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Complete transcript of hearing to decide whether to grant the Worldwide Church of God a temporary restraining order against the Philadelphia Church of God

WCG wants federal court to stop PCG from reprinting and distributing Mystery of the Ages, the book by Herbert W. Armstrong

LOS ANGELES--The following is a transcript of proceedings of the application for a temporary restraining order brought in U.S. District Court, Central District of California, by the Worldwide Church of God, Pasadena, Calif., against the Philadelphia Church of God, Edmond, Okla., to ask the court to restrain the Philadelphia Church of God from reproducing and distributing the book Mystery of the Ages, written by Herbert W. Armstrong. The book's copyright is held by the Worldwide Church of God.

This transcript (verbatim but slightly edited here for spelling, punctuation and capitalization) represents the proceedings in Judge J. Spencer Letts' court beginning at 10:14 a.m. Feb. 18.

Representing the plaintiff (the WCG) was attorney Benjamin Scheibe of the legal firm Browne & Woods, Beverly Hills, Calif.

Representing the defendant (the PCG) was Mark Helm of the firm Munger, Tolles & Olson, Los Angeles.

Also present was WCG attorney Ralph Helge.

The transcript was certified as a correct record of the proceedings by Terry Kramer, certified verbatim reporter.

The clerk: CV-97-875-JSL, Worldwide Church of God vs. Philadelphia Church of God. Appearances.

Mr. Scheibe: Good morning, your honor. Benjamin Scheibe of Browne & Woods for plaintiff. With me is Ralph Helge, cocounsel.

The court: Good morning.

Mr. Helm: Your honor, I'm Mark Helm from Munger, Tolles & Olson. We represent the defendant, the Philadelphia Church of God.

The court: I've read plaintiff's materials. I don't seem to have anything from you, Mr. Helm. Am I right about that?

Mr. Helm: That's correct, your honor.

The court: Do you have anything to say?

Mr. Helm: Yes, sir, I do.

The court: Outstanding.

Mr. Helm: Your honor, we have only recently been brought into this case, and so what I will tell you is based on my understanding of the facts as they exist now. Obviously, we'll need to investigate further.

We do not think that a TRO [temporary restraining order] is appropriate at this point. The plaintiff has represented to the court that this is a garden-variety copyright infringement case. Nothing could be farther from the truth.

This is a very significant case involving issues arising under the First Amendment, including the Free Exercise of Religious clause.

Let me just briefly tell you a little of the background here. Herbert Armstrong was the founder of the Worldwide Church of God. He was its leader, its spiritual father, for many years. He died at some point in the late 1980s.

After his death the church-the Worldwide Church of God, that is-started to take a somewhat different path from what Mr. Armstrong had taken and what he had preached. They start to become a little bit more mainstream, getting rid of some of the idiosyncratic, some would say, tenets that Mr. Armstrong had followed. And in fact they strayed from Mr. Armstrong's work to the extent that in January of 1989 they took out of print Mystery of the Ages, which is the book that we are talking about.

And, again, based on my understanding, your honor, this is not a case where the Worldwide Church of God is exploiting the copyright in order to disseminate and earn profits from Mystery of the Ages. This is a case where they are trying to suppress and not disseminate Mr. Armstrong's books; that's our understanding.

The court: That's mine as well.

Mr. Helm: And so, your honor, the founders of my client, the Philadelphia Church of God, were ministers in the Worldwide Church of God who got to the point where they believed they needed to split off and form their own church, which was more faithful to the tenets and the views of Mr. Armstrong.

They view his book, in essence, as the scriptures of their religion. It is the central basis and other works of his for what makes them a church and what distinguishes them from the plaintiff church.

And as I also understand it, your honor, my client is not selling this book. It is distributing the book free of charge as a way to communicate to the public the teachings of the church's spiritual leader.

Let me address the two issues that are relevant to the issuance of the TRO, the first being possibility of success on the merits.

To the extent I can, I would like to preserve the personal jurisdiction issue, your honor. I need to look into it more to find out about it.

And I understand that my client is based in Oklahoma, that it owns no property in California, and so we may need to get into that at some point.

Leaving that aside, there are two issues--

The court: But I don't think you can do that. What is that cute expression about fishing and bait? You're going to have to make a choice.

Mr. Helm: Well, maybe I could ask what is the basis for personal jurisdiction? It wasn't pleaded in the complaint as far as I could see. Could I inquire of the plaintiffs what the basis is?

The court: Yes.

Mr. Scheibe: Your honor, I think it was pleaded in the compliant, but declarations also establish that the infringing book itself was sent into California.

There's case law out of the Southern District of New York, also out of George, that even if that's done through an intermediary that's sufficient for jurisdiction.

The court: Well, that's a little dubious. Those are sales cases.

Mr. Scheibe: No, your honor, these are copyright-infringement cases where the infringing work was sent into the jurisdiction-

The court: For sale.

Mr. Scheibe: I'm sorry?

The court: For sale, I believe.

Mr. Scheibe: One was for sale, one was a performance of a copyright[ed] song, which was just performed nationwide, and it was done through an intermediary again.

The court: For sale.

Mr. Scheibe: We also--

The court: It's going to go through ASCAP [a company that tracks and processes royalty charges on and payments for music recordings]. You will not have any jurisdiction based on noncommercial-

Mr. Scheibe: Your honor, we also believe that there's general jurisdiction over the plaintiff for various reasons, including the fact that they have television broadcasts that are shown in the state; they have congregations we believe here that are ministered to by ministers who live in the state.

I don't think there's any question but that we have both general and specific jurisdiction here. I would, of course--

The court: Which do you want to do? Are you here to contest jurisdiction, or are you here to contest the merits?

You may have a right to do both. You don't have to make a special appearance, but I'm not sure that you can come and sort of reserve it as a special appearance.

Mr. Helm: Well, your honor, perhaps then we should discuss how to proceed. As I say, I've been on this case for exactly 24 hours, and I--

The court: Well, let me help you. I can't imagine a TRO is going to get granted.

Mr. Helm: I'm sorry?

The court: I can't imagine a TRO is going to get granted.

Mr. Helm: Okay.

The court: I just thought I'd let you say so.

Mr. Helm: Okay.

The court: If that is the case, your honor [the judge is speaking here, although the official transcript in this instance seems to have him addressing himself], perhaps I should, in order to preserve the personal-jurisdiction argument, sit down at this point and simply reserve our arguments for such time as we make a written opposition to the preliminary-injunction papers.

Generally speaking, without the jurisdiction question, if you get a TRO then the other person, the defendant, has the choice of how long he wants to take. He's not doing it in the meantime. If you don't get a TRO, then it's plaintiff's speed, which is usually 20 days.

A case like this one is not going to take over 20 days, so far as I can tell. There's not going to be a lot of factual distinction. It appears to be a pure question of law.

I don't see why in this court you're not going to be on appeal from a preliminary injunction or denial thereof within a month; that's the end of it.

I don't see that a TRO for that kind of period is going to be very useful, nor is it really indicated. It does not appear to be that kind of an emergency under the copyright laws.

There are a number of problems on the face of it, most of which I think you adverted to. I'm not sure that suppression isn't akin to abandonment, so I'm not sure that your pleadings aren't ultimately going to defeat you.

I haven't done the research because you haven't pointed me to it yet, but you will, because you already made the point that you're dealing with something rather different when the basic position is that of a dog in a manger.

You are also dealing, I think, with something rather different. The case law you are citing all goes back before the statute, the name of which-even the initials of which I can't call to mind, but you know what I'm saying-the Restoration of Religious Freedom Statute.

There can be a fact question, but I don't see how it's going to take very much to develop it. I can imagine a fact question, the degree to which one can fairly say this scripture. I hear the word, the same word I used. I don't know that that's true just because you or I say it. To the extent that it were considered that, you would have very different questions.

And I guess I would say right now I don't think there's probable success on the merits, and if this were a preliminary injunction I would not be granting it.

As to jurisdiction, as to all those questions, that's going to be the time schedule. If you fight jurisdiction successfully, it may or may not be in interest. I can't speak to that.

Mr. Helm: And, your honor, I don't meant to be difficult; it's simply that I'm always reluctant to wait a client's possible argument without having fully considered it.

The court: Judges-and I don't think any of us, so when I put it this way I don't suggest it-if there were a judge that got very wound up in his right to decide cases, it seems to me he would have to be a bad judge.

There is a point after a case is well underway where it's clearly unfair to either back out of a case or be taken out of some kinds of cases. A case gets filed--I can't imagine having an awful lot of investment in who decides it.

This case did get filed. It is here. And that is the process that it will follow. I would give you a chance to argue, but I think you made your arguments in your papers.

There isn't the appearance of enough of an emergency to grant a TRO. There isn't an appearance of an appropriate balance of hardship for the grant of a TRO on the assumption that I can meet the plaintiff's schedule, which I would, and on the assumption that at this minute I can't see why it should take more than a month to have it on preliminary injunction.

Does anybody want to talk? I don't think I'm going to change my mind.

Mr. Scheibe: Your honor, I would like to address the merits. I'm somewhat at a loss with the court's suggestion there's not a probability of success on the merits here.

I don't think there's any question but that religious materials are amenable to copyright protection.

The court: Of course, they are.

Mr. Scheibe: I could cite chapter and verse on that. Your honor mentioned the Religious Restoration Act. I have a case which I didn't cite in the papers but I would like to call to the court's attention.

The court: Is it a Ninth Circuit case?

Mr. Scheibe: It's a case out of the District of Arizona, so it's within the Ninth Circuit, but it's a district-court case.

The court: I doubt I'll be persuaded by it.

Mr. Scheibe: Well, your honor, it's the Urantia Foundation vs. Maaherra, 895 F.Supp, 1329. And the facts are very similar.

A woman took a copyrighted book called the Urantia, which was religious material, and she began copying it and disseminating it, as did the Philadelphia Church of God here.

A copyright action was brought against her, and, as Mr. Helm raised, she raised the First Amendment and the Religious Freedom Restoration Act, and the court found that neither one of those arguments was sufficient to allow her to avoid liability for copyright infringement.

The court: That may be right. Let me tell you why I think you're not going to succeed on the merits here. The copyright seems to me to have two primary purposes, neither of which are at issue here. One is to keep there from being confusion about who is the person publishing the work; the second is to keep strangers from profiting from the work.

Neither of those is at issue with somebody who wants to suppress the work entirely. There is no confusion. And what you are talking about, on the strength of your papers, is something that so far as I know no copyright case has ever put at issue.

It wasn't a question of whether there would be two publishers or three, but rather whether there will be one or none. And, when you talk about a scrutiny test and a burden test, I think you're going to miss it without reference to whether it's a freedom-of-religion issue.

The other thing that you don't have in any of the existing cases, which the facts, again, I wouldn't think would be very hard to develop in this case-what they'll turn out to be, I don't know; it's a different question-this is admittedly a work by the founder of a religion who has died.

To the extent that a case can be made, scriptures case, the Bible, there are no cases quite like that, so when you're talking about, as it sounds to me, because it sounds to me the way your papers put it, and it's also what Mr. Helm said, was a doctrinal split among people who are established people, institutional members of the religion.

The doctrinal split, you simply don't have a case where those people who wound up in control of the institution, whatever it is-I don't know if it's a corporation, or whatever it is-that the people after the founder have split and one says not this is a fight over who will publish but rather this is a fight over whether this religious document will be published, I think you have no case like that, and I don't think you're going to find one.

Mr. Scheibe: Well, your honor--

The court: I don't think we're even going to get to it.

Mr. Scheibe: --let me address a couple of points, your honor. First of all, I think the Urantia case is still of significance, because what the court said is--

The court: It's a district-court case, and I can tell you it's of no significance, so let me say to you--I've said it and I don't mean to sound however it might sound--f a lawyer before me on the facts before me can't make arguments better than a district court made on the facts before it, there's something wrong with the lawyer.

The fact that a district court has decided something, including this one, if a lawyer who won in front of me can't make a better argument than mine, having read mine to the next district court, there's something wrong.

Mr. Scheibe: I understand, your honor. Let me skip over that.

First of all, I think that the right to-there is no evidence that there is a suppression here. The court mentioned--

The court: No, that was your statement, actually.

Mr. Scheibe: It was my statement?

The court: Yes.

Mr. Scheibe: I don't think we've made--

The court: It's in the papers.

Mr. Scheibe: I don't think we've stated that we've tried to suppress the work, your honor.

The court: What you said is you're not going to publish it anymore, and you want them restrained. I'm not aware there is anybody else that's even thinking about--

Mr. Scheibe: It's out of print, your honor, but it's available. This is not a case-you mentioned abandonment. Abandonment requires overt acts such as destroying the last copies of a work, acquiescing in unauthorized publication by others.

That's not what's happened here. We have a copy of the work that we submitted to the court. It's not been destroyed; it's not been suppressed. It's in the archives; it's in libraries.

If Mr. [Gerald] Flurry [pastor general of the Philadelphia Church of God], in the--

The court: How would you get it back from them?

Mr. Scheibe: I'm sorry?

The court: How would you get it back from them?

Mr. Scheibe: From whom?

The court: From archives and libraries.

Mr. Scheibe: Make a request, your honor. That's where this copy came from.

The point is if Mr. Flurry wants to preach the message of this book, nobody is trying to stop him from doing that. He's allowed to stand up in front of his congregation and say this is the most important book that has been authored in the last 1,900 years, and let me tell you what Mr. Armstrong says, and to build upon what Mr. Armstrong said in this book in giving his sermons or in urging his congregants to--

The court: I understand.

Mr. Scheibe: --go out to the public library and check out that book and read it for themselves, but what he's not entitled to do is simply slavishly copy the book and distribute it to the public.

The copyright laws do of necessity include the right to suppress. It may not sound like a good word, but the idea of having the exclusive publication right is to decide whether or not you want to publish. There are many books that are out of print--

The court: It is entirely possible that you will prevail on the merits; unlikely, but possible.

Mr. Scheibe: There are many books that are out of print, your honor, and there's no case that holds that merely because a book is out of print it's been abandoned.

The court: I read your papers. I think I've made that obvious--

Mr. Scheibe: Well, let me give you--

The court: But I don't think you're going to prevail on the merits.

Mr. Scheibe: Let me go beyond the papers and the case law and let me give you an analogy. If we assume that what Mr. Helm said is correct, that there's an attempt to suppress this--and I don't believe that's accurate--the church may not wish to print it, but it's not preventing people from basing their sermons on it or urging people to go out and read it.

Let's take an example of a singer, like Frank Sinatra. Suppose Mr. Sinatra recorded some songs back when he was in high school or college in the '40s and he decided later on in his career, when he because very successful, that he was embarrassed. He didn't like the songs; he didn't like the way he sounded.

He has every right as a copyright holder to prevent some Sinatra fan from going out and preparing bootleg versions of those songs and distributing them, whether it's for profit or whether it's just because somebody says this is one of Frank Sinatra's greatest performances and I want to share it with the world.

The court: I agree with that.

Mr. Scheibe: Then I don't see how this case is any different, your honor.

The court: Well, think about it some.

Mr. Scheibe: Again, your honor, there's no attempt to prevent Mr. Flurry from building upon this work, from using--

The court: I understand your position. Right now I think it very unlikely that I will agree with it on the merits.

Mr. Scheibe: May I inquire as to why? Is it the First Amendment--

The court: I told you once; I'm going to be repeating myself.

Mr. Scheibe: Your honor--

The court: Frank Sinatra is not a religious entity, and this is. Sooner or later I will know whether this is a corporation or what it is. It must have some entity.

Mr. Scheibe: The plaintiff?

The court: Yes.

The court: It's a not-for-profit corporation, your honor--

The court: That's what I rather assumed.

Mr. Scheibe: --under the California law.

The court: This is an entity that has a corporate structure, and it also has a religious structure. The people who inherited the corporate structure are not all of the people who used to have religious position. Some of the people that had religious position have now either been taken out of the corporate structure, or they were never in it.

The question is-and it is to me a new one-does the surviving corporation, through its board of directors and all such people, have the right to suppress the founder-in the context they're not doing it themselves-do they have the right to prevent there from being future printing of the religious founder's work? Yes, it's available. If you look far enough now, you can probably still find it. Is that legitimate, or is it not legitimate?

Right now I think it is not. Will I think so in two weeks or four weeks or whatever it is? I don't know, but I don't think so.

Mr. Scheibe: Your honor, I would point out also that there is a threat of irreparable injury, and I think there are at least serious questions here.

And under the Apple Computer formulation they've sent out over 2,000 copies, and they say they're giving it away for free, but we have evidence in the papers that they've received donations as large as $10,000 as a result of distributing this. To say it's not a for-profit enterprise, I don't think it reflects the realities of the situation.

They send out a very cute little announcement with the book saying, by the way, we don't solicit contributions, but the implied message is if you want to send us some money we'll be more than happy to take it, and people have taken them up.

Mr. Flurry announced to his congregation that he got a $10,000 contribution; he got a $500 contribution. He got another $500 contribution; he got a $53 contribution from somebody who'd-

The court: You might actually have some damages.

Mr. Scheibe: I believe we also have a threat of irreparable injury here, your honor.

The court: But I don't.

Mr. Scheibe: Your honor, I would urge you to take a look at the Urantia case, even if it's not binding on this court.

The court: Why?

Mr. Scheibe: I think the reasoning is persuasive.

The court: Then tell me what it is.

Mr. Scheibe: The reasoning in the case is that the First Amendment does not protect you from the application of facially neutral laws, such as the copyright laws.

As long as the Philadelphia Church of God is free to go out--

The court: There's nothing new about that.

Mr. Scheibe: -as long as the Philadelphia Church of God is free to go out, build upon Mr. Armstrong's words and create something new and original, the analogy in the copyright law always is that the midget standing on the shoulders of the giant can see farther than the giant can. The idea of using somebody else's work in your own work is to build on it and progress.

Here they just slavishly copied, and they're distributing a direct copy with an altered copyright, which is a crime.

The court: I understand your position, but I don't agree with it. The issue is going to be something that I haven't seen yet, and that is with a founder's work--I can tell you, although I don't know to what it's germane, my own view of what it ought to take to be a religion--some combination, maybe size, and certainly you have size here, but I think the founder plus the first set of disciples is sort of the rule against perpetuity, a religion that meets the rule against perpetuity certainly is one and should have all religious protection.

Whether this is a circumstance that justifies that, I don't know; I can't speak to that. I don't know how big it is, and my impression is that it's a very substantial religion.

I do think that if it is, as I suspect it is, that when you're dealing with the first generation after the founder, that you're dealing with very different religious issues and you're dealing with a founder's work in the first generation after the founder's, and when you've had a split in the religion, which was by definition different from the corporation, does the corporation as to the founder's works, the founder did not dream, I suspect-this is what he's going to be saying-he didn't dream that by giving this copyright to the corporation, which was his corporation that reflected his religion, that those who would come after him would use their corporate power to suppress his religion or to keep any prior practitioners of his religion, or any people that were ever vested with the authority of that religion, notwithstanding they don't have the corporate position, from making that book available on a continuous, freshly printed basis-I don't believe the founder dreamed that.

You don't have a case that comes even close to it.

You're not going to be dealing with a closed mind, but what I know about this case, but for what Mr. Helm said, is what you've told me, and it raises in my judgment very serious questions and very serious irreparable harm on the other side as well.

A corporation is doing this to the practitioners. Maybe it has the right, maybe it doesn't. But it doesn't have the right today. It may acquire the right on a preliminary injunction, but it doesn't have it today.

Now, how fast do you want to go?

Mr. Scheibe: Well, your honor, I guess we would like to have a fairly quick hearing. The only caveat to that is if they're serious about pursuing the jurisdictional argument, I think we'll need some time to take some discovery, which perhaps I can work out on an expedited basis.

The court: Why don't you all just talk about that and work that out and let me know? Set a schedule. If they prevail on preliminary injunction, you set the schedule.

You can set the schedule if you want to, just consent to a TRO. If you don't consent to the TRO, they set the schedule; that's easy. Work that out between you and we'll get to the end of that.

My expectation is that the factual development should be pretty limited and should be pretty quick. It seems to be self-evident what the facts that would need to be developed are, and I don't see that they should be hard.

Mr. Scheibe: Your honor, can we now set it at 20 days, and if we--

The court: Sure.

Mr. Scheibe: --decide among ourselves we need more time for discovery-

The court: Sure.

Mr. Helm: The 20 days for hearing or for our opposition, your honor?

The court: I think he meant for hearing, but I'm easy. The truth is, Ms. Webb, I work for her, I just do what she tells me. March 10 for a hearing, and then you can agree on briefing, 3 o'clock.

Mr. Scheibe: March 10 will be fine, your honor, 3 o'clock.

Mr. Helm: And we'll agree on a briefing schedule between ourselves?

The court: Yes.

Let us know, because if we have a problem with that we'll have to get back with you.

Actually, Mr. Edor is the law clerk. You can call him. The reason for that is because you can do that ex parte, and it's harder to talk with me ex parte. If he has a problem, it will be between him and me, so it's probably better to talk to him.

Mr. Scheibe: That's concerning the briefing schedule?

The court: You better call her.

Mr. Edor is a fine person, but he's a traitor and a bad person. He's not really a traitor; he told me he was going to leave. But he is leaving. We'll have to design around that.

Anything else?

Mr. Scheibe: Just so I understand, your honor, we're to agree on a briefing schedule and submit it to the court.

The court: Talk to Ms. Webb.

Mr. Scheibe: And if we can't agree?

The court: Well, then get a conference call to me.

Mr. Scheibe: Thank you, your honor.

The court: But you'll agree.

Mr. Scheibe: I think we can.

Mr. Helm: How soon before the hearing would you like to have the papers done?

The court: At least three or four days.

Mr. Helm: Three or four days.

The court: Four days.

Mr. Helm: Maybe by Wednesday or Tuesday of the week before the Monday?

The court: Yes. He's not going to do it; he'll agree to anything.

Anything else? If not, we'll be in recess.

On Feb. 28, 10 days after this hearing to request a temporary restraining order against the Philadelphia Church of God, the Worldwide Church of God dropped the case in the federal court in Los Angeles and a few days later, on March 3, refiled it in the Tenth Circuit Court in Oklahoma City.


 
 
 
 
 
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