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A Course in Miracles Final Trial Transcript

 

 UNITED STATES DISTRICT COURT
1 SOUTHERN DISTRICT OF NEW YORK
2
3 PENGUIN BOOKS U.S.A., INC.,
3 FOUNDATION FOR "A COURSE IN
4 MIRACLES, INC.", and
4 FOUNDATION FOR INNER PEACE,
5 INC.,
5
6 Plaintiffs, New York, N.Y.
6
7 v. 96 Civ. 4126 (RWS)
7
8 NEW CHRISTIAN CHURCH OF FULL
8 ENDEAVOR, LTD., and ENDEAVOR
9 ACADEMY,
9
10 Defendants.
10
11 ------------------------------x
11
12 June 25, 2003
12 2:07 p.m.
13
13 Before:
14
14 HON. ROBERT W. SWEET,
15
15 District Judge
16
16 APPEARANCES
17
17 EPSTEIN BECKER & GREEN, P.C.
18 Attorneys for Plaintiffs Foundation
18 BY: JOHN J. ROSENBERG
19
19 LAWRENCE E.FABIAN
20 MONTY BARBER
20 Attorneys for Defendant
21
22
23
24
25


1 THE COURT: Ready when you are, folks.
2 MR. ROSENBERG: Your Honor, as we're the plaintiffs,
3 although defendants have the burden on their defense,
4 Mr. Fabian and I agreed, sort of consistent with a trial
5 presentation, that I will start with our argument, if that is
6 acceptable to the Court.
7 THE COURT: OK.
8 MR. ROSENBERG: As the Court is more than painfully
9 aware, there is one issue before it for resolution, and that is
10 the issue of prior publication and whether a general
11 distribution of this work is such as would work as what has
12 been described as the harsh or severe penalty of copyright
13 forfeiture.
14 As I stated earlier and as we discussed during the
15 trial, the burden is on the defendants here. We have a
16 presumptive validity of our copyright established through its
17 registration and through its presentation to the Court of the
18 copyright registration.
19 As I begin to think, and I often do, about burdens of
20 proof and scope of review, there is good reason, your Honor,
21 why the burden would be on a party challenging a copyright
22 whose validity is presumed to exist. And this case is a good
23 example of why the burden is allocated that way. We have
24 plaintiffs here who for 28 years uninterrupted have held the
25 copyright in this work. They have formed two foundations for


1 the specific purpose of dealing with the work that is the
2 subject of this 28-year-old copyright. There are translations
3 that have been made. There are courses, seminars. Indeed, it
4 is the life work of the plaintiffs.
5 And it is only fair that if you are going to disrupt
6 that, if the Court is going to find that that should be
7 forfeited, that the burden be on the side seeking such
8 forfeiture, because the consequences to the plaintiffs are
9 fairly enormous if the copyright is invalidated, but the
10 consequences to the defendants are virtually minimal. They
11 could still acquire the book, teach it, talk about it. All
12 they can't do is unlawfully misappropriate it.
13 I think it is important that that provide a backdrop
14 for the Court's assessment of the evidence, because it is just,
15 I think, that the validity of the copyright is presumed and the
16 defendants bear a significant burden of rebutting that
17 validity.
18 Now, prior publication has been covered in both of the
19 submissions, and I know from the Court's own prior opinions in
20 cases, the Court is well familiar with it. There is a pretty
21 good exposition of the standards in the Kramer v. Newman case
22 of the Southern District, Judge Conboy. And he starts his
23 analysis sort of where I just left mine off, which he begins
24 the opinion on page 549 -- it is 749 F. Supp. -- to say, "In
25 order to mitigate the harsh effects of forfeiture of creative


1 rights, the case law has created a distinction between general
2 and limited publication holding that only the former operates
3 to divest common law copyright and subject the work to the
4 federal statutory scheme which could lead under the old act to
5 divestiture of the copyright."
6 And it is not sufficient to prove simply that a work
7 was passed out without the copyright notice affixed or other
8 formalities, it has to be shown that it was a general
9 distribution. And as Judge Conboy notes, and as the other
10 caress note, that publication of a general nature occurs when
11 by consent of the copyright owner the original or copies are
12 sold, leased, loaned, given away or otherwise made available to
13 the general public. And other cases which we've discussed talk
14 about that it has to be, either expressly or implicitly, with
15 the intent on the part of the copyright holder to abandon the
16 copyright. And that's a general publication.
17 There is some reference made in defendant's
18 submissions that even one copy distributed without copyright
19 notice is sufficient, and that's correct only in the context of
20 where it is sold, your Honor. The cases, including the
21 decision I just cited, the Kramer case, are quite clear that if
22 copies are being sold, it may be that one copy is sufficient.
23 That is not the case when there is no compensation being paid,
24 and as I'll discuss in a moment, there is no evidence here that
25 any of the precopyrighted manuscripts were ever sold.


1 So that leads us back to the point, is this a general
2 distribution, where the plaintiffs evidenced and demonstrated
3 an intent to abandon the copyright, or is this a limited
4 distribution? And there is a Ninth Circuit opinion, White v.
5 Kimmel, which is dealing with a district court decision, which
6 the Second Circuit has stated, in Continental Casualty, is a
7 good statement of the law of prior distribution.
8 And in the Kimmel case the district court said, in
9 language that the Ninth Circuit stated "contains a
10 comprehensive and concededly accurate survey of the judicial
11 precedence relating to limited publication," and this
12 admittedly or concededly accurate survey states as follows, and
13 I quote from the White v. Kimmel decision, and this is of
14 particular importance in this context of this case: "The
15 limitation which makes the publication private does not relate
16 to numbers of persons but to the type of persons to whom the
17 communication is made and the purpose of making it. If
18 limited" -- and here is what the Court said, your Honor. "If
19 limited to friends or acquaintances" -- friends or
20 acquaintances -- "or persons having a common interest in a
21 publication or in the ideas which it expresses, the limitation
22 is effective."
23 So it says if it's given to friends or acquaintances,
24 or persons having a common interest in a publication or in the
25 ideas which it expresses, the limitation is effective although


1 in reality a large number of copies may be circulated. And as
2 I'll discuss and as the Court heard at trial, at best here
3 precopyright we had a limited distribution to friends and
4 acquaintances and persons who had a common interest in the
5 ideas reflected in this work.
6 So with that backdrop in mind, presumptive validity,
7 burden on the defendants, the White v. Kimmel standard of
8 friends, acquaintances or those with a common interest, and the
9 other law which states that the restriction on publication
10 doesn't need to be express but can be implied. Those are the
11 backdrop. When we look to the facts of this case, I think it
12 is painfully apparent that defendants have not shouldered their
13 burden. There was no -- certainly insufficient evidence of a
14 general publication.
15 Now, the creation of the work, the Court's -- I'm not
16 going to go over that again describing, what have you, but it
17 is important that during Dr. Schucman's creation of the work,
18 your Honor, that initially only she and Dr. William Thetford
19 even knew that the work existed and it was a highly protected
20 and guarded secret.
21 Now, as the work took shape -- and this is before
22 Judith Skutch Whitson was on the scene -- there was an
23 incredibly limited I won't even call it a distribution
24 providing copies of the manuscript to a very small group of
25 people, all who fall well within the White v. Kimmel standard.


1 We have Calvin Hatcher, your Honor, who was the
2 administrative vice president at Columbia Presbyterian where
3 Dr. Schucman and Thetford taught. He was the only person at
4 Columbia who knew about this. He is their colleague, vice
5 president of their institution. He was instructed not to
6 distribute it, and that's important because it is reflective of
7 the intent of Dr. Schucman, and there is no evidence of record
8 that he ever distributed a copy.
9 We have Rev. Jon Mundy, who was planning a doctoral
10 dissertation on these types of issues. He was given the
11 manuscript. And this is a quote from the trial testimony. He
12 was, "told in no uncertain terms not to show it to anyone." If
13 he is being instructed -- instructions only have to be implied,
14 here there are express instructions. "In no uncertain terms,
15 you are not to show it to anyone," and there is no evidence
16 that Rev. Mundy did.
17 Hugh Lynn Cayce, at the A.R.E., an institute founded
18 on the principles of Mr. Cayce's father, the psychic --
19 THE COURT: Excuse me, but if I look at the
20 defendants's proposed findings and I get to 36, that is, the
21 Section 4, a look at that indicates to me, offhand, that
22 everything there is right as to those people listed there.
23 Would you agree to that?
24 I mean, if you go through the list, it is Hatcher,
25 Cayce, Cayce's son and somebody else, the good father, Mundy,


1 Wapnick, Dean, Skutch Whitson, Jampolsky -- I didn't realize
2 Jampolsky was having an affair. That was an interesting little
3 aside to note, that I thought the book has got a different --
4 no, I shouldn't say that.
5 MR. ROSENBERG: I thought it was irrelevant, but I
6 don't think -- the affair was I think in 1975, almost 30 years
7 ago. To suggest, as they do, that is going to influence his
8 testimony today I think is --
9 THE COURT: No, I wasn't suggesting that.
10 MR. ROSENBERG: I think the defendants were.
11 THE COURT: I just thought -- well, anyhow.
12 MR. ROSENBERG: This movie, your Honor, has all the
13 elements; it has romance, drama.
14 THE COURT: So Jampolsky, Bolen, Hammond, Suplee and
15 Erickson, and Steinbergs and Hickman, Crosby, Mitchell, it
16 seems to me that all of those are distributions without
17 copyright.
18 MR. ROSENBERG: We don't agree with all of those; most
19 of them but not all of them.
20 THE COURT: Which of them do you disagree with?
21 MR. ROSENBERG: Reed Erickson, our testimony was
22 clear -- and that is the only real evidence of record, and
23 there is a document, the Criswell list, it appears in our
24 testimony that he received the Criswell edition. That is
25 disputed, but we do not concede that he received a copy of the


1 manuscript.
2 I will let the Court note that. Osmond Crosby at his
3 deposition admitted that he didn't get it until October '75, or
4 later, and by then the Criswell edition was out. It is
5 undisputed, despite a mistake in the copyright application, it
6 is undisputed, by Dr. Criswell and everyone else, that it was
7 published in August of '75. It seems highly unlikely that
8 Judith Skutch Whitson is shlepping around to all places in the
9 country seven thesis binders after the Criswell edition is out.
10 Her testimony, backed up by the contemporaneous list, is the
11 Criswell edition.
12 In terms of the two Steinbergs, our evidence was that
13 one Steinberg -- and I get them mixed up -- I think Paul,
14 received the manuscript for one week after the Criswell edition
15 was published. That was the clear testimony, and -- if I could
16 ask the defense counsel to not comment, it would be helpful to
17 my presentation.
18 THE COURT: Right.
19 MR. ROSENBERG: Thank you.
20 The testimony presented at trial was that Paul
21 Steinberg received a copy afterwards, that he had it for one
22 week, and that he brought it back.
23 In terms of Hugh Lynn Cayce, yes. Now, there was no
24 testimony that his son, or Herbert Puryear, received a copy.
25 And interestingly, Herbert Puryear was at court on the day of


1 the trial. His wife testified and he didn't testify. I am not
2 sure why, but he didn't.
3 There is a letter, however, in which Hugh Lynn Cayce,
4 talking, your Honor, about review and comment on the
5 manuscript, says that he either has or was going to show it to
6 Herbert Puryear and to his son. There is no evidence whether
7 that happened; but even assuming it did, the point of all of
8 the individuals that the Court mentioned is that every one of
9 them falls within that White v. Kimmel standard.
10 THE COURT: But then, of course, you go on to -- so
11 have I got that as far as the individuals are concerned?
12 MR. ROSENBERG: Let me make sure just because --
13 THE COURT: That you challenge?
14 MR. ROSENBERG: I want to make sure.
15 I've got Cal Hatcher, I am going to go through
16 their -- the defendants listed in their findings.
17 Cal Hatcher, we admit.
18 Hugh Lynn --
19 THE COURT: Just the ones that you know.
20 MR. ROSENBERG: OK. Hugh Lynn Cayce.
21 (Pause)
22 MR. ROSENBERG: We don't concede that Zelda Suplee
23 ever received a manuscript precopyright, and, again, she didn't
24 testify. Her deposition wasn't taken. There is no evidence.
25 And the list says that she got the Criswell edition. The same


1 for Reed Erickson.
2 And, again, on the Steinbergs, I mentioned our
3 position.
4 Crosby, I mentioned our position.
5 And with those clarifications, your Honor, I would
6 agree to the list, and we have a similar one in our findings.
7 THE COURT: Yes. OK.
8 MR. ROSENBERG: But I want to make clear that --
9 THE COURT: But then that gets us to the distribution,
10 or not, as the case may be, in California.
11 MR. ROSENBERG: That's right, your Honor. And I won't
12 go through each of the individuals, it is clear the Court is
13 familiar with them, other than to say in virtually every
14 instance the testimony was they were instructed not to
15 distribute it. In every instance they fall within the group
16 who has an interest in this subject matter. There is no
17 evidence -- and, again, it is defendants' burden -- that any of
18 those individuals ever made a copy and disseminated the
19 precopyright version.
20 If I could, as a nice segue to California, discuss
21 with you Jim Bolen, because I submit, your Honor, that his
22 testimony is key in a number of reasons. Mr. Bolen was here in
23 court. You had a chance to look at him. I submit that --
24 well, I will allow the Court, of course, to evaluate his
25 credibility.


1 Now, Mr. Bolen is the one who they claim in the book
2 Journey Without Distance -- and I will get to that in a
3 minute -- that his copy was distributed hundreds of times. So
4 Jim Bolen in many ways is the linchpin of this supposed
5 distribution in California.
6 Now, Mr. Bolen testified before your Honor that he
7 initially made three copies only. He gave one to Ms. Skutch
8 Whitson, who gave it to Dr. Jampolsky -- who testified, by the
9 way, he never made a copy of it -- and that Mr. Bolen kept two.
10 And then he said that he made a third that he and his partner,
11 David Hammond -- and, again, David Hammond was the co-publisher
12 of a magazine with Mr. Bolen and he testified that they used
13 that to review and mark up.
14 Now, interestingly and significantly, your Honor,
15 Mr. Bolen still has his copies, all three of them. Two are
16 intact 100 percent, and one, because some pages were taken out
17 when they marked them up, is largely intact. So Mr. Bolen
18 testified, unequivocally, that when he got the manuscript, your
19 Honor, that Judy Skutch Whitson said to him, that it was
20 provided to him, quote, with the proviso that it not be
21 distributed or disseminated for any reason.
22 Now, first of all, if there is a general distribution
23 going on, why is Mr. Skutch Whitson telling him that it can't
24 be distributed for any reason?
25 But of course, we have Ms. Skutch Whitson's testimony


1 that she said that and we have Mr. Bolen's testimony that he
2 said that. But, your Honor, in 1993, before this litigation
3 started, Mr. Bolen wrote an article about A Course In Miracles,
4 and he said that the manuscript, it was, quote, done in
5 confidence -- meaning it was provided him in confidence -- with
6 the understanding that it was not to be publicized or presented
7 to the public in any way.
8 And, your Honor, I submit that when someone before
9 this litigation writes an article and confirms entirely that
10 this manuscript was given to him under strict instructions not
11 to district it and then testifies at trial consistently and
12 other witnesses corroborate that, that that's significantly
13 compelling evidence that his book was never copied.
14 So we go to California. Dr. Gerald Jampolsky says he
15 never passed out copies and he was told not to.
16 Edgar Mitchell, the testimony is that Judy Skutch told
17 him not to pass it out. He was given a few pages at most which
18 he said he never read and never passed out. He said that he
19 understood it was not to be distributed.
20 What then is the -- oh, your Honor, do you remember
21 when they went to California, out to 2000 Broadway, to that
22 meeting, and they put on this presentation? So let's think
23 about this. There is hundreds of copies supposedly being
24 circulated right in this time, in July/August of 1975, and now
25 there is a meeting where Dr. Schucman, Dr. Thetford,


1 Dr. Wapnick are going to be there. And the unequivocal
2 testimony of people who were there -- Ms. Skutch Whitson,
3 Dr. Wapnick, Dr. Bolen, Mr. Jampolsky, Eleanor Criswell -- what
4 do they say? They say there were no copies of the manuscript
5 at this meeting.
6 So let's think about it. Jim Bolen is told you can't
7 make copies. He wrote an article before the case started
8 confirming that he was told that. Gerald Jampolsky testified I
9 was told I couldn't make copies and didn't. We had a meeting,
10 the purpose of which was to introduce the course to the
11 California community, and not one copy -- if these hundreds of
12 people had it, why wasn't it there? And the reason is because
13 it never happened.
14 And also, your Honor, Ms. Skutch Whitson gets the book
15 on May 29th, and within a month -- less than a month --
16 Dr. Schucman says, "Get it copyrighted." That bespeaks not of
17 an intent to abandon copyright protection but an intent on the
18 author -- and Dr. Schucman, for legal purposes, is the author,
19 and she is saying, and it is undisputed, get a copyright on it.
20 So we have all of these people -- and, again, Jim
21 Bolen's testimony is so important because of the article he
22 wrote before the fact saying that I was told I couldn't
23 distribute it -- we have no evidence, and it is the defendants'
24 burden, of this huge California presentation, except for two
25 things which I'll discuss momentarily.


1 The Criswell edition comes out in August. That is
2 undisputed.
3 The defendants' findings, there are a number of things
4 that either aren't supported by the record or are, I shall say,
5 kindly a distortion of the record. It is true that the
6 copyright application said October; that was the date it was
7 being filled out. The testimony of Dr. Criswell, Dr.
8 Jampolsky, Judith Skutch Whitson, Kenneth Wapnick is uniform --
9 and there is no evidence to the contrary -- that the Criswell
10 edition came out in August.
11 Up until May of '75, there has been virtually no
12 distribution. The few people that the Court noted, all of whom
13 were professionals, all of whom had an interest in this, and
14 none of whom made copies. Judith Skutch Whitson gives it to
15 Jim Bolen: You can't copy it.
16 She said that. He said that. He says that in an
17 article written before the litigation.
18 Jampolsky testifies, I wasn't to copy it.
19 Eleanor Criswell gets a copy for the specific
20 purpose -- and she gets it in July -- of printing it with a
21 copyright notice affixed.
22 That does not bespeak of an intent to abandon the
23 copyright.
24 So when you come down to August, leading into Labor
25 Day, and the Criswell edition starts to get passed out, where


1 is there California distribution? Where are these hundreds of
2 copies being given freely to the public? It comes only from
3 two places. There is not one witness who has testified to that
4 distribution. There is not one page -- not one page, your
5 Honor -- of any of the hundreds of copies that were supposedly
6 distributed.
7 What we have are the tapes and Journey Without
8 Distance.
9 Now, the tapes ran through two authentication
10 hearings. It is all on the record. After hearing that the
11 tapes weren't authenticated, that there were anomalies, that
12 there were stops, there were starts, there was distortion,
13 inaudible portions, the Court said this, your Honor said, "If
14 this were a jury trial, I likely wouldn't admit them, but
15 because it is a bench trial, I will take them for what they are
16 worth." And then the Court said, the day that you heard the
17 witness from the experts, "I don't think they are worth very
18 much."
19 So we begin with the fact that the large part of
20 defendants' proposed findings and the large part of their
21 effort to shoulder their burden comes from tapes that aren't
22 authenticated, that were after the fact, and that the Court
23 itself held probably shouldn't even come into evidence. But
24 they are into evidence for what they are worth, so I will
25 discuss them.


1 Ms. Skutch Whitson says a lot of things on those
2 tapes. They are not all consistent.
3 By the way, the defendants located almost 60 tapes.
4 Interestingly, only five were presented, and that is because
5 the other 55 or 50, these words don't appear on that, because
6 when she told the story those other times, it didn't come out.
7 Now, she testified -- she was telling a story. You
8 have all of these steps of the process by which the course --
9 there is a manuscript, it gets transported and then the
10 Criswell edition and this edition, and she said that she
11 amalgamated it into one story. Basically, oh, people were
12 interested in the course and people were Xeroxing it and there
13 were hundreds of copies and isn't that wonderful.
14 Well, she said it. Sometimes it is not clear, is she
15 talking about the Criswell one, is she talking about -- other
16 times, I had to concede, it is clear from her comments, it
17 appears that she is talking about precopyright.
18 But the question, your Honor, ultimately is while what
19 Mrs. Skutch Whitson said is admissible -- we have argued about
20 that, it has come in -- the question is not what did
21 Ms. Discuss Whitson say after the fact, but what did she do
22 during the relevant time period. Not what did she say later
23 happened but what did happen.
24 And what is striking to plaintiffs, your Honor -- and
25 I mean no criticism -- the defendants went to Herculean


1 efforts, it was sometimes admirable, sometimes frustrating.
2 They were on the Internet. They found people in Florida,
3 California. All over the country we traveled to take
4 depositions. They really did everything I've ever seen done in
5 a litigation to unearth -- they heard the tapes at A.R.E. They
6 did more than I've ever seen anyone do in a litigation. So
7 here's my question: Hundreds of people supposedly received the
8 uncopyrighted manuscript. Where are they? Where is ten of
9 them? Where is five of them? Where is one of them?
10 The only people that testified -- and that is the
11 evidence before the Court -- were uniform, that they were
12 instructed not to copy it, that they understood it was not to
13 be copied, and that they didn't copy it.
14 I submit to you that, with all the efforts the
15 defendants made, one witness would have come into this court or
16 been on a deposition saying, oh, yeah, here's what happened.
17 Well, hundreds of copies, your Honor. Where is a page of it?
18 It is their burden.
19 Where is one -- didn't anyone save one page from these
20 hundreds of copies?
21 Interestingly, the people that testified that there
22 was no widespread distribution did save their copies, and so
23 Mr. Bolen's copy was produced in discovery. Ms. Skutch Whitson
24 brought hers in those thesis binders to court. And in a
25 situation where it is defendants' burden and we have Ms. Skutch


1 Whitson, sometimes ten years after the fact, telling a story, I
2 am not going to say the Court can't -- you have to consider it,
3 it is there, but where is any corroboration? And then you have
4 Ms. Skutch Whitson's testimony at trial, you have to evaluate
5 her credibility, but despite every single other witness, your
6 Honor, who testified.
7 So I say the tapes are there, but the Court already
8 acknowledged that they are not authenticated, they probably
9 shouldn't be admissible, and, at best, they are incomplete and
10 not integral and, I submit, not highly probative.
11 The second piece of evidence the defendants use to
12 support the California distribution is Journey Without
13 Distance, a book written by Robert Skutch. The Court in its
14 opinion, recent opinion, allowed the book in as a party
15 admission. That issue has been argued. The fact that evidence
16 is admissible doesn't mean that the Court finds it true, of
17 course.
18 So let's look at the testimony. Robert Skutch
19 testified that he had no knowledge of that, that he made it up.
20 All right. So maybe you say maybe he did, maybe he
21 didn't, I am not sure. Judith Skutch Whitson testified it
22 didn't happen. So maybe you say, well, I don't know. I hear
23 this, I hear that.
24 Dr. Wapnick, who you saw testify; it didn't happen.
25 Jerry Jampolsky testified; it didn't happen. Every witness


1 testified that what Bob Skutch said in his book didn't happen.
2 But, most importantly, it is Jim Bolen again, who in a
3 funny way -- in his, I submit, mild-mannered,
4 nonconfrontational, nonargumentative way, very gentle witness I
5 thought, polite -- he was going to excerpt this book in his
6 magazine, New Realities. The Court may recall this. So he
7 reads the book. He is going to shorten it down, or whatever.
8 He reads the part which is the linchpin of the California
9 distribution. Bob Skutch says Jim Bolen got a copy, which is
10 true, and soon expedience developed and hundreds of copies of
11 Mr. Bolen's copy were made and soon out in the San Francisco
12 area.
13 Now, Mr. Bolen was questioned specifically, and in
14 detail, by both parties at trial. And in our proposed findings
15 at page -- I'm not sure, around page 20 -- question and answer.
16 I said:
17 "Then Mr. Skutch writes: Despite this [expedience]
18 did develop. Jim's copies started to be reproduced. Is that
19 true?
20 "A That's factually incorrect. It's not true."
21 He then testified, your Honor, that Mr. Skutch never
22 spoke to him about this, never interviewed him, and got no
23 information.
24 But significantly, in 1984, 12 years before this
25 litigation started, Mr. Bolen excerpted Journey Without


1 Distance in his magazine, and he took out that portion.
2 When asked, why did you take it out, he said, because
3 it wasn't true. He is talking about my copy, copies being
4 made. I am an editor of a magazine. And I am not going to put
5 a factually inaccurate statement that I know to be inaccurate
6 in my magazine.
7 So let's think about this again. Jim Bolen, in 1993,
8 writes an article saying that Judy Skutch Whitson told him he
9 couldn't give the book to anybody -- words to that effect --
10 before the litigation. He had no motive to make that up. He
11 is telling what happened.
12 In 1984, right after Bob Skutch's book came out, he
13 reads it and he says this isn't true, and he changes it in his
14 magazine -- 12 years before the litigation. Why did he do it?
15 Because it didn't happen.
16 And so when you get all down to it, we have the short
17 list of people who admittedly received the copy, either
18 pre-Judy Skutch or post-Judy Skutch, all of whom testified,
19 your Honor, or all of whom there was testimony about, every
20 single one, that there wasn't any widespread distribution.
21 Then we haves the tapes, which I dealt with, which are
22 not particularly probative for the reasons that I have said,
23 and they don't tell us what happened, only what Ms. Skutch told
24 a story about. And then we have Journey Without Distance, that
25 every participant in it says -- including its author -- says it


1 didn't happen. It is not worth anything. That is not
2 probative at all, for the reason, your Honor, you can find, and
3 I submit should, that that didn't happen.
4 So when you strip it all away, what do we have? What
5 we have is what White v. Kimmel talks about. We have a
6 distribution that's, quote, limited to friends or
7 acquaintances, or persons having a common interest in the
8 publication, or in the ideas which it expresses, which the
9 court holds, in such circumstances the limitation is effective
10 although in reality a large number of copies may be
11 circulated."
12 If this Court considers all of the testimony, all of
13 the evidence, all of the years of litigation, the fact is --
14 the fact remains -- I submit, were this our burden, which it
15 isn't, I believe we have demonstrated well beyond a
16 preponderance that there was no general publication. It is
17 defendants' burden -- and those burdens make a difference.
18 They have tried heroicly, but ultimately I think come up short.
19 And before this Court disturbs 28 years of copyright
20 proprietorship, two foundations and a life's work, I think that
21 we need more than some unauthenticated tapes and the false
22 statement and a book that was made up.
23 With that, I respectfully submit. I may beg the Court
24 for some rebuttal time. We'll see what happens.
25 Thank you, your Honor.


1 MR. FABIAN: Your Honor, may I just stand up here next
2 to the lectern?
3 THE COURT: Sure.
4 MR. FABIAN: Thank you, your Honor.
5 As your Honor is well aware, copyright itself is a
6 monopoly, one of the few monopolies which our Constitution has
7 provided to any group, and particularly this monopoly was
8 granted to the authors. To hear counsel now cry that after 28
9 years these people should not be displaced is unacceptable,
10 your Honor. These people are not the authors. In fact, as the
11 record indicates, these people received an assignment from
12 Helen Schucman, assuming she is the author for the purposes of
13 this discussion. Helen Schucman got very little out of this.
14 These people got from Penguin alone two-and-an-half-million
15 dollars.
16 Judy Skutch testified that she, her daughter, her
17 former husband, her present husband, they all live on the
18 income that is generated from this book at FIP. And
19 Mr. Wapnick, as the head of FACIM, he lives not so much on the
20 Course itself but on the income that is generated by his books
21 as they relate to A Course In Miracles. These are not people
22 that after 28 years there should be any sympathy for. They had
23 a good run, your Honor.
24 And the issue of copyright never came up until their
25 Lighthouse article in the early the '90s, when they suddenly


1 decided they were going to come down on people who were using
2 too much of the course, in their minds. And that was as a
3 result of the book, the Marianne Williamson book. But that is
4 why copyright first came up as an issue. Nobody cared about it
5 before that. No one paid attention to the copyright.
6 When it became an issue, that's when it came before
7 this Court.
8 And, again, although it is not directly relevant to
9 this case, counsel makes the argument we should feel some
10 sympathy for these people. What about Stewart Laban, your
11 Honor, in which an author dies before the term of copyright --
12 this is a pre-1976 copyright, which this is, and then the heirs
13 are entitled to get that copyright and wipe out the people who
14 took the assignment? So the copyright law was not intended to
15 protect assignees. It was intended, this monopoly was granted,
16 intended to protect the author. In this case, we'll assume it
17 is Helen Schucman.
18 Now, it's interesting but much of the testimony that
19 was given by Ms. Skutch Whitson and others was contradictory to
20 what was stated by Ms. Skutch Whitson in the late '70s, early
21 '80s, what was written in their books and their articles, and
22 counsel for plaintiffs would ask this Court, well, let's
23 believe what Judy Skutch Whitson has told this Court in her
24 testimony, when clearly it is self-serving testimony to protect
25 her position and her income, and let's forget about what she


1 said back in the late '70s and the early '80s.
2 Well, your Honor, we submit to the Court it should be
3 exactly the opposite. When are people -- what does common
4 sense tell us? When are people going to tell truth, or more
5 likely to tell the truth, when nobody's attacking them in a
6 courtroom and they are giving speeches to people and they are
7 writing articles, or when they are in a courtroom and their
8 very source of income is at risk? We would submit to the Court
9 that this Court should believe what was said by Judy Skutch
10 Whitson in the late '70s and the '80s.
11 And counsel has also raised the argument of the
12 authentication of these documents, of these tapes, your Honor.
13 Well, they have now been authenticated. Judy Skutch Whitson
14 was on that stand for hours. I questioned her about these
15 tapes. Not once did she utter the words, I didn't say that.
16 Not once did she say, that's not me on those tapes. So these
17 tapes are not worth a little anymore, your Honor, they are
18 worth a great deal -- unlike what we would submit to this Court
19 is Ms. Skutch Whitson's testimony at the time of trial.
20 Your Honor, we don't accept the argument that because
21 there were 55 other tapes that we didn't present in evidence,
22 that somehow there is something wrong with that. Well, counsel
23 had those 55 tapes, and isn't it interesting, they didn't
24 present them. The plaintiffs didn't present them for any
25 statements that Ms. Skutch Whitson may have made on those 55


1 tapes that would be helpful to them in this case. And
2 certainly, if they found them, they would have brought them to
3 this court.
4 What's important, we believe, on behalf of the
5 defendants, is that we go back to the early '70s, back to the
6 time when there was no copyright notice that was placed on
7 these manuscripts. And it's our position, it is the
8 defendants' position, that there was no copyright notice placed
9 on because Helen Schucman and Bill Thetford didn't want that
10 copyright notice placed on there initially. Maybe they wanted
11 it later, but they didn't initially. Their intent was not to
12 abandon a copyright, but never to have the copyright. There
13 was no need for the copyright.
14 How do we know that? Well, I believe either
15 Ms. Skutch Whitson or Mr. Wapnick, maybe both, testified that
16 Helen Schucman and Bill Thetford were professors at Columbia.
17 They had copyrighted articles before. They sure knew what
18 copyright was. They would have known how to put a copyright
19 notice on this book. It would have taken all of 30 seconds,
20 perhaps, even if that long. Mr. Wapnick testified that he,
21 too, had written articles before this. He knew about
22 copyright. But they didn't put a copyright notice on it, your
23 Honor, and there is no question about that.
24 We'll go through the individuals, but there is already
25 the admission that the copyright notice was not placed on these


1 books.
2 And I'll get to it in more detail in a moment but
3 let's talk about this burden for a moment. The burden is on
4 the defendants to prove only one thing: We have to prove that
5 the Course In Miracles was distributed without a copyright
6 notice. And they acknowledge it. At least, maybe it is eight,
7 maybe it is 10, maybe it is 15, let's forget about the hundreds
8 for a moment, but they acknowledge that we -- that it was sent
9 out without copyright notice. The burden of proof, your Honor,
10 then shifts to the plaintiffs. That's what the cases say. The
11 burden shifts to them to show that it's a limited distribution.
12 And the limited distribution has several grounds which they
13 must prove when they finally get to that issue.
14 And I will get to that at the end, your Honor, but
15 that is not our burden of proof, that is their burden of proof.
16 Now, let's go back to the issue I was talking about,
17 and that is this copyright notice and why it wasn't on there.
18 As I said, everybody -- the relevant principals knew that you
19 could put a copyright notice on. They didn't.
20 I remember the testimony of, hey, these, Schucman and
21 Thetford, were living in the era of publisher perish.
22 Certainly in a publisher perish era, they knew about the
23 copyright notice and they could have put it on there.
24 Now, there was a Lighthouse article, which is Exhibit
25 W in evidence, that the plaintiffs wrote. And in that


1 Lighthouse article they wrote themselves -- this was in the
2 early '90s -- that "Copyright struck us as out of character."
3 This was Wapnick, Skutch Whitson, Skutch -- everybody, they all
4 put their authorship on this. They said, in writing,
5 "Copyright struck us as out of character." It wasn't until
6 later, be it a month later, be it a day later, however long,
7 that the testimony was they all got together, they had a prayer
8 session, and Jesus instructed them to put that copyright notice
9 on.
10 OK. Now they got the instruction. Now they put it
11 on.
12 Too late, your Honor. That's our position. Too late.
13 And the copyright law we believe supports that.
14 Your Honor, we will show, when we go through these
15 various individuals, that there is not one written --
16 MR. FABIAN: Yes.
17 THE COURT: Excuse me. But you don't challenge
18 Brother Rosenberg's contention that if it is a limited
19 distribution, it isn't publication.
20 MR. FABIAN: That is correct, your Honor. If, in
21 fact, you find as a matter of law, based upon the various
22 factors, that it is a limited distribution, then we agree that
23 in that case it would not be prior publication.
24 THE COURT: What do you think "limited distribution"
25 means? I mean, everybody is interested in Jesus, presumably.


1 MR. FABIAN: Well, your Honor, I think, very
2 interestingly, is it the Schatt case, provides that -- which is
3 a Southern District case, provides that that does not create
4 limited distribution.
5 If you will bear with me for a moment, I will just
6 jump ahead here.
7 In order for there to be -- there are three elements,
8 as we are getting to, that have to be proven here, and we
9 believe these elements now have to be proven by the plaintiffs.
10 The first element is that there was a definitely
11 select group. OK? A definitely select group can't be
12 subjective -- in other words, I was referring to the Schatt
13 test -- it said it can't be a test of cordiality. It can't be
14 friends. That does not fall within the classification of
15 limited distribution.
16 For example, in this case, the testimony was very
17 clear from Mr. Wapnick, and in the books, that Groeschel,
18 Wapnick and Skutch Whitson herself got this book from Helen
19 Schucman because she was instructed by Jesus that these people
20 were spiritually ready. That falls within the cordiality test
21 of Schatt, your Honor, and clearly places those three
22 individuals in the position of not being a select group.
23 Jampolsky, Ms. Skutch Whitson testified that -- and it
24 is in his own books and in his own testimony -- he was
25 spiritually distraught at this moment in time, and so he got


1 this book for personal reasons -- not that he was going to edit
2 it, not that he was going to review it.
3 Skutch Whitson, in a desperate effort to save her, as
4 we now know, her paramour, called him up immediately upon
5 getting this book -- and I don't say that disparaging, your
6 Honor, it is just a fact; Mr. Jampolsky said so. So as soon as
7 she gets the book, she calls Jerry Jampolsky and says, I'm
8 coming to California, I'm bringing you this book. She thinks
9 she is going to have to save his life with this. And maybe --
10 he says she did. This book saved his life, according to him.
11 That is within the Schatt definition of cordiality, your Honor,
12 and certainly does not fall within the test which would make
13 this a limited distribution.
14 Common interest, it is our position, your Honor, and
15 in our Memorandum of Law that was submitted prior to the trial
16 and in our Conclusions of Law, common interest will not render
17 distribution as limited. The second element is besides a
18 definitely select group, you need a limited purpose. And again
19 the cases have said common interest will not create a limited
20 purpose.
21 And interestingly, the cases say that an author's lack
22 of personal knowledge of people -- author's lack of personal
23 knowledge of the people who get the book is indicative that
24 there is no limited purpose.
25 Isn't that interesting? Well, Helen Schucman


1 certainly didn't know Herbert Puryear. She didn't know Cayce's
2 son. She didn't know Jampolsky; Skutch Whitson said that over
3 and over again, Jampolsky said it. She didn't know Bolen,
4 there was no question about that. She didn't know David
5 Hammond, who Bolen gave the book to. And, you know, we won't
6 even get into Suplee and Erickson -- we'll get to that in a
7 moment -- we believe we can show evidence that they did receive
8 it.
9 So under that circumstance, even the limited purpose
10 rule -- and they have to meet the burden of all three rules,
11 your Honor -- there was no limited distribution. And, finally,
12 there was no right of reproduction and distribution.
13 Now, this gets to what counsel was always talking
14 about and what the plaintiffs are always arguing. They say
15 that just because Ms. Skutch Whitson got on the stand and said
16 I told everybody when I gave it to them that they can't make
17 copies, that that's what we should believe, that we should
18 totally disbelieve every statement she made on every tape, and
19 that we should disbelieve what Mr. Thetford stated in How it
20 Came, or whatever the other -- the story of A Course In
21 Miracles, these are written and oral statements which we
22 believe should be believed.
23 Let's talk about for a moment this article that
24 supposedly -- not "supposedly," we acknowledge that Mr. Bolen
25 did write that article, your Honor. But I believe that the


1 testimony is not quite as counsel has indicated concerning
2 that.
3 The testimony was that Bolen was told not to publicize
4 or publish the Course. And, your Honor, if you look at Exhibit
5 18, which is plaintiffs' exhibit, in there the language was --
6 in his article, Mr. Bolen's article -- he says: It was not to
7 be publicized or presented in the public -- to the public in
8 any way.
9 Now, the Court may remember, I questioned Mr. Bolen
10 about this. And I asked him, and on page 342, if this referred
11 solely to magazines. In other words, that it shouldn't be
12 published in his magazine. And he acknowledged, that's what
13 that meant.
14 And he also acknowledged that this language was
15 different from a restriction on reproduction. I specifically
16 asked him about it. I said, what you wrote in your article,
17 that didn't talk about a restriction on reproduction, did it?
18 He said, no, it did not. He acknowledged that. He said it
19 only related to publication in a magazine and putting it out to
20 the public in any other such manner.
21 So, your Honor, with these thoughts in mind, if I
22 could go back to the facts for a moment?
23 So we believe, your Honor, that the facts show, the
24 written evidence shows and the testimony shows, that the
25 initial intent of Helen Schucman, assuming she was the author,


1 was not to put a copyright notice on it, and, of course, the
2 facts are that they didn't put a copyright notice on it
3 initially.
4 What we have here we believe is a very specific
5 attempt to create a revisionist history of what happened in
6 this situation. On the one hand, we have the hearsay
7 testimony, which this Court accepted, of Skutch Whitson saying
8 here's what Helen Schucman -- long deceased -- told me. Here's
9 what I told others. But then, which we believe, your Honor,
10 carries very little weight -- you can accept that hearsay
11 testimony -- but given her statements on tapes and given the
12 statements in writings and the authentication by Judy Skutch
13 Whitson of the tapes, we believe that should be given much
14 greater weight than her hearsay testimony.
15 Having read, since I had a spare moment to read the Op
16 Ed column this morning, your Honor, I see a reference to George
17 Orwell, which seems to come up quite often, and I was
18 immediately thinking of his wonderful concept of "double
19 think." And I'm thinking -- which obviously was a manipulation
20 of the mind, as I remember, to make people accept
21 contradictions. Well, that's what we had here, your Honor,
22 double think. Believe what I say on the stand and forget about
23 my contradictory testimony, which -- not "testimony,"
24 statements that I made in the past.
25 We believe that there were at least 10 to 15


1 individuals, your Honor, none -- who received this course
2 without any copyright notice, without any common purpose, plan,
3 scheme, whatever the languages may be.
4 Calvin Hatcher, he received it for study purposes,
5 your Honor. He got it as it went along; that's the testimony.
6 He was an administrator at Columbia University Medical Center,
7 and that's the purpose for his receiving it.
8 Hatcher, the testimony was -- and it comes from
9 Absence From Felicity, Hatcher told Thetford about his
10 religious visions, and therefore Thetford shared the Course
11 with him. That's why he got the Course.
12 Hugh Lynn Cayce, the testimony was that Hugh Lynn
13 Cayce got this Course for moral support.
14 Now, the letters which came into evidence, your Honor,
15 as part of the Copyright Office's statements, made it clear
16 that Herbert -- that Hugh Lynn Cayce did give it to Mr. Puryear
17 and to Charles Thomas, who apparently was Mr. Hugh Lynn Cayce's
18 son. He said in his December 7, 1970 letter to Thetford, "I
19 have passed this manuscript on to Dr. Puryear and Charles
20 Thomas."
21 And then there is the letter back -- there is the
22 letter on November 18, 1970 -- it is not a letter back, it is
23 an earlier letter -- in which William Thetford writes to Hugh
24 Lynn and tells him he would be pleased to meet with Dr. Puryear
25 and his son and he looks forward to their comments or


1 suggestions or whatever you might want to offer. There is no
2 limitation set forth in that writing, and there is no
3 limitation set forth from Hugh Lynn Cayce saying, oh, I know I
4 won't give it to anybody else, I'll keep it secret. Again,
5 Mr. Wapnick filed these with the Copyright Office himself.
6 Father Benedict Groeschel, he received the Course In
7 Miracles, and the testimony is, after Helen Schucman was
8 instructed by Jesus to give the course to his disciple, who was
9 Father Groeschel. It falls within the test of cordiality. It
10 doesn't meet the limited distribution standard, your Honor.
11 And certainly Father Groeschel received it for a purpose which
12 does not make it a limited distribution.
13 Jon Mundy. Jon Mundy doesn't relate to anybody else.
14 There is no common group here. Jon Mundy was a Methodist
15 minister, the evidence shows, who placed an advertisement in
16 the Journal of Transpersonal Psychology searching for
17 literature on psychotherapy. He was invited to come over, and
18 after just a few minutes or a couple of hours of meeting with
19 Helen Schucman, they give him the Course.
20 Kenneth Wapnick. Another situation which the
21 testimony was Helen Schucman was instructed by Jesus to give
22 him the course. It does not create a select group.
23 Now, there was something I saw in the Findings of Fact
24 by plaintiffs, your Honor, in which they said Wapnick got the
25 course so he could edit it.


1 No, your Honor, many months later. As your Honor will
2 remember from the story, he came to Helen Schucman brought by
3 Father Groeschel, and within a very short time they pointed to
4 the binders and they, in effect -- and they said to him, take
5 the Course. And Ken Wapnick is -- how did he describe himself?
6 As the Jewish psychologist who decided to become a monk and so
7 had to convert to Catholicism and was on his way to Israel to
8 live a monastic life and so he said I don't want the Course
9 right now. Went to Israel. Came back. And they still gave
10 him the Course. Went back to Israel. And then, as appears in
11 I think Absence From Felicity, there are letters back and forth
12 in which he is discussing the Course with Helen Schucman. And
13 then it is after he comes back from Israel again that he first
14 begins, at this thought, not Helen's, just to help, to help the
15 editing. So he was given it for personal reasons, on the
16 instructions of Jesus.
17 Again, with all of these people, there is not one
18 writing that says, hey, guys, don't give this to anybody else.
19 As a matter of fact, Hugh Lynn Cayce did give it to
20 two others, and as your Honor knows, Mr. Bolen gave it to
21 Mr. Hammond. And we don't know how many others got it, but the
22 people who testified here testified in a self-interested way.
23 But we do know from the records, from the writings, how many
24 people got this course.
25 Now, the most interesting person -- the invisible


1 man -- Douglas Dean. Not a word about Douglas Dean. Douglas
2 Dean, if your Honor will remember, the books show, the
3 testimony of Mr. Wapnick shows, that he came with Judy Skutch
4 Whitson, and Judy got the Course. And Mr. Wapnick in his book
5 indicates that Mr. Dean -- and in his testimony, he indicates
6 that Mr. Dean got A Course In Miracles. And everybody ran away
7 from Mr. Dean on the plaintiff's side.
8 Nobody -- Mr. Wapnick didn't say what I said in my
9 book was untrue, that Mr. Dean got it. And there was no
10 testimony that I recall, that we found, in which anybody said
11 there was any restriction on Mr. Dean when he got the Course In
12 Miracles.
13 And at that time, your Honor, Douglas Dean was a
14 stranger to both Schucman and Thetford. He had only just met
15 them, just as Judy Skutch Whitson did. And Judy Skutch Whitson
16 herself, a stranger to Helen Schucman and Bill Thetford. She
17 is brought to them by Dean, and on that very same day they give
18 her the book. And they give her the book again because Jesus
19 told Helen to give her the book.
20 Remember, as the testimony came in, Schucman and
21 Thetford were not even the slightest bit interested in Judy
22 Skutch Whitson's field, and they were not at all involved in
23 it -- parasentry events, psychic events. As a matter of fact,
24 Helen told Judy, according to the testimony, you can't put this
25 course into parasentry, they had to change the name, eventually


1 to Foundation for Inner Peace.
2 And then, having just met Skutch Whitson, she takes
3 the book -- apparently with the blessing of Helen, if you were
4 to believe them -- out to California. Just met this person.
5 She takes it out to California, where she goes on to give it to
6 Jampolsky and Bolen and, as we'll discuss in a moment, as her
7 tapes and statements say, to hundreds of other people.
8 THE COURT: When did Schucman die?
9 MR. FABIAN: I believe it was in 1981 or '2.
10 1981, your Honor, and then I believe her husband died,
11 Lewis, in the early '50s.
12 (Pause)
13 A VOICE: He died a couple of years ago.
14 MR. FABIAN: I apologize, your Honor. I don't mean
15 the '50s, I meant a couple of years ago. I apologize, your
16 Honor, I don't know where I got the '50s from. I guess I am
17 going back in time now.
18 So the evidence shows that immediately upon -- as I
19 said before, immediately upon getting this Course In Miracles
20 she calls Mr. Jampolsky -- Judy Skutch Whitson does -- she says
21 she's coming out there, and she brings it to them.
22 And then we have Mr. Jampolsky. As I've indicated,
23 your Honor, he got this Course for personal reasons, spiritual
24 reasons. He never even met Helen Schucman or Bill Thetford,
25 but he received A Course In Miracles.


1 The testimony was, it was on one of the tapes, the
2 Santa Fe tape, Jampolsky was going through a spiritual crisis
3 at the time that Skutch Whitson offered him the Course. He was
4 a self-admitted alcoholic, involved in an extramarital affair,
5 who was going through a divorce. That's why he got the book,
6 for his spirituality, not for any other reason.
7 Jampolsky himself states that the Course was not
8 initially given to him to review. Skutch Whitson gave the
9 Course to Jampolsky for personal reasons. He had deep personal
10 troubles.
11 He says he was deeply moved by the text, and, as
12 history indicates, he became completely involved in the Course
13 for the rest of his life and apparently it helped get his life
14 back together, and we are all very pleased about that. But
15 Mr. Jampolsky has an ongoing financial relationship with these
16 people. Besides remaining personal friends with Ms. Skutch
17 Whitson over the years, he was permitted to produce these
18 excerpts on the back sides of cards, when no one else was, for
19 which he receives income.
20 And then we have Jim Bolen. Jim Bolen was the editor
21 of the magazine called Psychic Magazine. He also had never met
22 Schucman or Thetford. And the course was -- according to
23 Bolen, in his testimony, the course was initially given to him
24 for his personal use, not professional. It did not become a
25 professional part of his work until it developed into a place


1 that he felt it could be published.
2 And Mr. Bolen gave it to Mr. Hammond for his personal
3 use, initially.
4 Now, I bring to the Court's attention Reed Erickson
5 and Zelda Suplee for a very -- for a purpose other than showing
6 they received the course, your Honor; to show how Ms. Skutch
7 Whitson, having been, I would say, corrupted by this web of
8 deceit, finally got caught in it very clearly. Although she
9 said, on various tapes, that he had been studying the
10 manuscript for months in Mexico, when this came out she never
11 at any time told him that it was restricted.
12 But what she did say is -- she said that, well, what
13 happened was Zelda gave a copy of the Criswell to Mr. Erickson.
14 And when I referred to "manuscript," it really didn't mean the
15 Xeroxed manuscript, the uncopyrighted manuscript, it was the
16 Criswell.
17 One thing wrong with that, your Honor. Ms. Skutch
18 Whitson's famous three-pages -- I think it is Exhibit 7, 10 and
19 11 -- the yellow book, the white book, the blue book. Now,
20 remember, she says, it couldn't have happened that he had the
21 manuscript because Zelda sent him the Criswell.
22 Couldn't be, your Honor, because if you look at the
23 yellow book, Exhibit 7, number 105, it says Mr. Erickson got
24 the Criswell.
25 Ms. Suplee, number 57 on the White books -- remember,


1 the white books came out after the yellow books -- she gets it
2 after Mr. Erickson.
3 How could it have happened, then, that Zelda Suplee
4 sent the Criswell to Mr. Erickson when it happened exactly the
5 other way around?
6 And Ms. Skutch Whitson had to say that in light of her
7 statements on the tapes relating to the fact that he had the
8 1500-page manuscript, your Honor.
9 He said -- Ms. Skutch Whitson said that Erickson told
10 her he was studying the bulky manuscript, carrying a shopping
11 bag full of papers, which we all know was the euphemism for the
12 1500-page version of the Course.
13 So, your Honor, Dean, Suplee, Erickson, very
14 significant from that point of view.
15 Now, I won't deal with the others, your Honor, because
16 they are not as significant as these. But let me simply say
17 that the evidence was clear, he did not get a full copy,
18 Mr. Hickman, we acknowledge that; he did get a partial.
19 Hickman testified that he was a student research psychologist.
20 He received about 100 pages of the text and the entire
21 workbook. He said there was no limitation or restriction
22 placed on its use. That was his testimony.
23 He said -- he believes -- I won't say that "he said."
24 He said he believes he made copies of the pages he received and
25 distributed them to colleagues.


1 And now, your Honor, we come to the tapes, the
2 hundreds who got it. I won't go over them in detail. They are
3 in our Findings of Fact, your Honor. But there are -- there is
4 the Mazza tape. There is the Santa Fe tape which was admitted
5 totally authenticated, your Honor, because, as you will
6 remember, that had been taken -- the tape was taken directly by
7 the individual who testified. And the statements on there --
8 in fact, many people Xeroxed off the original pages, $75.
9 People would pass it along. Copy it over.
10 The How It Came video, your Honor, this is the one
11 where we get the second of the two Judy Skutch stories. The
12 first Judy Skutch story is that, oh, I didn't really mean that
13 when I said it, I was making it up. And the second Judy Skutch
14 story was, oh, no, when I said that, it was really the Criswell
15 edition I was referring to, not the -- not that I made it up.
16 So she had two different situations in which she had two
17 different stories.
18 But that gets to that issue of the photo offset, your
19 Honor. Do you remember that testimony? Judy Skutch Whitson
20 testified that, oh, when I said "Xeroxed manuscript," I meant
21 the Criswell. And then we pointed out to the court -- and the
22 evidence is very clear -- that Criswell was photo offset. It
23 was always referred to as photo offset. Mr. Wapnick referred
24 to it as photo offset in his -- the two books that we had in
25 evidence, Many are Called, Few Chose to Listen, his Course


1 Talk; again, he referred to it as photo offset.
2 In Double Vision, Ms. Skutch Whitson's book herself,
3 page 137, she said it was reduced photographically. It doesn't
4 say it was the Xeroxed manuscript, doesn't use the language.
5 Interestingly, on her own Exhibit 7, 10 and 11, she
6 doesn't -- remember, her testimony was, well, we were surprised
7 when we had to come out with a second edition of Criswell. So
8 why did she call the first one "the yellow book" on her little
9 sheet there? Why wasn't it "the yellow manuscript," "the
10 Xeroxed manuscript"? The yellow book? It may lead to some
11 question as to when those lists were actually created. But the
12 fact that she claimed she created them would have -- indicates
13 that, again, she didn't use "Xeroxed manuscript" to mean the
14 Criswell.
15 And, most significantly, your Honor, Defendants' E and
16 F, in evidence, which were taken right off the plaintiffs' Web
17 sites recently. And on those Web sites, they still referred to
18 the Criswell edition as the offset version. Right on their own
19 Web sites even today.
20 Your Honor, I won't spend time on Journey Without
21 Distance. We have been through it to a great extent. Mr.
22 Skutch, in saying, I lied about that, of course he has a
23 certain interest in saying that, he still earns his living from
24 FIP in saying that. When he was cross-examined by his own
25 attorney -- and I call it cross-examination because he went


1 through a litany, as you saw, in the testimony in which he
2 said: Were you exaggerating when you said that? Mr. Skutch
3 said, Yes, I was. Were you exaggerating when you said that?
4 Yes, I was. Yes, I was.
5 But in each of those cases where he said were you
6 exaggerating, Mr. Skutch testified I was exaggerating but I
7 meant to make a point. But when he came to the version which
8 is now deleted, the hundreds got it, he said, oh, on that I
9 wasn't trying to make a point, I just lied. OK?
10 Your Honor, we've been through the law so I won't
11 spend any more time on that. But it seems, your Honor, we
12 started this case with a voice. Whether the voice was the
13 voice of Jesus, whether it was the inner voice of Helen
14 Schucman, we don't know. You have now heard the voices of
15 counsel. We turn this over to your Honor for what we hope is
16 the voice of reason, which we assume will be the voice of
17 reason.
18 And I would simply say to this Court that these people
19 did travel all over the United States. 28 years later, 25
20 years later, it is hard to find manuscripts, your Honor, when
21 people bought the hard versions; we are all human, we throw
22 away loose things, we keep the other things. Hard to find
23 witnesses when you don't know who they are.
24 But I would simply say counsel made one other
25 statement and that was relating to this meeting that took place


1 in San Francisco, or wherever it was, in which everybody who
2 testified -- all interested people -- testified, well, there
3 was no Course material there.
4 Well, Jerry Jampolsky, in his deposition testimony
5 which came into the record, said that upon getting the Course,
6 your Honor, he held sessions with people. And they had the
7 Course.
8 Now, we'll never know who was at that meeting. We'll
9 only know from these witnesses. But we submit to your Honor
10 that this book was given away to hundreds of people.
11 And Puryear, who was totally disinterested, testified
12 that in the early '70s, the buzz was already out. In the early
13 '70s, the buzz was already out about this book, when she was in
14 school. Nobody got the book, she acknowledged that, but the
15 buzz was out. And by the time Judy started giving it away in
16 San Francisco, that buzz had reached the point where, as soon
17 as it got out, everybody wanted it; that is human nature. She
18 had nothing to lie about.
19 Anne Puryear said that it was an honor to have dinner
20 with Judy Skutch in the early '80s, and even then, just at
21 dinner, Judy Skutch told her that they had given away the
22 uncopyrighted manuscript to people.
23 Your Honor, we submit that, both on the law and the
24 facts, that your Honor should find that this copyright should
25 be invalidated by reason of prior distribution. No one will


1 suffer, your Honor. These people can still publish the Course.
2 These people can still write about the Course. Everyone will
3 now have the Course, just as Helen Schucman wanted.
4 Thank you, your Honor.
5 Certainly, I'm sure Mr. Rosenberg will agree that you
6 have been patient with us for a long time on this case, and my
7 clients and I, and I'm sure everyone, greatly appreciates your
8 time and effort on this.
9 MR. ROSENBERG: Can I ask for three more minutes of
10 patience?
11 THE COURT: Sure.
12 MR. ROSENBERG: With no criticism intended, Mr. Fabian
13 and I have actually gotten along wonderfully during the case.
14 There is a lot to digest. But I know that the Court will do
15 its own review of the record. There were many, many
16 misstatements. I will just give an example.
17 Mr. Dean that they talk about, Mr. Fabian stated that
18 he didn't know Bill Thetford. And of my clear recollection of
19 the testimony, that is absolutely incorrect. He knew Bill
20 Thetford. That is how he was introducing Judy Skutch Whitson.
21 Otherwise it would be that he just wandered off the street.
22 I know he didn't do it on purpose, but that is not
23 what the testimony was.
24 He testified we ran away from Mr. Dean. Ms. Skutch
25 Whitson and others testified about him, and admitted that he


1 got a copy of the manuscript for proofreading purposes. No one
2 ran away from it. It was right in the record.
3 Mr. Fabian talked about Mr. Bolen's testimony at
4 trial, and I'm sure, again, it was inadvertent, but he didn't
5 disavow his remarks at trial, your Honor. Here is what he
6 testified, and I am -- if I can find it, I am going to quote.
7 He said, and I'm quoting, that the manuscript was given to him,
8 quote, with the proviso that it not be distributed or
9 disseminated for any reason.
10 And he also stated that Ms. Skutch Whitson was, quote,
11 very clear, end quote, in her instruction, and there was other
12 testimony about what he wrote in the article but he didn't
13 disavow it. His testimony and position has always been that he
14 was instructed that he couldn't disseminate it.
15 Robert Skutch's testimony, I don't believe it is of
16 particular moment at this point, Journey Without Distance is
17 not true, but he -- Mr. Fabian mischaracterized his deposition
18 testimony. He said, I was trying to make a point, I was trying
19 to show that a lot of people were interested in the Course. I
20 don't know if anyone had a copy of it.
21 Anne Puryear, Mr. Fabian misstated her testimony. She
22 didn't testify that the buzz came about from Judy Skutch
23 Whitson distributing the Course in San Francisco. I don't
24 think that is what Mr. Fabian meant to say.
25 Mr. Fabian, as any good counsel who attacks Ms. Skutch


1 Whitson's trial credibility -- you are the finder of fact, you
2 got to see her for quite some time, and not only am I content,
3 I have no choice but to allow the Court to evaluate her
4 credibility; but in doing so, I ask the Court to realize that
5 every other witness, who you also get to evaluate their
6 credibility, corroborated her testimony, independently, and I
7 think that is significant.
8 Interesting, this course about the burden, your Honor
9 wrote, not in a public domain case, but in a copyright case
10 Design Options, "Under the Copyright Act, a certificate of
11 registration constitutes prima facie evidence of the valid
12 ownership of a copyright. Design Options' submission of copies
13 of its certificates of registration shifts the burden to the
14 other party to rebut the presumption of copyright ownership."
15 Now, in their submission they cited some cases for the
16 first time that said that the burden then shifts back to the
17 plaintiffs. We got their submissions last night, which I
18 appreciated, actually, and I had someone review every one of
19 cases that they cited -- and I reviewed several of them, I
20 didn't have them all with me -- and none of us can find the
21 language they are referring to. I am not suggesting they made
22 it up, but I am asking the Court to check, because they cited a
23 number of cases. Every one of them was read last night and
24 today -- I read several; my colleague called me this morning, I
25 asked her to read them again -- and none of the language about


1 the reshifting of the burden appears there. So, again, I know
2 the Court will do its independent research.
3 Either way, it still doesn't get us to the point of a
4 general distribution here. He talked about how could this not
5 be general distribution? Helen Schucman didn't know Jerry
6 Jampolsky and he got a copy. Yes. But Judith Skutch Whitson
7 testified that she asked for permission each time, from Jim
8 Bolen, the same thing, she asked for permission. So the fact
9 that Dr. Schucman didn't know these people doesn't mean that
10 she -- there was some random distribution going on. What it
11 means was every time a specific individual was to receive a
12 copy, Ms. Skutch Whitson specifically felt obligated to ask for
13 permission.
14 Why would that be? Why would that be, if there was a
15 general distribution? The individuals who did receive it --
16 and there is some difference in our assessment of the law. I
17 again point to White v. Kimmel; that does talk about friends
18 and acquaintances and people with interest. I agree with you,
19 almost anyone might be tangentially interested in this. I am
20 not going to tell you that is what the case means, otherwise
21 you can give 200,000 copies out and say everyone was
22 interested. But it doesn't have to be a strictly professional
23 interest.
24 But here let's look at who got it and let's look at
25 who they are real quickly.


1 Father Groeschel, he studied and worked with Drs.
2 Schucman and Thetford. He was a doctor, a doctor in
3 psychology. He had an interest in the field of the
4 intersection of metaphysics with spiritualism. That is someone
5 with a defined interest.
6 Calvin Hatcher was the Vice President of Columbia
7 Presbyterian and the colleague of these individuals. He was
8 the only one in that whole institution who had it. Why? If it
9 is general distribution, leave it out on your desk and let
10 everyone take it.
11 Reverend Jon Mundy -- interesting Mr. Fabian left off
12 the Appalachian Reverend -- was someone heavily involved in
13 spiritualism, who was planning a doctoral dissertation on the
14 topic, and was, quote, told in no uncertain terms that he
15 couldn't show it to anyone.
16 Hugh Lynn Cayce ran a foundation dedicated to the
17 specific type of teaching. Think about who these people are.
18 And whether he gave it to his son or Mr. Puryear, that is fine,
19 because the letter that Mr. Fabian read from says we invite
20 your review, your comment and what have you. He gave -- it was
21 given to a professional in the field who ran an institute about
22 these issues for his comments and thought.
23 Kenneth Wapnick, a Doctor in Psychology, a
24 psychologist, wrote an article about the intersection of
25 mysticism and schizophrenia, and he ends up getting the Course,


1 editing it. He said there was an air of secrecy about it. He
2 couldn't tell his own family about.
3 Why couldn't he tell his family about it?
4 THE COURT: What was that article, Psychotic?
5 MR. ROSENBERG: Something.
6 THE COURT: What was that?
7 MR. ROSENBERG: It was about -- it was basically that
8 schizophrenics aren't mystics and mystics aren't
9 schizophrenics.
10 THE COURT: Thank you.
11 MR. ROSENBERG: I have not read it, but I assure you
12 as soon as I am freed up from this case, it will be my first
13 order of business.
14 Ms. Skutch Whitson gets it. And the Court, you
15 actually made inquiry I think of Dr. Wapnick about, well, how
16 come she gets it that first day. That doesn't mean that anyone
17 walked in got it, because otherwise they wouldn't have been
18 keeping it a secret. Nobody can make fun of it or poo-poo it
19 or whatever, but Ms. Skutch Whitson asks the question: Are you
20 hearing an inner voice?
21 So Dr. Schucman says, wow, that's kind of interesting.
22 Ms. Skutch Whitson has a foundation that is investigating these
23 things, and Dr. Schucman looked for her own personal guidance.
24 And we can make fun of it or we can say that it is trivial or
25 frivolous, but it is instructive -- and Mr. Fabian's Findings


1 embrace this -- that Dr. Schucman looked for guidance as to who
2 she should give this to. Was it someone -- Mr. Fabian just
3 said words to this effect -- that's going to be involved or
4 somehow help this process?
5 I ask the Court to consider this. Why does
6 Dr. Schucman have to ask for guidance about who to give it to
7 if it is a general publication? The answer is it is not. She
8 is looking to know whether this person can be trusted. Again,
9 we can make fun of her method -- I hope we are not -- but the
10 fact is it is still a methodology whereby she is limiting quite
11 concretely who is going to get this.
12 Who gets it next? James Bolen, the publisher of a
13 magazine in this area, for review, with instructions not to
14 copy it, not to give it to anyone.
15 Dr. Jampolsky, a nice partial statement of the
16 testimony. He was a Stamford-educated psychiatrist. And there
17 is now on the record this brief amorous relationship, but there
18 was also a professional relationship, uncontroverted testimony
19 that he was told not to copy it and that he didn't.
20 Why was he told not to copy it? Why was Jim Bolen
21 told not to copy it?
22 Father Groeschel -- I hope that we are not going to
23 impugn his credibility -- testified that he was told not to
24 copy it. That it was clear that he couldn't give it out.
25 Dr. Wapnick. Why all the secrecy, why all the


1 permission needed, why all the guidance sought about should I
2 give it to this person or not if it is a general publication to
3 anyone?
4 Edgar Mitchell, the head of the Institute of the
5 Noetic Sciences, does he have an interest in this? Of course.
6 James Hickman, Mr. Fabian admitted, a research
7 colleague, whose research was funded by Ms. Skutch Whitson's
8 foundation.
9 And we could go on through every single person, and
10 you'll find that every single person who received a copy,
11 that's been proved they received a copy, had a limited, focused
12 interest on this type of work, which falls squarely within the
13 White v. Kimmel holding.
14 Basically, your Honor, it is all there before you.
15 And, you know, I kind of hear it and I go, humph, that's
16 interesting, but, gee, that's interesting, too. But the
17 question really is -- and while Mr. Fabian said, you know, you
18 shouldn't quote, this is not about sympathy, whatever -- all of
19 the cases talk about the harsh consequence of forfeiture.
20 That's why the doctrine of limited publication was created, to
21 avoid those harsh consequences.
22 The new Act, your Honor, did away with the whole
23 thing, because it is absurd -- no offense to our earlier
24 Congress in 1909 -- that you lose copyright protection if you
25 don't write a C with a circle around it but if you write one


1 you keep it. It is a technical requirement of a now
2 discredited law. The harsh consequences have led the courts to
3 recognize, endorse and embrace the doctrine of limited
4 publication.
5 I submit that on the evidence before you, not
6 speculation or conjecture, all we have is evidence of a limited
7 publication, and I respectfully urge the Court to so find. And
8 thank you.
9 THE COURT: This may be our last moment together after
10 all of this time. In fact, it probably will be until the case
11 comes back from the Court of Appeals.
12 MR. ROSENBERG: I would say God forbid. I don't know
13 if that is appropriate or not.

1 THE COURT: So I do want to thank you all for reasons
2 that you are very familiar with. It hasn't been easy, and
3 emotions run deep, the issues are difficult, certainly
4 extrasensory.
5 And thank you very much. You have done a wonderful
6 job. You have done your clients proud, and you have helped me
7 a lot. And I can't wait to see how it is going to come out.
8 MR. ROSENBERG: I am sure the Court will seek guidance
9 on the issue.
10 THE COURT: Thank you.
11 MR. FABIAN: Thank you, your Honor.
12 MR. ROSENBERG: Thank you for your kind words, your
13 Honor.
14 - - -

SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300


                                                                                                                        

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