documents (item 1 of Exhibit B) allegedly came to Erlich anonymously through the U.S. mail. Erlich claims that because the alleged trade secrets were received from "public sources," they should lose their trade secret protection. Although the Internet is a new technology, it requires no great leap to conclude that because more than 25 million people could have accessed the newsgroup postings from which Erlich alleges he received the Exhibit B works, these works would lose their status as secrets. While the Internet has not reached the status where a temporary posting on a newsgroup is akin to publication in a major newspaper or on a television network, those with an interest in using the Church's trade secrets to compete with the Church are likely to look to the newsgroup. Thus, posting works to the Internet makes them "generally known" to the relevant people--the potential "competitors" of the Church.
The court is troubled by the notion that any Internet user, including those using "anonymous remailers"
to protect their identity, can destroy valuable intellectual property rights by posting them over the Internet, especially given the fact that there is little opportunity to screen postings before they are made. See Eduardo M. Carreras, "Intellectual Property: First Casualty on the Information Highway," 13 No. 1 ACCA Docket 26 (Westlaw) ("Carreras") (Jan.-Feb. 1995) at *29-*32 (suggesting that trade secret protection is lost as soon as information is disclosed on the Internet). Nonetheless, one of the Internet's virtues, that it gives even the poorest individuals the power to publish to millions of readers, see Eugene Volokh, "Cheap Speech and What It Will Do," 104 Yale L. J. 1805, 1806-07 (1995), can also be a detriment to the value of intellectual property rights. The anonymous (or judgment proof) defendant can permanently destroy valuable trade secrets, leaving no one to hold liable for the misappropriation. See Carreras at *30. Although a work posted to an Internet newsgroup remains accessible to the public for only a limited amount of time, once that trade secret has been released into the public domain there is no retrieving it. In re Remington Arms, 952 F.2d at 1033. While the court is persuaded by the Church's evidence that those who made the original postings likely gained the information through improper means, as no one outside the Church or without a duty of confidence would have had access to those works,
this does not negate the finding that, once posted, the works lost their secrecy. Although Erlich cannot rely on his own improper postings to support the argument that the Church's documents are no longer secrets see 3 Milgrim § 15.01[a][ii], at 15-43, evidence that another individual has put the alleged trade secrets into the public domain prevents RTC from further enforcing its trade secret rights in those materials. Because there is no evidence that Erlich is a privy of any of the alleged original misappropriators, he is not equitably estopped from raising their previous public disclosures as a defense to his disclosure. Underwater Storage, Inc. v. United States Rubber Co., 125 U.S. App. D.C. 297, 371 F.2d 950, 955 (D.C. Cir. 1966), cert. denied, 386 U.S. 911, 17 L. Ed. 2d 784, 87 S. Ct. 859 (1967) ("Once the secret is out, the rest of the world may well have a right to copy it at will; but this should not protect the misappropriator or his privies."). The court is thus convinced that those postings made by Erlich were of materials that were possibly already generally available to the public. See Lerma, slip op. at 14-15 (finding that RTC could not show the Advanced Technology works were not "generally known" to support injunctive relief); F.A.C.T.Net, slip op. at 16 (same). Therefore, RTC has not shown a likelihood of success on an essential element of its trade secret claim.
4. Conclusion and Alternative Test
Because RTC is the plaintiff, and because it is moving for injunctive relief, it bears the burden of proving its trade secrets. 3 Milgrim § 15.01. The court finds that RTC has failed to adequately define its trade secrets and, at least as to those works that have been made available to the public through previous Internet postings not by Erlich, RTC has failed to meet its burden on the issue of secrecy. Therefore, RTC has failed to show a likelihood of success on its trade secret misappropriation claim.
RTC's failure to prove a likelihood of success on its trade secret claim of secrecy does not necessarily preclude it from showing an entitlement to a preliminary injunction. RTC can meet the second formulation of the preliminary injunction test by showing a combination of serious questions going to the merits of its trade secret claim and that the balance of hardships tips in its favor. However, since the trade secrets have not been adequately defined, the court cannot find that serious questions going to the merits have been sufficiently raised to justify a preliminary injunction on the trade secret claim. Until RTC better describes what its trade secrets are, it is impossible to determine whether previous public disclosures of parts of the Advanced Technology works are sufficient to destroy the secrecy of the entire work. While parts of many of the works have been mentioned in various published articles and books, the court is unclear what effect such disclosures would have on the secrecy and value of an entire work. The court is also not entirely persuaded by RTC's argument that its secrets have competitive value to future breakaway groups. These issues will have to be resolved before RTC can ultimately prevail on its trade secret claims.
D. Irreparable Injury and Balance of Hardships
The court will presume irreparable harm for the copyright claim because plaintiffs have shown a likelihood of success on their claims of infringement. Johnson Controls, Inc. v. Phoenix Control Systems, Inc., 886 F.2d 1173, 1174 (9th Cir. 1989); Apple Computer, Inc. v. Formula International, Inc., 725 F.2d 521 (9th Cir. 1984).
E. First Amendment Concerns
In his Reply, Erlich argues that there is a strong presumption against any injunction that could act as a "prior restraint" on free speech, citing CBS, Inc. v. Davis, 127 L. Ed. 2d 358, 114 S. Ct. 912, 913-14 (1994) (Justice Blackmun, as Circuit Justice, staying a preliminary injunction prohibiting CBS from airing footage from inside meat packing plant). The court notes, however, that the 1976 Act explicitly sanctions the use of preliminary injunctions in the case of copyright infringement. 17 U.S.C. §§ 501(a), 502(a). The Supreme Court has recognized that the Copyright Act itself embodies a balance between the rights of copyright holders, guaranteed by the Constitution, U.S. Const. art. I, § 8, and the protections of the First Amendment. See Harper & Row, 471 U.S. at 557-60; In re Capital Cities/ABC, Inc, 918 F.2d 140, 143-44 (11th Cir. 1990). The doctrine of fair use already considers First Amendment concerns. New Era Publications International, ApS v. Henry Holt & Co., 873 F.2d 576, 584 (2d Cir. 1989), cert. denied, 493 U.S. 1094, 107 L. Ed. 2d 1071, 110 S. Ct. 1168 (1990) (rejecting defendant's argument that First Amendment concerns precluded granting an injunction, though finding other equitable considerations dictated denial of injunctive relief). Because Erlich is able to continue to criticize the Church and use its published and unpublished works to the extent allowed by the doctrine of fair use and because the injunctive relief sought is no broader than necessary to protect plaintiffs' copyrights, Erlich's First Amendment interests have been adequately considered.
Plaintiffs have shown a likelihood of success on the merits of their copyright claims except as to item 4 of Exhibit A, for which the copyright has expired. Plaintiffs gain the benefit of a presumption of irreparable harm as to this claim. Accordingly, plaintiffs are entitled to a preliminary injunction prohibiting any further copying of plaintiffs' copyrighted Exhibit A and B works pending a trial on the merits, except as to item 4 of Exhibit A and as allowed by the doctrine of fair use.
Under the fair use doctrine, Erlich may post, or otherwise publish, his criticism of the Church, using plaintiffs' copyrighted Exhibit A and B works to the extent necessary to carry out his critical purpose. However, the court notes that copying the works in their entirety with very little added criticism is almost certainly not fair use.
Accordingly, the court grants in part and denies in part plaintiffs' application for a preliminary injunction and Erlich's motion to dissolve the TRO.
III. PLAINTIFFS' APPLICATION TO EXPAND THE TRO
Plaintiffs have applied to expand the scope of the preliminary injunction against Erlich to include more of plaintiffs' works that are allegedly protected by copyright and trade secret law, beyond those listed in Exhibits A and B of the FAC. This request comes after plaintiffs maintain that Erlich violated a promise he made to the court to convince it to continue the contempt hearing. On March 14, 1995, counsel for Erlich stated that Erlich "would agree not to publish any of Mr. Ron Hubbard's writings, or copyright-registered writings of the Church of Scientology, until the contempt hearing." See March 16, 1995 Order Setting Hearing Dates. Plaintiffs seek to expand the number of documents covered by the injunction to include 52 works because Erlich allegedly "furnished a copy of another copyrighted, confidential work, taken from the same course as the document which he posted in his first violation of the TRO, to a litigant in another lawsuit." Ex Parte App. for Amended TRO at 4. However, plaintiffs have not provided Erlich or the court with the registrations for these materials to allow a determination that they are the subject of valid copyright interests. The scope of this case should not be expanded to encompass all or a large number of Hubbard's copyrighted works merely because Erlich made a promise to allow the postponement of the contempt hearing. Now that there has been a contempt hearing, and given the court's finding that Erlich was not in contempt, see part IV infra, the court does not believe that an overly expansive preliminary injunction is appropriate. In fact, a broad injunction which goes beyond the scope of the allegedly infringing activities should be avoided for First Amendment reasons. See 3 Nimmer § 14.06[C], at 14-106 to -109 (noting that scope of injunction should be coterminous with, and no broader than, infringement); In re Capital Cities/ABC, Inc., 918 F.2d at 144 (calling for a "surgical" restraint to accommodate First Amendment rights). Accordingly, the court denies plaintiffs' application for an expansion of the injunctive relief.
Request To Seize Erlich's Computer
The court finds plaintiffs' request that Erlich's computer and other equipment be seized to be wholly without merit. No amount of excessive copying in the context of criticism, which is potentially subject to a valid fair use defense, would warrant such a seizure. Here, Erlich's equipment is hardly an instrument of infringement. Rather, it is essential to the operation of his business and other affairs. While a specifically-tailored injunction in a copyright case does not offend the First Amendment, attempting to shut down a critic's speech activities, including those that do not implicate the copyright laws in the least, would constitute an unwarranted prior restraint on speech. Cf. 3 Nimmer § 14.06[C], at 14-107 to -109; RCA Records v. All-Fast Systems, Inc., 594 F. Supp. 335, 340 (S.D.N.Y. 1984) (where action not against record pirates, court should not seize equipment which can be used for non-infringing purposes).
IV. MOTION FOR CONTEMPT
The Ninth Circuit set forth the standards for civil contempt in In re Dual-Deck Video Cassette Antitrust Litigation, 10 F.3d 693 (9th Cir. 1993):
Civil contempt in this context consists of a party's disobedience to a specific and definite court order by failure to take all reasonable steps within the party's power to comply. The contempt "need not be willful," and there is no good faith exception to the requirement of obedience to a court order. But a person should not be held in contempt if his action "'appears to be based on a good faith and reasonable interpretation of the [court's order].'" "Substantial compliance" with the court order is a defense to civil contempt, and is not vitiated by "a few technical violations" where every reasonable effort has been made to comply.