Chapter 20: Counterclaim to the Rescue
By Stephen Flurry
“… Worldwide claims it is entitled to all the tithes and other contributions given to the splinter group’s church by people inspired by copies of the book that the group printed.”
— Wall Street Journal
February 21, 2001
The day after the Ninth Circuit filed its opinion, we stopped distribution of Mystery of the Ages and the other five works of Mr. Armstrong we had printed. My father then spent a few days weighing our legal options and beseeching God. On September 28, as we had grown accustomed to during the lawsuit, he came out of seclusion prepared for an offensive strike. He reminded Dennis Leap and me about what we had seen. God inspired Judge Letts to grasp the central points of our case, my father said. God inspired Mark Helm’s oral argument at the Ninth Circuit. God inspired Judge Brunetti’s dissenting opinion at the Ninth. “Remember what we have seen in this case and be encouraged by it,” he said. He reminded us that Mr. Armstrong spent practically his entire life operating on the edge of disaster. “Everything,” he said, “hinges upon faith.”
With that in mind, he decided to resume distribution of Mr. Armstrong’s works until issuance of the official court order to cease and desist (the appellate court’s ruling did not serve as such an order). He was well aware that the wcg would probably point to this action as “proof” of our “willful intent” to break the law. But since the order requiring us to stop had not yet been issued, my father felt like it would be a lack of faith not to disseminate God’s truth. Of course, once the injunction was filed, we fully intended to comply with the order at once. But until then, it was a race against the clock to see how much literature we could distribute before we were ordered to lock it up.
Our November 2000 Trumpet splashed this headline across the cover: “A Modern Day Book Ban.” Inside the issue, we talked about our Christian duty and why we risked quite a lot in order to make Mystery available. We wrote,
The Worldwide Church of God has no interest in ever printing Mystery of the Ages in any form. Even if they did attempt such a project, perhaps just to spite us, it would be the most scathing condemnation of Herbert W. Armstrong and his teachings that you have ever read—much the same as Transformed by Truth.
That is why we feel it is our duty to make this book available to the general public—and at no charge.1
In the January 2001 issue, we ran a two-page spread advertising the 1980 version of The United States and Britain in Prophecy. We urged readers, “[I]f you don’t have a copy of the larger version, please write for your copy while you can.”2 We knew the injunction would be filed any day, so we were trying to unload as many books as possible. That advertisement brought in more than 3,000 requests for the book.
The following month, we did the same thing for The Missing Dimension in Sex, admonishing readers, “It could be your last chance to ever get this book!”3 Unfortunately, that issue landed in mailboxes too late. On the evening of January 29, 2001, the court-ordered injunction was finally filed. Technically, it barred dissemination of Mystery of the Ages only. But we chose to cease distribution of all Mr. Armstrong’s works.
Thus, we were not able to satisfy thousands of requests for The Missing Dimension in Sex. So we directed all those who asked for the book to instead contact the wcg. We even gave them the wcg’s address and phone number. Since the wcg now had big plans for Mr. Armstrong’s literature, we urged people to call the wcg to check on the progress of their plans for distributing Mr. Armstrong’s works.
The Wall Street Journal
To this point in the case, we had to purchase ad space to tell our story to a mass audience. So when Wall Street Journal reporter Jess Bravin contacted us in November of 2000, we were ecstatic. Widely read across business, financial and legal districts worldwide, the Journal’s circulation was about 2 million. A full-page ad in a publication of its stature runs at about $175,000. So we knew that if we could get a fair story out of the deal, it could be hugely beneficial to our cause—and free.
Bravin was drawn to our case because of its uniqueness. “It was absolutely fascinating,” he said, “two churches suing each other over inspired writings.”4 As to the legal questions in the case, he was fascinated by the “unusual collision between copyright laws, freedom of speech and freedom of religion”—all of which, he said, are protected by the Constitution.5
Our lawyers supplied him with the relevant legal briefs and opinions and we gave him a pile of Mr. Armstrong’s literature as well as Transformed by Truth. After that, we didn’t hear back from him for several weeks. For a while, he got sidetracked with the hotly contested U.S. presidential election of 2000. We were, nevertheless, anxious to hear back from him—and hopeful that his editors wouldn’t nix the story.
Soon after the election crisis ended, he contacted Dennis to say he was moving forward on our story. He arranged to meet with us at our headquarters facility in Oklahoma. Arriving in Edmond on Friday, January 26, 2001, we guided him on a tour through our offices and facilities. That afternoon, he sat down to interview my father for more than two hours. During the interview, my father explained how he came into the Worldwide Church of God as a young man. He recounted the events surrounding his firing in 1989. In discussing the emergence of the Philadelphia Church of God after the split, he told Jess, “All we’ve ever wanted to do is continue with what Mr. Armstrong did.” My father admitted that we are not what you would call a mainstream denomination. But like Mr. Armstrong, we do profess to be followers of Jesus Christ’s message as revealed in the Bible, he said.
The next day, we invited him to attend our church services, where I happened to be giving the sermon. Having visited a wcg service the previous week, Mr. Bravin noted afterward how different the two services were. The wcg service had more singing and testimonials, whereas ours was more informative. I told him that the format for our service is exactly the way it used to be in the wcg.
That evening, we took him out for dinner and then invited him to a concert sponsored by our Philadelphia Foundation. Of course, we had no idea how we would be portrayed in his piece, but it was still exciting just to have him in town—and knowing that the court case brought it all about.
Jess called Mr. Leap late Tuesday evening, February 20, to tell us the story would appear the following day. I left for work at 5:30 the next morning and hurriedly stopped at a convenience store to get the paper. The clerk must have thought I was a bit odd, watching me rush into the store, grab a Wall Street Journal, and proclaim, “I can’t believe it!” There, on the far-left column of the front page, above the fold, was a drawing of Herbert W. Armstrong prominently displayed at the beginning of the article. For me, even without reading the article, that was enough to make my heart race with excitement! I bought three copies and headed off to work, where I finally sat down to read the piece.
Bravin told the story of a church that disavowed the tenets of its founder after his death, even to the point of destroying his written works and preventing all others from printing them. “Through it all,” he wrote, “a splinter group in Oklahoma continued to take Mr. Armstrong at his word. Wanting to provide new converts with all of Mr. Armstrong’s insights, the group began to print Mystery of the Ages and give it away.”
What resulted, he explained, was “an unusual legal challenge.” He continued,
Worldwide Church hasn’t lost sales of its founder’s book because it never charged for it while publishing it, and certainly has no wish to sell it now; nor has its adversary ever sold the book. But Worldwide claims it is entitled to all the tithes and other contributions given to the splinter group’s church by people inspired by copies of the book that the group printed.6
Just six paragraphs into the piece, he told readers about the wcg’s determination to take tithes and offerings away from the pcg, which was exactly right. We didn’t charge for the book, so what money was there to go after for “damages,” besides the tithes and offerings of our membership?
From that point, he delved into a brief history of Mr. Armstrong’s ministry, Tkachism and the pcg’s emergence onto the scene. Not all of this history was expressed very favorably toward Mr. Armstrong, but it clearly brought out the fact that we were following in Mr. Armstrong’s steps. And he also made note of Tkach’s “Christian duty” statement—something we never tire of seeing in print.
While some of the history could have been portrayed better, my father felt like we came out on top with respect to the legal coverage. Along those lines, my father noted, “I don’t believe it could have been better balanced.”
Our lawyers were elated by the article.
Mr. Tkach Jr. wasn’t quite as happy with Bravin’s work. According to Tkach, Bravin interviewed him and Greg Albrecht for “nine hours” and yet only quoted him twice. “Only one of the quotes was actually correct,” he said in an interview.7 Tkach also felt like Bravin’s statement about the wcg going after our tithes and offerings was misleading. “The truth of the matter,” Tkach said, “is that the Ninth Circuit Appellate Court ruled in our favor, and eventually Gerald Flurry’s group will have to pay what is known as damages for the wrong they committed.” He continued,
Normally, we might be entitled to the profits from the sale of the book. But since the book was given away and not often sold (except for a brief time in bookstores) the court may accept as the measure of those damages the amount of money Flurry received that is traceable to the book, in other words, donations from people who got the book and sent in money. Obviously, this becomes a calculation of a dollar amount, not the actual checks of the donors somehow signed over to us.8
Regarding Bravin’s comments about the wcg taking our tithes and offerings, psychologist Tkach said Bravin was speaking metaphorically, not literally. He later suggested that we sell off some of our property to pay off the damages.9 Of course, there’s little difference between proceeds from a property sale and tithes and offerings direct from members, because we would have never acquired the property in the first place without membership donations.
Harvard Law Review
If the Wall Street Journal helped us get some good publicity on the outside, the Harvard Law Review gave us additional hope that things might turn around in court. The April 2001 issue of the well-known law journal criticized the Ninth Circuit for applying the copyright law narrowly. “By giving insufficient weight to the religious nature of the text,” the article stated, “the court interpreted fair use in a manner that contravenes the goals of a doctrine designed to encourage, not hinder, the free expression of ideas.”10 Of course, this is what our lawyers had been arguing all along. Technically, yes, wcg held the copyright to Mystery of the Ages. But they were using it unlawfully—to suppress the free expression of Mr. Armstrong’s ideas. “The most serious error in the court’s analysis,” the Review continued,
was its failure to credit sufficiently moa’s centrality to pcg, which led it to misapply the first fair use factor. moa is required reading for those who seek baptism in the church, and church policy mandates reading the book before [attending] services because it “provides the key to understanding the Bible.” The dissent recognized this centrality. The majority, however, treated pcg’s copying and distribution of moa as a straightforward infringement case. It failed to recognize that to prohibit pcg’s use of the book would be to suppress both the unique expression of the ideas in the book and the ability of pcg’s members to live according to their religious faith.
If the majority erred in not recognizing this centrality, it made matters worse by giving credibility to wcg’s plans for producing an annotated version of Mystery.
The court’s assumption that wcg was not seeking to keep moa from the public (or from pcg) rested on a tenuous belief in the sincerity of wcg’s annotation plans; it then privileged those speculative plans over pcg’s immediate, religious need for the book.
Like Brunetti, the Review noted that the wcg had no plans whatsoever to reproduce Mystery of the Ages—certainly not in the form Mr. Armstrong printed it.
wcg withdrew moa from circulation because its leaders believed they had a “Christian duty” to avoid propagating the book’s doctrinal errors; the church’s reasons for not wanting pcg to copy moa were clearly not limited to market concerns.11
Precisely. They had no interest in exploiting the Mystery of the Ages “market.” But now that they had convinced the Ninth Circuit to reverse, they were keenly interested in the donations of pcg members who were inspired by reading the book. As the case wore on, we felt that judges and juries would come to see the insincerity behind the wcg’s litigation-inspired activities. They weren’t interested in using the copyright law to protect the free expression of ideas. Their ambition was to suppress Mr. Armstrong’s religious views and help themselves to some of our money in the process.
The Harvard Law Review concluded, “The court’s failure to see the case for what it was—a church’s attempt to suppress heresy by using copyright law—led it to overlook the purposes of the fair use doctrine and facilitate the monopolization of a religious idea.”12
Hanging by the Counterclaim
In our appeal to the Supreme Court, we continued insisting that, their litigation ploy notwithstanding, the wcg had no intention of ever publishing Mystery of the Ages: “While anyone should be free to debate the validity of the creator’s ideas, no one should have the power to suppress those ideas simply because he or she disagrees with them.”13
On April 2, the United States Supreme Court let the Ninth Circuit’s reversal stand, deciding not to hear our appeal. The court did not give a reason as to why the appeal would not be heard. But as hard as it is to get your case heard in Washington, it’s all the more difficult when there is still litigation pending at a lower level. In our case, the damages trial had yet to begin.
Additionally, the counterclaim we filed against the wcg for 18 other works had yet to be resolved. So we remained hopeful that the high court would reconsider the case once everything else had been finally decided.
The damages trial was set to begin in February of 2001. And by this point in the case, Judge Letts had obtained a semi-retired “senior status,” which allowed him to withdraw from his involvement in our case. Thus, to allow time for a new judge to be brought up to speed, everything was pushed back.
In a May 7 hearing, with Judge Christina Snyder now presiding over the case, our motion to add Congress’s Religious Freedom Restoration Act (rfra) to our counterclaim was approved. Congress passed the law to help protect religious practices from being burdened by other laws. In this case, the Copyright Act, as interpreted by the Ninth Circuit, prevented our free exercise of religion. Early on in the lawsuit, the constitutionality of rfra had been called into question in other cases. And since Judge Letts did not consider it necessary for our case anyway, he disallowed its use for Mystery of the Ages. But since that time, the Supreme Court had upheld the law in certain federal cases. Unfortunately, because rfra had been removed from our case, it was not used as a defense at the Ninth Circuit level. So this is why we wanted to reinsert it into our case. And while the new judge would not allow us to raise the rfra defense in the damages trial for Mystery of the Ages, she did allow us to raise it as part of our defense in the counterclaim.
Meanwhile, wcg pressed forward for summary judgment on the counterclaim. They argued, quite simply, that everything the Ninth Circuit ruled on the Mystery case should be broadly applied to the other 18 works we were seeking in the countersuit. Going into the lawsuit, one could easily assume that our best chance, by far, was to gain fair use to print Mystery of the Ages, especially in light of the high praise Mr. Armstrong and Tkach Sr. both had for the book and their mutual desire for its wide distribution in 1985 and 1986. But now, four years into litigation, the legal landscape had changed.
You will recall that the first time we heard about the “annotated” Mystery of the Ages was during Tkach Jr.’s deposition on September 8, 1998. He admitted it wouldn’t be a high priority, but that Greg Albrecht would be looking into it. Albrecht testified to making a few phone calls. That was enough for two judges at the Ninth Circuit to tip the scales on the fourth fair use factor in favor of the wcg or, “at worst, neutral.” The fourth factor (“potential market”), you recall, is what the Supreme Court considers the “most important” of the four. And since the Ninth Circuit considered this the wcg’s weakest argument, the annotation sham tilted the balances in their favor—even if barely.
All this now presented a problem for the wcg with respect to our counterclaim because there was no evidence of any plans for annotating those other 18 works. In fact, in the very same deposition where Albrecht fumbled through all the contacts he supposedly made regarding the annotated Mystery of the Ages, we asked him if the wcg had planned to publish any of the other works we had listed on our counterclaim. Besides possibly reworking the Bible correspondence course, Mr. Albrecht responded, “I know of no such plans at this time.”14 Thus, if the Ninth Circuit forced us to accept the annotated sham as a possibility, fine. We didn’t believe it, but we had to live with it. But with respect to the other works, the man given charge of the Mystery annotation himself admitted there were “no such plans.” These facts would push the fourth fair use factor in our favor, we argued. Did they now have annotation plans for The Incredible Human Potential? What about The Missing Dimension in Sex? The United States and Britain in Prophecy?
Besides showing the court that the wcg had no plans to produce any of the 18 works, we also reasserted the fact that it would have been futile for the pcg to obtain permission from the wcg to print the works. We continued to point to the “Christian duty” statement, as well as Albrecht’s 1997 e-mail which said the wcg does “not allow others to publish our former teachings and doctrines.”15 To counter our futility argument, by the end of the summer in 2001, the wcg indicated in court filings that it would have, all along, objectively considered any offer to license the works of Mr. Armstrong. They went on to suggest that we should—even then—make them an offer. Furthermore, they produced board minutes saying that Tkach Jr.’s “Christian duty” statement reflected his own “personal” views, not an official church position.16
On October 19, 2001, the wcg’s secretary of the board of directors, Matthew Morgan, wrote my father a letter. In it, Morgan explained that once the pcg began distributing Mystery of the Ages in 1997, wcg suspended all considerations regarding “how it could best utilize its copyright assets” (the book was an “asset”). But since the lawsuit had now been “resolved in favor” of wcg (with the Ninth Circuit’s decision), wcg’s board had now decided what to do.17 Drum roll, please. Believe it or not, the wcg now had “plans” for Mr. Armstrong’s other material! And it just so happened to be the exact same literature we were seeking in our counterclaim. Mystery of the Ages would not be available—just the ones that had not been resolved in court! They decided to make the 18 works available via the never-before-utilized world of “e-publishing.”
So, to win Mystery, they told the courts about grandiose plans to “annotate” the book. Then, to explain why these plans never materialized, they said they had to be put “on hold” until litigation had been resolved. After the Ninth Circuit ruling, they turned their attention to the counterclaim, telling the courts about their concrete plans, not for Mystery, but for the 18 works!
Here is what Morgan proposed in his letter to my father: The pcg would pay all of the wcg’s costs for publishing; we would withdraw our counterclaim; the wcg would still be able to claim damages over the Mystery of the Ages infringement; they would collect royalties for every document downloaded; and they reserved the right to stop publishing the books at a moment’s notice18 (perhaps after we withdrew our counterclaim!).
And they wonder why we wouldn’t make them an offer.
On October 31, 2001, the wcg then informed us that all their communications concerning the “offer” would be presented to the court in response to our argument that it would be futile to request a license. Of course, that’s the whole reason they floated the e-publishing scheme to begin with. It was yet another litigation ploy designed to undermine our futility defense. In his letter, Allan Browne insisted that the pcg make a “direct, immediate and unequivocal response to the wcg’s solicitation.”19
The stage was set for our November collision to determine whether or not Judge Snyder would grant the wcg summary judgment on the counterclaim or if she would deny it and allow the case to go to trial. Matthew Morgan’s letter was the wcg’s last-ditch effort to persuade the judge to rule in their favor.
But she didn’t.
In her November 14 order, the judge referred to our point that there was no evidence of plans to republish the 18 works in any form. She then referred to Morgan’s letter and a subsequent wcg board resolution to “publish” the works in question. But because there were still several disputed facts along these lines, she ruled, “[T]he Court cannot find as a matter of law that summary judgment is appropriate on pcg’s fair use claim.”20
The case was going to trial! What this meant was that, as the wcg pressed forward in its damages trial over our copyright “infringement” of Mystery of the Ages, we pressed forward with our counterclaim seeking the right to distribute these other 18 works by Mr. Armstrong.
Thus, when all hope appeared to be lost—after the Ninth Circuit reversal, after the Supreme Court’s decision to refuse our case—the countersuit came galloping in to the rescue. When my father made the decision to file the counterclaim, a mere seven weeks into the case, you will recall that it was because he wanted us to stay on the offensive. And were it not for that critical decision, our chances for victory, after the Supreme Court rejection in April 2001, would have been all but dead.
As it was, we now had life.