Round Two: WCG, Part Two
“Suppose the book contained the recipe for building a nuclear weapon, and it’s out in publication—the author says, ‘… I don’t want this floating around the world. I’m going to call back all the copies and destroy them.’”
— Judge Schwarzer Ninth Circuit oral arguments, Dec. 6, 1999
On Sept. 18, 2000, the Ninth Circuit filed its opinion, voting 2 to 1 in favor of the wcg. Judge Letts’s ruling was reversed. The Honorable William W. Schwarzer wrote the opinion for the majority. Schwarzer noted that the wcg discontinued Mystery for a variety of reasons, including that it “conveyed outdated views that were racist in nature. Its Advisory Council of Elders indicated that the church stopped distributing moa because of ‘cultural standards of social sensitivity’ and to avoid racial conflict. The Council noted, ‘Insensitivity in this area is contrary to the doctrinal program of the wcg to promote racial healing and reconciliation among the races.’”
That was on page 1. In their brief, the wcg had said Mystery had social errors. “For instance, increasing sensitivity to racial harmony meant that certain passages authored by Mr. Armstrong—who matured in a very different United States of the 1910s and 1920s—did not reflect wcg’s aspirations for the late 1980s.” That’s the way wcg attorneys explained it. Of course, we don’t agree with that assessment at all. But Schwarzer advanced the wcg’s critique to flat-out say Mystery of the Ages is racist! It’s not just outdated or insensitive—it’s racist—it causes racial conflict! Ralph Helge wouldn’t even take that position. Tkach Jr. would. But still, this was coming from a federal judge who was ruling on a matter regarding copyright law and whether or not printing an abandoned book is fair use.
At oral arguments the year before, Schwarzer clearly identified the “key issue” of the case: the application of Section 107 of the Copyright Act. Then why so much in his September 18 opinion on the inflammatory subject of race? He did address the matter of copyright law later in his ruling. But when he introduces his opinion, on page 1, with the “fact” that Mystery of the Ages is racist, one wonders if his personal views about the book or Mr. Armstrong skewed his judgment on a purely legal matter.
Maybe there really was something sinister implied by his “recipe for building a nuclear weapon” analogy the year before.
As for the legal arguments Schwarzer made, he believed the “work for hire” issue was irrelevant since Mr. Armstrong bequeathed Mystery of the Ages and the rest of his estate to the wcg in his will. Whether he controlled the church, or vice versa, did not matter to Schwarzer. Mr. Armstrong’s personal desires for Mystery to be distributed widely did not matter either. What mattered was that wcg owned the copyright.
The judge later elaborated on the four factors for determining “fair use.” The first factor, we believe, weighed heavily in our favor since our use of the book was not for profit, but for educational purposes. But the way Schwarzer saw it, we were profiting from the book because in printing it, we had a “core text” that would attract new members, who would then become tithe-payers.
The second factor considers the work’s nature—whether it is a factual account or a creative work. And since the fair use doctrine “recognizes a greater need to disseminate factual works,” we felt like this tilted in our favor also. Problem is, Schwarzer reasoned, while pcg members might consider Mystery of the Ages factual, those outside the church would consider it a work of fiction. Unbelievable.
The third factor, the amount copied, also weighed against our use, Schwarzer said, since we copied the entire book. “pcg uses the moa as a central element of its members’ religious observance; a reasonable person would expect pcg to pay wcg for the right to copy and distribute moa created by wcg with its resources.” While he doesn’t see how fair use would allow wholesale copying of Mystery, it is interesting that he accepted the fact that the book is central to our religious beliefs. If that’s the case, how is it fair to say, in the very same opinion, that the pcg uses Mystery of the Ages as a “marketing device”? Is the Book of Mormon a marketing device? What about the Catechism of the Catholic Church? Do Mormons and Catholics use those documents to make money? Or do they represent bodies of belief—religious teachings that readers may either faithfully believe and follow, or cast aside as scripturally flawed? If an individual donates to the Mormon Church because he believes the Book of Mormon is the truth of God, is he practicing his religious freedom, or merely making a business transaction based on clever marketing by a supposedly “nonprofit” Christian church? Using Schwarzer’s logic, how could a church even be considered nonprofit?
It’s not like the subject of tithing is unique to the Philadelphia Church of God. Nearly every church in existence collects tithes and/or freewill offerings from adherents who consider it part and parcel of their religious faith. The patriarch Abraham paid tithes to Melchisedec—and without ever having read Mystery of the Ages. Jesus told the Pharisees of His day to tithe. Was He a salesman just marketing a product? The Hebrew words for “tithe” appear 41 times in the Old Testament—the Greek equivalent surfaces in the New Testament 10 times.
If Mystery of the Ages really is central to the Philadelphia Church of God’s teachings and beliefs, as Schwarzer acknowledged in his opinion, then to say it is also a marketing device is tantamount to religious bigotry.
On the fourth fair use factor, Schwarzer said there was “undisputed evidence” showing “that individuals who received copies of moa from pcg are present or could be potential adherents of wcg.” Here again, he took Allan Browne’s nonsense a step further. Allan said the wcg wanted to lure former members back into the fold and possibly even offer them Mystery of the Ages again. Schwarzer added that our distribution of the “racist” book might actually prevent people from joining the wcg!
“Because the church plans at some time to publish an annotated version of moa, it is entitled to protection of its copyright.” Schwarzer either bought into the annotated idea, or else he knowingly accepted the sham on account of what he believed to be the greater good—to prevent us from a “fair use” distribution of a “racist” book.
With that, the court granted the wcg’s permanent injunction against our distribution of Mystery of the Ages and ordered the pcg to pay the wcg’s costs for appeal. In addition, the case would be sent back to the district level for a damages trial to determine how much we owed the wcg for our “unauthorized” republication of the book.
On the surface, about the only thing good to come from the Ninth Circuit ruling was Judge Brunetti’s dissent. Like Judge Letts in the district court, he put the lawsuit in proper perspective. Right at the outset of his opinion, he said, “The copyright dispute in this case arises from a change in religious doctrine of the Worldwide Church of God.” Later, he wrote, “When wcg changed its church doctrine and renounced much of Armstrong’s teachings, the founders and believers of pcg were forced from wcg as they could no longer practice their religious beliefs as set forth in moa. It was wcg’s doctrinal shift and renunciations that created the pcg and its need to publish moa.”
Indeed, were it not for wcg’s unprecedented transformation, there would have never been a pcg!
On the four factors of “fair use,” Brunetti saw it much differently than Schwarzer. The first factor, in Brunetti’s view, weighed heavily in our favor. We are a nonprofit organization, he said. And even if you take into account the donations that came in specifically for Mystery distribution, those monies did not come close to covering the overall costs for printing and distributing the book, Brunetti explained. He also drew attention to the wcg’s own admission that Mystery of the Ages was a costly production, and one of the reasons it was discontinued in the first place.
The second and third factors were mostly irrelevant in this case, Brunetti wrote. But the fourth factor, as has also been established by the Supreme Court, is the “most important statutory factor.” On this point, Brunetti once again placed the dispute in its proper context. “wcg’s decision to cease publication of moa, destroy inventory copies, and disavow moa’s religious message in the context of its doctrinal shift as a church demonstrates that moa is no longer of value to wcg for such purposes, regardless of pcg’s actions.”
When judging by fruits, you see, this whole case ought to be rather simple to weigh in on. Brunetti continued, “Because wcg has admitted that it has no plans to publish or distribute moa as originally written, there can be no market interference.”
Regarding the annotation, like Judge Letts, Brunetti wrote, “pcg’s use creates a larger potential market for an annotation rather than interfering with it. Moreover, the failure of wcg to make any reasonable progress on the annotation over the course of a decade as well as wcg’s belief that it has a Christian duty to keep Armstrong’s doctrinal errors out of circulation tends to undermine the credibility of wcg’s intention to publish any such annotation.”
Brunetti’s conclusion summed up the wcg position beautifully: “In this lawsuit, wcg appears less interested in protecting its rights to exploit moa than in suppressing Armstrong’s ideas which now run counter to church doctrine.”
To us, Brunetti’s dissent was a shining bright spot in the lawsuit’s passage through the Ninth Circuit. His remarks, like those of Judge Letts, emboldened our approach to this case. My father described Brunetti’s opinion as a “powerful dissenting opinion” that had “great clarity.” He said, “Perhaps this was inspired by God and something dramatic is awaiting us.”
The way we looked at it, of the four judges to hear the case, two of them saw right through the wcg’s smokescreen and interpreted the fair use doctrine exactly the way we did. It’s just that the other two made a two-thirds majority at the Ninth Circuit. But in a lot of ways, the views of Schwarzer and Tashima motivated my father more than that of the other two judges. “This is too outrageous for words,” my father told our membership five days after the Ninth Circuit ruling. “It ought to outrage God’s people! I think it’s nothing less than scandalous for you to take and reverse the decision of a district court with such reasoning as that.” He was referring to the annotation sham in particular. Indeed, Schwarzer’s words aroused a fighting spirit in my father not unlike the deceitful betrayal Tkachism had during the late 1980s. “I’ll tell you this,” my father continued, “if we’re not willing to fight against such a blatant and a flagrant violation of our rights, I think something has to be wrong with us spiritually. This has made me mad! And I want to fight more than ever. … I want to take them on. … I want to represent the great God. I want to defend God. And it makes no difference who’s out there fighting against God, that’s what we’re here for! That is what we are—defenders of the faith.”
Helge Informs the WCG Membership
Prior to the court of appeals ruling, most of the wcg membership was left in the dark regarding the lawsuit. Indeed, many of their own members had absolutely no idea their church was even in court. After their victory, however, Ralph Helge was quick to gloat before the membership. “pcg does have certain limited rights to request the court to modify the opinion and for some other procedural matters, and we assume they will petition for such relief. However, for all practical purposes, [the Ninth Circuit’s ruling] would seem to be final in all material respects.”
Two months later, Helge then backtracked in order to explain the church’s rationale behind instigating litigation in the first place. “I would like to clarify for the members of the wcg, and all others who may be interested, why the wcg filed this lawsuit in the first place. Having represented the wcg for about 42 years, I can say that it has only been in extreme circumstances that the wcg has ever taken the affirmative step of filing a lawsuit.”
He was responding to flack they were getting from their own members! Apparently, some couldn’t understand why they would take us to court over something like Mystery of the Ages—a book espousing doctrine they disavowed and even ridiculed, as well as destroyed. Helge explained that the church had an obligation to protect its “assets.” After all, if the pcg just helped itself to Mr. Armstrong’s literature, what’s to stop us from seizing control of other property?
He then told members about the annotation project, which must have come as a complete shock to most of them. “Just before the pcg’s inappropriate commandeering of wcg’s copyrighted assets, the wcg’s board of directors was considering what use they should make of these assets.” In actuality, the undisputed facts of the case reveal that it was just after we “commandeered the assets” that the wcg suddenly became interested in them. But I digress. According to Helge, the board “even discussed whether it would be appropriate for the church itself to reprint and publish certain of such literary works, reprinting Mystery of the Ages in annotated form explaining to the public where the church is in disagreement with conclusions in the book.”
And what did those discussions ultimately lead to? “Unfortunately [these discussions] came to an abrupt halt when the pcg undertook, to use the federal court’s language from its own opinion, an act of piracy. The wcg then could not proceed with its own considered action regarding the literary works because to do so would give the false impression that the wcg was intimidated into doing so by the pcg’s act of aggression.”
Yet another chapter added to their fictitious story. They were just about to use Mystery of the Ages until we came along and preempted their plan, forcing them to set it aside in order to stand up to an aggressive bully.
Our Finest Hour
A few days after the ruling, my father exhorted us to fight as if our very lives depended on it—and to do so with a positively optimistic outlook. “God is with us,” he said.
On Oct. 10, 2000, we submitted a petition to all 27 judges at the Ninth Circuit for a rehearing en banc. But the Ninth Circuit rejected our petition on November 9. On the surface, it appeared the odds were stacked heavily against us—especially since the chance of ever being heard at the Supreme Court is 1.6 percent. (Of the 5,000 or so requests for appeal every year at the Supreme Court, only about 80 of them are accepted.) But we were excited by the prospect of just submitting our case before the highest court in the land. What an honor, we thought.
Beyond that, there was the counterclaim. As much as the wcg would have liked it to piggyback on top of the Mystery ruling, it was an altogether separate case. And the longer litigation wore on, the easier it would be for us to expose the annotation lie by pressing them on the “plans” for the project.
We also saw a brightly-lit silver lining in the damages trial, because it would be tried before a jury. All along, my father felt that if we could tell our story before a jury, and expose the wcg for what it deceitfully did to Mr. Armstrong’s legacy, we would gain a distinct advantage. It’s one thing for a high-ranking wcg official to distort the truth and change his story in a deposition that most people never see. But to be exposed as a liar before a 12-person jury and a packed courtroom is much different. And rest assured, even if only a damages trial, we were determined that those men would be brought before the jury to answer for what they had done.
And besides what might happen in court, who knew what might happen outside of court. As my father told pcg members, something “dramatic” was going to happen in this case. “This news could be the greatest blessing this church has ever had,” he said. “A miraculous decision from God can change this little work as a winning decision … never would have.” Hearkening back to the 1970s, when the state of California seized control of the wcg’s assets and falsely accused Mr. Armstrong of all kinds of outrageous activity, my father said, “I’ve always thought that what happened when the state of California attacked the church under Mr. Armstrong, that that was the church’s finest hour. … It unified God’s people as nothing ever did.”
“It’s not over yet,” my father insisted. “We’re going to win this thing in the end. We absolutely know that.“