Raising the Ruins (30 page)

The following month, my father told
Trumpet
readers that we had “just won the most important court battle in this modern age.” He wrote, “Mr. Armstrong believed
Mystery of the Ages
was the most important book on this Earth after the Bible. … Time will prove Mr. Armstrong to be right. … Soon the whole world will understand how important this great book is. Then the Bible will no longer be a mystery to man.”
²⁸

It was a momentous time for our church. We weren’t out of the woods yet—the
WCG
’s lead attorney, Allan Browne, had made it clear during the hearing before Judge Letts that the
WCG
was anxious to appeal the ruling to the Ninth Circuit as quickly as possible. But still, after a two-year, hard-fought struggle, we did pause long enough to savor our first-round victory.

“Suppose the book contained the recipe for building a nuclear weapon, and it’s out in publication—the author says, ‘My G—, I don’t want this floating around the world. I’m going to call back all the copies and destroy them.’”

— Judge Schwarzer

Ninth Circuit oral arguments, December 6, 1999

“Can all of you keep a secret?” my father asked while cracking a smile. “I’ve decided to print
The Incredible Human Potential
and
The Missing Dimension in Sex
,”
he announced to 150 teenagers at a youth camp in 1999.

It was yet another bold step forward. The counterclaim had not yet been settled in court. Added to that, the
Mystery
ruling was under appeal. Yet my father took the district court’s judgment as yet another signal that God was behind us. Furthermore, it removed all doubt, at least in our minds, about the legality of our actions within the scope of copyright law. So we printed two more books in the fall of 1999. In 2000, we printed four additional works:
The United States and Britain in Prophecy
,
The Wonderful World Tomorrow—What It Will Be Like
,
Pagan Holidays or God’s Holy Days—Which?
,
and
Which Day Is the Christian Sabbath?

Our decision to print more of Mr. Armstrong’s writings could not have come at a worse time for the
WCG
. Here they were preparing to appeal
Mystery,
and now they had to confront another monster.

WCG Appeal

The
WCG
’s opening brief for appeal relied on many of the same arguments they used at the district level. If anything, they put a stronger emphasis on what Judge Letts had exposed as duplicitous. For instance, Ralph Helge had testified that the
WCG
board had a “certain degree of control” over Mr. Armstrong,
¹
a notion Judge Letts never bought into. Yet the language in their appeal brief took it a step further: “W
CG
had the right to control Mr. Armstrong’s work.” They did admit that Mr. Armstrong exercised considerable direction over the church, but they likened this to the authority of
CEO
s “who manage their corporations with a very free hand,
as long as they enjoy the confidence of the board of directors.”
²
Here again, the impression they left on the court was that the board could have fired Mr. Armstrong at a moment’s notice, which contradicted their own bylaws.

By this point in the litigation, the annotation sham was also presented more convincingly. “Those who respond to the
PCG
’s ads for
MOA
very likely are the same people who would be interested in
WCG
’s
planned
annotated version or in any future
republication of the original version,”
they told the Ninth Circuit Court of Appeals.
³
Never mind the “Christian duty” to keep it out of print—now they indicated they might even republish the original version!

Their appeal also accused us of printing the book so we could rev up income.
The
PCG
might offer it free up front,
they told the court,
but the book only serves as an advertisement to “sell” our real product—getting tithe-paying members
. They said we deliberately misled the public by our alteration of the copyright notice in
Mystery
. This, they said, would give the impression Mr. Armstrong was affiliated with the
PCG
⁴
(as if they would want him to be affiliated with the
WCG
).

We filed our answer to their brief on September 1. On the point about Mr. Armstrong’s authority in the church, we said, “His control over the
WCG
’s earthly organizations was absolute.” We even quoted from the
WCG
’s own bylaws, which showed that Mr. Armstrong was in charge of the “ecclesiastical and temporal affairs of the church.” He was the only one
required
to be a member of the church’s board. He never had an employment contract with the church. We explained that he “simply did not want” one.
⁵

On the annotation idea, of course we noted that this was invented for litigation. “The first time the
WCG
ever considered or discussed the idea of an annotated
MOA
was after the
PCG
raised a fair use defense, which suggests strongly that the idea was minted for the purpose of overcoming a fair use defense.” We pointed out how Tkach Jr. said the project would not get started “any time soon.” And we also picked apart Greg Albrecht’s testimony, since he was the one given charge of the “project”: “Albrecht’s efforts to ‘contact potential authors,’ trumpeted by the
WCG
, actually consisted of little more than making a few calls (none of which were returned) to a writer for a journal that is critical of Armstrong’s teachings and chatting about an annotation with someone else during a coffee break.”
⁶
Not exactly
concrete
plans.

As for all the money we were supposedly pulling in from
Mystery,
we told the court the
WCG
’s argument was based on “anecdote and speculation”—certainly not hard evidence.
⁷
They ignored the fact that we had spent over $200,000 printing and distributing the book to that point—that we sent it free of charge and did not solicit donations from recipients. We also pointed out that one of the initial reasons the
WCG
gave for discontinuing the work was that it was
too expensive
.

Oral Arguments

The Ninth Circuit called for both sides to appear in court for oral arguments on Monday, December 6, 1999. The purpose of oral arguments is not necessarily to cover the material contained in the briefs, but rather to give the panel of judges (in this case, three) one last chance to ask questions of both sides before making their judgment. The judges’ concerns about the case are what dictate the flow of the debate. Both the plaintiff and defendant are given 20 minutes each to answer questions. So attorneys have to go in prepared to answer
anything
—and to do it in the clearest, most concise way.

My father, Dennis Leap and I arrived at Burbank Airport Sunday night, December 5. We stayed at the Pasadena Holiday Inn. As it happens, it was the same hotel my dad and John Amos had stayed in 10 years earlier, the night they were fired. (We checked out of the hotel on December 7, the same day they had checked in a decade earlier.)

The next morning, after a 7 a.m. breakfast meeting, we left for the Ninth Circuit Court of Appeals. It was within walking distance from Ambassador College—just two blocks from the
WCG
’s headquarters. We were definitely on their home turf, so to speak. In fact, the Ambassador Foundation even participated in the official opening of the Ninth Circuit Court of Appeals back in February of 1986, just three weeks after Mr. Armstrong died.

But we couldn’t help feeling like
we
were the ones with home field advantage. How ironic it was that Mr. Armstrong’s successors left their executive suites that morning to walk across the street to the Ninth Circuit to fight in court for the right to keep Mr. Armstrong’s works out of print! And what a privilege it was—an absolute honor—for us to be fighting against them; and on the same side
Mr. Armstrong would have been on
.

“A View Toward Rewriting It”

The judges started the proceedings promptly at 9 a.m. Judge Wallace Tashima headed the panel of three. He was accompanied by Judge Melvin Brunetti, to his right, and Judge William Schwarzer on his left. There were four cases on the docket that particular day. Ours was last, so we had to sit through three other boring arguments. After the first three cases, Judge Tashima called for a 10-minute recess at 10:40. We re-entered the courtroom shortly before 11:00.

Our time had come. Allan Browne started the proceedings for the Worldwide. Judge Schwarzer wanted him to address the subject of “fair use.” He wanted Allan to explain why he thought
PCG
’s use of the book violated the fair use law. Allan said that because we did not seek permission to print the book, we did not act fairly and in good faith.

But they say you’ve abandoned the book and rejected its doctrines,
Schwarzer interjected. Allan said that wasn’t quite accurate, which is when Judge Brunetti spoke up for the first time: “I thought [the
WCG
] rejected the doctrine of the book, and then ridded their inventory of the book except for archival purposes.”

“They do not reject the entirety of the book,” Allan responded.

“I thought that they disposed of their inventory,” Brunetti shot back.

“That’s true,” Browne responded. “But this was done with a view toward rewriting it and annotating this book and putting it back out on the market.”
⁸

We couldn’t believe it. Here was a book Joe Jr. said was “riddled with error” exactly 10 years earlier. “Mr. Tkach has decided
not
to reprint the book,” Bernie Schnippert told
WCG
employees in December of 1988.
⁹
“It is critically important that God’s church
never
be in a position of
continuing to put out what may be misleading or inaccurate material,
” Tkach Sr. told the brethren in February 1989.
¹⁰
The church destroyed remaining copies in order to “prevent a transgression of conscience by proclaiming what the church considered to be ecclesiastical error,” wrote the Advisory Council of Elders.
¹¹
And “no one else has a right to publish it,” Tkach Jr. said in 1997.
¹²

But on a December morning in 1999, inside a comfortable courtroom with barely a couple dozen people present, we listened to Allan Browne tell the court that
Mystery of the Ages
was discontinued and destroyed with a “view” toward rewriting it and annotating it so that it could go back out on the market.

As we sat there, an infuriating fact of litigation began to sink in: Liars can pretty much say
whatever they want
before judges. It certainly doesn’t have to be true. It just has to be supported by “evidence”
on record
. In this case, Browne’s evidence was testimony from Greg Albrecht that they had contacted a few people,
after the litigation started,
about the possibility of producing an annotation.
That’s it
. That’s all they needed in order to introduce evidence that this oral argument—and indeed,
this whole appeal
—would hinge upon.

God’s system of judgment, of course, is based on fruits.
¹³
And more than 10 years of fruits (or lack thereof) revealed the annotated project to be a blatant lie. But in man’s system, ironically, judgment can be easily skewed by “evidence.” When judged before men, you can get by with bad fruits and still convince human beings to accept a lie.

Judge Tashima asked Allan how they were coming along on the annotated project. “The record reflects that the church had contacted several potential authors; they had talked about the possibility of doing that; they actually went to the point of getting a cost estimate,” he answered.
¹⁴
It was all so patently ridiculous that we might have laughed out loud were it not so terribly upsetting.

The other key argument Allan Browne made that morning had to do with the tremendous monetary benefit we obtained from distributing
Mystery of the Ages
. And here again, a cursory review of the
facts
in this case shows that one of the initial reasons the
WCG
gave for discarding the book was the exorbitant cost involved in printing and mailing it. For the
PCG
, however, the whole project was a cash cow, Allan said. He based his assertion on the fact that we had received letters from people who were so overjoyed we were printing the book that they actually included a donation. Imagine that—church-goers giving money to their church!

Judge Brunetti questioned Allan about the connection between sending out the book and someone donating, saying it shouldn’t be considered a direct exchange since the book was offered freely. But Allan said we sent a card along with the book saying, “If you want to make a donation you can”
¹⁵
—which wasn’t true.

Allan ended a couple minutes early in order to save some time for a rebuttal at the end.

“Gettysburg Address”

When Mark Helm rose to speak, my heart pounded in my chest.
This was it,
I thought. Everything was riding on his presentation.

He began by addressing the fourth factor of the fair use law: The effect of our use upon the potential market for or value of the copyrighted work. Judge Schwarzer peppered him with a string of arguments at the outset. After Mark mentioned the
WCG
’s decision to remove the book from print, the judge asked, “But don’t they have an interest in keeping it from being published?” He said, “There are things in that book that reflect adversely on the Worldwide Church. That seems to be clearly established.”

Mark responded this way: “[T]here is no secret of the fact that they used to hold these views. In fact, they take great pride in the extent to which they’ve deviated from them. So I don’t think that you can say …
Oh this is some embarrassing thing that nobody knows about
.
”
¹⁶

Later, Schwarzer pointed to a previous case where the court had ruled that using a copyright to hoard one’s work was acceptable within the law.