Alexandria Division
          Plaintiff,              )
   V.                             )  Civil Action No. 95-1107-A
   THE WASHINGTON POST,           )
   MARC FISHER, and               )
   RICHARD LEIBY,	         )
        Defendants.               )
                       MEMORANDUM OPINION
          Before the Court is the Motion for Summary Judgement filed by
   defendants, The Washington Post, and two of its reporters, Marc Fisher 
   and Richard Leiby (hereinafter referred to collectively as
   "The Post").  A court may grant summary judgement "only when there
   is no genuine issue of material fact and the moving party is
   entitled to judgement as a matter of law." Miller v. Leathers, 913
   F.2d 1085, 87 (4th Cir. 1990) (citing Fed. R. Civ. p. 56 (c)).  In
   ruling on such motions, the court must construe all facts and all
   inferences drawn from those facts in favor of the non-moving party.
   Charbonnagas de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).
   Having performed this analysis, the Court finds that summary 
   judgment should be entered in favor of the defendants.
                     1. UNDISPUTED FACTS
          The essential facts are not in dispute.  In 1991, the Church
   of Scientology sued Steven Fishman, a disguntled former
   member of the Church of Scientology, in the United States District
   Court for the Central District of California.  Church of
   Scientology Int'l v. Fishman, No. CV 91-6426.  On April 14, 1993,
   Fishman filed in the open court file what has come to be known as
   the Fishman Affidavit, to which were attached 69 pages of what the
   Religious Technology Center ("RTC") describes as various Advanced
   Technology works, specifically levels OT-I through OT-VII
   documents.  Plaintiff claims that these documents are protected
   from both unauthorized use and unauthorized disclosure under the
   copyright laws of the United States and under trade secret laws,

        In California, the RTC moved to seal the Fishman affidavit,
   arguing that the attached AT documents were trade secrets.  That
   motion was denied and the Ninth Circuit upheld the district court's
   decision not to seal the file.  Church of Scientology Int'l v 
   Fishman, 35 F.3d 570 (9th Cir. 1994).  The case was remanded for
   further proceedings and the district court again declined to seal
   the file, which remained unsealed until August 15, 1995.

        Defendant Arnaldo Lerma, another former Scientologist, 
   obtained a copy of the Fishman affidavit and the attached AT
   documents.  Lerma admits that on July 31 and August 1, 1995, he
   published the AT documents on the Internet through defendant
   Digital Gateway Systems ("DGS"), an internet service provider. RTC,
   which regularly scans the Internet, discovered the publication of
   documents and on August 11, 1995, warned Lerma to return the AT 
   documents and not publish them any further. After Lerma refused to 
   cooperate, RTC obtained a Temporary Restraining Order prohibiting
   Lerma from any further publication of the documents and a seizure
   warrant which authorized the United States Marshal to seize Lerma's
   personal computer, floppy disks and any copies of the copyrighted
   works of L. Ron Hubbard, the author of the AT documents.
      During the same time period, on or about August 5 or 6, 1995,
   Lerma sent a hard copy of the Fishman Affidavit and AT attachments
   to Richard Leiby, an investigative reporter for the Washington
   Post.  On August 12, 1995, counsel for RTC discovered this
   disclosure and approached the Post, which was told that the Fishman
   affidavit might be stolen.  In response to the RTC's
   representations, The Post returned the actual copy which Lerma had 
   given it.  However, the Post had by then learned that a copy of the 
   same Fishman affidavit was available in the open court file in the
   United States District Court for the Central District of
   California.  On August 14, 1995, The Post sent Kathryn Wexler, a
   news aide stationed in California, to that court to obtain a copy for
   Wexler, who then mailed it Washington.  Although it is 
   undisputed that RTC staff members had been checking that file out
   and holding it all day to prevent anyone from seeing it,  the file
   was not sealed and obviously was available, upon request, to any
   member of the public who wished to see it.
      The day after the Post obtained its copy of the Fishman
   affidavit, the RTC applied for a sealing order and the trial judge
   ordered the file sealed.  However, there is no evidence in the
   record that the judge ordered The Post to reurn the copy made by
   the  Clerk'c office or that any kind of restraining order was
   issued by that court against The Post.
       Five days later, on August 19, 1995, The Post published a news
   article, entitled "Church in Cyberspace: Its Sacred Writ is on the
   Net.  Its Lawyers are on the Case," written by defendant Marc
   Fisher.  In that article, RTC's lawsuit against Lerma and the
   seizure of his computer equipment was discussed, as was the 
   history of Scientology litigation against its critics and the 
   growing use of the Internet by Scientology dissidents.  The article
   included three brief quotes (totally 46 words) from three of the
   AT documents.  On August 22, 1995, the RTC filed its First Amended 
   Verified Complaint for INjunctive Relief and Damages in which it
   added The Washington Post and its two reporters, Fisher and Leiby, 
   as additional defendants.  A Second Amended Verified was later
   files and is now the subject of this summary judgement motion.
                  II. THE COPYRIGHT CLAIM
      Although the Court has serious reservations about whether the
   AT documents at issue in this litigation are properly copyrighted,
   for the purposes of this motion, the Court assumes that the RTC
   hold properly registered, valid copyrights for the AT documents
   attached to the Fishman affidavit.
      The Post does not deny that it copied the AT dcouments and
   quoted from them. It argues, however, that this copying and these
   quotations fall squarely within the "fair use" exception.  Thus,
   the dispositive issue as to the copyright claim is whether or
   not The Post's use of the AT documents falls within the fair use
   exception to the copyright law.  Under that exception, "the fair
   use of copyright ...for purpose such as criticism, comment,
   new reporting  ... or  research, is not an infringment of
   copyright." 17 U.S.C.A. & 107 (West Supp. 1995) (emphasis added).
   As the Supreme Court has held "fair use is a mixed question of law
   and fact."  Harper & Row Publishers Inc. v Nation Enters, 471 U.S. 
   539, 560 (1985).  In the instant case, the Court finds no material
   facts in dispute; therefore, the issue can be resolved as a matter
   of law.
       At the outset of its opposition, the RTC argues that because
   the fair use doctrine is an equitable one, The Post should not be
   allowed to rely on this defense because of unclean hands.
   Specifically, the RTC points to the Post's failure to disclose that
   it had made several copies of the Fishman Affidavit.  In an
   affidavit signed on September 26, 1995, Mary Anne Werner, a Post
   Vice President and counsel, averred that "only one copy of that
   [Fishman] declaration has been made."  In fact, through discovery
   RTC learned, and the Post does not dispute, that other copies
   were made.  Wexler admits that she made an additional copy of the 
   materials received from the Clerk's office. She sent that copy to
   Washington as well to ensure that Washington got a copy.  A second
   copy was created, not my copying the Fishman affidavit which had
   been obtained in California, but by down loading a copy off the
   Internet.  The Post argues persuasively here that the presence of
   the AT documents on the Internet was a part of their very news
   worthiness and that making this copy was an act of legitimate news 
       A third copy of the AT documents was generated after Lerma
   sent a duplicate of the Fishman affidavit to Leiby via e-mail.
   That e-mail was copied to a disk in response to demands by RTC's
   counsel on August 22, 1995, that The Post secure any materials it
   had been sent by Lerma.  (Second Werner Decl. && 4-5).
      None of these acts of copying strike this Court as
   unethical behaivor and the Court is satisfied from her
   second declaration that Ms Werner did not mislead the Court or
   counsel in referring to one copy.  In any case, the Court Aagrees
   with The Post that the issue of unclean hands is a weak attempt by
   RTC to avoid the real issue of fair use.
     In determining whether the use of a copyrighted work is fair
   use and therefore not an infringment, the Court must consider four

            1.    the purpose and character of the use,
            including whether such use is of a commercial
            nature or 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.
            4.    the effect of the use upon the potential
            market for or value of the copyrighted work.
            The fact that a work is unpublished shall not
            itself bar a finding of fair use if such
            finding is made upon consideration of all the
            above factors.
   17 U.S.C.A. & 107 (West Supp. 1995).  These four statutory factors
   may not "be treated in isolation, one from another. All are to be
   explored, and the results weighed together, in light of the
   purposes of copyright."  CAmbell v Acuff-Rose Music Inc, 114 S. Ct.
   1164, 1170-71 (1994).  The interplay of the four factors is
   recognized elsewhere as well.  See, e.g., Sony Corp of America v
   Universal Studios Inc., 464 U.S. 417,  449-450 (1984)  (reproduction
   of an entire work "does not have its ordinary effect of militating
   against a finding of fair use"  as to home videotaping of television
   programs) ; Harper & Row, Publishers, Inc v National Enterprises,
   471 U.S. 539, 564 (1985) ("[E]ven substantial quotations might
   qualify for fair use in review of a published work or a news account
   of a speech"  but not in the scoop of a soon-to-be-published memoir).
   Thus, we may not evaluate any single fair use factor in isolation.
       As to the first factor, the purpose and character of the use,
   there is no evidence in this record that the Post copied the AT
   documents for any purposes other than news gathering, news 
   reporting and responding to litigation.  Although the RTC has 
   argued that The Post harbors some animus towards Scientology, an
   unbiased observer would conclude that the Church of Scientology and
   its treatment of critics is a newsworthy subject about which The
   Post is permitted to investigate and report.  There is no evidence
   that the Post was trying to "scoop" the RTC in quoting the AT
   documents or trying to avoid payment of a royalty, conduct to which
   other courts have looked in finding that a media organization
   violated copyright.  Harper & Row Publishers, Inc., vs Nation
   Enterprises, 471 U.S. 539 (1985) ; Iowa State University Foundation,
   Inc., v. American Broadcasting Co Inc., 463 F. Supp. 902
   (S.D.N.Y. 1978).
       Under the second factor, the scope of the fair use doctrine is
   greater with respect to factual works than creative or literary 
   works.  Hubbard's works are difficult to classify and courts
   dealing with this issue have differred in their conclusion.  As the
   Second Circuit stated in New Era Publications Int'l v Carol
   Publishing Group, 904 F.2d 152, 158 (2d Cir.), cert. denied, 111 S
   Ct. 297 (1990) "reasonable people can disagree over how to classify
   Hubbard's works."   However, that court also concluded that
   the works "deal with Hubbard's life, his views on religion, human
   relations, the Church, etc. -- [and] are more properly viewed as
   factual or informational." Id at 157. The United States District
   Court for the Southern District of California is of another view,
   however.  In Bridge Publication, Inc. v. Vien, 827 F. supp. 629,
   636  (S.D. Cal. 1993), the court stated that "[t]he undiputed
   evidence shows that L. Ron Hubbard's works are the product of his
   creative thought process, and not merely informational."
      However, in this litigation the RTC has characterized the AT
   documents essentially as training materials.  Therefore, this Court
   concludes that despite their obtuse language the AT documents are
   intended to be informatinal rather than creative and, therefore,
   that broader fair use approach is appropriate.
     To evaluate the third factor, which essentially requires
   making a qualitative as well as quantitative analysis of the use
   made of the work, the three quotes need to be read in the context
   of the article.  The first and longest quote is obviously included
   merely as an example of the obtuse language used in the AT
   documents.  No fair-minded reader could possibly construe this quote
                Most of the 103 pages of the disputed texts
                from the Fishman file are instructions for
                leaders of OT training sessions. They are
                written in the dense jargon of the church.
                'If you do OT IV and he's still in his head.
                all is not lost, you have other actions you
                can take.  Clusters, Prep-Checks, failed to
                excercize directions.'
       The second quote describes how in "one high level OT session
    trainees are asked to pick an object 'wrap an energy beam around
    it' and pull themselves toward the object."  the last quote occurs
    in the very next sentence which describes how trainees are to "be
    in the following places--the room, the sky, the moon, the sun."
    These underlined words comprise the total of the copyrighted 
    materials quoted.
       The RTC argues that where quotes, although fragmentary, are of
    "significant material," even de minimis copying infridges. It then
                                 -- -------
   bootstraps this argument by claiming that because Fisher chose to
   include these three quotes in his article, the quoted language must
   necessarily be significant.  Under this reasoning, no one, let
   alone a newspaper, could ever quote from copyrighted materials
   withour fear of being hauled into  court for infridgment becuse
   any quote would be deemed significant. To accept this argument
   would essentially destroy the fair use doctrine.  It also clearly
   is unsupported by the facts because as discussed above, the three
   quotes, read in context of the entire article, are offered solely
   as illustrations of the authors claims about Scientology. They
   are not intended to offer a complete definition of the Scientology
   religion or to capture the total essence of what it means to be a
     Lastly, we must look at the effect of the Posts's use upon the
   potential market for or value of the copyrighted work.  Although
   the RTC claims it has demonstrated an enormous effect upon its
   potential market, a fair view of the record discloses no evidence
   of any economic exploitation by the Post of RTC's copyrighted
   material. As The Post cogently argues, no follower of Scientology
   could possibly be satisfied by these three random fragments quoted
   in its article so as to bypass the complete regime of
    Although both sides have raised numerous additional issues,
   the essential analysis for the copyright claim comes down to these
   four factors.  Based on this analysis, we find for the defentants.
   RTC properly argues that the mere existence of a copyrighted work
   in an open court file does not destroy the owner's property
   interests in that work.  In the same way, the placement of a
   copyrighted book on a public library shelf does not permit
   unbridled reproduction by a potential infridger.  However, RTC
   cannot selectively avail itself of only a segment of the copyright
   law.  With preservation of copyright protection invariably
   comes fair sue exemption, and on that ground the Post's actions
   are proper.
                    III. ATTORNEY'S FEES
      Because The Post has been found to be the prevailing party on
   the copyright claim, it qualifies for an award of attorney;s fees
   and litigation expenses.  The RTC opposes such an award. Whether
   to award such fees is a matter left to the Court's discretion.
   Fogerty v Fantasy, Inc. --U.S.--, 114 S Ct. 1023, 1033 (1994)
   In deciding the appropriateness of a fee award, the Court should
   consider motivation of the plaintiff in bringing the action for
   copyright infringement and the xtent to which plaintiff's position
   is reasonable and well-grounded in fact and law.

      On the first issue, the Court finds that the motivation of
   plaintiff in filing this lawsuit against the Post is reprehensible.
   Although the RTC brought the complaint under traditional secular
   concepts of copyright and trade secret law, it has become clear
   that a much broader motivation prevailed--the stifling of crticism
   and dissent of the religious practices of Scientology and the
   destruction of its opponents.  L. Ron Hubbard, the founder of
   Scientology, has been quoted as looking upon law as a tool to
                 [h]arass and discourage rather than to win.
                 The law can be used very easily to harrass and
                 enough harrassment on somebody who is simply on
                 the thin edge anyway, well knowing that he is
                 not authorized, will generally be sufficient
                 to cause his professional decease.  If 
                 possible, of course, ruin him utterly.
   (Declaraction of Mary Ann Werner, Attachment A, at C5; see also The
   Posts's reply brief at p. 24, note 23).
      The context and extent in which the Post copies and quoted
   from the AT documents was so de minimis that this Court finds that
   no reasonable copyright holder could have in good faith brought
   a copyright infringement action.  Although there are limits beyond
   which the media may not go, even in the interests of news gathering
   and reporting, this case does not come anywhere near those limits
   Therefore, an award of reasonable attorneys' fees is appropriate
   and granted.
       To prove misappropriation of a trade secret, the RTC must show
   (1) that it possed a valid trade secret, (2) that the defendant
   acquired its trade secret, and (3) that the defendant knew or 
   should have known that the trade secret was acquired by improper
   means.  Trandes Corporation v. Guy F. Atkinson, 996 F 2d 655, 660
   (4th Cir. 1993), cert denied, -- US --, 114 S Ct 443 (1993).
      The Post argues persuasively that the AT documents were no 
   longer trade secrets by the time the Post acquired them. They point
   to the following undisputed facts.  First, the Fishman
   affidavit had been in a public court file from April 14, 1993 until
   August 15, 1995, for a total of 28 months.  although RTC has shown 
   that it went to extraordinary efforts to control access to that
   file by having church members sign the file out and keep it in
   thier custody at the courthouse, the file nevertheless was an open
   file, available to the public.  The Post was able to obtain a copy 
   of the Fishman affidavit withour any difficulty, by merely asking
   the Clerk of the court to copy it. Thus, having been in the public
   domain for an extensive period of time, these AT documents cannot
   be deemed "trade secrets."  Kewanee Oil Co. v Bicron Corp., 416
   U.S. 470,  484 (1974)
       Of even more significance is the undiputed fact that these
   documents were posted on the internet on July 31 and August 1,
   1995. (Lerma Affidavit).  on August 11, 1995, this Court entered
   a Temporary Restraining Order among other orders which directed
   Lerma to stop dissemnating the AT documents.  However, that was
   more than ten days after the documents were posted to the internet,
   where they remained potentially available to the millions of
   Internet users around the world.
      As other courts who have dealt with similar issues have
   observed, "posting works to the internet makes them 'generally 
   known'" at least to the relevant people interested in the news 
   group. Religious Technology Center v Netcom On-Line Communications
   Services, Inc., No. C.  95-20091  RMW (N.D. Cal.) Sl:p Opinion
   entered  9/22/95 at 30.  Once a trade secret is posted on the 
   Internet, it is effectively part of the public domain, impossible
   to retrieve.  Although the person who originally posted a trade
   secret to the internet may be liable for trade secret
   missappropriation, the party who merely downloads Internet 
   information cannot be liable for missappropriation because there
   is no misconduct involved in interacted with the internet.

      Even if one were to assume that the AT documents are still
   of trade secrets  is not committed by a person who uses or publishes a
   trade secret unless that person has used unlawful means, or
   breached some duty created by contract or implied by law resulting
   from some employment or simliar relationship.  (Smith c Snap-On
   Tools Corp., 833 F 2d 578, 581 (5th Cir. 1988); Aerospace Am., Inc
   v. Abatement Tech., Inc., 738 F Supp. 1061, 1071, (E.D. Mich.
                It is the employment of improper means to
                procure the trade secret, rather than the mere
                copying or use, which is the basis of
                [liability]....   Apart from breach of contract,
                abuse of confidence or impropriety
                in the means of procurement, trade secrets may
                be copied freely as devices or processes which
                are no secret.
    Trandes Corporation v. Guy F. Atkinson Company, 996 F. 2d at 660,
    (quoting the Restatement (First of Torts) (emphasis in original)
    The Trandes court notes that abuse of confidence or impropriety in
    the means of procurement represented the "essential element" and
    the "core" of a misappropration claim. Id.

       The RTC claims that because The Post was on notice of the
    the RTC's allegations that the AT documents were stolen and were both
    trade secrets and unpublished copyrighted works, the Post was under
    a legal obligation not to copy the documents.  This Court
    knows of no law which required The Post to sit on its hands and do
    no further investigation into what was obviously becoming a newsworthy
    event and newsworthy documents.  The RTC's allegations
    are still just allegations.  The very court from which the Fishman
    affidavit was obtained still has under advisement the issue of
    whether the AT documents are trade secrets.  Although the Post was 
    on notice that RTC made certain proprietary claims about these
    documents, there was nothing illegal or unethical about the Post
    going to the Clerk's office for a copy of the documents or downloading
    them from the Internet.
       Because there is no evidence that the Post abused any confidence,
    committed an impropriety, violated any court order or committed
    any other improper act in gathering information from the
    court file or downloading information from the Internet, there is
    no possible liability for the Post in its aquisition of the
    information. This is true regardless of the documents status as
    trade secrets.  As for disclosure of the information.  The Post
    did nothing more than briefly quote from publically available
    materials.  These acts simply do not approach a trade secret
    missappropraition, and therefore, summary judgement must be entered
    for the defendants.
      The Clerk is directed to forward copies of this Memorandum
    Opinion to cousel of record.

      Entered this 28th day of November, 1995
                                           Leonie M. Brinkema
                                           United States District Judge
   Alexandria, Virginia