Scientology's Bridge Publications, which four years ago helped to forge new law when it sued Internet service provider Netcom, claims the anonymous author "made two unauthorized, verbatim Internet postings" of the church's copyrighted works on the "alt.religion.scientology" Usenet group. Invoking a provision in the Digital Millennium Copyright Act, Bridge Publications filed a subpoena on AT&T that would require it to turn over the name of the Worldnet subscriber.
"I'm not aware of anyone who has yet to use the subpoena procedure," said Eric Goldman, an attorney representing ISPs at Cooley Godward. Goldman added that the provision gives copyright holders powerful new ammunition to learn the identity of alleged infringers.
"If they can make a colorable claim that someone is infringing those rights then they have the power to force service providers to hand over disclosure information pretty much at the owner's request," Goldman said.
"I'm not sure [the provision] is the death of anonymity on the Net," he added. "It just makes it easier to squash anonymity if the person was using weak tools to hide their identity."
AT&T spokesman Jonathan Varman said the company had not yet turned over the information to the church and was "looking to do the best for our customer and still comply with the court." The subpoena set yesterday as the deadline for complying.
In a telephone interview, the poster, going by the pseudonym "Safe," said AT&T had agreed to delay complying with the subpoena until at least tomorrow to give his attorney time to figure out how to proceed.
Regardless, Dan Leipold, Safe's counsel and an attorney who has done battle with Bridge Publications in the past, said he was concerned the law was being misused against his client.
"This individual has not been shown to do anything wrong and yet he's going to lose his anonymity," said Leipold, who declined to name the author. "He's worried. He does not want to give up the anonymity because he knows who's on the other side and he knows what they'll do to him."
Critics have charged that the Church of Scientology employs strong-arm tactics to silence those who publicly disagree with its policies. Chief among the alleged tactics are lawsuits and public smear campaigns.
Ava Paquette, Bridge Publication's attorney, did not return phone calls seeking comment.
According to one of the offending Usenet postings, the church goes so far as to make it a "high crime" for followers to "Organize splinter groups to diverge from Scientology practices still calling it Scientology or calling it something else." In all, the post, which purports to cite the Introduction to Scientology Ethics, lists 274 "errors, misdemeanors, crimes, and high crimes" against the Church.
Leipold argued that despite the large amount of text quoted verbatim, the posting fell under so-called fair use exceptions to the copyright law. Fair use provisions permit parties to reprint copyrighted work depending on the purpose, the amount of text quoted, and other factors.
"If you're trying to illustrate the point that they exert control over their members, you can't do it by quoting only five or six rules," Leipold said. "You've got to look at what the scope is."
This is by no means the first legal scrape for Bridge Publications over online criticism of the church. In 1995, the church sued Netcom and another service provider after one of their subscribers allegedly used their systems to infringe Scientology's copyrights. Before the suit ultimately settled, a federal judge in San Jose ruled that Netcom could not be held liable for any infringement unless it had been made aware of the offending materials first and refused to take any action.
Although not binding, that ruling, issued by U.S. District Judge Ronald Whyte, became an influential way of resolving when ISPs are responsible for the infringement of their subscribers. The Digital Millennium Copyright Act borrowed liberally from the ruling.
The subpoena was first reported by Wired News.