Authors: Gerald Flurry
Maybe there really was something sinister implied by his “recipe for building a nuclear weapon” analogy the year before.
Marketing Device
As for the legal arguments Schwarzer made, he believed the “work for hire” issue was irrelevant since Mr. Armstrong bequeathed
Mystery of the Ages
and the rest of his estate to the
WCG
in his will. Whether he controlled the church, or vice versa, did not matter to Schwarzer. Mr. Armstrong’s personal desires for
Mystery
to be distributed widely did not matter either. What mattered was that
WCG
owned the copyright.
The judge later elaborated on the four factors for determining “fair use.” The first factor, we believe, weighed heavily in our favor since our use of the book was not for profit, but for educational purposes. But the way Schwarzer saw it, we were profiting from the book because in printing it, we had a “core text” that would attract new members, who would then become tithe-payers.
23
The second factor considers the work’s nature—whether it is a factual account or a creative work. And since the fair use doctrine “recognizes a greater need to disseminate factual works,” we felt like this tilted in our favor also. Problem is, Schwarzer reasoned, while
PCG
members might consider
Mystery of the Ages
factual, those outside the church would consider it a work of
fiction
.
24
Unbelievable.
The third factor,
the amount copied,
also weighed against our use, Schwarzer said, since we copied the entire book. “P
CG
uses the
MOA
as a central element of its members’ religious observance; a reasonable person would expect
PCG
to pay
WCG
for the right to copy and distribute
MOA
created by
WCG
with its resources.”
25
While he doesn’t see how fair use would allow wholesale copying of
Mystery,
it is interesting that he accepted the fact that the book
is
central to our religious beliefs. If that’s the case, how is it fair to say, in the very same opinion, that the
PCG
uses
Mystery of the Ages
as a “marketing device”? Is the
Book of Mormon
a marketing device? What about the
Catechism of the Catholic Church?
Do Mormons and Catholics use those documents to make money? Or do they represent bodies of
belief
—religious
teachings
that readers may either faithfully believe and follow, or cast aside as scripturally flawed? If an individual donates to the Mormon Church because he believes the
Book of Mormon
is the truth of God, is he practicing his religious freedom, or merely making a business transaction based on clever marketing by a supposedly “nonprofit” Christian church? Using Schwarzer’s logic, how could a church
even be considered nonprofit?
It’s not like the subject of tithing is unique to the Philadelphia Church of God. Nearly every church in existence collects tithes and/or freewill offerings from adherents who consider it part and parcel of their religious faith. The patriarch Abraham paid tithes to Melchisedec—and without ever having read
Mystery of the Ages
. Jesus told the Pharisees of his day to tithe.
26
Was He a salesman just marketing a product? The Hebrew words for “tithe” appear 41 times in the Old Testament—the Greek equivalent surfaces in the New Testament 10 times.
If
Mystery of the Ages
really is central to the Philadelphia Church of God’s teachings and beliefs, as Schwarzer acknowledged in his opinion, then to say it is
also
a marketing device is tantamount to religious bigotry.
Competing Markets
On the fourth fair use factor, Schwarzer said there was “undisputed evidence” showing “that individuals who received copies of
MOA
from
PCG
are present or
could be
potential adherents of
WCG
.”
27
Here again, he took Allan Browne’s nonsense a step further. Allan said the
WCG
wanted to lure former members back into the fold and possibly even offer them
Mystery of the Ages
again. Schwarzer added that our distribution of the “racist” book might actually prevent people from joining the
WCG
!
“Because the Church plans at some time to publish an annotated version of
MOA
, it is entitled to protection of its copyright.”
28
Schwarzer either bought into the annotated idea, or else he knowingly accepted the sham on account of what he believed to be the greater good—to prevent us from a “fair use” distribution of a “racist” book.
With that, the court granted the
WCG
’s permanent injunction against our distribution of
Mystery of the Ages
and ordered the
PCG
to pay the
WCG
’s costs for appeal. In addition, the case would be sent back to the district level for a damages trial to determine how much we owed the
WCG
for our “unauthorized” republication of the book.
Dissenting Opinion
On the surface, about the only thing good to come from the Ninth Circuit ruling was Judge Brunetti’s dissent. Like Judge Letts in the district court, he put the lawsuit in proper perspective. Right at the outset of his opinion, he said, “The copyright dispute in this case
arises from a change in religious doctrine
of the Worldwide Church of God.” Later, he wrote,
When
WCG
changed its church doctrine and renounced much of Armstrong’s teachings, the founders and believers of
PCG
were forced from
WCG
as they could no longer practice their religious beliefs as set forth in
MOA
. It was
WCG
’s doctrinal shift and renunciations that created the
PCG
and its need to publish
MOA
.
29
Indeed, were it not for
WCG
’s unprecedented transformation, there would have never been a
PCG
!
On the four factors of “fair use,” Brunetti saw it much differently than Schwarzer. The first factor, in Brunetti’s view, weighed heavily in our favor. We are a non-profit organization, he said. And even if you take into account the donations that came in specifically for
Mystery
distribution, those monies did not come close to covering the overall costs for printing and distributing the book, Brunetti explained. He also drew attention to the
WCG
’s own admission that
Mystery of the Ages
was a costly production, and one of the reasons it was discontinued in the first place.
The second and third factors were mostly irrelevant in this case, Brunetti wrote. But the fourth factor, as has also been established by the Supreme Court, is the “most important statutory factor.” On this point, Brunetti once again placed the dispute in its proper context.
W
CG
’s decision to cease publication of
MOA
, destroy inventory copies, and disavow
MOA
’s religious message in the context of its doctrinal shift as a church demonstrates that
MOA
is no longer of value to
WCG
for such purposes, regardless of
PCG
’s actions.
30
When judging by fruits, you see, this whole case ought to be rather simple to weigh in on. Brunetti continued, “Because
WCG
has admitted that it has no plans to publish or distribute
MOA
as originally written, there can be no market interference.”
Regarding the annotation, like Judge Letts, Brunetti wrote,
P
CG
’s use creates a larger potential market for an annotation rather than interfering with it. Moreover, the failure of
WCG
to make any reasonable progress on the annotation over the course of a decade as well as
WCG
’s belief that it has a Christian duty to keep Armstrong’s doctrinal errors out of circulation tends to undermine the credibility of
WCG
’s intention to publish any such annotation.
Brunetti’s conclusion summed up the
WCG
position beautifully: “In this lawsuit,
WCG
appears less interested in protecting its rights to exploit
MOA
than in suppressing Armstrong’s ideas which now run counter to church doctrine.”
31
To us, Brunetti’s dissent was a shining bright spot in the lawsuit’s passage through the Ninth Circuit. His remarks, like those of Judge Letts, emboldened our approach to this case. My father described Brunetti’s opinion as a “powerful dissenting opinion” that had “great clarity.” He said, “Perhaps this was inspired by God and something dramatic is awaiting us.”
32
The way we looked at it, of the four judges to hear the case, two of them saw right through the
WCG
’s smokescreen and interpreted the fair use doctrine exactly the way we did. It’s just that the other two made a two-thirds majority at the Ninth Circuit. But in a lot of ways, the views of Schwarzer and Tashima motivated my father more than that of the other two judges. “This is too outrageous for words,” my father told our membership five days after the Ninth Circuit ruling. “It ought to outrage God’s people! I think it’s nothing less than scandalous for you to take and reverse the decision of a District Court with such reasoning as that.” He was referring to the annotation sham in particular. Indeed, Schwarzer’s words aroused a fighting spirit in my father not unlike the deceitful betrayal Tkachism did during the late 1980s. “I’ll tell you this,” my father continued,
if we’re not willing to fight against such a blatant and a flagrant violation of our rights, I think something has to be wrong with us spiritually. This has made me mad! And I want to fight more than ever. … I want to take them on. … I want to represent the great God. I want to defend God. And it makes no difference who’s out there fighting against God, that’s what we’re here for! That is what we are—defenders of the faith.
33
Helge Informs the WCG Membership
Prior to the court of appeals ruling, most of the
WCG
membership was left in the dark regarding the lawsuit. Indeed, many of their own members had absolutely no idea their church was even in court. After their victory, however, Ralph Helge was quick to gloat before the membership.
P
CG
does have certain limited rights to request the court to modify the opinion and for some other procedural matters, and we assume they will petition for such relief. However, for all practical purposes, [the Ninth Circuit’s ruling] would seem to be final in all material respects.
34
Two months later, Helge then backtracked in order to explain the church’s rationale behind instigating litigation in the first place.
I would like to
clarify
for the members of the
WCG
, and all others who may be interested, why the
WCG
filed this lawsuit in the first place. Having represented the
WCG
for about 42 years, I can say that it has only been in extreme circumstances that the
WCG
has ever taken the affirmative step of filing a lawsuit.
35
He was responding to flack they were getting from their own members! Apparently, some couldn’t understand why they would take us to court over something like
Mystery of the Ages
—a book espousing doctrine they disavowed and even ridiculed, as well as destroyed. Helge explained that the church had an obligation to protect its “assets.” After all, if the
PCG
just helped itself to Mr. Armstrong’s literature, what’s to stop us from seizing control of other property?
He then told members about the annotation project, which must have come as a complete shock to most of them. “Just before the
PCG
’s inappropriate commandeering of
WCG
’s copyrighted assets, the
WCG
’s board of directors was considering what use they should make of these assets.”
36
In actuality, the undisputed facts of the case reveal that it was just
after
we “commandeered the assets” that the
WCG
suddenly became interested in them. But I digress. According to Helge, the board
even discussed whether it would be appropriate for the church itself to reprint and publish certain of such literary works, reprinting
Mystery of the Ages
in annotated form explaining to the public where the church is in disagreement with conclusions in the book.
And what did those discussions ultimately lead to?
Unfortunately [these discussions] came to an abrupt halt when the
PCG
undertook, to use the federal court’s language from its own opinion, an act of piracy. The
WCG
then
could not proceed
with its own considered action regarding the literary works
because to do so would give the false impression that the
WCG
was intimidated into doing so by the
PCG
’s act of aggression.
37
Yet another chapter added to their fictitious story. They were
just about
to use
Mystery of the Ages
until we came along and pre-empted their plan, forcing them to set it aside in order to stand up to an aggressive bully.
Our Finest Hour
A few days after the ruling, my father exhorted us to fight as if our very lives depended on it—and to do so with a positively optimistic outlook. “God is with us,” he said.