It appears that the LDS Church doesn't like its
members to know how to get their names removed from the church
membership records. On Wednesday, October 13, 1999, the LDS Church
filed a lawsuit against Jerald and Sandra Tanner for posting
a chapter from the Church Handbook of Instruction that
pertains to church courts and disciplinary protocol.
The Tanners posted this information because of
the frequent number of letters and phone calls they receive asking
how to rescind one's membership from The Church of Jesus Christ
of Latter-day Saints.
Many disillusioned members contact the Tanners
in regards to this information because they have no desire to
talk with local church leaders to find out how the process works--some
are afraid of harassment by "well meaning" members
who might attempt to bring the unbelieving individual "back
into the fold"--others fear authoritarian manipulation by
Bishops, Stake Presidents, and other ecclesiastical leaders,
if they ask about having their church membership terminated.
One of the biggest concerns these people have
is that the LDS Church will turn their honest request into an
accusation against them. This often occurs when the member asks
to have their name removed from church records, only to find
that the church has "excommunicated" them. Sandra Tanner
refers to this as "going into your boss and saying, 'I quit,'
and the boss writes on the paperwork, 'I fired them because they
had a bad attitude,' " Tanner states that "The average
Mormon has no way of knowing these ground rules." Being
"excommunicated" implies that the member may have been
involved in some immoral activity that required they be dismissed
from the church. Many see this as a form of character assassination.
The Tanners posted the above mentioned chapter
believing that it fell under the protection of the "Fair
Use Doctrine," which allows portions of a copyrighted material
to be legally reproduced for criticism, news reporting, scholarship
or other limited reasons. The LDS Church does not seem to share
this opinion, and filed a lawsuit against the Tanners through
"Intellectual Reserve, Inc.," (IRI) a church formed
corporation, under which the copyright for the Church Handbook
of Instructions was filed.
When requested to remove the material from their
web site the Tanners immediately complied. However, the church's
law firm also required the Tanners make a full admission of their
guilt by posting the following paragraph, actually written by
church lawyers:
"The Church Handbook of Instructions is copyrighted by Intellectual Reserve, Inc. Our posting of portions of the Church Handbook of Instructions at this website was neither authorized nor lawful, and such posting has been discontinued. We request that all copies of any portion of the Church Handbook of Instructions downloaded from this website be destroyed." (Bold italics added)
Posting this statement without any explanation
was something that the Tanners were not willing to do. First,
they had not written it--its words were those of LDS church lawyers.
Second, the statement insinuates that the Tanners willingly and
knowing broke the law, which the Tanners argue is not true.
In an attempt to resolved the issue, the Tanners
decided to post the above required statement by posting the entire
document on which it was contained. That way, they reasoned,
there would be no confusion that they had been required to post
the statement, and had not written it themselves.
This did not make the church lawyers happy they
insisted that the Tanners appear in court on the following Monday,
October, 18.
Update 10-19-99:
On Monday morning, the Tanners appeared, along
with their lawyer, before U.S. District Judge Tena Campbell.
Lawyers from IRI requested that Judge Campbell issue a "temporary
restraining order" prohibiting the Tanners from posting
any material copyrighted by IRI.
Since the Tanners had already removed the offending
web page, Judge Campbell seemed puzzled by IRI request. "It
seems to me you've won without me doing anything," she commented
to the IRM lawyers.
The lawyers complained that IRI's rights were
still at risk--that the Tanners still listed the pages on their
web site's index, which they contended would still invite inquiries
about the copyrighted material. In addition, they feared that
the Tanners might be distributing the Handbook by email
or printed copies.
Church lawyer, Todd Zinger, requested that Judge
Campbell order the Tanners to "destroy or turn over every
copy they possessed, whether in print of electronic form."
(The Salt Lake Tribune, October 19, 1999) It is interesting
to note that the Tanners did not have an actual hard-copy of
chapter ten of the Church Handbook of Instructions (the
chapter they posted on their web site) until the Church lawyers
provided them with one in the papers served the previous Wednesday.
Furthermore, Zinger asked Campbell to "order
the Tanners to post their own statement admitting copyright violations
and asking readers to destroy any copies they created."
(Ibid.)
Campbell rejected Zinger's requests. She stated
that "she has not yet received the Tanners' response to
the suit," and that "[s]he could later rule they had
a right to use the material." (Ibid.)
In regards to the requiring the Tanners post what
constituted a statement of guilt on their web site, Judge Campbell
commented that "[t]he IRI letter posted on the Internet
sufficiently alerts readers to the copyright controversy."
(Ibid.)
Campbell requested the Tanners to "remove
the index references to the pages and to refrain from distributing
any copies while a court order is in place." (Ibid.)
A new hearing date has been scheduled for Nov.
10.
In the meantime, the Tanners have rewritten their
original "offending" web page to provide current disenchanted
church members with information on how
to remove their names from the LDS church membership records
without using verbatim verbiage from the Church Handbook
of Instruction.
Update 10-30-99:
On Saturday, October 30, Salt Lake Tribune
reporter Sheila McCann reported that "Jerald and Sandra
Tanner will not oppose a long-term court order banning them from
posting portions of a Mormon clergy handbook on their Web site
because they say the same material already is available elsewhere
on the Internet." (Salt Lake Tribune, October 30,
1999, D1)
McCann pointed out that one site, www.xenu.netizen.com.au/lds,
allows visitors to download the entire 160 page Handbook--far
more than the meager 17 pages made available by the Tanners.
"IRI has said distribution of the privately printed, unpublished
handbook is regulated by the church and limited to current clergy
members. It contended the Tanners' posting violated its copyright
and breached its right to control publication." (Ibid.)
Berne Broadbent, attorney for IRI, admitted that
the Handbook's availability on the Internet "weakens
IRI's copyright argument and any claim of damages ." (Ibid.)
Update 11-6-99:
On Friday November 5, 1999, LDS Church attorneys
filed court documents charging the Tanners with contempt.
Salt Lake Tribune writer Lisa Carricaburu
reported that in their documents "IRI argues the Tanners
are violating the order by alerting visitors to their Web site
that they can copy the book from other Internet sources. 'Inducing
or contributing to someone else's infringement is infringing
also,' said Berne Broadbent, an attorney representing IRI."
(The Salt Lake Tribune, Saturday, November 6, 1999,
D2)
This charge should raise the concern of all persons
interested in "freedom of speech" on the Internet.
If IRI's argument is enforced it could set a precedent where
web page owners can be indited simply by "pointing"
visitors to a web site "accused" of copyright infringement.
Carricaburu's article reports that the documents
filed by Church attorneys representing IRI accuse the Tanners
of "a blatant end-around the Court's order" because
the Tanners' "site includes Internet addresses at which
the entire book or portions of it can be obtained." (Ibid.)
Brian Barnard, attorney for the Tanners, questions
IRI's "sincerity." He points out that "'These
materials were in circulation long before my clients put their
17 pages on the Internet,'" and "that IRI itself made
the pages in question part of the public record -- readily available
to anyone who wants them -- when it included them as an exhibit
in the lawsuit." (Ibid.)
In the meantime, "IRI is evaluating whether
it will take legal action against others allegedly violating
the copyright," and "has requested voluntary compliance
with copyright law and may act if other illicit sources of the
material don't respond." (Ibid).
Update 11-11-99:
On Wednesday November 11, Judge Campbell ordered
the Tanners to remove all references to web sites where the CHI
can be viewed or downloaded.
Salt Lake Tribune reporter Steven Oberbeck
reported that Campbell expanded the current "temporary restraining
order that bars the couple from distributing copyright materials
on their Web site that describe church disciplinary procedures.
. . ." by ordering "the Tanners to remove from their
Web site three Internet addresses where the church's publication
could be found." (Salt Lake Tribune, November 12,
1999, C2)
The judge's expanded order came after the Tanners
posted an email in which the writer told of a Australian site
which allows guests to download the entire CHI document.
The fact that the Tanners were only posting a
quote, and did not have the mentioned site linked, raises the
concerns of many concerned with First Amendment rights on the
Internet. In an email to the editors of the Reason web
site Sandra Tanner explained, "None of the times the Aust[ralian]
site is mentioned on our site are 'links.' They are just typed
out. You can't just press on the site address and go there."
Oberbeck reports that "[b]efore any order
is made permanent, the Tanners' attorney Brian Barnard will be
given a chance to argue that merely pointing to another Web address
where the material is available is not contributing to copyright
infringement.
"'It is our position that simply having references
on your Internet site to someone else's site does not constitute
infringement,' said Barnard." (Salt Lake Tribune,
November 12, 1999, C2)
The expanded order raises further questions concerning
the LDS Church's honestly and true motives in the suit. If Church
lawyers are so convinced over quoting someone whose email refers
to an offending web site, why is the LDS Church not going after
the Salt Lake Tribune? A link to a Tribune
article was also ordered removed from the Tanners' site. The
Tanners' attorney suggested that "the church may want to
add The Salt Lake Tribune as a defendant since in earlier news
stories concerning the case it published the address of the Web
site in Australia where the entire handbook is available for
viewing. . . . The Tanners . . . merely provided a link to the
Tribune story . . ." (Ibid.)
"We have no intention of going after The
Salt Lake Tribune," commented an LDS Church attorney. (Ibid.)
Update 11-20-99:
On Friday, November 19, Judge Campbell declined
a request by the Tanners to modify the temporary restraining
order.
The Judge's decision came a day after the Tanners
appeared in court requesting modification of the expanded order
issued on November 10.
The Tanners' attorney, Brian Barnard, has argued
that "the lawsuit should be dismissed because the church
has never claimed it has a copyright on the 17 pages of the Church
Handbook of Instructions that the couple posted on their Web
site. 'If there is a copyright somewhere [on the material], then
we do not know about it yet,' said Barnard. Instead, according
to Barnard, the church in its court filings has indicated the
handbook is a compilation of earlier works." (Salt Lake
Tribune, November 16, 1999, B2)
The Salt Lake Tribune reported that in
Friday's decision, Campbell "said there is a substantial
likelihood the LDS Church will be able to show they are
contributing to copyright infringement by posting the Web addresses."
In addition she also stated "that the defendants failed
to identify any harm they would suffer if the expanded order
remained in effect." (Salt Lake Tribune, November
20, 1999, D8, bold-italics added)
Update 11-24-99:
On Tuesday the 23rd of November, Judge Campbell
again delayed a decision regarding the Tanners expanded court
order. The Salt Lake Tribune reported that the Tanners'
attorney asked the court to "soften" the order requiring
them to remove an email, and a link to a Salt Lake Tribune
article.
"The Tanners' attorney, Brian Barnard, said
the couple does not object to the restriction against displaying
the pages [of the Church Handbook of Instructions]. He said,
however, that barring the couple from telling others where the
book can be viewed violates their right to free speech."
(Salt Lake Tribune, November 24, 1999, C2)
Lawyers from the LDS Church maintained "that
the Tanners were contributing to copyright infringement by letting
people know where the book could still be read. . . . "
that the by posting the email and link to the Tribune
the Tanners were "holding up a great big sign saying here
is where you can find an unauthorized copy of the church handbook."
(Ibid.)
The Tribune reported that Judge "Campbell
took the matter under advisement." (Ibid.)
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