“Suppose the book contained the recipe for building a nuclear weapon, and it’s out in publication—the author says, ‘My G—, 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, December 6, 1999
“Can all of you keep a secret?” my father asked while cracking a smile. “I’ve decided to print The Incredible Human Potential and The Missing Dimension in Sex,” he announced to 150 teenagers at a youth camp in 1999.
It was yet another bold step forward. The counterclaim had not yet been settled in court. Added to that, the Mystery ruling was under appeal. Yet my father took the district court’s judgment as yet another signal that God was behind us. Furthermore, it removed all doubt, at least in our minds, about the legality of our actions within the scope of copyright law. So we printed two more books in the fall of 1999. In 2000, we printed four additional works: The United States and Britain in Prophecy, The Wonderful World Tomorrow—What It Will Be Like, Pagan Holidays or God’s Holy Days—Which?, and Which Day Is the Christian Sabbath?
Our decision to print more of Mr. Armstrong’s writings could not have come at a worse time for the wcg. Here they were preparing to appeal Mystery, and now they had to confront another monster.
The wcg’s opening brief for appeal relied on many of the same arguments they used at the district level. If anything, they put a stronger emphasis on what Judge Letts had exposed as duplicitous. For instance, Ralph Helge had testified that the wcg board had a “certain degree of control” over Mr. Armstrong,1 a notion Judge Letts never bought into. Yet the language in their appeal brief took it a step further: “Wcg had the right to control Mr. Armstrong’s work.” They did admit that Mr. Armstrong exercised considerable direction over the church, but they likened this to the authority of ceos “who manage their corporations with a very free hand, as long as they enjoy the confidence of the board of directors.”2 Here again, the impression they left on the court was that the board could have fired Mr. Armstrong at a moment’s notice, which contradicted their own bylaws.
By this point in the litigation, the annotation sham was also presented more convincingly. “Those who respond to the pcg’s ads for moa very likely are the same people who would be interested in wcg’s planned annotated version or in any future republication of the original version,” they told the Ninth Circuit Court of Appeals.3 Never mind the “Christian duty” to keep it out of print—now they indicated they might even republish the original version!
Their appeal also accused us of printing the book so we could rev up income. The pcg might offer it free up front, they told the court, but the book only serves as an advertisement to “sell” our real product—getting tithe-paying members. They said we deliberately misled the public by our alteration of the copyright notice in Mystery. This, they said, would give the impression Mr. Armstrong was affiliated with the pcg4 (as if they would want him to be affiliated with the wcg).
We filed our answer to their brief on September 1. On the point about Mr. Armstrong’s authority in the church, we said, “His control over the wcg’s earthly organizations was absolute.” We even quoted from the wcg’s own bylaws, which showed that Mr. Armstrong was in charge of the “ecclesiastical and temporal affairs of the church.” He was the only one required to be a member of the church’s board. He never had an employment contract with the church. We explained that he “simply did not want” one.5
On the annotation idea, of course we noted that this was invented for litigation. “The first time the wcg ever considered or discussed the idea of an annotated moa was after the pcg raised a fair use defense, which suggests strongly that the idea was minted for the purpose of overcoming a fair use defense.” We pointed out how Tkach Jr. said the project would not get started “any time soon.” And we also picked apart Greg Albrecht’s testimony, since he was the one given charge of the “project”: “Albrecht’s efforts to ‘contact potential authors,’ trumpeted by the wcg, actually consisted of little more than making a few calls (none of which were returned) to a writer for a journal that is critical of Armstrong’s teachings and chatting about an annotation with someone else during a coffee break.”6 Not exactly concrete plans.
As for all the money we were supposedly pulling in from Mystery, we told the court the wcg’s argument was based on “anecdote and speculation”—certainly not hard evidence.7 They ignored the fact that we had spent over $200,000 printing and distributing the book to that point—that we sent it free of charge and did not solicit donations from recipients. We also pointed out that one of the initial reasons the wcg gave for discontinuing the work was that it was too expensive.
The Ninth Circuit called for both sides to appear in court for oral arguments on Monday, December 6, 1999. The purpose of oral arguments is not necessarily to cover the material contained in the briefs, but rather to give the panel of judges (in this case, three) one last chance to ask questions of both sides before making their judgment. The judges’ concerns about the case are what dictate the flow of the debate. Both the plaintiff and defendant are given 20 minutes each to answer questions. So attorneys have to go in prepared to answer anything—and to do it in the clearest, most concise way.
My father, Dennis Leap and I arrived at Burbank Airport Sunday night, December 5. We stayed at the Pasadena Holiday Inn. As it happens, it was the same hotel my dad and John Amos had stayed in 10 years earlier, the night they were fired. (We checked out of the hotel on December 7, the same day they had checked in a decade earlier.)
The next morning, after a 7 a.m. breakfast meeting, we left for the Ninth Circuit Court of Appeals. It was within walking distance from Ambassador College—just two blocks from the wcg’s headquarters. We were definitely on their home turf, so to speak. In fact, the Ambassador Foundation even participated in the official opening of the Ninth Circuit Court of Appeals back in February of 1986, just three weeks after Mr. Armstrong died.
But we couldn’t help feeling like we were the ones with home field advantage. How ironic it was that Mr. Armstrong’s successors left their executive suites that morning to walk across the street to the Ninth Circuit to fight in court for the right to keep Mr. Armstrong’s works out of print! And what a privilege it was—an absolute honor—for us to be fighting against them; and on the same side Mr. Armstrong would have been on.
“A View Toward Rewriting It”
The judges started the proceedings promptly at 9 a.m. Judge Wallace Tashima headed the panel of three. He was accompanied by Judge Melvin Brunetti, to his right, and Judge William Schwarzer on his left. There were four cases on the docket that particular day. Ours was last, so we had to sit through three other boring arguments. After the first three cases, Judge Tashima called for a 10-minute recess at 10:40. We re-entered the courtroom shortly before 11:00.
Our time had come. Allan Browne started the proceedings for the Worldwide. Judge Schwarzer wanted him to address the subject of “fair use.” He wanted Allan to explain why he thought pcg’s use of the book violated the fair use law. Allan said that because we did not seek permission to print the book, we did not act fairly and in good faith.
But they say you’ve abandoned the book and rejected its doctrines, Schwarzer interjected. Allan said that wasn’t quite accurate, which is when Judge Brunetti spoke up for the first time: “I thought [the wcg] rejected the doctrine of the book, and then ridded their inventory of the book except for archival purposes.”
“They do not reject the entirety of the book,” Allan responded.
“I thought that they disposed of their inventory,” Brunetti shot back.
“That’s true,” Browne responded. “But this was done with a view toward rewriting it and annotating this book and putting it back out on the market.”8
We couldn’t believe it. Here was a book Joe Jr. said was “riddled with error” exactly 10 years earlier. “Mr. Tkach has decided not to reprint the book,” Bernie Schnippert told wcg employees in December of 1988.9 “It is critically important that God’s church never be in a position of continuing to put out what may be misleading or inaccurate material,” Tkach Sr. told the brethren in February 1989.10 The church destroyed remaining copies in order to “prevent a transgression of conscience by proclaiming what the church considered to be ecclesiastical error,” wrote the Advisory Council of Elders.11 And “no one else has a right to publish it,” Tkach Jr. said in 1997.12
But on a December morning in 1999, inside a comfortable courtroom with barely a couple dozen people present, we listened to Allan Browne tell the court that Mystery of the Ages was discontinued and destroyed with a “view” toward rewriting it and annotating it so that it could go back out on the market.
As we sat there, an infuriating fact of litigation began to sink in: Liars can pretty much say whatever they want before judges. It certainly doesn’t have to be true. It just has to be supported by “evidence” on record. In this case, Browne’s evidence was testimony from Greg Albrecht that they had contacted a few people, after the litigation started, about the possibility of producing an annotation. That’s it. That’s all they needed in order to introduce evidence that this oral argument—and indeed, this whole appeal—would hinge upon.
God’s system of judgment, of course, is based on fruits.13 And more than 10 years of fruits (or lack thereof) revealed the annotated project to be a blatant lie. But in man’s system, ironically, judgment can be easily skewed by “evidence.” When judged before men, you can get by with bad fruits and still convince human beings to accept a lie.
Judge Tashima asked Allan how they were coming along on the annotated project. “The record reflects that the church had contacted several potential authors; they had talked about the possibility of doing that; they actually went to the point of getting a cost estimate,” he answered.14 It was all so patently ridiculous that we might have laughed out loud were it not so terribly upsetting.
The other key argument Allan Browne made that morning had to do with the tremendous monetary benefit we obtained from distributing Mystery of the Ages. And here again, a cursory review of the facts in this case shows that one of the initial reasons the wcg gave for discarding the book was the exorbitant cost involved in printing and mailing it. For the pcg, however, the whole project was a cash cow, Allan said. He based his assertion on the fact that we had received letters from people who were so overjoyed we were printing the book that they actually included a donation. Imagine that—church-goers giving money to their church!
Judge Brunetti questioned Allan about the connection between sending out the book and someone donating, saying it shouldn’t be considered a direct exchange since the book was offered freely. But Allan said we sent a card along with the book saying, “If you want to make a donation you can”15—which wasn’t true.
Allan ended a couple minutes early in order to save some time for a rebuttal at the end.
When Mark Helm rose to speak, my heart pounded in my chest. This was it, I thought. Everything was riding on his presentation.
He began by addressing the fourth factor of the fair use law: The effect of our use upon the potential market for or value of the copyrighted work. Judge Schwarzer peppered him with a string of arguments at the outset. After Mark mentioned the wcg’s decision to remove the book from print, the judge asked, “But don’t they have an interest in keeping it from being published?” He said, “There are things in that book that reflect adversely on the Worldwide Church. That seems to be clearly established.”
Mark responded this way: “[T]here is no secret of the fact that they used to hold these views. In fact, they take great pride in the extent to which they’ve deviated from them. So I don’t think that you can say … Oh this is some embarrassing thing that nobody knows about.“16
Later, Schwarzer pointed to a previous case where the court had ruled that using a copyright to hoard one’s work was acceptable within the law.
But that, Mark explained, was ruled “on the assumption that people would make those decisions to try to maximize the value of the work.”17 In our case, of course, the wcg had been working for more than a decade to try to diminish the value of Mystery of the Ages and, in fact, deprive everyone from ever gaining access to the book.
Schwarzer then raised the question about church members and how the wcg and the pcg were competing for members in the “same market.”
“The members who are interested in the Philadelphia Church are completely separate from the members in the Worldwide,” Mark responded.
“They are using the same principles—they’re using Mystery of the Ages,” Schwarzer said.
“The point is, your honor, Worldwide Church is not using Mystery of the Ages,” said Mark.
Schwarzer fired back, “Not now—but they did to get a lot of members in the past.”
That’s right, and they’ve lost more than half of their members after they did the about-face in doctrine, which the record shows is unprecedented in the history of religion. We’re not talking here about, they tinkered with this doctrine or they tinkered with that doctrine. No religious historian has been able to point to any church in the history of religion that has had a turn-about of this nature. Everything that made that church distinctive and fundamental has now been renounced. And it went from something way out of the mainstream of Christianity, now into just a regular old, mainstream Christian church. That’s never happened before, your honor. And so, therefore, the members are not the same.18
As my father would later remark, “It was like listening to Lincoln’s Gettysburg address. I wanted to take notes, but couldn’t, for fear of missing one word.”
Judge Brunetti interjected to point out that this would be a much different case if the wcg still used Mystery of the Ages. But since they weren’t, the question Brunetti asked is, can the copyright holder keep the work out of publication and stop the fair use of it?
Recipe for Terrorism
Mark explained that the copyright laws are in place so that authors can “retain the economic benefits from the fruits of their labors.” He said, “This is not a case where they are trying to get a return for their labors—it’s a case where they’re trying, based on their religious duty, to stop somebody else from using a work that is important to them.”
Schwarzer then jumped back into the fray, sounding more and more like an accomplice of Joe Jr.’s:
Suppose the book contained the recipe for building a nuclear weapon, and it’s out in publication—the author says, My G-‑, I don’t want this floating around the world. I’m going to call back all the copies and destroy them. … Now, does he have a right to prevent the fair use of that book because he thinks it’s his Christian duty to keep it out of publication?19
This analogy angered my father. For Schwarzer to compare Mystery of the Ages to a plan for a nuclear weapon was a revealing swipe at Mr. Armstrong’s teachings. And yet this is the same man who, moments earlier, said the wcg and the pcg were competing for members in the same market.
We were fighting for a religious text—written by an ambassador for world peace who traveled the world to meet with dozens of presidents, prime ministers and members of royal families—that was repudiated by Tkachism. It’s a text that, notwithstanding the unprecedented transformation the wcg underwent, remains central to our religious practice. To compare that with a manual about how terrorists can produce nuclear weapons was terribly insulting.
Judge Brunetti seemed satisfied with Mark’s explanation about the wcg’s renunciation of Mr. Armstrong’s teachings and that it tended to support our argument. He then asked for Mark to express his view on the economic benefit we were supposedly deriving from the distribution. That’s when Mark actually read what is printed on the slip mailed out with all copies of Mystery of the Ages—the one Allan said asked for donations in return. It says, “All of our materials are sent free of charge as a public service and it is our firm policy to never request donations or offerings at any time.” Mark added, “Now, how you can construe that as a solicitation of funds I don’t know.”
Schwarzer then spoke up to say that he accepted the fact that our primary reason for sending out Mystery was to spread our religious message. But he added that we did derive some economic benefit from the work—simply because we did not have the time and resources to write our own. That’s when Mark brought up the subject of divine inspiration. The pcg, he said,
believes that Mr. Armstrong was inspired by God when he wrote the book. There is no rewriting of the book that can happen. They believe that this is God’s word as was handed to Mr. Armstrong. So it’s not a question of, Oh, we’re going to now make up some views that we think are like it. Those are the views. And you can describe it either accurately or inaccurately, but those are the beliefs that they have and they can’t be rewritten.
We couldn’t have said it better ourselves.
In Allan’s rebuttal, he chose to answer the question about the effect the book had on their potential market. The markets for both churches are the same, Allan said.
They have many of our former members preaching there. We do believe that with our annotated version of the book, we will hopefully be able to get some of these members back. We also believe that they have used this book … to develop relationships with these other people—relationships that may transcend our ability to get these members back. That’s what it’s all about: Develop the relationship, and then once you develop the relationship, you start getting a stream of income, because they become a member.
If we can just get the annotated version into the hands of those who’ve left the wcg—then they’ll come back.
Judge Brunetti saw right through it: “You seem to be arguing that the doctrine is very flexible and fungible, that all you have to do is mutate it a little bit and you get them back—is that right?”
Of course he didn’t mean that. “But we have evidence,” Allan said, “hard evidence, that says this is a market, these are people that we hope to get back into the fold.”
With that, Judge Tashima asked perhaps his best question of the day: So what if you do get them back? What would you do then? “Would you sell them a copy of the book?” Ah yes! The million-dollar question. Let’s assume you get them back. What then? Notice Allan Browne’s “hard evidence” response: “We would hope to have them become members again—and in the past, we did sell this book. When it first came out, we sold it in book stores. Mr. Armstrong did, for $14.95 a copy. So that certainly is a possibility.”
A possibility? He concluded oral arguments by suggesting that the wcgwanted their former members back, and that if they returned, they could possibly purchase the original version of Mystery of the Ages. As if this unprecedented doctrinal transformation had all been a simple misunderstanding.
At 11:45 that morning, the court stood in recess. Although we would not find out about their ruling for several more months, the three of them most likely voted on the case that afternoon, before turning it over to clerks to write up the opinions. It all seemed to happen so fast—as if they were hastily casting their votes on a case that meant everything to us.
Our television producer, Andrew Locher, was on hand during the trip so that we could double-up on productivity. We decided to tape a Key of David program across the freeway from Ambassador Auditorium that afternoon. My father spoke about Paul’s letter to the Colossian brethren. Chapter 1 of that book even speaks about a mystery that has been “hid from ages.”20 Tying this in with Mystery of the Ages, my father thought it would be effective to deliver a message with Ambassador Auditorium in the background, since he intended to discuss a few details about the court case.
We set up our gear on the embankment beside the road, between the freeway entrance and a city street. According to Mr. Leap (the rest of us had our backs to the street), while we were taping Greg Albrecht pulled up in his car, stopped and rolled down his window. He sat there awhile to watch and then shook his head and drove off. We chuckled over that while packing up the gear after taping. Then, as we loaded it into our van, a Pasadena policeman pulled up and asked, “Is that camera gear in the bags?” I said, “Yes, we just finished taping a program across the street on that freeway embankment.” He told us to hang on while he parked; that he needed to ask us a few questions.
When he got out of his car, he said someone at the wcg had phoned in a complaint saying we had “climbed their fences and were taping on their property.” We explained that there wasn’t even a fence by where we were and showed him the location we taped from. We filmed their property, but we certainly weren’t on it. After hearing our side, the officer remarked, “Well, sometimes people twist stories when they make a complaint so that the police will respond faster.”
And sometimes they’ll even twist stories to get a favorable ruling in court.
A Chance to Eavesdrop
My father wanted to stay in the hotel room to rest that night, so Andrew, Dennis and I went out for dinner at a restaurant on Colorado Boulevard in downtown Pasadena. We left the restaurant at about 7:00 and were walking a few blocks to our van, which we parked on the street. Halfway there, while waiting for a green light at a crosswalk, we suddenly realized we were standing right next to Judge Schwarzer! There he was—the man behind the robe. He looked a lot smaller and skinnier, dressed in his casual attire. To think, when we saw him, he may have already cast his vote! We wouldn’t hear about the outcome of our case for another 10 months. But on that night, at that street corner, we were standing next to someone who knew.
We walked behind him for about a block, before he veered off into a restaurant with his party. We entertained the thought of getting a table close to his in order to eavesdrop. Perhaps we would hear how he came down on the case. In the end, however, clearer heads prevailed. We moved on.
In court, before distinguished-looking judges in long, black robes, one sometimes loses sight of the fact that these are mere mortals. They might be well-educated in the universities of this world. But they don’t know more than God. In the courtroom that day, it was hard for me not to worry—with Schwarzer talking about nuclear weapons and Tashima seemingly skeptical toward our position. But seeing Judge Schwarzer on the street that night comforted me. It reminded me that our fate would not be determined by distinguished looking men in black robes. It rested in the hands of the living God. We had relied on Him alone to this point—and we would continue to do so.
The Race Card
On September 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.”21
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.”22 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.23
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.24 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.”25 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.26 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.”27 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.”28 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.29
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 non-profit 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.30
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.”31
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.”32
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 did 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.33
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.34
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.35
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.”36 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.37
Yet another chapter added to their fictitious story. They were just about to use Mystery of the Ages until we came along and pre-empted 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 October 10, 2000, we submitted a petition to all 27 judges at the Ninth Circuit for a rehearing en banc.38 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.”39
“It’s not over yet,” my father insisted. “We’re going to win this thing in the end. We absolutely know that.”40