16 June 1997
Source: Mail list Cyberia-L@listserv.aol.com

See related notice: http://jya.com/link-jet.htm

    To: CYBERIA-L@LISTSERV.AOL.COM
    Date:         Mon, 16 Jun 1997 13:35:33 -0400
    From: "Peter D. Junger" <junger@SAMSARA.LAW.CWRU.EDU>
    Subject:      Notts' Attempt to Censor My Web Page and My Response--LONG
    Comments: To: Fight Censorship <fight-censorship@vorlon.mit.edu>
    Comments: cc: "Y.AKDENIZ" <lawya@lucs-01.novell.leeds.ac.uk>,
              "Charles Arthur, The Independent" <carthur@independent.co.uk>,
              dhakala@pobox.com, David Hebditch <dlheb@globalnet.co.uk>,
              "Gino J. Scarselli" <gscarsel@mail.multiverse.com>,
              Raymond Vasvari <freespeech@mail.multiverse.com>,
              Kevin Francis O'Neill <koneill@trans.csuohio.edu>,
              Janet Kornblum <janetk@cnet.com>, Ashley Craddock <craddock@wired.com>
    To: CYBERIA-L@LISTSERV.AOL.COM

    I have received the following notice from the Nottinghamshire County
    Solicitor (which is also available on my web site at
    <http://samsara.law.cwru.edu/comp_law/notts_not.txt>).

    -----begin notice

    To: junger@samsara.law.cwru.edu
    MIME-Version: 1.0
    From: zkjg1@policyinf.nottscc.gov.uk (John Gass)
    Subject: The Jet Report
    Date: Wed, 11 Jun 97 15:50:36 PDT

    Dear Sirs

    JET REPORT

    Website ULR: http://samsara.law.cwru.edu/comp_law/jetrep.html

    You currently hold on your Website the text of the above report.   The =
    purpose of this message is to set out the Nottinghamshire County Council'=
    s position with regard to its copyright rights in the report.

    Copyright in the report is vested in the Nottinghamshire County Council =
    and has been since 1990 when the report was produced and as such the Nott=
    inghamshire County Council has rights as copyright owner under the Copyri=
    ght, Designs and Patents Act 1988.

    Any copying of the report is an infringement of the Nottinghamshire Count=
    y Council's copyright.

    For the avoidance of doubt the copying of the report or any hypertext lin=
    ks on this Internet Website is an infringement of copyright.

    The provisions of the Copyright, Designs and Patents Act 1988 includes =
    storing of the work in any medium by electronic means. Neither you nor =
    the owners of the Website have sought permission from the Nottinghamshire=
     County Council as copyright holder to store the Report by electronic mea=
    ns.

    I therefore give you notice that unless the report is removed from the =
    Website forthwith and for the avoidance of doubt within 24 hours of recei=
    pt by you of this mail The Nottinghamshire County Council will issue such=
     Court Proceedings including injunction proceedings or take any action =
    as may be appropriate.

    Some of the young persons named in the Report are the subject of deemed =
    care orders made in accordance with the provisions of the Children Act =
    1989.

    The Nottinghamshire County Council has Statutory and Common Law obligatio=
    ns and duties to those young people. It is in acknowledgement of those =
    Statutory and other Common Law obligations and duties that The Nottingham=
    shire County Council is taking the steps mentioned in this letter.

    Yours faithfully,
    C P. McKay
    County Solicitor 11/06/97
    Nottinghamshire County Council
    County HallWest Bridgford
    Nottingham
    NG2 7QP

    -----end notice

    Here is my reply (which is also available on my web site at
    <http://samsara.law.cwru.edu/comp_law/notts.txt> as ASCII text and at
    <http://samsara.law.cwru.edu/comp_law/notts.ps> as a PostScript text.

    ------begin reply

                                 16 June 1997

    C P. McKay, County Solicitor
    Nottinghamshire County Council
    County Hall
    West Bridgford, Nottingham
    NG2 7QP
    United Kingdom

    My dear Mr. McKay:

    I am in receipt of a ``notice'' purportedly sent by you, though
    contained in electronic mail addressed to me from someone named John
    Gass <zkjg1@policyinf.nottscc.gov.uk>.  Although I have asked
    Mr. Gass for your e-mail address, I have not heard from him.  And so,
    assuming that the notice was actually from you, I am compelled to send
    you this response by regular mail.  I will also attempt to send you a
    copy by electronic mail in care of Mr. Gass and will post copies to
    the Fight Censorship and Cyberia-L mailing lists.

    That notice refers to a disturbing report written by J B Gwatkin and
    others describing how social workers in the Nottingham Department of
    Social Services induced a group of abused children to indulge in
    hysterical fantasies of Satanic rites, a report that your client, the
    Nottinghamshire County Council, understandably wishes would go away.
    In the notice you assert that the Nottinghamshire County Council
    claims the copyright in this report despite the fact that it was
    written primarily by Mr. Gwatkin, who deems it in the public interest
    that the report be published, and the fact that it is apparently
    already a public document.  You also assert, correctly, that I have
    placed a copy of this report on my web site (it is at
    <http://samsara.law.cwru.edu/comp_law/jetrep.htm>), although you
    ignore the fact that I and my web site are located in Cleveland, Ohio,
    in the United States of America, a locus where the writs of the courts
    of the United Kingdom have never run.

    As you know, your notice also contains the following rather
    infelicitous threat: ``I therefore give you notice that unless the
    report is removed from the Website forthwith and for the avoidance of
    doubt within 24 hours of receipt by you of this mail The
    Nottinghamshire County Council will issue such Court Proceedings
    including injunction proceedings or take any action as may be
    appropriate.''

    My first reaction was simply to ignore this bit of silliness, grounded
    as it was on the misconception that the ``Copyright, Designs and
    Patents Act 1988'' of the United Kingdom applies to actions taken in
    the United States when, as I trust you know, that Act specifically
    provides that copyright holders' exclusive rights apply only to ``acts
    in the United Kingdom'' and on the belief---or the pretense---that you
    could somehow persuade the Chancery Division of the High Court to
    issue an affirmative injunction requiring someone who was not within
    the Court's jurisdiction and who has had no contacts whatsoever with
    the United Kingdom to perform acts in Cleveland, Ohio.  My inclination
    to ignore your threat was naturally strengthened by the realization
    that, should you actually succeed in getting injunctive relief in the
    United Kingdom, that injunction would be quite unenforceable here in
    the United States.

    But I confess that I found your threats irritating enough that I began
    to think that I should comply with your demand---publicly.

    I have little difficulty in imagining the headlines that would have
    resulted had I taken such a course of action: ``English Prosecutor
    Forces U.S. Law Professor to Suppress Report on Satanic Social
    Workers'' or ``Satanic Coverup Spreads to US.''  Although, mind you,
    the actual headlines that you have already earned for yourself, like
    _Private Eye_'s ``Satanic Abuse Special'' or _Salon Magazine_'s
    ``U.K. tries to censor the Internet---An embarrassing report about a
    bungled satanic abuse investigation brings out the British blue pencil
    brigade'', have already made it clear that your efforts to suppress
    the truth about what happened at Broxtowe have not had quite the
    result that you and your client desired.  After all, no one would have
    mirrored the Broxtowe report at their sites on the World Wide Web had
    you not sought to enjoin its original publication.  One would have
    thought that you would have learned that lesson by now.  There are at
    least a dozen web sites where the report is mirrored, not one of which
    would have existed if you had not sought to suppress its original
    publication on the web.  And at my site alone the report has already
    been retrieved more than 2,500 times.  For those of us who are opposed
    to governmental censorship of information on the World Wide Web, this
    reaction is gratifying.  I doubt that it is so for your client.

    In the end though, I found myself unable to pretend that I am so
    naive as to be able to take your threats seriously.  If I regret this,
    I at least have the consolation of knowing that you did succeed in
    bullying poor Jeremy Freeman, a young Canadian who is not learned in
    the law, into removing the report---and later a link to my mirror of
    the report---from his web site in British Columbia, with the foreseeable
    consequences.

    It is also my position that, were you to seek an injunction from a
    court in the United States requiring me to remove the report from my
    web site because of your client's claim of copyright, even if it could
    establish that claim, my publication of the report on my web site is
    ``fair use'' and is protected by the Constitution of the United
    States.

    The report is a compilation of facts, even if the allegations of
    satanic rites that it discusses were fictions.  As the United States
    Supreme Court made clear in _Feist Publications, Inc. v. Rural
    Telephone Service Co., Inc._, 499 U.S. 340 (1991): ``the copyright in
    a factual compilation is thin.''  Since your client desires to
    suppress the work, rather than to publish and sell it, they have
    suffered no damages from the posting of the report on my web site;
    since I am making the report available as a public service and receive
    no compensation for doing so, I have received no profits from that
    posting: facts that go a long way toward establishing that my posting
    of the report is fair use under the copyright law of the United
    States. But the most important fact is that the report that your
    client wants to suppress is a document whose publication may assist in
    the prevention of further abuse of children by public authorities who
    subscribe, for whatever reason, to fantasies about satanic rites.  As
    the report says: ``We have to consider the damage that may have been
    done to the children in working with them on the basis that they had
    been involved in experiences such as the slaughter of sheep and the
    killing of babies that had not actually happened. What has been done
    to [Mary] by convincing her that she was a child murderer who had
    indulged in acts of cannibalism or that she might kill again if she
    did not feel guilty?''

    I initially mirrored the report on my web site as part of the
    materials that I have collected relating to freedom of speech on the
    Internet for my course in Computing and the Law and as a demonstration
    of the futility of trying to suppress any document that has once been
    published on the World Wide Web.  The other documents that I have
    mirrored there are, I fear, of interest only because of the efforts to
    suppress them; the report that you and the Nottinghamshire County
    Council desire to disappear is, on the other hand, an important
    document that must be available to family therapists, police
    departments, departments of social welfare, and lawyers throughout the
    world.  It is an important historical document, especially in its
    tracing the spread of satanic hysteria to sources in the United
    States.  As the report says on this point:

       We had previously been made aware that an extreme right wing branch
       of the Republican Party funded by Presidential Candidate, Lyndon La
       Rouche had been spreading material throughout the USA claiming that
       Day Centre Workers, Social Workers and other 'lefties' were
       Satanists abusing children and that this was part of a
       communist conspiracy to undermine the family. Apparently extreme
       right-wingers were unhappy at the allegation of parents sexually
       abusing their children as they perceived this as an attack upon the
       family. As a response they had conceived the conspiracy theory as
       an alternative explanation. We do not know whether this
       was an influence in the USA cases but we understand many of the
       convictions were of Day Care Workers based solely upon the bizarre
       testimony of young children as related to experts without any actual
       corroborative evidence. In view of this scenario and our research
       into American cases we would not accept that any literature from the
       USA is reliable unless it is supported by corroborative empirical
       evidence.

    More importantly the publication of the report may assist the forces
    of reason in rejecting the evil that once infected the social workers
    of Nottingham.  That is, after all, why its author, Mr. Gwatkin, who
    is a social worker himself, felt that it should be published.

    I am not, by the way, insensitive to your claim that: ``The
    Nottinghamshire County Council has Statutory and Common Law
    obligations and duties to those young people. It is in acknowledgement
    of those Statutory and other Common Law obligations and duties that
    The Nottinghamshire County Council is taking the steps mentioned in
    this letter.''  But I am afraid that I do not believe you.  The
    report, after all, has been carefully edited to hide the identity of
    the young people who were the victims in this sordid affair. In any
    case, even were I to try to suspend my disbelief the fact remains that
    I agree with the authors of the report when they say: ``we do not
    consider that suspending disbelief should also mean a suspension of
    commonsense or the use of critical faculties.''

    I shall therefore not comply with your demands.

    Sincerely yours,

    Peter D. Junger

    ------end reply

    --
    Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
     EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu
         NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists