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Subject:
Course in Miracles Society (CIMS) – Background and Legal Update
The following is an
update on the litigation between Course in Miracles
Society (CIMS) and Foundation for A Course in Miracles (FACIM) /
Foundation
for Inner Peace (FIP).
On March 13, 2000, Sanford J. Hodes, of Epstein Becker and Green, P.C.New
York, NY, attorneys for FACIM/FIP, requested that Superb net (web host for
CIMS) disable access to the material located at the site which Hodes
claimed
to infringe his clients' copyright. Superb net asked that FACIM/FIP make
the
request directly to CIMS.
On March 24, 2000, attorneys for FACIM/FIP sent, via U.S. mail and e-mail,
a
cease and desist letter, dated March 14, 2000, to Tom Whitmore (web site
administrator) which stated that CIMS was infringing upon the copyright of
A
Course in Miracles and "should the Course in Miracles Society refuse
to
cooperate and continue its infringing activities, however, its own actions
and refusal to comply with law will leave my clients with no alternative
but
to pursue appropriate legal remedies."
On March 24, 2000, the same day that he received the e-mail copy of the
complaint from FACIM, Tom Whitmore, counsel to CIMS *at that time*,
e-mailed
a counter notice to Superb net with a copy to Sanford Hodes. The counter
notice informed Superb net that the JCIM is a public domain document and
under the Digital Millenium Copyright Act, the service provider is not
obligated to disable the site unless there is a suit filed against the web
site owners.
On March 27, 2000, Tom Whitmore sent, via U.S. mail, a letter to Superb
net
with a copy to Sanford Hodes, to confirm the e-mail counter-notification.
In
this letter, Tom stated: "The undersigned is informed and verily
believes
that all of the materials contained within the book Jesus' Course in
Miracles, as well as the materials reproduced in or accessible through the
above-identified site and offered for sale by way of the disabled Order
Form,
are in the public domain by virtue of having been published without claim
of
copyright or other restriction under United States copyright law as in
effect
prior to 1978."
The letter also stated, "The undersigned is statutory Registered
Agent for
CIMS, and CIMS does hereby consent to the jurisdiction of the United
States
District Court for the District of Nebraska, being the judicial district
in
which CIMS' address is located."
On April 3, the law offices of Zarley, McKee, Thomte, Voorhees and Sease,
P.L.C. Patent, Trademark and Copyright Causes, on behalf of CIMS, a
not-for-profit corporation in Nebraska, filed a suit in the U.S. District
Court, District of Nebraska, against FACIM and FIP for Declaratory Relief.
Nature of Action:
"This is a Declaratory Judgment action for a declaration of
invalidity,
noninfringement and unenforceability of U.S. Copyright Registration Nos.
A693944 and TX3-377-899."
Instead, on April 6th, three days later, K. Gregory Haynes, Esq, William
H.
Hollander, Esq. Michelle D. Wyrick, Esq, of Wyatt Tarrant and Combs law
offices, Louisville, KY, attorneys for FIP and FACIM, "filed suit on
the same
issues in the instant case" in the U.S. District Court Western
District of
Kentucky Louisville Division, claiming jurisdiction and venue in Kentucky.
They also requested a Temporary Restraining Order (TRO) which was granted
ex
parte (i.e. without a scheduled hearing) after an emergency telephone
conference with CIMS' Omaha copyright attorney on April 7, 2000.
On April 10, 2000, at the request of the attorneys for CIMS, the TRO was
amended to exclude the portion requesting that all distributed and stored
books, titled Jesus' Course in Miracles, be surrendered to FACIM.
On April 17, 2000, attorneys for CIMS filed a motion in the U.S. District
Court for the District of Nebraska, requesting the court to enjoin
defendants
from proceeding with their duplicative action in Kentucky.
On April 19, 2000, attorneys for CIMS filed a motion in the U.S. District
Court for the Western Division of Kentucky, Louisville Division to dismiss
the case for lack of personal jurisdiction and improper venue and the
first-to-file rule.
A few days before the TRO was set to expire, it was extended by agreement
of
counsel, until a hearing is held on the preliminary injunction request by
FACIM/FIP in the Kentucky suit. This hearing is scheduled for the middle
of
July in Kentucky.
On May 11th, a hearing was held in the U.S.
District Court for the District
of Nebraska on the motion requesting the court to enjoin defendants from
proceeding with their duplicative action in Kentucky. The judge has taken
the
matter under advisement and should render a decision the week of May 15,
2000.
On May 17th
Plaintiff: CIMS
Defendants:
FACIM/FIP
US District Court for the District of Nebraska
ORDERED:
1.) The plaintiff's motion (Filing No. 4) to enjoin the defendants
from proceeding with their suit in the United States Court for the
Western District of Kentucy is denied.
2.) The defendants' motion (Filing No. 11) to dismiss is denied.
3.) The defendants' motion (Filing No. 11) to transfer venue is
granted.
DATED this 17th day of May, 2000
December, 2000: The
Court has ordered a Settlement Conference to be held in Louisville on
January 17 although FACIM's attorneys have asked for a delay in the
conference pending completion of an initial round of discovery. |
