous Elisa said...

great blog. love reading it.

21/7/09 12:28  

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