Continued from Part I
COPYRIGHT IN MODERN MORMONISM
As in the past, the Church continues to take its intellectual property rights seriously. In 1997, the Church incorporated Intellectual Reserve, Inc. (“IRI”), a nonprofit corporation that holds the Church’s intellectual property and preemptively registers copyrights for everything from lesson manuals to sewing instructions for temple clothing. In excruciating detail, the 2006 Church Handbook of Instructions (CHI) prescribes proper use of the Church’s trademarked logotype and categorically states that unauthorized use of copyrighted works is “dishonest.”71 Church leaders seldom address intellectual property matters publicly, but at a 2009 CES fireside, Elder David A. Bednar described online file-sharing as a “[d]eceitful act veiled in secrecy,” for which we will be held “accountable to God.”72 The impulse to closely guard LDS works, coupled with the imputation of moral blame to those who cross copyright boundaries, clearly survives in modern Mormondom.
The Church is not quick to litigate,73 but it does assert its rights—sometimes aggressively. The most significant instance came in 1999, when the IRI took on long-time Church critics Jerald and Sandra Tanner of Utah Lighthouse Ministry. The Tanners had posted excerpts from the CHI on their website in order to inform disaffected Mormons how to remove their names from Church membership records.74 The IRI demanded that the Tanners not only remove the content but also post an acknowledgment of fault that the IRI provided. The Tanners immediately removed the CHI excerpts, but when they failed to post the scripted acknowledgment, the IRI instituted a lawsuit against them.75 District Court Judge Tena Campbell questioned the necessity of the suit, telling the IRI that “[i]t seems to me you’ve won without me doing anything.”76 Judge Campbell nonetheless issued a temporary restraining order prohibiting the Tanners from distributing the CHI, pending a later hearing.
Subsequent to the court’s order, the Tanners posted an announcement on their website—“Church Handbook of Instructions is back online!”—which directed visitors to other websites hosting digital copies of the CHI.77 The IRI responded by pointing out that “[i]nducing or contributing to someone else’s infringement is infringing also,” and Judge Campbell expanded the temporary restraining order accordingly.78 A month later, after another hearing, the court issued a preliminary injunction against the Tanners, holding that, at trial, the IRI would most likely succeed in proving that the Tanners had unlawfully contributed to others’ infringement by directing visitors to infringing websites.79 Rather than proceed to trial, the Tanners and the IRI settled the case.80
The IRI’s decision to sue the Tanners is understandable in light of the Church’s past. The CHI is not scripture, but it is certainly a sensitive text. Book 1 is distributed exclusively to general and local Church officers and contains policies and procedures that are not made known to the world at large. (Notably, the Church made Book 2 available online in late 2010.81) As the Church likely saw it, the Tanners did not merely copy portions of the CHI but commandeered the text in order to direct people out of the Church, thereby violating its purpose as an ecclesiastical guide and frustrating the work of the Church. This, together with their open hostility, identified the Tanners with those past enemies of the Church who have sought to “destroy this work” by misappropriating Mormon publications.82 The Church’s decision to aggressively enforce its copyright against unabashed critics is consistent with its previous copyright practice.
But, as the Church quickly found out, even a favorable ruling may carry unintended consequences. The District Court’s preliminary injunction “sent shockwaves through the cyberspace community.”83 Many considered the ruling “disturbing and . . . a possibly dangerous precedent that could inhibit one of the most fundamental features of the Web—the ability to direct viewers from one Web site to another” (i.e., linking).84 Indeed, legal experts struggled to pin down the ruling’s limits. Fortunately, the Tanner case did not ultimately deter Internet linking, but it conceivably could have, had subsequent court decisions not limited its scope.85 Stopping the Tanners from disseminating copyrighted material may have been in the Church’s immediate interests, but going to court risked broadly impeding the sharing of information on the Internet.
More important, the Tanner case demonstrates that copyright litigation is neither as quiet nor as private as was Joseph Smith’s dispute with Abner Cole. When the IRI won its preliminary injunction, newspapers around the country reported on the ruling.86 Headlines characterized the decision, which they described as targeting “critics of the Mormon Church,”87 as an ominous sign of “an increasingly closed” Internet.88 The case also sparked extensive legal scholarship, some of which cast the Church in a negative light.89 The Church may have won the legal battle, but with the victory came a loss of goodwill. Even if the Church has an airtight case against an infringer, the collateral costs of prosecuting the case may outweigh the benefits.
The risk of negative publicity exists even if the Church never actually enters a courtroom.90 To cite one recent example, in 2008, the Church came under fire when the IRI sent a cease-and-desist letter to the Wikimedia Foundation, requesting that it remove a link to an electronic copy of the CHI that was hosted by the notorious whistleblower organization WikiLeaks91 (unrelated to the Wikimedia Foundation, despite the similarity of their names). As in the 1999 case against the Tanners, the IRI maintained that the Wikimedia Foundation was doing wrong by linking to copyrighted media posted at another website. When the Foundation went public about the IRI’s letter, critics blasted the Church for attempting to “gag” the Internet.92 Although the Foundation opted to remove the link, it pointed out that this was “the first time that the Wikimedia Foundation has received a copyright infringement claim regarding an article published by Wikinews.”93 However, when the IRI sent a letter instructing Wikileaks to remove the CHI from its website, WikiLeaks refused.94 WikiLeaks head Julian Assange dared the Church to instigate legal proceedings,95 but this time—perhaps because of lessons learned from the Tanner controversy—the Church refrained.
CONCLUSION
From the LDS Church’s founding, copyright has been a primary means of controlling and protecting Mormon texts. Joseph Smith’s revelations have endorsed copyright’s use, and suspected anti-Mormon plans have possibly been frustrated through its instrumentality. But copyright enforcement also entails risks; aggressively exercising this power may impede promising new technologies and provoke societal condemnation. As in all things, the Church’s copyright practice is probably best guided by the scriptures, which counsel temperance in all things.96
NOTES
1. A photo of this sign was posted to the “Seen@BYU” Facebook group in early 2010.
2. D&C 58:21.
3. Some Mormon commentators have discussed intellectual property issues. For treatments of copyright and the Book of Mormon, see Nathaniel Hinckley Wadsworth, “Copyright Laws and the 1830 Book of Mormon,” BYU Studies 45 (2006): 77–96; Edward Carter, paper presented at the Mormon Media Studies Symposium, Brigham Young University, November 2010, as reported in Michael de Groote, “Copyright Saved the Book of Mormon,” Deseret News, 21 December 2010, http://www.deseretnews.com/article/700093858/Copyright-saved-the-Book-of-Mormon.html (accessed 30 November 2011).
4. Jessica Litman, Digital Copyright (New York: Prometheus Books, 2006), 112.
5. James Boyle, The Public Domain: Enclosing the Commons of the Mind (New Haven: Yale University Press, 2008), xvi.
6. Thomas F. Cotter, “Gutenberg’s Legacy: Copyright, Censorship, and Religious Pluralism,” California Law Review 91 (2003): 330.
7. See D&C 21:11.
8. The first true copyright law, the Statute of Anne, was enacted in England in 1709. Pierre N. Leval, “Toward a Fair Use Standard,” Harvard Law Review 103 (1990): 1105.
9. 17 U.S.C. § 106 (2006).
10. 17 U.S.C. §§ 102, 302(a) (2006).
11. Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985).
12. U.S. Constitution, art. 1, sec. 8, cl. 8.
13. Harper & Row v. Nation, 558.
14. Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir. 1987).
15. See Center for Democracy and Technology, “Campaign Takedown Troubles: How Merciless Copyright Claims Threaten Online Political Speech,” Center for Democracy and Technology, September 2010, http://www.cdt.org/
files/pdfs/copyright_takedowns.pdf (accessed 30 November 2011); Eric Kleefeld, “Angle Sends Cease-and-Desist to Reid—For Reposting Her Own Website,” Talking Points Memo, 5 July 2010, http://tpmdc.talkingpointsmemo.com/
2010/07/angle-sends-cease-and-desist-to-reid-for-reposting-her-own-website.php (accessed 30 November 2011).
16. Copyright has been described as a “limited monopoly.” Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984). Certain legal doctrines, such as “fair use” and the “idea/expression dichotomy,” dilute copyright holders’ control over their works. See Eldred v. Ashcroft, 537 U.S. 186, 219 (2003).
17. Cotter, “Gutenberg’s Legacy,” 338.
18. Ibid., 339.
19. Ibid.
20. Penguin Books U.S.A. Inc. v. New Christian Church of Full Endeavor Ltd., 55 U.S.P.Q.2d (BNA) 1680, 1691 (S.D.N.Y. 2000); Urantia Foundation v. Maaherra, 895 F. Supp. 1337, 1338 (D. Ariz. 1995), reversed on other grounds, 114 F.3d 955 (9th Cir. 1997); Cummins v. Bond, 1 Ch. 167, 173–75 (1927) (U.K.).
21. Courts face a related problem when assessing the creative nature of religious works, as required when a litigant raises a “fair use” defense. See 17 U.S.C. § 107(2); Blanch v. Koons, 467 F.3d 244, 256 (2d Cir. 2006). In a recent case involving copyrighted translations of Greek religious texts, one of the parties—an Archbishop—urged that the texts “are to their readers factual works that are part of their religion.” While acknowledging that, “[a]s a theological concept, this may ring true to a believer,” the court concluded that “from an objective legal perspective,” the texts fell “more appropriately within the category of a work of imagination and creativity.” Society of the Holy Transfiguration Monastery, Inc. v. Archbishop Gregory, 685 F. Supp. 2d 217, 227 (D. Mass. 2010).
22. David A. Simon, “In Search of (Maintaining) the Truth: The Use of Copyright Law by Religious Organizations,” Michigan Telecommunications and Technology Law Review 16 (2010), 355.
23. Ibid., 360–76.
24. Worldwide Church of God v. Philadelphia Church of God, 227 F.3d 1110, 1112–13 (2000).
25. Ibid., 1115–20.
26. Joseph Fielding Smith, Church History and Modern Revelation (Salt Lake City: Council of the Twelve Apostles of the Church of Jesus Christ of Latter-day Saints, 1949), 1:271, quoted in Daniel H. Ludlow, A Companion to your Study of the Doctrine & Covenants (Salt Lake City: Deseret Book, 1978), 1:376.
27. “Peter,” who writes about LDS legal issues from a faithful perspective at the LDS Law blog, once remarked that “There are enough IP cases brought by the Church to fill a whole post.” Peter, “From the Blawgernacle—5 October 2009,” LDS Law, 5 October 2009, http://lds-law.org/2009/10/05/from-the-blawgernacle-october-5-2009/ (accessed 30 November 2011). This statement reflects the common perception (even among the faithful) that the LDS Church takes its intellectual property very seriously.
28. Alma 37:4.
29. Enos 1:14–16.
30. Mormon 6:6.
31. Alma 41:1; Alma 13:20.
32. Joseph Fielding Smith, ed., Teachings of the Prophet Joseph Smith (Salt Lake City: Deseret Book, 1976), 10.
33. Ibid., 327.
34. 1 Nephi 13:16–27.
35. See section heading to D&C 3.
36. D&C 3:12.
37. D&C 10:13.
38. The copyright registration certificate for the Book of Mormon, issued by the U.S. District Court for the Northern District of New York, is dated 11 June 1829. “Copyright, 11 June 1829,” Joseph Smith Papers Project, http://beta.josephsmithpapers.org/paperSummary/copyright-11-june-1829 (accessed 30 November 2011).
39. B. H. Roberts writes that the Smith family supplied the printer with only a small portion of the text at a time, “usually enough only for a single day’s work,” and kept a 24-hour vigil over the manuscript. Joseph Smith, Jr., History of the Church of Jesus Christ of Latter-day Saints, edited by B. H. Roberts, 2d ed. rev. (Salt Lake City: Deseret Book, 1980), 1:75–76.
40. Ibid.
41. Lucy Smith, Biographical Sketches of Joseph Smith the Prophet, and His Progenitors for Many Generations (Liverpool: Richards, 1853), 149.
42. Ibid., 149–50.
43. Smith, History of the Church, 75.
44. Russell R. Rich, “The Dogberry Papers and the Book of Mormon,” BYU Studies 10 (1970): 315–18.
45. David Whitmer, An Address to All Believers in Christ: By a Witness to the Divine Authenticity of the Book of Mormon (Richmond: Whitmer, 1887), 30–31.
46. From Whitmer’s account: “Joseph did not know how it was, so he enquired of the Lord about it, and behold the following revelation came through the stone: ‘Some revelations are of God: some revelations are of man: and some revelations are of the devil.’” Ibid. (emphasis in original).
47. On the other hand, this might not be entirely uncharacteristic of Joseph Smith. The Smith family had struggled with money throughout Joseph’s youth, and by his own admission, Joseph was tempted to place temporal concerns above spiritual duties. As he wrote in his 1838 history, “Satan would try to tempt me (in consequence of the indigent circumstances of my father’s family), to get the plates for the purpose of getting rich.” Joseph Smith—History 1:46. However, as I argue in this article, the text of the Canadian copyright revelation can be reconciled with Joseph’s sense of prophetic purpose.
48. “Revelation, circa early 1830,” Joseph Smith Papers Project, http://beta.josephsmithpapers.org/paperSummary/revelation-circa-early-1830 (accessed 30 November 2011).
49. Ibid.
50. Ibid.
51. Ibid.
52. D&C 72:20; cf. D&C 70:1–5.
53. See D&C 72:20–21; D&C 84:104; D&C 94:10, 12; D&C 104:55–59.
54. The copyright revelation appeared in what is now D&C 104. However, the current D&C omits the passage discussing copyright.
55. Robert J. Matthews, “A Plainer Translation”: Joseph Smith’s Translation of the Bible: A History and Commentary (Provo: Brigham Young University Press, 1975), 49; cf. D&C 104:58–60.
56. Robert J. Woodford, “The Doctrine & Covenants: A Historical Overview,” in Studies in Scripture, Vol. 1: The Doctrine & Covenants, ed. Robert J. Millet & Kent P. Jackson (Salt Lake City: Deseret Book Co., 1984).
57. Robert J. Woodford, “The Story of the Doctrine & Covenants,” Ensign, December 1984, 32.
58. “A Visit to London, Birmingham, and the Potteries,” The Latter-day Saints’ Millennial Star 6 (15 July 1845): 39.
59. “Chapters from the History of the Church,” The Latter-day Saints’ Millennial Star 34 (25 June 1872): 410.
60. D. Michael Quinn, “The Mormon Succession Crisis of 1844,” BYU Studies 16 (1976): 208. Brigham Young instructed missionaries to obtain copyrights in Church publications “in the name of Brigham Young, President of the Church of Jesus Christ of Latter Day Saints.”
61. D&C 72:21.
62. Act of 3 February 1831, ch. 16, §§ 1–2, 16, 4 Stat. 436, 436–37, 439 (amended 1909). At the expiration of the initial 28-year term, the copyright holder or his widow, child, or children had the option of renewing the copyright for an additional 14 years. Neither Emma Smith nor any of her children with Joseph exercised this option.
63. Douglas Campbell, “‘White’ or ‘Pure’: Five Vignettes,” Dialogue: A Journal of Mormon Thought 29 (1996): 120.
64. Ibid., 120–21.
65. Journal of the Senate of the United States of America (35th Cong., 1859), 55.
66. Somewhat ironically, in order to recoup his losses, Wright ended up repackaging the books and selling them to a Mormon splinter group; the RLDS church eventually inherited the copies. Campbell, “Five Vignettes,” 121.
67. Matthews, “A Plainer Translation,” 49.
68. Charles Millard Turner, “Joseph Smith III and the Mormons of Utah” (Ph.D. diss., University of California Berkeley, 1985), 258.
69. Ibid., 259–60.
70. Ibid., 260–61.
71. For instance, the 2006 CHI provides that the logotype must be displayed with “good contrast,” and “should be large enough to be easily read but not so large that it dominates an item.” Church Handbook of Instructions: Book 1: Stake Presidencies and Bishoprics (Salt Lake City: The Church of Jesus Christ of Latter-day Saints, 2006), 174–76. The 2010 edition of the CHI provides a simpler discussion of IP, but still carefully details the proper use of the Church’s logotype, and states that unauthorized use of copyrighted works is “contrary to Church policy.” “Selected Church Policies,” LDS.org, http://new.lds.org/handbook/
handbook-2-administering-the-church/selected-church-policies/ (accessed 30 November 2011).
72. David A. Bednar, “Things As They Really Are,” Ensign, June 2010, 16.
73. The Church has instigated only two intellectual property-related lawsuits: the Tanner case, discussed herein, and a trademark infringement case against a Kiwi man in New Zealand over use of the term “family search.” Robert Smith, “Kiwi Man Wins Legal Battle With Mormon Church Over a Family Affair,” National Business Review, 16 July 2009, http://www.nbr.co.nz/article/kiwi-man-wins-legal-battle-with-mormon-church-over-a-family-affair-105723/ (accessed 30 November 2011).
74. Mary Anne Bendatoff, “Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc.: Fair Use, the First Amendment, and the Freedom to Link,” University of San Francisco Law Review 35 (2000): 91.
75. Sheila McCann, “Web Site Prompts Mormon Church to Sue Critics,” Salt Lake Tribune, 15 October 1999, A1.
76. Sheila McCann, “Critics Can’t Distribute LDS Book on Internet,” Salt Lake Tribune, 19 October 1999, B1.
77. Lisa Carricaburu, “LDS Church Asks Judge to Hold Critics in Contempt,” Salt Lake Tribune, 6 November 1999, D2.
78. Steven Oberbeck, “Ministry’s Restraint Order Expanded,” Salt Lake Tribune, 11 November 1999, C2. A person who knowingly and materially contributes to another’s infringement of copyright may be held liable for the infringement. See Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 259, 264 (9th Cir. 1996).
79. Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 1294–95 (D. Utah 1999).
80. Ray Rivera, “Church Settles Copyright Suit,” Salt Lake Tribune, 14 December 2000, B2.
81. While noting that it was a “common-sense decision” to publish Book 2 online, LDS Public Affairs director Michael Otterson explained that if Book 1 were made available to the general membership, some “might decide they don’t need to go see their bishop.” It therefore “made much more sense to reserve that volume for leaders.” Peggy Fletcher Stack, “LDS Church Handbook on Social Issues Available Online,” Salt Lake Tribune, 18 November 2010, http://www.sltrib.com/sltrib/lifestyle/50690125-80/church-handbook-says-members.html.csp (accessed 30 November 2011)
82. D&C 10:12.
83. Stacey L. Dogan, “Infringement Once Removed: The Perils of Hyperlinking to Infringing Content,” Iowa Law Review 87 (2002): 866.
84. Carl S. Kaplan, “Copyright Decision Threatens Freedom to Link,” New York Times, 10 December 1999, http://www.nytimes.com/library/tech/
99/12/cyber/cyberlaw/10law.html (accessed 30 November 2011).
85. See Mark Sableman, “Link Law Revisited: Internet Linking Law at Five Years,” Berkeley Technology Law Journal 16 (2001): 1327. When a new technology (such as the Internet) makes it easier to copy or disseminate media, the technology frequently ends up in court, with judges performing the unenviable task of deciding its fate. Today we have VCRs and their digital equivalents because the Supreme Court held in 1984 that Betamax video recorders did not violate the Copyright Act. See Sony v. Universal City Studios, 417. By contrast, we no longer have Napster because the Ninth Circuit decided that the program did violate the Copyright Act. See A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001).
86. See Kaplan, “Copyright Decision Threatens Freedom to Link”; Tena Campbell, “Internet Free-Speech Advocates Oppose Ruling Banning a Web Link,” Associated Press, 5 January 2000; Arthur Hoyle, “Sacred Rights Pitted Against Sacred Rites in the Courts,” Canberra Times (Australia), 1 January 2001, A13.
87. Kaplan, “Copyright Decision Threatens Freedom to Link.”
88. Stephen Lawson, “Copyright Ruling Targets Web Links,” CNN, 14 December 1999, http://archives.cnn.com/1999/TECH/computing/12/13/
illegal.links.idg/ (accessed 30 November 2011).
89. See, e.g., Cotter, “Gutenberg’s Legacy,” 331 n.34 (citing Intellectual Reserve v. Utah Lighthouse Ministry as an example of the “copyright-owner-as-censor phenomenon”).
90. Over the past decade, the Church has frequently made headlines for taking informal action against alleged infringers. See Marjorie Heins & Tricia Beckles, Will Fair Use Survive? Free Expression in the Age of Copyright Control (New York: Brennan Center for Justice, 2005), 42–43 (describing IRI copyright claims against websites hosting missionary discussions and other Church-owned images); Doug Humphries, Letter to the Editor, “Sacred Trademark,” Salt Lake Tribune, 29 March 2007 (criticizing the Church’s “absolute contempt for the First Amendment” as a result of an IRI trademark claim against Utah coffee shop owners who incorporated an image of the angel Moroni in an advertisement); “DMCA Threats Squelch Publication of Secret Church Document on Homosexuality,” EFFector 14 (28 September 2001), http://w2.eff.org/effector/HTML/effect14.28.html (accessed 30 November 2011) (decrying IRI’s copyright claim against a website hosting internal Church document on homosexuality).
91. Carrie A. Moore, “LDS Church Alleges Wikimedia Site Infringed Copyright,” Deseret News, 14 May 2008, accessed 19 June 2011, http://www.
deseretnews.com/article/700225944/LDS-Church-alleges-Wikimedia-site-infringed-copyright.html. The Deseret News erroneously reported that WikiLeaks, the website hosting the infringing copy of the CHI, was affiliated with the Wikimedia Foundation.
92. “Mormon Church Attempts to Gag Internet over Handbook,” WikiLeaks, http://wikileaks.org/wiki/Mormon_Church_attempts_to_gag_Internet_over_handbook (accessed 30 November 2011).
93. “Wikimedia Foundation Receives Copyright Infringement Claim from Mormon Church.” Wikinews, 13 May 2008, http://en.wikinews.org/wiki/
Wikimedia_Foundation_receives_copyright_infringement_claim_from_Mormon_Church (accessed 30 November 2011). Although commentators immediately drew a connection between the Wikimedia controversy and the Utah Lighthouse Ministry case, the IRI’s copyright claim against Wikimedia was probably weaker than its claim against the Tanners. As Mark Sableman points out, the Tanners “did more than just post Internet links.” Sableman, “Link Law Revisited,” 1327. The Tanners took additional steps—they “provided specific instructions and encouragement for users who wished to visit the other sites.” Ibid., 1318. By contrast, Wikinews’ link to the CHI was merely incidental to a news article about it.
94. Michael Park, “Watchdog Web Site Draws Legal Threats from Scientologists, Mormons,” Fox News, 19 June 2008, http://www.foxnews.com/
story/0,2933,368315,00.html (accessed 30 November 2011).
95. Assange told the press that he “suspect[ed] the Mormons are smart enough not to take the next step,” but nonetheless welcomed a lawsuit on the ground that it would “validate the documents . . . and bring attention to other people who are revealing incriminating information about these or other organizations.” Ibid.
96. See 1 Cor. 9:25; Alma 38:10; D&C 12:8.
