Scientology has long been criticized for using litigation to wear down anyone who challenges or investigates its church. Now, Gawker and other sites found themselves the recipients of threatening letters not to show the video, which contains a rather odd interview with Cruise in a frenzy over Scientology and its powers. The claim of copyright infringement and criminal violations appears a scare tactic given the newsworthy content of the video. While some sites immediately buckled under the pressure, Gawker has taken a public and defiant stance against Church. While Scientology founder L. Ron Hubbard told his supporters that litigation is meant to harass enemies not win cases, this is one first amendment fight the Church may want to avoid.

Church lawyer Ava Paquette of Moxon and Kobrin tells Gawker in a letter reprinted on its cite that the video was “stolen from one of its Churches” and suggests that the site is not only violating copyright laws but in receipt of stolen property. Gawker responds with a strong refusal to stop showing the video as newsworthy. The site notes that “the sect’s founder, science fiction writer L. Ron Hubbard, wrote in a 1955 magazine article, “The purpose of a lawsuit is to harass and discourage rather than to win.'”

Gawker has some compelling arguments to make. The criminal argument is exceptionally weak in my view. The video is popping up all over the Internet and being used for its newsworthy content.

The copyright argument is much more interesting. The fair use test can be found at 17 U.S.C. § 107 of the Copyright Act of 1976:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.

The video in this case does not appear to have been for sale and the effect of its release will not likely effect its use. The video is presumably being used to attract new members or instruct old members on the power of the faith. It is like the Catholic Church claiming that a speech by a Bishop is protected for reproduction.

Nevertheless, courts appear to have downplayed the non-commercial use factor – finding that there are usually some commercial value or potential for the Plaintiff. Indeed, it is well-known that Scientology charges escalating fees to members to reach higher levels of power or awareness. It could be claimed that this video could have been sold or tied to some fee-based system.

A court could look at the degree that the video is shown — in part or in whole. This appears to be the whole video. In Acuff-Rose Music, the Supreme Court ruled that “when a commercial use amounts to mere duplication of the entirety of the original, it clearly supersedes the object of the original and serves as a market replacement for it, making it likely that cognizable market harm to the original will occur.”

However, this does appear to be a news story. As noted above, the law states “the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, . . . is not an infringement of copyright.” Cruise is a celebrity and Scientology is highly controversial. As discussed in earlierentires, various countries have declared Scientology to be a cult or criminal enterprise through the years, including recent efforts to ban the Church from certain countries. Gawker and others have posted the video to show what they view as a type of cult-like behavior Cruise. This ties directly to the recent book on Cruise, whose author is also reportedly being sued. See here

The penalties for infringement can be high: up to $150,000 for each separate act of willful infringement. However, for willful infringement, the plaintiff must show that you knew you were infringing. While ignorance of the law is no defense, a court is allowed to find a violation but refuse to impose damages where there is a good faith fair use defense [17 USC 504(c)(2)]. For this defense, the defendant must show that it reasonably believed it was a fair use.

The question is whether the Church would truly relish a fight on this one — just as it would be strange for Cruise to relish discovery on the recent book despite his anticipated lawsuit. The Church has been trying to reshape its image using celebrities like Cruise and outreach programs. Fighting to restrict free speech would hardly fit into that campaign. Since the newsworthy claims go to the allegation that Scientology is a cult, the litigation would only highlight that image in the public domain. In the meantime, there is no way to get this cat to walk backwards. The video is racing around the Internet and will never be returned to exclusive Church control.

For the full story and video from Gawker, click here