Raising the Ruins (28 page)
Authors: Gerald Flurry
And it was all brought to the surface by one single newspaper ad. That is what provoked Tkach Jr. to spontaneously (and publicly) reveal his true motive for filing the lawsuit from the beginning. It wasn’t
to protect what they considered to be a valuable asset,
as we would hear later. Nor was it because
they had big plans for
Mystery of the Ages
down the road—perhaps distributing the work again in some kind of annotated form
. And it wasn’t because
they were intent on making all of Mr. Armstrong’s works available through e-publishing for historical purposes and to accommodate the spiritual needs of our
PCG
membership
.
Those were all
LIES
that would resuscitate their case from time to time in the years that followed. But what
killed
their case from the beginning is when Tkach Jr., in a brief, angry reaction to a newspaper ad, sat in front of his computer and actually typed
the truth
. As
ABSOLUTE RULER
in the
WCG
, he admitted he had a “Christian duty” to destroy Mr. Armstrong’s written works.
“While the Church is not presently reprinting these books, the board affirmed that the Church has a continuing interest in his books and did not, and does not, intend to abandon the copyrights.”
— Worldwide Church of God Board minutes
April 2, 1997
In Oklahoma, we immediately tried to alert the new judge, Vicki Miles-LaGrange, to the
WCG
’s antics in California—that Judge Letts denied their application for a temporary restraining order and indicated the
WCG
would lose on the merits. We explained how the
WCG
lulled us into preparing our defense against the California action, all the while planning to transfer the action to Oklahoma. We asked Judge Miles-LaGrange to immediately transfer the case back to California to “thwart
WCG
’s blatant attempt at forum shopping.”
1
On March 11, she denied our ex parte request, saying she wanted to hear both sides out before making a decision. So we pressed forward, now tackling the case from two angles—the
merits
and the application to
transfer
the action back to California. (Actually, we also introduced a third angle in Oklahoma. More on this later.)
Now that we wanted to move the case back to California, the
WCG
accused us of the very thing we were so upset about—“forum shopping”! In opposition to our motion for transfer, the
WCG
’s Oklahoma attorney insisted that
this action was filed in this forum solely because Philadelphia Church preserved a personal jurisdiction challenge to the previous lawsuit filed in California.
Immediately
upon learning of such a challenge, Worldwide Church properly dismissed that action … and filed this action in this judicial district where the Philadelphia Church is located.
2
Later in the brief, their attorney made a point to say that we never even filed a response to their California action—failing to mention that two days before our response was due, even as we were pressing the
WCG
for discovery on the merits of the case, Benjamin Scheibe asked if we would delay our opposition by one week, as they were having “trouble” locating the requested documents. Then, on February 28 the
WCG
pulled the rug out from under us by dropping the California action.
The Other Angle
While the dispute over the venue raged on, we continued working on the merits of the case—particularly our defense. As stated in our opposition brief, filed on March 24, we believed our action to distribute
Mystery
was protected by the free exercise clause of the First Amendment as well as the Religious Freedom Restoration Act—a law Congress enacted to help prevent other laws from stifling one’s religious freedoms. And should the judge narrow the scope of the ruling to the copyright law alone, even within those bounds, we felt like our reproduction of the book was valid under the copyright’s “fair use” doctrine. We also argued that, by its action, the
WCG
had abandoned its copyright to
Mystery of the Ages
.
More significant than this, however, is the
offensive
posture we took in our counterclaim. In the “prayer for relief,” we asked the court to not only dismiss the
WCG
’s claim, but to reward us with the rights to print and distribute 18
other works
by Mr. Armstrong.
3
As with the advertising campaign, we again wanted to get ourselves on offensive footing. This was central to my father’s strategy throughout the case—if the plaintiff would come on strong, we would meet the aggression head-on and take it a step further. As small as we were (compared to them) and even though a “defendant,” he wanted us to continually wrap our minds around the fact that
we
were on the attack and that
we
would somehow come out victorious in the end. Thus, seven weeks after first getting our feet wet in this case—in any kind of litigation, for that matter—we unleashed a counter-attack. They chose to come after us in an attempt to keep
Mystery
buried. We determined to defend against that action—
and to go after more literature
at the same time. Here are the works we targeted in our counterclaim:
The Ambassador College Bible Correspondence Course
(58 lessons)
The Incredible Human Potential
The United States and Britain in Prophecy
The Wonderful World Tomorrow—What It Will Be Like
The
Autobiography of Herbert W. Armstrong
(volumes 1 and 2)
The Plain Truth About Healing
What Science Can’t Discover About the Human Mind
Pagan Holidays or God’s Holy Days—Which?
Which Day Is the Christian Sabbath?
Who or What Is the Prophetic Beast?
Just What Do You Mean … Born Again?
Why Marriage! Soon Obsolete?
We didn’t realize it at the time, but my father’s decision to go after these 18 works affected the lawsuit’s final outcome
more than any other single event.
End of Oklahoma Action
During April and May, activity in the lawsuit slowed considerably, in part due to Judge LaGrange’s busy trial schedule. On April 21, however, the
WCG
did file a motion asking the court to dismiss our counterclaim. They said there was no “case or controversy” regarding the additional 18 works we were now seeking. Their complaint had to do with
Mystery
only, they contended.
4
And of course, that was true. We just wanted to up the ante.
Six weeks later, incredibly, the
WCG
withdrew its opposition to our motion to transfer and
actually asked the court to go ahead and return the case to California
. It was another stunning turn of events—and this time not easy to explain. Maybe the
WCG
was frustrated over the slow pace of events in Oklahoma. Perhaps they realized how much easier it was to litigate from their home turf in California. Maybe they were resigned to the fact that they would lose at the district level—whether in Oklahoma or California—and were just eager to get the loss on the fast track so they could appeal it. Whatever the reason, we braced ourselves for fighting them in whatever venue it settled in.
Two weeks later, having yet to hear from Judge LaGrange regarding the motions to transfer or to dismiss the counterclaim, the
WCG
filed its reply to our counterclaim. According to the brief, the
WCG
denied that it “stopped printing”
Mystery,
but rather “chose not to re-publish or continue distributing the
Mystery of the Ages
for the present.” It had only been
temporarily
put aside, they told the court. As proof of their new-found desire to use Mr. Armstrong’s writings, they were able to put forward minutes from a board of directors meeting, where the subject was discussed. “[T]he Church continues to work with the text of the books in an ongoing manner for possible future use.”
5
You can see why the “Christian duty” statement, which landed in bookstores later that summer, was so critical to our case. They
NOT ONLY STOPPED PRINTING
Mystery,
they wanted to
stop others
from printing it too—Tkach Jr. said so,
explicitly,
in his own book! But to serve their purposes in court, they made it sound like they had future plans for
Mystery of the Ages
.
On June 30, 1997, Judge LaGrange granted our motion to transfer the action back to California. Thus, we were back where we started.
Status Conference with Judge Letts
Now that the case was back in California, we quickly filed a motion to make sure it returned into Judge Letts’s courtroom, lest the
WCG
get away with its judge-shopping shenanigans. On August 18, Judge Letts was indeed appointed to preside over our case. Two weeks later, lawyers for both sides arranged for a conference call with Judge Letts to hammer out some divisive issues. Upset by the legal wrangling, the judge requested for both clients, with their attorneys, to appear in his court chambers for a status conference.
September 25, 1997, was the first of many times we would meet face to face with our opposition. I distinctly remember my initial exchange with Ralph Helge. “I enjoy your articles in the
Trumpet,
Stephen,” he said, after meeting me for the first time. At the time, back in Edmond, we were wrapping up production on our November issue—in which I accused the
WCG
of deceitfully lying about Mr. Armstrong’s teachings over the years. “Why did the Worldwide Church of God discontinue
Mystery of the Ages
?” I asked in an article titled “Lying Words.” “The answer to that question varies, depending upon who you are, when you ask it, and whom you happen to ask.”
6
Inside the judge’s chambers, after we complained about the
WCG
’s removal of Mr. Armstrong’s most important book, Mr. Helge exclaimed,
with a straight face,
“We’ve never had any intention or decision to
not
publish it!” We were flabbergasted, especially since Tkach Jr.’s book with the “Christian duty” statement had just been released.
Helge then let loose another corker, suggesting that we actually
submit an offer
to license the book from the
WCG
. Here again, in the light of Tkach Jr.’s “Christian duty” statement, any such offer would have been entirely futile. In fact, a month before Helge’s bizarre suggestion in the judge’s chambers,
WCG
officer Greg Albrecht sent this message to an individual seeking to reprint some of the church’s articles and booklets: “[W]e cannot grant your request to publish our old articles and booklets. We hold the copyright, and do not allow others to publish our former teachings and doctrines
for a variety of reasons
.”
7
Later in the lawsuit, in 1999, the
WCG
even acknowledged in its own court filing that any such offer would have been rejected:
P
CG
did not request permission; Flurry explained that others had requested such permission but
WCG
had refused to allow reprinting of the book.
Flurry understood that the
WCG
refused these requests in order to protect its copyright
in
Mystery of the Ages
,
thereby establishing that
PCG
knew full well that
WCG
had no intention of abandoning its copyright.
8
Here, the
WCG
actually pointed to the obvious futility of any such offer as
proof
that it had
NOT
abandoned its copyright. At the same time, they even tried to turn Tkach’s “Christian duty” statement in their favor, saying it actually established “an intent to
enforce
the copyright.”
9
Think about that
. That Tkach Jr. said it was the church’s “Christian duty to keep [
Mystery of the Ages
] out of print” only proved, they told the court, that the
WCG
still owned and, in fact, was using the copyright.
Of course, they were “using” the copyright, but only to prevent Mr. Armstrong’s ideas from circulating.
Two Main Points
When the
WCG
filed its original complaint in early 1997, it had to make two essential points, for the most part: 1) that the
WCG
owned the copyright to
Mystery of the Ages
;
and 2) that the
PCG
had no lawful right to print and distribute the work.
The first point wasn’t as straightforward as one might think. Since the original author of
Mystery of the Ages
was dead, the
WCG
had to show how copyright ownership had transferred into its possession. Early on, rather than rely on Mr. Armstrong’s last will and testament, they tried to prove ownership by saying that everything Mr. Armstrong, as an “employee” of the church, wrote belonged to the church. They opted for this strategy because it would then make Mr. Armstrong’s final wishes for the book seem inconsequential.
Obviously, Mr. Armstrong would have wanted the copyright to protect and preserve his material—not destroy it. But since he was only one “employee” working at a huge organization, “hired” to produce a book, what he wanted didn’t much matter, as far as “the church” was concerned.
On the second point, the
WCG
had to prove the copyright law somehow precluded us from distributing
Mystery of the Ages
. That wasn’t as straightforward as they made it out to be either, because we never claimed to be the actual owner of the copyright. And since we were not claiming ownership for ourselves, the
WCG
had to prove that what we did violated the Copyright Act—in particular, that it was
not
a “fair use” of the work.
Fair Use
Irrespective of who owned the copyright to
Mystery of the Ages
,
or whether the
WCG
abandoned it or not, if the court found our action to be protected by “fair use,” it was a done deal—we could print the book. So the fair use doctrine was of prime concern for both parties in this first round of litigation.
