From: ssteele@eff.org (Shari Steele)
Date: Mon, 23 Jan 1995 16:13:27 -0500
Subject: Open Letter to Church of Scientology

*****POST FREELY AS APPROPRIATE*****

An Open Letter to the Church of Scientology (CoS) and the Net 
from the Electronic Frontier Foundation (EFF)

Over the past several days, the Electronic Frontier Foundation
has received several reports from system administrators and
others about threats of lawsuits they have received from
attorneys for the Church of Scientology and the closely
associated Religious Technology Center and Bridge Publications,
Inc.  These threats apparently are designed to convince sysadmins
to discontinue the carriage of certain newsgroups that involve
discussions of the Church of Scientology and its teachings, solely
on the ground that some of the messages sent through these
newsgroups allegedly involve infringements of CoS copyrights or
other intellectual property rights.

EFF has also received a letter from CoS stating that it would
not use the threat of lawsuits against sysadmins if there were
any other way to deal with allegedly wrongful messages.

EFF believes there is a better way to deal with allegations of 
wrongful messages -- and that using the threat of litigation to 
shut down entire newsgroups, or to persuade sysadmins who
have not originated any allegedly wrongful messages to shut down 
newsgroups, is itself highly inappropriate.

Electronic communications are in their infancy, and most of the
providers are not big corporations with substantial funds to
spend on expensive litigation, but rather small operators who
cannot afford protracted litigation, even if they are in the
right.  The mere threat of a lawsuit could result in some sysadmins 
refusing to carry all sorts of contentious newsgroups simply because 
they could not afford to put on a case to show that they should not 
be held responsible for another party's alleged wrong.  

Rather than attempting through threats of lawsuits to induce 
innocent sysadmins to censor speech, Church members are 
encouraged to participate in Usenet discussions to make their views 
known and refute erroneous posts -- in other words, to answer 
allegedly wrongful postings with more speech.  As U.S. Supreme Court 
Justice Louis Brandeis articulated in 1927: "If there be time to 
expose through discussion the falsehood and the fallacies, to avert 
the evil by the processes of education, the remedy to be applied is 
more speech, not enforced silence."  If CoS claims that a
copyright violation or other wrong not remediable by speech has
been perpetrated by a particular person, then it should confine
its legal threats to that person -- not direct them at an innocent
sysadmin who did no more than forward a message, and certainly 
not at the innocent participants of a newsgroup seeking to exchange 
views through the newsgroup channel. Even if CoS cannot determine 
the identity of the person perpetrating an alleged wrong against it, 
that provides no excuse for cutting off the free flow of information 
over the net.

Events like these show us how important it is to search for new
paradigms for handling disputes that arise from time to time. 
We think the better way to handle this dispute would be to
submit the claims and counterclaims to arbitration or
mediation, perhaps in a proceeding conducted over the net
among the parties to the newsgroup discussion. EFF offers its
services to help find an appropriate mediator or arbitrator
who would be available online for this purpose. Any party to
this dispute that refused to participate in such a forum would,
of course, have to explain why it had done so if a case were
brought in a more traditional court.

Meanwhile, we urge CoS to leave the innocent sysadmins out of
their fight.  We urge CoS not to take actions designed to cut off
the free flow of information through the net.  Where there are
legitimate disputes about particular messages or the wrongful
actions of particular individuals, those can and should be
addressed -- perhaps most efficiently through the new
communications medium itself.