Chapter 18: Round One: PCG
“While the Church is not presently reprinting these books, the board affirmed that the Church has a continuing interest in his books and did not, and does not, intend to abandon the copyrights.”
— Worldwide Church of God Board minutes
April 2, 1997
In Oklahoma, we immediately tried to alert the new judge, Vicki Miles-LaGrange, to the wcg’s antics in California—that Judge Letts denied their application for a temporary restraining order and indicated the wcg would lose on the merits. We explained how the wcg lulled us into preparing our defense against the California action, all the while planning to transfer the action to Oklahoma. We asked Judge Miles-LaGrange to immediately transfer the case back to California to “thwart wcg’s blatant attempt at forum shopping.”1 On March 11, she denied our ex parte request, saying she wanted to hear both sides out before making a decision. So we pressed forward, now tackling the case from two angles—the merits and the application to transfer the action back to California. (Actually, we also introduced a third angle in Oklahoma. More on this later.)
Now that we wanted to move the case back to California, the wcg accused us of the very thing we were so upset about—“forum shopping”! In opposition to our motion for transfer, the wcg’s Oklahoma attorney insisted that
this action was filed in this forum solely because Philadelphia Church preserved a personal jurisdiction challenge to the previous lawsuit filed in California. Immediately upon learning of such a challenge, Worldwide Church properly dismissed that action … and filed this action in this judicial district where the Philadelphia Church is located.2
Later in the brief, their attorney made a point to say that we never even filed a response to their California action—failing to mention that two days before our response was due, even as we were pressing the wcg for discovery on the merits of the case, Benjamin Scheibe asked if we would delay our opposition by one week, as they were having “trouble” locating the requested documents. Then, on February 28 the wcg pulled the rug out from under us by dropping the California action.
The Other Angle
While the dispute over the venue raged on, we continued working on the merits of the case—particularly our defense. As stated in our opposition brief, filed on March 24, we believed our action to distribute Mystery was protected by the free exercise clause of the First Amendment as well as the Religious Freedom Restoration Act—a law Congress enacted to help prevent other laws from stifling one’s religious freedoms. And should the judge narrow the scope of the ruling to the copyright law alone, even within those bounds, we felt like our reproduction of the book was valid under the copyright’s “fair use” doctrine. We also argued that, by its action, the wcg had abandoned its copyright to Mystery of the Ages.
More significant than this, however, is the offensive posture we took in our counterclaim. In the “prayer for relief,” we asked the court to not only dismiss the wcg’s claim, but to reward us with the rights to print and distribute 18 other works by Mr. Armstrong.3 As with the advertising campaign, we again wanted to get ourselves on offensive footing. This was central to my father’s strategy throughout the case—if the plaintiff would come on strong, we would meet the aggression head-on and take it a step further. As small as we were (compared to them) and even though a “defendant,” he wanted us to continually wrap our minds around the fact that we were on the attack and that we would somehow come out victorious in the end. Thus, seven weeks after first getting our feet wet in this case—in any kind of litigation, for that matter—we unleashed a counter-attack. They chose to come after us in an attempt to keep Mystery buried. We determined to defend against that action—and to go after more literature at the same time. Here are the works we targeted in our counterclaim:
The Ambassador College Bible Correspondence Course (58 lessons)
The Incredible Human Potential
The United States and Britain in Prophecy
The Wonderful World Tomorrow—What It Will Be Like
The Missing Dimension in Sex
The Autobiography of Herbert W. Armstrong (volumes 1 and 2)
The Plain Truth About Healing
What Science Can’t Discover About the Human Mind
Pagan Holidays or God’s Holy Days—Which?
Does God Exist?
Which Day Is the Christian Sabbath?
The Seven Laws of Success
Who or What Is the Prophetic Beast?
Just What Do You Mean … Born Again?
Why Marriage! Soon Obsolete?
The Proof of the Bible
What Is Faith?
We didn’t realize it at the time, but my father’s decision to go after these 18 works affected the lawsuit’s final outcome more than any other single event.
End of Oklahoma Action
During April and May, activity in the lawsuit slowed considerably, in part due to Judge LaGrange’s busy trial schedule. On April 21, however, the wcg did file a motion asking the court to dismiss our counterclaim. They said there was no “case or controversy” regarding the additional 18 works we were now seeking. Their complaint had to do with Mystery only, they contended.4 And of course, that was true. We just wanted to up the ante.
Six weeks later, incredibly, the wcg withdrew its opposition to our motion to transfer and actually asked the court to go ahead and return the case to California. It was another stunning turn of events—and this time not easy to explain. Maybe the wcg was frustrated over the slow pace of events in Oklahoma. Perhaps they realized how much easier it was to litigate from their home turf in California. Maybe they were resigned to the fact that they would lose at the district level—whether in Oklahoma or California—and were just eager to get the loss on the fast track so they could appeal it. Whatever the reason, we braced ourselves for fighting them in whatever venue it settled in.
Two weeks later, having yet to hear from Judge LaGrange regarding the motions to transfer or to dismiss the counterclaim, the wcg filed its reply to our counterclaim. According to the brief, the wcg denied that it “stopped printing” Mystery, but rather “chose not to re-publish or continue distributing the Mystery of the Ages for the present.” It had only been temporarily put aside, they told the court. As proof of their new-found desire to use Mr. Armstrong’s writings, they were able to put forward minutes from a board of directors meeting, where the subject was discussed. “[T]he Church continues to work with the text of the books in an ongoing manner for possible future use.”5
You can see why the “Christian duty” statement, which landed in bookstores later that summer, was so critical to our case. They not only stopped printing Mystery, they wanted to stop others from printing it too—Tkach Jr. said so, explicitly, in his own book! But to serve their purposes in court, they made it sound like they had future plans for Mystery of the Ages.
On June 30, 1997, Judge LaGrange granted our motion to transfer the action back to California. Thus, we were back where we started.
Status Conference with Judge Letts
Now that the case was back in California, we quickly filed a motion to make sure it returned into Judge Letts’s courtroom, lest the wcg get away with its judge-shopping shenanigans. On August 18, Judge Letts was indeed appointed to preside over our case. Two weeks later, lawyers for both sides arranged for a conference call with Judge Letts to hammer out some divisive issues. Upset by the legal wrangling, the judge requested for both clients, with their attorneys, to appear in his court chambers for a status conference.
September 25, 1997, was the first of many times we would meet face to face with our opposition. I distinctly remember my initial exchange with Ralph Helge. “I enjoy your articles in the Trumpet, Stephen,” he said, after meeting me for the first time. At the time, back in Edmond, we were wrapping up production on our November issue—in which I accused the wcg of deceitfully lying about Mr. Armstrong’s teachings over the years. “Why did the Worldwide Church of God discontinue Mystery of the Ages?” I asked in an article titled “Lying Words.” “The answer to that question varies, depending upon who you are, when you ask it, and whom you happen to ask.”6
Inside the judge’s chambers, after we complained about the wcg’s removal of Mr. Armstrong’s most important book, Mr. Helge exclaimed, with a straight face, “We’ve never had any intention or decision to not publish it!” We were flabbergasted, especially since Tkach Jr.’s book with the “Christian duty” statement had just been released.
Helge then let loose another corker, suggesting that we actually submit an offer to license the book from the wcg. Here again, in the light of Tkach Jr.’s “Christian duty” statement, any such offer would have been entirely futile. In fact, a month before Helge’s bizarre suggestion in the judge’s chambers, wcg officer Greg Albrecht sent this message to an individual seeking to reprint some of the church’s articles and booklets: “[W]e cannot grant your request to publish our old articles and booklets. We hold the copyright, and do not allow others to publish our former teachings and doctrines for a variety of reasons.”7
Later in the lawsuit, in 1999, the wcg even acknowledged in its own court filing that any such offer would have been rejected:
Pcg did not request permission; Flurry explained that others had requested such permission but wcg had refused to allow reprinting of the book. Flurry understood that the wcg refused these requests in order to protect its copyright in Mystery of the Ages, thereby establishing that pcg knew full well that wcg had no intention of abandoning its copyright.8
Here, the wcg actually pointed to the obvious futility of any such offer as proof that it had not abandoned its copyright. At the same time, they even tried to turn Tkach’s “Christian duty” statement in their favor, saying it actually established “an intent to enforce the copyright.”9 Think about that. That Tkach Jr. said it was the church’s “Christian duty to keep [Mystery of the Ages] out of print” only proved, they told the court, that the wcg still owned and, in fact, was using the copyright.
Of course, they were “using” the copyright, but only to prevent Mr. Armstrong’s ideas from circulating.
Two Main Points
When the wcg filed its original complaint in early 1997, it had to make two essential points, for the most part: 1) that the wcg owned the copyright to Mystery of the Ages; and 2) that the pcg had no lawful right to print and distribute the work.
The first point wasn’t as straightforward as one might think. Since the original author of Mystery of the Ages was dead, the wcg had to show how copyright ownership had transferred into its possession. Early on, rather than rely on Mr. Armstrong’s last will and testament, they tried to prove ownership by saying that everything Mr. Armstrong, as an “employee” of the church, wrote belonged to the church. They opted for this strategy because it would then make Mr. Armstrong’s final wishes for the book seem inconsequential.
Obviously, Mr. Armstrong would have wanted the copyright to protect and preserve his material—not destroy it. But since he was only one “employee” working at a huge organization, “hired” to produce a book, what he wanted didn’t much matter, as far as “the church” was concerned.
On the second point, the wcg had to prove the copyright law somehow precluded us from distributing Mystery of the Ages. That wasn’t as straightforward as they made it out to be either, because we never claimed to be the actual owner of the copyright. And since we were not claiming ownership for ourselves, the wcg had to prove that what we did violated the Copyright Act—in particular, that it was not a “fair use” of the work.
Irrespective of who owned the copyright to Mystery of the Ages, or whether the wcg abandoned it or not, if the court found our action to be protected by “fair use,” it was a done deal—we could print the book. So the fair use doctrine was of prime concern for both parties in this first round of litigation.
Section 107 of the Copyright Act says that “the fair use of a copyrighted work, including such use by reproduction in copies …, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” Section 107 then notes four factors for a court to consider in determining whether or not the copied material is protected by fair use:
1) The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2) The nature of the copyrighted work;
3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4) The effect of the use upon the potential market for or value of the copyrighted work.10
We felt like all four of these determinative factors leaned in our favor. On the first point, without question, the pcg had distributed Mystery for non-profit religious and educational purposes. We offered the book absolutely free upon request. Regarding the nature of the work, since Mystery of the Ages is a factual account of Mr. Armstrong’s teachings, as opposed to a work of fiction, that generally broadens the scope of fair use. The third factor considers whether the amount copied is reasonable in relation to its intended purpose. And since we use the entire text for teaching and educational purposes, we felt it reasonable to copy all of it. Finally, on the effect our printing had on the potential market and value of the book, there was none. The wcg didn’t value it—nor were they looking to market it. Indeed, they wanted to destroy it and keep it out of circulation forever. That was their story, judging by the huge amount of written statements and oral communication that circulated inside and outside the church.
For litigation, however, they invented another story.
The “Annotated” Version
Joseph Tkach Jr. wrote Transformed by Truth during the first six months of 1997—the same time period litigation got off the ground over Mr. Armstrong’s writings. After completing a final draft for his book, he submitted it to the church’s board and they all gave it a liability reading. According to Tkach, after a few minor changes to the text, the board approved its publication. When asked at his deposition if the board agreed with the text of the book, Tkach said “they all felt it was accurate.”11
We then asked him if he felt it was his “Christian duty” to keep Mystery of the Ages out of print. To which he responded, “Not necessarily.”12 A ridiculously lengthy exchange then followed as we tried to get Mr. Tkach to admit he meant what he said in his own book! During the exchange, Tkach did say it was important for his church not to distribute “lies.” But he also said the wcg had an obligation to protect the church’s “assets,” including the copyrights in question.13
Besides that, he informed us that the wcg actually had plans to use Mystery of the Ages again! Apparently, there had been many discussions about producing an annotated text that would correct all the “errors” in the original Mystery of the Ages. Mr. Tkach could not remember when those discussions began, whether it was before the lawsuit started or after. Greg Albrecht admitted in his testimony that it was “probably after.”14 Tkach also admitted the annotated version would not be a “high priority” since the church was in the midst of massive cutbacks and downsizing.15
The Advisory Council of Elders
Three months after Tkach and Albrecht enlightened us about the annotation “project,” the wcg formalized the pronouncement in made-for-litigation minutes from an Advisory Council of Elders (ace) meeting. Prior to the lawsuit’s beginning, keep in mind, there was not one shred of evidence indicating any intention of ever using Mystery of the Ages again. All the evidence—a mountainous pile of it—pointed to the fact that Mr. Tkach’s “Christian duty” statement accurately reflected the church’s position. So without any pre-1997 evidence to support their “big plans” for the literature argument, they had to make this up as the litigation unfolded.
This is what prompted these hilarious minutes from their December 4, 1998, Advisory Council meeting:
It was and is a common practice for the wcg or the college to retire works from publication, or to rewrite them, either to express the concepts contained therein differently, express facts more accurately, or because of a change in doctrine. Wcg and the college would dispose of excess inventory copies of such works, but archive, research and personal copies would be retained. This procedure was in accordance with the long-standing custom, practice and procedure of wcg and the college.16
Notice how they equate the occasional modifications Mr. Armstrong made to the church’s teachings to Tkachism’s wholesale destruction of our entire belief system. It’s like saying a homeowner’s routine maintenance around the house is equivalent to one who later inherits the house, demolishes it, and then obliterates and hauls off the very foundation on which it stood. “We are changing at the very core of our church,” Mr. Tkach said in 1997.17 So it would not be correct to say, as it says in those minutes, that the church merely “modified its doctrines” after Mr. Armstrong died. When Joe Tkach Jr. begins his book by saying the wcg has “renounced” Mr. Armstrong’s “unbiblical teachings” and “embraced Christian orthodoxy,” those are not the words of a modifier, so to speak. Mr. Tkach said the wcg changes were so “radical” and “unprecedented” that evangelicals at first had a hard time believing it was even true.18 In Christianity Today, Ruth Tucker said she was “taken aback” by the wcg’s transformation—a journey that turned a “heretical sect into an evangelical denomination.”19 According to the Advisory Council minutes,
Mr. Armstrong explained many times how his doctrinal understanding changed in many respects over the years as he came to understand new biblical truths. In fact, he chided other churches over the years for being committed to creeds that prevented them from accepting new truth and changing.20
As if Mr. Armstrong would have fully supported their “modifications.” This is the same despicable reasoning we heard in the late 1980s when the church started dismantling Mr. Armstrong’s teachings. Why, we’re just doing the same thing Mr. Armstrong would be doing today if he were alive. Back then it was at least more plausible, albeit deceitful. But to rehash that lame excuse in 1998 after so much had been written about this unprecedented transformation? In his book, speaking on behalf of the wcg, Tkach said, “Today we reject what is well known as ‘Armstrongism,’ that is, adherence to the teachings of Herbert W. Armstrong in lieu of biblical evidence to the contrary.”21 That doesn’t exactly leave you with the impression they are just following Mr. Armstrong’s example of modifying a few teachings here and there.
The minutes go on to list a few of the doctrines Mr. Armstrong changed (as if that somehow justified their repudiation of “Armstrongism”). And because he sometimes retired or rewrote church literature to more accurately reflect a new understanding in doctrine, it naturally followed that Tkachism was doing the exact same thing.
In fact, it has been the intent of wcg to consider revising, editing, or republishing moa, and other works to which it holds copyright, in some annotated or revised form, and to distribute the same either free of charge, or, if selling them, at a reasonable price as an income producing item.
Retiring Mystery of the Ages was only temporary, you understand, “until appropriate revisions could be effectuated.”22
Judge Letts’s Ruling
The preliminary injunction hearing was set for the afternoon of February 8, 1999. That morning, before we appeared in court, my father told Dennis Leap and me, “Although I don’t know exactly what will happen today, I feel strongly that something positive will result.”
It was my second appearance in court across the aisle from the wcg’s representatives—and it was every bit as memorable as the first encounter. The five of us arrived first—our two attorneys carrying three-ring-binders. The rest of us had notepads and pens. Moments later, after we settled in, wcg reps, together with their Hollywood lawyers, came bounding through the doors—wheeling in giant file boxes, carrying huge books and binders. (And funnier than that, they never once touched the boxes of documents during the hearing.) They looked like they were ready for all-out war. But in Judge Letts’s courtroom, they were barely able to fire off one round. Not but five minutes into the hearing, both sides knew where the judge stood.
“First, I don’t think this was work for hire,” the judge said. “I think that it’s rather clear that … Mr. Armstrong was not an employee and that this was not work for hire.” 23
He went on to say that he thought the question of who owned the copyright was a “little more complex” than either side had explained in their briefs. He asked that if the copyright transfers to someone, who then repudiates the teachings of the book, would that change the nature of the copyright? Could the successor then actually use the copyright to abolish the book, as opposed to protecting the ideas of the author? In the judge’s view, the answer was no. In such a scenario, the judge wondered if the copyright could even exist anymore! But even if it did, he said the copyright laws would not allow the wcg to suppress a written work.
In his judgment, our use of Mystery of the Ages was “fair use” under the Copyright Act simply because the book was not otherwise available. Regarding the “annotated version,” the judge said, “I cannot imagine that if somehow there were a copyright on the Bible itself that somebody could buy that copyright and simply then say, I’ll only permit my annotated version of that to be in use.“ In fact, as he later brought out, should they pursue the annotated project further, a case could be made that our distribution of the original work would actually increase the market for their annotated version.24
As to the prospect of the wcg licensing the works to us, the judge also expressed this view: “If you are in a circumstance where you’re simply saying they can’t be used, I don’t think there’s any question about that.”25 In other words, it would be futile to seek licensing from caretakers who want to destroy the work. The judge never bought into their litigation-driven plan to “use” the works again.
Thus, true to his prediction at the outset of the case, Judge Letts denied the wcg’s motion for preliminary injunction on February 8, 1999—just two days shy of the two-year anniversary of the lawsuit’s inception. In his written order on April 20, he said Mr. Armstrong had unilateral power within the wcg, that the church did not control Mr. Armstrong’s work, and that Mr. Tkach Sr. disavowed Mystery of the Ages as a religious work, destroyed existing copies of the book and refused requests for permission to reprint it. Judge Letts also found that “the wcg has no plans to print or use moa as originally published” and that “although the wcg has indicated that it might publish an ‘annotated’ moa in the future, the wcg has not contracted with or otherwise arranged to have anyone write the ‘annotated’ moa.”26
In his legal conclusions, the judge determined that Mystery of the Ages was not a “work made for hire” and that the
pcg’s distribution of the work was protected under the “fair use” doctrine of the copyright law.
As we listened to everything Judge Letts said in our favor during that February hearing, we were actually anxious for him to conclude so we could rush outside the courtroom and celebrate. Even then, after the proceeding, we managed to subdue our jubilation in the hallway, so as to not offend the wcg representatives. But once those elevator doors shut and we were all alone—“WOOOOOHOOOOOOOO!!!” As our two attorneys high-fived each other, we couldn’t help feeling like we had witnessed something truly historic for our work.
At church services that weekend, on February 13, my father heaped praise on the judge for grasping the spirit and intent of the copyright law. Certainly, Mr. Armstrong never would have dreamed of using that law to prevent Mystery of the Ages from being distributed. The copyright law, after all, is supposed to protect an author’s writings, not destroy them. At the end of his sermon, my father said,
So we have to prophesy again and get this most important book that there is in this world, after the Bible, out to the largest audience possible, brethren. That’s what God inspired Mr. Armstrong to write. That’s what He wants us to do and what a glorious calling it is, to be able to do this work, and show the world how to have real peace and joy and happiness.27
The following month, my father told Trumpet readers that we had “just won the most important court battle in this modern age.” He wrote, “Mr. Armstrong believed Mystery of the Ages was the most important book on this Earth after the Bible. … Time will prove Mr. Armstrong to be right. … Soon the whole world will understand how important this great book is. Then the Bible will no longer be a mystery to man.”28
It was a momentous time for our church. We weren’t out of the woods yet—the wcg’s lead attorney, Allan Browne, had made it clear during the hearing before Judge Letts that the wcg was anxious to appeal the ruling to the Ninth Circuit as quickly as possible. But still, after a two-year, hard-fought struggle, we did pause long enough to savor our first-round victory.