00987 { 9:17:50am} 01 IN THE UNITED STATES DISTRICT COURT 02 FOR THE WESTERN DISTRICT OF OKLAHOMA 03 04 MICHAEL FOUNDATION, INC., 04 05 Plaintiff, 05 06 vs. CASE NO. CV-00-0885-W 06 07 URANTIA FOUNDATION, et al., 07 08 Defendants. 08 09 09 10 10 11 11 12 REPORTER'S TRANSCRIPT OF PROCEEDINGS 12 HAD TUESDAY, JUNE 19, 2001 13 BEFORE THE HONORABLE LEE R. WEST, SENIOR JUDGE PRESIDING 13 14 JURY TRIAL - VOLUME VI OF VII 15 16 17 18 19 A P P E A R A N C E S 20 FOR THE PLAINTIFF: MR. ROSS A. PLOURDE 20 MR. MURRAY E. ABOWITZ 21 Attorneys at Law 21 Oklahoma City, Oklahoma 22 22 FOR THE DEFENDANTS: MR. STEVEN G. HILL 23 MR. PETER SCHOENTHALER 23 MR. ERIC MAURER 24 Attorneys at Law 24 Atlanta, Georgia 25 25 00988 { 9:17:50am} 01 INDEX OF VOLUME VI 02 --------------------------------------------------------------- 03 INSTRUCTIONS CONFERENCE ................................. 989 04 READING OF THE INSTRUCTIONS ............................. 1024 05 PLAINTIFF'S OPENING ARGUMENT ............................ 1056 06 DEFENDANTS' CLOSING ARGUMENT ............................ 1074 07 PLAINTIFF'S REBUTTAL ARGUMENT ........................... 1104 08 ********** 09 00989 { 9:17:50am} 01 MORNING SESSION 02 TUESDAY, JUNE 19, 2001 03 --------------------------------------------------------------- 04 (THE FOLLOWING PROCEEDINGS WERE HAD IN THE JUDGE'S 05 CHAMBERS, OUT OF THE PRESENCE AND HEARING OF THE JURY:) 06 THE COURT: We're going to go through these proposed 07 instructions kind of one-on-one here and give you an 08 opportunity to make a record on them which will speed up the 09 record after I've given them. You'll be given another 10 opportunity at the bench to make any -- adopt what you've said 11 here or do anything additionally. 12 A couple or three housekeeping matters we can kind of 13 start with. You wanted to place of record the fact that 14 Urantia Foundation has selected statutory damages -- 15 MR. HILL: Yes. 16 THE COURT: -- rather than actual damages on the 17 copyright issue. Why don't you go ahead. 18 MR. HILL: Urantia Foundation has elected to proceed 19 on statutory damages rather than actual damages. 20 THE COURT: And the parties agree that the issue of 21 Michael Foundation of infringement need not be decided by the 22 jury. As I understand it, you both agree that if there is a -- 23 I mean, if there is a validity, then there is an infringement; 24 is that correct? And if so -- 25 MR. PLOURDE: Judge, I think it's better said that 00990 {10:45:07am} 01 early on you rejected an argument of ours with respect to 02 composite works, and I think your ruling was that if you copy 03 any part of a composite work, you've infringed it. You know, 04 that was over our objection. But in light of that, -- 05 THE COURT: Given that ruling -- 06 MR. PLOURDE: -- I don't think there's anything to 07 instruct them on as far as infringement. You know, obviously, 08 we'd like to preserve our -- 09 THE COURT: And you have not waived objection to the 10 Court's ruling in that regard but it's agreed that we do not 11 need to instruct on the infringement, that it will be an 12 automatic result if they find the validity; is that correct? 13 MR. PLOURDE: Right. 14 THE COURT: In light of the Court's ruling? 15 MR. PLOURDE: Right. 16 THE COURT: All right. There's no need for corporate 17 officer liability shield. If McMullan meets the contributory 18 liability test, he will implicitly meet the requirements for 19 holding a corporate officer liable. What I want to hear is if 20 you've got any argument against that position. 21 MR. PLOURDE: Well, Your Honor, I think we've 22 submitted the instructions, we've explained the basis of our 23 authority -- excuse me -- the basis for submitting those 24 instructions both by the authorities that we submitted in 25 support of those as well as the Oklahoma statute regarding 00991 {10:45:11am} 01 liability of volunteer officers. Both of those we think are 02 well supported. 03 THE COURT: Okay. To the extent not given then, it's 04 denied. 05 And I think -- what about the volunteer liability 06 instruction? What's the position with regard to that? 07 MR. PLOURDE: Judge, we think it's required by 08 Oklahoma law. 09 THE COURT: And your position is that it is not? 10 MR. HILL: Well, our front-line position, Judge, is 11 that it's an affirmative defense that wasn't pled in the 12 pretrial order and is therefore waived. Independently, I mean, 13 it still has to be good faith and implicitly that's 14 incorporated in the contributory standard. 15 THE COURT: It was not included in the pretrial 16 order, not asserted in any way as an affirmative defense? 17 MR. PLOURDE: That's right, Judge. 18 THE COURT: All right. That will be the Court's 19 ruling then. 20 All right. Let's go through the instructions. Do you 21 have a copy of them for me, Anil? 22 THE LAW CLERK: Sitting right there on your desk. 23 THE COURT: Okay. Let's go through these very 24 rapidly one by one so we can make a record on them. And then, 25 as I say, you'll be given an opportunity to adopt these 00992 {10:45:15am} 01 objections after the instructions are given and before they're 02 submitted to the jury. 03 Anybody have any objections to the Court's instruction 04 number 1? 05 MR. PLOURDE: Judge, that hasn't changed. 06 THE COURT: No, it's the same. 07 Number 2 is Outline of the Issues, and that has changed as 08 we've gone through this trial. Anybody have any objection to 09 this? 10 MR. PLOURDE: Is this the same as we looked at last 11 night? 12 THE LAW CLERK: Yes. 13 And instruction 1 changed to the extent that it now 14 reflects that he will instruct first and then there will be 15 counsel argument as opposed to -- it previously reflected that 16 the parties -- 17 THE COURT: Just recites that reversal of order. 18 Number 3, Resolution of Certain Issues. You might read 19 that. It just outlines we've gotten rid of some of the issues. 20 4 is a stock standard instruction and it's the same as it 21 has been all along. 22 Number 5 refers to Subject. We've used every kind of a 23 name under the sun but -- 24 MR. HILL: I got in some trouble with my client last 25 night over the change that I requested from Anil. They liked 00993 {10:45:17am} 01 his better when he said the subject may be -- or may be deemed 02 the legal author because of their spiritual beliefs. Is there 03 any objection to maybe tinkering with that language a little 04 bit and saying the subject may be deemed the legal author? 05 MR. PLOURDE: Judge, if he may be, then he needs to 06 be deemed, or else the jury needs to decide that. I mean, 07 either we're going to tell the jury -- 08 THE COURT: I agree. I mean, I think for the 09 purposes of this lawsuit, the subject is deemed to be the legal 10 author and that's what that instruction says. 11 Consideration of the Evidence, number 6. I think that's a 12 stock standard. 13 Number 7, Rulings in Other Cases. You better take a look 14 at that. 15 MR. HILL: That's fine. 16 THE LAW CLERK: There's a grammatical error. 17 THE COURT: Pardon? 18 THE LAW CLERK: There's a grammatical error. 19 MR. PLOURDE: Fourth line. 20 THE COURT: Where is it? 21 THE LAW CLERK: Should be, "Not binding upon you in 22 determining the facts in this case." 23 THE COURT: "Upon you in determining the facts in 24 this case"? All right. With that correction. 25 MR. HILL: Are you sure that wasn't supposed to be, 00994 {10:45:19am} 01 "Not binding upon your determination"? 02 THE LAW CLERK: Could be that as well. Which one 03 would you rather have? 04 THE COURT: Where is this now? 05 THE LAW CLERK: It's on the fourth line. 06 MR. HILL: It works better if you just have "your 07 determination." 08 THE LAW CLERK: "Presented in those cases and are not 09 binding upon your determination of the facts in this case." Is 10 that fine with everybody? 11 THE COURT: I think, "Not binding upon you in 12 determining the facts in this case." 13 THE LAW CLERK: All right. We'll do that. 14 THE COURT: Burden of Proof, standard, I believe. 15 9 is Circumstantial Evidence, standard. 16 10, Credibility of Witnesses, standard. 17 11, Impeachment is standard. 18 12, Deposition Evidence, standard. 19 13, Expert Witnesses, standard. 20 14, standard on Objections - Rulings on Evidence and 21 Questions. 22 All right. 15, Copyright Law. Does anyone have any 23 objection to instruction number 15? I don't think it has 24 changed, has it? 25 THE LAW CLERK: Has not changed. 00995 {10:45:21am} 01 THE COURT: You don't have any objection? 02 MR. PLOURDE: No, so long as it doesn't change. 03 THE COURT: Originality Defined, number 16. Was 04 there any changes made in that last night? 05 THE LAW CLERK: No. 06 THE COURT: All right. 17 -- Or does anybody have 07 any objection to that? 08 I gather not. 09 17, Works in the Public Domain. That's a pretty stock and 10 standard deal. There's no changes made in that last night 11 either? 12 THE LAW CLERK: No. 13 THE COURT: Initial/Renewal Term, Explanation, number 14 18. No changes made in that last night? 15 THE LAW CLERK: No, sir. 16 THE COURT: Renewal Term Validity at Issue, number 17 19. No changes made last night in that? 18 THE LAW CLERK: No. 19 MR. PLOURDE: And, Judge, just to make it clear, we 20 want to preserve our position to argue on appeal that the -- 21 there was not an appropriate assignment of the original common 22 law copyright, and so the original common law copyright not 23 being assigned, they weren't entitled to renew and we submitted 24 proposed instructions on that and I understand that you've 25 rejected everything that we've done. 00996 {10:45:22am} 01 THE COURT: To the extent not given, they're 02 rejected, and you have your right reserved to appeal. 03 Renewal Term Copyright - Those Entitled to Renew, number 04 20. Either side have objections to those? 05 Number 21, More Than One Renewal Basis. 06 Number 22, Validity Issues. 07 Number 23, Work For Hire/Commissioned Work. 08 24 is -- 09 MR. PLOURDE: Judge -- 10 MR. ABOWITZ: Hold it, Judge. We're still on -- 11 THE COURT: Take your time. 12 MR. PLOURDE: Judge, we had some pretty significant 13 points -- 14 THE COURT: Go ahead. 15 MR. PLOURDE: -- that we asked to be added in this. 16 One is the fact that -- citing the Maaherra case, both the 17 lower court and the court on appeal, while they said there 18 doesn't have to be necessarily a traditional relationship, -- 19 and recognizing that work for hire includes commissioned works, 20 the district court said, "However, the works-for-hire doctrine 21 is premised upon the plaintiff's ability to prove an employment 22 relationship. Without credible relationship of an actual 23 employment relationship, the works-for-hire doctrine has no 24 application." And we think, you know, that the law in that 25 case fairly well establishes that even though it may be some 00997 {10:45:24am} 01 sort of a volunteer basis or whatever, there still has to be 02 some sort of a commissioning relationship or employment 03 relationship in order for this to attach. That would be our 04 first -- 05 THE COURT: Now, is that an objection to this 06 instruction or a request for additional instruction? Let me 07 understand. 08 MR. PLOURDE: Your Honor, I think this instruction, 09 without that type of language, improperly paints a picture for 10 the jury. 11 THE COURT: So we can pinpoint, have you proposed an 12 instruction that includes the language you've argued for and 13 suggested? 14 MR. PLOURDE: Yes, sir. 15 THE COURT: I just want to know if you have requested 16 an instruction, because to the extent you've requested it -- 17 well, let me hear from the opposing side. Do you have any 18 objection to the requested instruction? 19 MR. HILL: Yes, Judge. 20 THE COURT: And what is the basis of your objection? 21 MR. HILL: Well, the first basis is that it makes it 22 confusing in light of the later statement that traditional -- 23 it says it's already in the charge, it's not in the one that 24 they proposed, but it says, "In determining whether a work for 25 hire or commissioned work exists, you should not be guided 00998 {10:45:26am} 01 merely by traditional notions of the employment relationship." 02 That's the correct instruction in the law under the Picture 03 Borne decision. The Maaherra case, the district judge, I 04 believe, applied the 1976 act test of work for hire in making 05 the statement that you have to have an employment relationship 06 more along the lines of a traditional employment relationship 07 and simply ignored the Second Circuit decision in Picture Music 08 which accounts for why my client was not very pleased with 09 Judge Urbom's decision in that case. 10 But, nevertheless, I think there's more than enough in 11 looking at whether an employment relationship exists for 12 purposes of the 1909 act, you look at the factors and the jury 13 has to decide based upon the factors, and making a statement 14 that, nevertheless, an employment relationship must exist I 15 think is misleading when they should just be concentrating on 16 the factors and balancing the factors and making a decision as 17 to an employment relationship based upon the consideration of 18 the factors that are set out in the case law. 19 THE COURT: Okay. To protect you on the record, to 20 the extent that your requested instruction is not given, you 21 certainly do have an exception to the Court's ruling. 22 MR. PLOURDE: Okay, Judge. There's two other 23 portions of this that I'd like to raise, if I could. The 24 second portion relates to subpart III on the second page, the 25 carry-over paragraph. 00999 {10:45:30am} 01 THE COURT: Okay. 02 MR. PLOURDE: That says, "Whether the commissioning 03 party supplied capital for the production of the work." Now, 04 Judge, we think that that needs a statement clarifying that and 05 we've suggested and submitted in our proposed instruction, "But 06 not costs incurred after initial creation of the work to 07 publish or disseminate the work." 08 THE COURT: Your position is that that cannot be even 09 a factor to be considered; is that correct? 10 MR. PLOURDE: Judge, if that were the case, then 11 anybody -- if I wrote a book and I submitted it to a publisher 12 and they agreed to publish it, they bear the expense of 13 publishing it. I don't bear that expense. And any book that I 14 wrote and submitted to that publisher that they bore the 15 expense of publishing would be a work for hire under this test. 16 THE COURT: But that would be a factor that could be 17 considered. Whoever spent that money, there's no reason to 18 eliminate that as -- it shouldn't be the determining factor, 19 perhaps for the reasons you point out; anyone who just did the 20 publication couldn't just steal a deal and that be the only 21 thing and they'd automatically have the right. But there isn't 22 any reason why whoever spent that money on the publication 23 couldn't be a factor in determining this and that's all this 24 instruction says. 25 MR. PLOURDE: Well, Judge, I think that's the only 01000 {10:45:35am} 01 factor that has any application here. That's the only thing 02 they can say they truly did that fits within this. 03 THE COURT: Do you agree with that? 04 MR. HILL: No. 05 THE COURT: And I don't either. To the extent that 06 your request is not given, it'll be deemed denied. Okay. 07 MR. PLOURDE: One other part, Judge. 08 THE COURT: Sure. Go ahead. 09 MR. PLOURDE: We quoted language from the 10 Self-Realization Fellowship Church case, paraphrased it and put 11 it in here, and have submitted a proposed instruction to the 12 effect that, "However, works motivated by an author's own 13 desire for self-expression or religious instruction of the 14 public are not works for hire." That's right out of the 15 Self-Realization Fellowship Church case where they said, "Works 16 motivated by Yoganonda's own desire for self expression or 17 religious instruction of the public are not works for hire." 18 THE COURT: And you requested that go in which 19 instruction where? 20 MR. PLOURDE: In this instruction. We asked -- 21 suggested it be positioned at the end of the carryover 22 paragraph. It's the last sentence. 23 THE LAW CLERK: Judge, that issue is addressed in the 24 last part of your memo. 25 THE COURT: The last under -- 01001 {10:45:38am} 01 THE LAW CLERK: It's the last subheading, I think, 02 section I. 03 THE COURT: I'm not sure where -- 04 THE LAW CLERK: Let me find it for you here. This is 05 it right here. 06 THE COURT: Unified work -- 07 THE LAW CLERK: No, that's not it. I'll find it for 08 you real quick. I know we talked about it this morning. Right 09 here. It's F. 10 THE COURT: Now, you have the Gelderman case cited in 11 opposition to this request; is that correct? 12 MR. HILL: Yes, but also I would point out that 13 that's a gratuitous statement made after going through the 14 factors that are already in the court's charge, the 1909 test. 15 After concluding that none of those factors applied, they then 16 made the statement that therefore this person doing all of 17 this, and I would think that that statement was dependent upon 18 the unique facts of that case. If you're going to put language 19 from every specific case that's ever been decided, I can point 20 to some great quotes that we'd like to have in this about how 21 -- like in Gelderman where they say that the author retaining 22 complete artistic freedom is not a bar to a finding of a 23 commissioned work. I'm sure that if we proposed language like 24 that, they would be equally irritated at the specificity of the 25 court of appeals' language in drawing conclusions after doing 01002 {10:45:40am} 01 the balancing rather than simply telling the jury what the 02 balancing factors are and letting them do the work from there. 03 THE COURT: Okay. To the extent not given, it will 04 be denied and you'll have an exception to the Court's ruling. 05 Are we now ready to move on to 24? 06 MR. PLOURDE: Yes, sir. 07 THE LAW CLERK: Judge, before we go to 24, did you 08 all make any changes on 23 from where it is currently? It's 09 the last page of the verdict form. 10 MR. HILL: Hold on. I'm getting buried in paper 11 here. 12 THE LAW CLERK: We just gave you replacement 13 instruction 7 and replacement instruction of the last page of 14 the verdict form which was missing a heading. And I need to 15 know currently in here if you all made any changes to 16 instruction 23 as a result of your discussions. 17 MR. ABOWITZ: We tried. 18 MR. HILL: No. 19 THE LAW CLERK: Okay. 20 THE COURT: No, it's the same. 21 THE LAW CLERK: Okay. 22 THE COURT: 24? Anyone have any objection to 24? 23 I gather not. 24 25, Directions After Determining Work For Hire or 25 Commissioned Work. 01003 {10:45:42am} 01 I gather not. 02 All right. Number 26, Composite Definition. 03 MR. HILL: Judge, we raised last night the 04 possibility of perhaps giving some examples right out of the 05 statute, examples of a composite/collective work. It lists 06 encyclopedias, anthologies, which are the selective writings of 07 one or more authors, and periodicals as examples. The reason 08 why we'd like to see that language in is because the Court in 09 this instruction is giving examples at the bottom of the first 10 page and onto the top of the second page of things that are not 11 composite works and we believe that there should be some 12 balance in the charge as to the examples. So that will be the 13 first issue that I'll raise. 14 THE COURT: Let me examine your precise request, if 15 you will, counsel. 16 MR. MAURER: Your Honor, Anil is bringing it back. 17 MR. HILL: I think Anil has it by e-mail. 18 What I believe we have proposed, Judge, is at the end of 19 the second paragraph here where you say, "The terms 'composite 20 work' and 'collective work' are synonymous," just simply adding 21 a sentence that says, "Examples may include encyclopedias, 22 periodicals or anthologies which consist of the selected 23 writings of one or more authors." 24 THE COURT: Do you have any objection to that, 25 counsel? 01004 {10:45:44am} 01 MR. PLOURDE: Yes, sir. The first objection is that 02 encyclopedias and the like are species of composite works and 03 they have to meet the same test as other kinds of composite 04 works, which means they have to be a collection of 05 independently copyrightable works. 06 So, to put that in there without defining it makes it, I 07 think, somewhat confusing to the jury. It makes the 08 instruction very confusing. We tried to come up with language 09 last night, and we really couldn't, that added anything to this 10 without making it far more confusing. 11 The second point is I think that there are descriptions of 12 composite works in here. For instance -- I mean, it describes 13 it as where the author selects preexisting materials in such a 14 way that the resulting whole constitutes an original and 15 creative work of authorship. I think that's a sufficient 16 description. If you try and say, "Okay, well, an encyclopedia 17 is such a thing," I think it just kind of begs the question and 18 bootstraps up some problems. 19 The second point is that it talks about the specific 20 circumstances under which The Urantia Book be considered a 21 composite work down on the bottom of the second page and I 22 think those are sufficient. 23 THE COURT: All right. To the extent not given, 24 they'll be denied, counsel. 25 MR. HILL: Okay. I just want it noted that they 01005 {10:45:47am} 01 asked for this synonym between composite works and collective 02 works. Collective works, in the statute, says, "Such as a 03 periodical issue, anthology or encyclopedia." 04 THE COURT: Okay. Next point. Anybody have any -- 05 MR. PLOURDE: Two points, Judge. The first is, just 06 to preserve on the record and we've argued at length whether or 07 not a single author could author a composite work. I take it 08 from this that you've rejected -- 09 THE COURT: I've rejected your argument in that 10 regard and you have an exception to the Court's rulings. 11 MR. PLOURDE: I appreciate that, Judge. 12 The second point is that we asked for the sentence -- the 13 following sentence to be added to the paragraph that ends on 14 the bottom of the second page. We asked that the following 15 sentence be added, "Rather, it's a unified literary work," and 16 the reason is that the term "unified work" -- "unified literary 17 work" has been used and we think it has some significance and 18 the jury ought to be, you know, given some indication of where 19 it fits into the determination of composite work. 20 THE COURT: Denied. 21 MR. HILL: I've got one more, Judge. 22 THE COURT: Okay. 23 MR. HILL: There's a lot of language in the 24 instruction about the intent of the author in terms of how it 25 relates to whether the work is collective or composite in 01006 {10:45:50am} 01 nature. Actually, if you read the legislative history that 02 they're citing, if you look at the cases on joint works, which 03 is their sort of starting point for factoring in the author's 04 intent, the intent of the author is actually in the legislative 05 history and case law a factor for deciding whether or not -- 06 whether or not the work is a unified work. There's no mention 07 in any case or in any legislative history of the author's 08 intent as being a factor in considering whether or not the 09 individual component parts are separate or standalone parts. 10 So I just want to get that on the record. 11 THE COURT: Okay. I'm giving -- We've got included 12 instructions on intent, and to the extent that any further 13 requests are asked for, they're not given, they're denied, and 14 you'll have an objection to the Court's ruling. 15 All right. 16 MR. HILL: Thank you, Judge. 17 THE COURT: We're into 27. That outlines what to do 18 after a composite determination. Any problems with it? 19 28 is Infringement as a Matter of Law. I think we've 20 discussed that. Anybody have any objection to that? 21 29, Contributory Infringement. 22 MR. PLOURDE: Judge, I'm sorry. I haven't seen this 23 before. The language of instruction number 28 starts off, 24 "Having determined Urantia Foundation's renewal copyright in 25 The Urantia Book to be valid." It doesn't say who has 01007 {10:45:52am} 01 determined that, and at this stage, when you're reading that to 02 the jury, presumably they haven't made that determination. 03 THE COURT: "If you have determined" -- "If you have 04 determined that Urantia Foundation's renewal copyright to be 05 valid, I charge you that Michael Foundation would be or is 06 liable to Urantia Foundation as a matter of law." I think he's 07 correct. 08 MR. HILL: Fine, Judge. 09 MR. PLOURDE: I think it would be said, "If you 10 determine." 11 THE COURT: I understand. I think you're right. "If 12 you have." 13 MR. PLOURDE: Judge, I would suggest saying -- 14 THE COURT: "If you determine"? 15 MR. PLOURDE: "If you determine." 16 THE COURT: That would be all right. 17 MR. PLOURDE: I'm sorry. I know this is -- 18 THE COURT: No, that's all right. 19 THE LAW CLERK: Judge, just a point. They're not 20 going to get to this until they have made validity 21 determination. 22 THE COURT: Well, but I will have read it to them 23 beforehand though and I think that's their concern. 24 MR. PLOURDE: It just depends on whether they go 25 through the instructions all at once or whether they -- 01008 {10:45:54am} 01 THE COURT: Well, I will have read them all. I think 02 it's an accurate statement, "If you determine." 03 THE LAW CLERK: I'll make copies. 04 THE COURT: Okay. Contributory Infringement, any 05 problem with that? 06 MR. PLOURDE: Judge, I don't think that has changed, 07 has it? Contributory Infringement. 08 THE COURT: Pardon? 09 MR. PLOURDE: I don't think the Contributory 10 Infringement has changed. 11 THE COURT: Is that not the right term? 12 MR. PLOURDE: No, no. I'm sorry, Judge. I was just 13 confirming that that one hasn't changed from last night. 14 THE COURT: No, it has not, as far as I know. 15 Damages Introduction. 16 Statutory Damages, we've already touched on that. That's 17 the only one that's in here. 18 And a Duty to Deliberate. 19 Then it's my intention to have the interrogatories first 20 and then the verdict form in the hope they'll go through the 21 interrogatories and then proceed to the verdict. 22 THE LAW CLERK: Do you want to go through the 23 interrogatory and verdict form, Judge? Do you have a copy? 24 THE COURT: Yeah. I haven't got copies of those. 25 THE LAW CLERK: Do you have a copy of those? 01009 {10:45:56am} 01 THE COURT: No. No, I do have. I do have. I'm 02 sorry. 03 THE LAW CLERK: It's at the end of that set. 04 THE COURT: I've got it. I'm sorry. 05 Take a quick look at those. 06 THE LAW CLERK: Here are the replacements on that 07 instruction we just changed. 08 THE COURT: And it does appear that they relate back 09 to the correct instruction numbers. 10 MR. HILL: This looks good. 11 MR. ABOWITZ: Judge, on this -- on interrogatories 12 numbers 1, 2 and 3, -- 13 THE COURT: Uh-huh. 14 MR. ABOWITZ: -- the last line of the instructions in 15 bold type says, "You may not answer all the interrogatories." 16 THE COURT: "You may not need to answer all the 17 interrogatories" is what it should say. 18 MR. HILL: Yeah. 19 THE LAW CLERK: Okay. 20 THE COURT: Thank you. That could be confusing. We 21 talked about that earlier and just forgot to put that in. 22 MR. PLOURDE: Which -- 23 MR. ABOWITZ: Interrogatory instructions. 24 THE COURT: What instruction number was that? 25 MR. ABOWITZ: It was the instruction to the 01010 {10:45:58am} 01 interrogatories 1, 2 and 3, the last line of bold type. I 02 think the way it's worded, they can pick and choose which one 03 or which two -- 04 THE COURT: "You may not need." 05 THE LAW CLERK: I'm printing out copies now. 06 THE COURT: Good, good. 07 MR. HILL: Judge, I have a couple of other matters I 08 would like to raise, if you've got a moment. 09 THE COURT: Okay. 10 MR. HILL: The first is during the trial I asked for 11 a cautionary instruction regarding the fact that an absence of 12 a written assignment was not probative on the question of 13 proprietorship and we had submitted a cautionary instruction. 14 I thought the Court had said at the time I asked for it that 15 you would wait until the end and give it as a part of the 16 charge. I note that you haven't included it in the final 17 charge and I suppose that I'd like to at least get an 18 instruction to Mr. Abowitz that he ought not be allowed to 19 argue that there are any conclusions to be drawn from the 20 absence of a written assignment. 21 MR. ABOWITZ: Is that selective enforcement only 22 directed to Abowitz? 23 MR. HILL: Well, anyone else who may be closing on 24 behalf of Michael Foundation would be in the zone of danger. 25 THE COURT: I think he's correct. I think he's 01011 {10:46:03am} 01 correct. I don't think we ought to get into it. 02 MR. ABOWITZ: Give it to me again. 03 MR. HILL: No mention of the presence or absence of a 04 written assignment or inferences to be drawn from. 05 MR. ABOWITZ: But there are a number of other things 06 that have been raised in the evidence about whether there's any 07 evidence establishing that the patient was advised of any of 08 his rights, so forth and so on. I see that as different than 09 the written assignment. 10 MR. PLOURDE: It goes to commissioned work. It goes 11 to -- 12 MR. HILL: How? What factors does that bear on? 13 MR. PLOURDE: Whether he was advised of whether you 14 were -- 15 MR. ABOWITZ: You used the word "volunteer." The 16 word "volunteer" appears in the instruction 17 MR. PLOURDE: And he may not have known that anybody 18 was taking this to publish it. 19 THE COURT: Have you submitted a requested 20 instruction? 21 MR. HILL: We have, Judge. 22 THE COURT: Let me have it, see a copy of that. 23 MR. ABOWITZ: There was no objection to that evidence 24 when it came in, Judge. 25 THE COURT: Huh? 01012 {10:46:04am} 01 MR. ABOWITZ: There was no objection to that evidence 02 when it came in. 03 THE COURT: Let me just take a look. 04 Have you all seen a copy of this request? 05 MR. ABOWITZ: May I? 06 MR. HILL: That's the same one as yesterday. 07 THE LAW CLERK: Did you e-mail them a copy of that 08 last night, Steve? 09 MR. MAURER: It's the same one we gave them 10 yesterday. 11 THE LAW CLERK: Is that the proposed -- 12 MR. MAURER: Cautionary instruction. 13 MR. ABOWITZ: Well, we raised this issue in a motion 14 to reconsider which you, I think, resolved in your order of 15 last evening. So we would object to this instruction. I would 16 say that I would -- 17 THE COURT: You may have a trade-off here. Keep in 18 mind you may have to have a trade-off. If we're going to get 19 into it in closing argument, I probably ought to give the 20 instruction, so you might better think about that. 21 MR. ABOWITZ: Well, I will agree not to get into the 22 written assignment but I think those other situations that I 23 briefly related are pieces of evidence that the jury should be 24 permitted to consider in terms of commissioned work. 25 MR. HILL: I mean, if it doesn't bear on instance, 01013 {10:46:07am} 01 expense, right to control or supervise, supplying capital for 02 the production of the work, or whether or not the person had an 03 expectation of payment, then I would say that it doesn't fit 04 these factors but, instead, is a back door to -- 05 THE COURT: I think it's an argument that might could 06 be made. I've got to agree with you on that. 07 MR. ABOWITZ: You know, there's a statement in here 08 that you don't have to consider a traditional employment 09 relationship, and I think that that's fair game to address so 10 that the jury can consider that in addressing all the things 11 they have to address to determine whether this guy is a 12 volunteer if he's not a traditional employee. 13 MR. HILL: But they have to be told then that Urantia 14 Foundation is legally the proprietor and it's just a question 15 of what type of work the work is because in the instructions 16 we're referring to, you know, work for hire and Urantia 17 Foundation and -- 18 THE COURT: They ought to be able to do it much 19 shorter than that though. 20 MR. HILL: Okay. 21 THE COURT: We ought to be able to draft -- let's 22 draft a much briefer instruction that -- 23 MR. HILL: This would be -- 24 MR. ABOWITZ: Judge, you know, you've already ruled 25 twice now that The Foundation is the proprietor of the 01014 {10:46:10am} 01 copyright. Do they need to know all these reasons, what you 02 just said? 03 THE COURT: I don't think we need to go into great 04 detail but he's saying you're going to really argue that -- 05 MR. ABOWITZ: You told me I couldn't, so I'm not. Or 06 you told me I shouldn't, so I'm not. 07 MR. PLOURDE: But isn't the last sentence sufficient, 08 Judge, or the last part, "I charge you as a matter of law 09 that" -- 10 THE COURT: "Because Dr. Sadler and The Contact 11 Commission retain possession, complete control of the 12 manuscript of the Urantia Papers until transfer of the interest 13 to Urantia Foundation, I charge you that as a matter of law 14 Urantia Foundation is the proprietor of the copyright in The 15 Urantia Book." 16 MR. PLOURDE: It's really the last clause. They 17 don't need to know the circumstances. I think it's sufficient 18 to just say, "I charge you as a matter of law that" -- 19 THE COURT: In other words, just that, "I charge you 20 as a matter of law that The Urantia Foundation is the 21 proprietor of the copyright in The Urantia Book." 22 You can argue but if they -- 23 MR. HILL: Can we at least have it tied to the, 24 "You've heard evidence in the case"? 25 THE COURT: "You've heard testimony in the case 01015 {10:46:13am} 01 regarding a lack of evidence of written assignment or transfer 02 to the Contact Commission and common law" -- well, I don't 03 think that's necessary either because this points out that they 04 are the proprietor and all that testimony was not deemed 05 sufficient to raise a fact question. So I think this is 06 sufficient. 07 MR. PLOURDE: The only other caveat that I have is 08 that going to make it confusing to them when we talk later on 09 about asking them to decide whether The Urantia Foundation is 10 the proprietor of the commissioned work or of a -- 11 MR. HILL: Shouldn't. 12 MR. PLOURDE: -- or a work for hire? 13 MR. HILL: It shouldn't because you shouldn't be 14 arguing proprietorship. You should be arguing based on the 15 type of work it was. 16 MR. PLOURDE: Would it make sense after that to say, 17 "You must determine whether" -- 18 MR. HILL: Well, but can't this be put right before 19 the instruction on the consideration of renewal theories? 20 MR. PLOURDE: -- "and you must decide whether or not 21 they properly renewed their copyright." 22 THE COURT: Which instruction are you talking about 23 now? Let's see. I think the last sentence is sufficient. 24 MR. HILL: Okay, Judge. That's -- 25 THE COURT: But where do we put it? 01016 {10:46:14am} 01 MR. HILL: Hold on just a second. I think what I 02 would do is put it at the top of Renewal, instruction 19. 03 THE COURT: 19? Hold on. 04 MR. HILL: Put it as a first paragraph of instruction 05 19. 06 MR. PLOURDE: I think that's a good place to put it. 07 THE COURT: Do you have any problem with that? 08 MR. PLOURDE: Huh-uh. 09 MR. ABOWITZ: I do. I would -- If you're going to 10 do that, I would suggest the following: "Although" whatever 11 that sentence -- "although" -- 12 THE COURT: I charge you -- "Although I charge you 13 that as a matter of law that The Urantia Foundation is the 14 proprietor of the copyright in The Urantia Book" -- 15 MR. ABOWITZ: -- "you must consider." Here, Judge. 16 THE COURT: In other words, just add that to the 17 first sentence then? 18 MR. ABOWITZ: Right. "Although I charge you, you 19 must consider" -- 20 THE COURT: Do you have any problem with that? 21 MR. HILL: No. 22 THE COURT: Okay. 23 THE LAW CLERK: Did we make one more change, Judge? 24 THE COURT: We have one more change here. 25 THE LAW CLERK: What instruction? 01017 {10:46:16am} 01 THE COURT: On number 19. 02 MR. PLOURDE: And I have one more point, Judge. 03 THE COURT: On 19? 04 MR. PLOURDE: No. 05 THE COURT: We'll get them started on typing it. 06 THE LAW CLERK: On 19? 07 THE COURT: At the very beginning right before what 08 you've got there, -- 09 THE LAW CLERK: Okay. 10 THE COURT: -- "Although I charge you that as a 11 matter of law Urantia Foundation is the proprietor of the 12 copyright in The Urantia Book," -- and then take up the text -- 13 "you must consider whether Urantia Foundation has a currently 14 valid renewable." Okay? 15 THE LAW CLERK: "Although I charge you as a matter of 16 law The Urantia Foundation is the proprietor of the copyright 17 in The Urantia Book, you must consider" -- 18 THE COURT: That's right. Just add that on the 19 front. 20 MR. PLOURDE: My last point, Judge, is there has been 21 evidence and argument yesterday in the motion for directed 22 verdict that The Urantia Book is a composite work because you 23 can take The Urantia Book and compare it to 19th century works 24 and the Bible and there are very similar phrases or paragraphs 25 or -- you know, three paragraphs over here in this 19th century 01018 {10:46:20am} 01 work have been condensed to one paragraph over in The Urantia 02 Book or, you know, quotes from the New Testament of the Bible 03 that are the same as part IV of The Urantia Book, and that that 04 therefore makes it a composite work. The definition that we're 05 operating off of here is a composite work is a work in which a 06 number of different -- 07 THE COURT: Well, what instruction are you -- 08 MR. PLOURDE: 26. 09 THE COURT: 26? Okay. Go ahead. 10 MR. PLOURDE: Second paragraph. 11 THE COURT: Okay. Go ahead. 12 MR. PLOURDE: "A composite work is a work in which a 13 number of different contributions, constituting separate and 14 independent works in themselves." So, unless what was taken 15 from, for instance, the Bible is a separate and independent 16 work in and of itself, then just taking it from the Bible and 17 putting it in The Urantia Book doesn't make it a composite 18 work. Same for, you know, paraphrasing, taking three 19 paragraphs in whatever book it was and condensing it down to 20 one paragraph in The Urantia Book doesn't make it a composite 21 work but that's what they've been arguing all along. As a 22 consequence, we requested -- submitted this morning -- frankly, 23 what I think is appropriate is to just not argue that. 24 MR. HILL: I don't intend on arguing that on the 25 composite work, Judge. 01019 {10:46:23am} 01 THE COURT: You don't intend to argue -- 02 MR. HILL: I don't intend on making it a part of my 03 argument, if that makes it more palatable. 04 MR. PLOURDE: Sure. 05 MR. ABOWITZ: One other issue. There's been evidence 06 here and it was part of The Foundation's motion for partial 07 summary judgment that McMullan ought to be estopped from 08 denying the validity of the copyright because of past actions. 09 As I view that, the Court has ruled as a matter of law -- 10 THE COURT: There's no estoppal. 11 MR. ABOWITZ: -- there is no estoppal. 12 MR. HILL: It can still come in on willfulness 13 though. 14 THE COURT: It might have some -- but he's not 15 estopped to take that position. You might argue that he -- 16 that indicates his willfulness but he's not -- there's no legal 17 reason why he couldn't do that. 18 All right. Anything else? 19 MR. HILL: I've got one more. 20 MR. PLOURDE: I'm still done, Judge. 21 MR. HILL: Anytime somebody files something right 22 before closing argument, I get suspicious, Judge. They filed 23 their requests for admissions and our responses yesterday but 24 they never put them in evidence or brought them to the 25 attention of any witness or read them to the jury while the 01020 {10:46:25am} 01 evidence was being taken. I don't want to see any of our 02 responses to their requests for admissions, all of which are 03 objected to almost uniformly, up on the big blowups and have 04 that as a part of the closing argument. 05 I've got a case, Vonn (sp) Incorporated v. Polaroid 06 Incorporated, 441 F.Supp. 898, that supports the notion that 07 Rule 36 admissions need to come in during evidence if they're 08 going to be relied upon. 09 MR. ABOWITZ: Well, I think they are in evidence. 10 The Court admitted them into evidence yesterday. 11 MR. HILL: I don't recall them being admitted in 12 evidence. 13 THE COURT: I allowed you to file them. That makes 14 them a part of the record of the transcript but that doesn't 15 necessarily make them a part of the evidence, counselor. Now, 16 there may be some other rules that will permit you to treat 17 them as being evidence but I was only permitting you to file 18 them so they'd be a part of the record. There's an awful lot 19 of record in this thing that can't be exhibited or discussed 20 with the jury and I consider that to be the case here. 21 MR. ABOWITZ: That's all right. I'll move on. 22 THE COURT: Anything else? 23 MR. HILL: In other words, is that okay? 24 THE COURT: Huh? 25 MR. HILL: So no use -- 01021 {10:46:28am} 01 THE COURT: No, they're not -- if they're not 02 specifically admitted into evidence, then you can't refer to 03 them. 04 MR. HILL: Thanks, Judge. That's all. 05 THE LAW CLERK: Judge, I want to make sure that 06 everyone has the changes. 07 THE COURT: Yeah, I want to get one copy put together 08 for me. 09 THE LAW CLERK: I've got your copy together for you. 10 But we changed instruction number 7, Rulings in Other Cases; we 11 changed instruction 28, Infringement as a Matter of Law; we 12 changed instruction 19, Renewal Term Validity at Issue; we 13 changed the interrogatory; and we changed the verdict form. 14 THE COURT: Those are my recollections. 15 MR. MAURER: Was it 28 -- oh, okay. I've got it. 16 Thank you. 17 THE COURTROOM DEPUTY: Judge, I got a call from the 18 clerk's office. One of our jurors, Ms. Odland, O-d-l-a-n-d, is 19 not well. She has been up all night. 20 THE COURT: She's been sick a little bit all along. 21 THE COURTROOM DEPUTY: Well, this is another one. 22 THE COURT: Okay. 23 THE COURTROOM DEPUTY: This is a different lady. 24 She's on the back row and the first lady on the right there. 25 She doesn't know if she can sit through the whole thing without 01022 {10:46:30am} 01 having to get up and leave and I told her I would advise you. 02 THE COURT: All right. Now, I think probably what 03 we'll do is go ahead and start. But you understand we can 04 proceed with anything, six or more, and if she has to leave, if 05 she indicates the desire to do so, I'm going to excuse her. 06 You all have any problem with that? 07 MR. ABOWITZ: No, sir. 08 MR. HILL: No, Judge. 09 THE COURT: Just tell her that if she feels 10 uncomfortable and cannot stay, we'll understand, and that she 11 will be excused. 12 THE COURTROOM DEPUTY: Okay. 13 THE LAW CLERK: Everybody has a copy of the changes, 14 all changes that were made? Okay. 15 MR. ABOWITZ: Judge, could we have about 10 minutes 16 to make some adjustment in our closing because of the changes? 17 THE COURT: Oh, absolutely. What I'm thinking about 18 doing, gentlemen, is reading the instructions to them and then 19 recessing for lunch unless you all -- 20 MR. ABOWITZ: That's great. 21 THE COURT: That would give you some time to do that. 22 MR. HILL: God bless you. 23 THE COURT: I think it will take me most of the 24 remainder of the morning to do that. And then we'll recess 25 them for an hour, hour 15 minutes. Will that work? 01023 {10:46:32am} 01 MR. ABOWITZ: Yes, sir. 02 MR. HILL: That will be great, Judge. 03 (A RECESS WAS TAKEN, AFTER WHICH THE FOLLOWING PROCEEDINGS 04 WERE HAD IN OPEN COURT, OUT OF THE PRESENCE AND HEARING OF THE 05 JURY:) 06 THE COURT: Keep your seat, please. The jury is on 07 its way. 08 (THE FOLLOWING PROCEEDINGS WERE HAD IN OPEN COURT AND 09 WITHIN THE PRESENCE AND HEARING OF THE JURY:) 10 THE COURT: Ladies and gentlemen, may I inquire if 11 anything occurred during the recess that would prevent any of 12 you from continuing to serve as a fair and impartial juror in 13 this case? 14 I understand one of the jurors may not be feeling entirely 15 well. In the event that you become uncomfortable or unable to 16 continue to serve, all you have to do is to indicate that to 17 the Court and you will be excused. 18 Now, as I mentioned to you yesterday, you've heard all the 19 evidence in the case. But there remain two important portions 20 of the trial yet, the Court's instructions to you with regard 21 to the law and thereafter the closing argument of counsel. 22 What I anticipate doing is instructing you with regard to the 23 law this morning and then we'll probably take -- immediately 24 take a luncheon recess and then resume for the closing 25 arguments after lunch so as not to interrupt either of the two 01024 {10:51:23am} 01 procedures. 02 Ladies and gentlemen of the jury, you have heard all of 03 the evidence and will soon hear argument of counsel. It 04 becomes my duty to give you the instructions of the Court 05 concerning the law applicable in this case. 06 It is your duty as jurors to follow the law as I shall 07 state it to you and to apply that law to the facts as you find 08 them from the evidence in the case. You're not to single out 09 one instruction alone as stating the law but must consider the 10 instructions as a whole. Neither are you to be concerned with 11 the wisdom of any rule of law stated by me. 12 Now, let me explain a little difference. I've told you 13 that what the attorneys say can be considered by you but what 14 they say is not binding upon you and that's true with regard to 15 their suggestions as to the facts. You are the judges of the 16 facts. Since I'm the judge of the law, you are required to 17 accept the law stated by me as being the applicable law. 18 Michael Foundation brought this case as plaintiff claiming 19 that Urantia Foundation's copyright in The Urantia Book is 20 invalid or, in the alternative, that the publication and 21 distribution of the book Jesus - A New Revelation does not 22 infringe the copyright in The Urantia Book. Michael Foundation 23 claims that Urantia Foundation lacked the right to renew its 24 copyright registration in the book when it filed its 25 application for copyright renewal in 1983. 01025 {10:52:57am} 01 In response, Urantia Foundation asserted claims against 02 Michael Foundation and its chief executive officer, Harry 03 McMullan, III, that publication and distribution of Jesus - A 04 New Revelation infringes the copyright in The Urantia Book. 05 The foregoing recitation is given to you simply to define 06 the issues to be tried between the parts and such statements do 07 not constitute proof of any fact in issue in this case. 08 All issues pertaining to Anti-Cybersquatting Consumer 09 Protection Act and the Oklahoma Deceptive Trade Practices Act 10 have been resolved. You should not concern yourself with the 11 disposition as to them but should consider only the copyright 12 issues in accordance with the Court's instructions and evidence 13 in this case. 14 As you'll recall, I told you in the beginning of this case 15 there were some trademark and anti-cybersquatting issues 16 involved but those have been resolved so you don't need to be 17 concerned. There may have been some early evidence with regard 18 to those issues but you can completely disregard those issues 19 because they have been resolved. 20 Regardless of any opinion you may have as to what the law 21 is or ought to be, it would be a violation of your sworn duty 22 to base a verdict upon any view of the law other than that 23 given in the instructions of the Court, just as it would also 24 be a violation of your sworn duty as judges of the facts to 25 base a verdict upon anything other than the evidence in the 01026 {10:54:33am} 01 case. 02 In deciding the facts of this case, you must not be swayed 03 by bias or prejudice or favor as to any party. Our system of 04 law does not permit jurors to be governed by prejudice or 05 sympathy or public opinion. Both the parties and the public 06 expect that you will carefully and impartially consider all of 07 the evidence in the case, follow the law as stated by the Court 08 and reach a just verdict regardless of the consequences. 09 This case should be considered and decided by you as an 10 action between persons of equal standing in the community, and 11 holding the same or similar stations in life. A foundation is 12 entitled to the same fair trial at your hands as is a private 13 individual. The law is no respecter of persons and all 14 persons, including foundations, stand equal before the law and 15 are to be dealt with as equals in a court of justice. 16 Throughout the course of the trial, you have heard the 17 parties refer to an individual known as the "contact 18 personality", "patient," "conduit." For purposes of 19 uniformity, the Court will refer to that individual as the 20 "subject" throughout these instructions. 21 But in each event the subject is what has been previously 22 referred to, as I mentioned. 23 You are advised that the parties have stipulated that for 24 the purposes of these instructions, the subject is deemed to be 25 the legal author of The Urantia Book. 01027 {10:56:13am} 01 When a foundation is involved, of course, it may act only 02 through natural persons as its agents or employees; and, in 03 general, any agent or employee of a foundation may bind the 04 foundation by his or her acts and declarations made while 05 acting within the scope of his or her authority, delegated to 06 him or her by the foundation, or within the scope of his or her 07 duties as an employee of the foundation. 08 As stated earlier, it is your duty to determine the facts, 09 and in so doing you must consider only the evidence I have 10 admitted in the case. The term 'evidence' includes the sworn 11 testimony of the witnesses and the exhibits admitted in the 12 record. 13 Remember that any statements, objections, or arguments 14 made by the lawyers are not evidence in the case. The function 15 of the lawyers is to point out those things that are most 16 significant or helpful to their side of the case, and in so 17 doing, to call your attention to certain facts or inferences 18 that might otherwise escape your notice. 19 In the final analysis, however, it is your own 20 recollection and interpretation of the evidence that controls 21 in this case. What the lawyers say is not binding upon you. 22 So while you may consider only the evidence in the case, 23 you are permitted to draw such reasonable inferences from the 24 testimony and exhibits as you feel are justified in the light 25 of common experience. In other words, you may make deductions 01028 {10:57:50am} 01 and reach conclusions which reason and common sense lead you to 02 draw from the facts which have been established by the 03 testimony and evidence in this case. 04 You're further instructed that your decision must be based 05 upon probabilities and not possibilities. It may not be based 06 on speculation or guesswork. 07 Now, you have heard testimony relating to the outcome in 08 other cases in which the copyright claim by Urantia Foundation 09 in The Urantia Book was at issue. The outcome in such cases 10 were based on the evidence and arguments presented in those 11 cases and are not binding upon you in determining the facts in 12 this case. You must base your decision in this case upon the 13 evidence presented in the light of my instructions without 14 regard to the outcome of any other case. 15 In a civil action such as this, each party asserting a 16 claim has the burden of proving every essential element of its 17 claim by a "preponderance of the evidence." A preponderance of 18 the evidence means such evidence as, when considered and 19 compared with that opposed to it, has more convincing force and 20 produces in your minds a belief that what is sought to be 21 proved is more likely true than not true. In other words, to 22 establish a claim by a preponderance of the evidence merely 23 means to prove that the claim is more likely so than not so. 24 Where more than one claim is involved, as in this case, 25 you should consider each claim and the evidence pertaining to 01029 {10:59:30am} 01 it separately as you would had each claim been tried before you 02 separately; but in determining any fact in issue, you may 03 consider the testimony of all the witnesses, regardless of who 04 called them -- may have called them, and all exhibits received 05 in evidence, regardless of who may have produced them. 06 If a preponderance of the evidence does not support each 07 essential element of a claim, then the jury should find against 08 the party having the burden of proof as to that claim. 09 There are, generally speaking, two types of evidence from 10 which a jury may properly find the truth as the facts of the 11 case -- as to the facts of a case. One is direct evidence such 12 as the testimony of eye witnesses. The other is indirect or 13 circumstantial evidence, the proof of a chain of circumstances 14 pointing to the existence or nonexistence of certain facts. 15 As a general rule, the law makes no distinction between 16 direct and circumstantial evidence, but simply requires that 17 the jury find the facts in accordance with the preponderance of 18 all the evidence in the case, both direct and circumstantial. 19 Now, I have said that you must consider all of the 20 evidence but this does not mean, however, that you must accept 21 all of the evidence as true or accurate. You are the sole 22 judges of the credibility or believability of each witness and 23 the weight to be given to his or her testimony. In weighing 24 the testimony of a witness, you should consider his or her 25 relationship to any party in this case; to his or her interest, 01030 {11:01:14am} 01 if any, in the outcome of the case; his or her manner of 02 testifying; his or her opportunity to observe or acquire 03 knowledge concerning the facts about which he or she has 04 testified; his or her candor, fairness, and intelligence; and 05 the extent to which he or she has been supported or 06 contradicted by other credible evidence. You may, in short, 07 accept or reject the testimony of any witness in whole or in 08 part. 09 Also, the weight of the evidence is not necessarily 10 determined by the number of witnesses testifying as to the 11 existence or nonexistence of any fact. You may find that the 12 testimony of a smaller number of witnesses as to any fact is 13 more credible than the testimony of a larger number of 14 witnesses to the contrary. 15 Now, a witness may be discredited or impeached by 16 contradictory evidence, by a showing that he or she testified 17 falsely concerning a material matter, or by evidence that at 18 some other time the witness has said or done something or has 19 failed to say or do something which is inconsistent with the 20 witness's present testimony. If you believe that any witness 21 has been so impeached, then it is your exclusive province to 22 give the testimony of that witness such credibility or weight, 23 if any, as you may think it deserves. 24 Now, during the course of the trial, certain testimony has 25 been read to you by way of deposition. You're instructed that 01031 {11:02:46am} 01 you're not to discount this testimony for the sole reason that 02 it comes to you in the form of a deposition. It is entitled to 03 the same consideration and the same judgment on your part with 04 reference to its weight as is the testimony of witnesses who 05 have taken the stand. 06 The rules of evidence provide that if scientific, 07 technical or other specialized knowledge might assist the jury 08 in understanding the evidence or in determining a fact in 09 issue, a witness qualified as an "expert" by knowledge, skill, 10 experience, training or education, may testify and state his or 11 her opinion concerning such matters. 12 Now, you should consider each expert opinion received in 13 evidence in this case and give it such weight as you may think 14 it deserves. If you should decide that the opinion of an 15 expert witness is not based upon sufficient education and 16 experience or if you should conclude that the reasons given in 17 support of the opinion are not sound, or that the opinion is 18 outweighed by other evidence, then you may disregard the 19 opinion entirely. 20 Now, it is the duty of attorneys on each side of a case to 21 object when the other side offers testimony or other evidence 22 which counsel believes is not properly admissible. 23 When the Court has sustained an objection to a question, 24 the jurors are to disregard the question and may draw no 25 inference from the wording of it or speculate as to what the 01032 {11:04:28am} 01 witness would have said if permitted to answer. 02 Now, upon allowing testimony or other evidence to be 03 introduced over the objection of counsel, the Court does not 04 indicate any opinion as to the weight or effect of such 05 evidence. The jurors are the sole judges of the credibility of 06 all witnesses and the weight to be given all evidence -- the 07 weight and effect of all evidence. The jury is instructed not 08 to draw any inference for or against either side of this case 09 by any ruling or comment made by me during the course of the 10 trial. 11 During the course of the trial, the Court may occasionally 12 ask questions of a witness in order to bring out facts not then 13 clear to the Court. The jury is instructed not to assume that 14 the Court has any opinion on the matter to which the questions 15 may relate. 16 Copyright is the name for the protection that the law 17 extends to an author of an original work against the 18 unauthorized appropriation of that work by others. You're 19 probably accustomed to hearing the word "author" used by 20 writers. But under the copyright law, any creator of an 21 original work is referred to as an author. That is the term we 22 use in copyright law for the creator of an original work. 23 Copyright protection extends only to the expression of the 24 ideas in the author's work but never to the ideas themselves. 25 The law accepts that there are at least two competing 01033 {11:06:06am} 01 considerations involved. On the one hand, the creator of a 02 work has the right to reap the benefit of his creativity and 03 effort. On the other hand, progress in art as well as science 04 requires that everyone has a right to develop and create new 05 works using the same ideas and subjects. The copyright law 06 attempts to strike a balance between these two values 07 protecting so much of the author's original work as embodies 08 his own particular form of expression but not so much as would 09 prevent others from using the same ideas, themes or subjects in 10 their own forms of expression. 11 In a copyrighted work, originality means that the creator 12 contributed something of his own creation, that is, works in 13 which the creative spark is not utterly lacking or so trivial 14 as to be virtually nonexistent. 15 The standard for originality is minimal. It is not 16 necessary that the work be novel or unique but only that the 17 work have its origins with its author or authors. To be the 18 original work of an author or authors, a work must be a product 19 of some creative intellectual or aesthetic labor. However, the 20 requisite level of creativity is extremely low; even a slight 21 light will suffice. A very slight degree of such labor, almost 22 any ingenuity in selection, combination or expression, no 23 matter how crude, humble or obvious, is sufficient to make the 24 work copyrightable. 25 According to the United States Constitution, copyrights 01034 {11:07:51am} 01 last only for a limited time period. Once the period expires, 02 anyone can copy the subject work, either in whole or in part. 03 The phrase that is used to describe that status is "the public 04 domain." For instance, any person can publish all or part of 05 the works of Mark Twain today, because all of his writings have 06 entered the public domain. 07 Under the Copyright Act of 1909, which governs, which 08 applies in this case, a published work acquires an initial 09 28-year term of copyright protection commonly referred to as 10 the initial term. After the 28-year term expires, the 11 copyright term may be renewed for additional time if various 12 formalities are complied with. If the formalities are not 13 followed, the work enters the public domain at the end of the 14 initial term. 15 Now, although I charge you that as a matter of law Urantia 16 Foundation is the proprietor of the copyright in The Urantia 17 Book, you must consider whether Urantia Foundation has a 18 currently valid renewal term copyright in The Urantia Book. As 19 a matter of law, any initial term copyright Urantia Foundation 20 had in The Urantia Book would have expired in 1983. Therefore, 21 in order to claim a currently valid copyright in The Urantia 22 Book, Urantia Foundation would need to have properly renewed 23 its copyright in 1983. If the copyright was not properly 24 renewed, The Urantia Book fell into the public domain. 25 In 1983, the year in which the initial term copyright in 01035 {11:09:44am} 01 The Urantia Book was due to expire, Urantia Foundation filed a 02 renewal registration for the work in its own name. It is up to 03 you to determine if that filing served its intended function of 04 renewing the copyright for the benefit of The Urantia 05 Foundation. 06 The Copyright Act provides that when the initial term of a 07 copyright expires, the power to register a renewal term is only 08 given to a limited number of persons. For the purposes of this 09 case, Urantia Foundation was only entitled to file a renewal 10 registration in its own name if one of the following was true: 11 One, The Urantia Book is a work for hire or a commissioned 12 work, and Urantia Foundation is the proprietor thereof. 13 Two, The Urantia Book is a periodical, cyclopedic or other 14 composite work, and Urantia Foundation is the proprietor 15 thereof. The Court will refer to these collectively as 16 composite works. 17 A copyright owner may have more than one valid basis for 18 renewing the copyright in a work. For example, it is possible 19 under the copyright laws for a work to qualify for copyright 20 renewal as both a work for hire or a commissioned work and a 21 composite work. 22 In the event that a copyright owner inadvertently lists 23 one basis for copyright renewal, and such basis is found to be 24 incorrect, such inadvertent mistake has no bearing on the 25 validity of the copyright renewal provided that you find that 01036 {11:11:31am} 01 at least one valid basis for copyright renewal did exist. 02 In this case, Urantia Foundation renewed its claim of 03 copyright in The Urantia Book in 1983 claiming that the book 04 was a work for hire or a commissioned work. If you find that 05 the book was a work for hire or a commissioned work, then the 06 claim for copyright renewal is valid. If you find that The 07 Urantia Book is not a work for hire or a commissioned work, 08 Urantia Foundation's claim of renewal copyright is still valid 09 if you find that The Urantia Book is a composite work. 10 In determining whether Urantia Foundation's copyright 11 renewal on The Urantia Book is valid, you may be asked to 12 consider the relevant issues in turn. They need to resolve 13 certain issues that will depend on the outcome of others. 14 First, you will be called upon to decide whether The Urantia 15 Book is a work for hire or a commissioned work. Depending on 16 your decision, you may then need to determine whether The 17 Urantia Book is a composite work. The Court will instruct you 18 regarding the meaning of these relevant terms and the law 19 governing these issues. 20 Work For Hire/Commissioned Work. Because the subject is 21 considered the legal author of The Urantia Book, you must 22 consider whether The Urantia Book may be considered a "work for 23 hire." Under the copyright law as it applies to the work in 24 this case, the employer of a "work for hire" is deemed to be 25 the author of the work. A work for hire may be prepared by 01037 {11:13:22am} 01 employees in the course of their employment but there is a 02 class of works that are regarded as works for hire known as 03 commissioned works which are created or prepared by one or more 04 persons on special commission from another. 05 The applicable copyright law presumes that the 06 commissioning party holds a copyright upon any work created by 07 another at the insistence of the commissioning party, at the 08 commissioning party's expense and for the commissioning party's 09 benefit, or, in other words, where the motivating factor in 10 producing the work was the commissioning party who induced its 11 creation. 12 In determining whether a work is a work for hire or 13 commissioned work, you should not be guided by traditional 14 notions of the employment relationship. A number of factors 15 are considered in determining whether a work for hire or a 16 commissioned work within the meaning of the copyright laws, 17 including, whether the work was created at the commissioning 18 party's insistence and expense; two, whether the commissioning 19 party possessed or exercised the right to direct the manner in 20 which the work was done through actual exercise -- though 21 actual exercise of that right is not controlling; three, 22 whether the commissioning party supplied capital for the 23 production of the work; and, four, whether the preparer was 24 hired as an employee to do the work. Works of volunteers for 25 commissioning parties may be works for hire or commissioned 01038 {11:14:59am} 01 works where the work may fairly be said to be at the insistence 02 and expense of the commissioning party, or where the work is 03 produced under the commissioning party's direction, supervision 04 and control, and where the volunteer has no expectation of 05 payment. 06 Thus, even though the subject would normally be considered 07 the author, Urantia Foundation may be deemed to be the author 08 if the subject's work was for hire or commissioned by Urantia 09 Foundation. 10 Urantia Foundation is an organization but is nonetheless a 11 person that can claim the legal rights of an author for the 12 purposes of copyright law. The copyright law allows an 13 organization or person to claim a copyright ownership of a work 14 that was made by employees of independent contractors in a 15 for-hire relationship. If the Urantia Book was made for hire 16 or commissioned by Urantia Foundation or a predecessor or 17 assignor thereof, then the law considers The Urantia Foundation 18 the copyright owner of the work. 19 Once you have determined whether The Urantia Book was a 20 work for hire or a commissioned work, you should indicate your 21 decision on interrogatory number one, which you'll have. 22 If you find that The Urantia Book constitutes a work for 23 hire or a commissioned work, you must find Urantia Foundation 24 renewal copyright to be valid, and you must indicate that 25 result by placing an X next to A in section I, Copyright 01039 {11:16:46am} 01 Validity on the verdict form. You must then also refer to 02 instructions number 28 through 29 to determine whether McMullan 03 contributorily infringed upon Urantia Foundation's copyright in 04 The Urantia Book. 05 However, if you find that The Urantia Book does not 06 constitute a work for hire or a commissioned work, you must 07 next consider whether the book should be considered to be a 08 composite work as explained in instructions number 26 through 09 27, which I'm about to read. 10 Having determined that The Urantia Book may not be 11 considered a work for hire or commissioned work, you must next 12 determine whether The Urantia Book is a composite work. A 13 composite work is a work which a number of different -- in 14 which a number of different contributions constituting separate 15 and independent works in themselves are assembled into a 16 collective whole. Each of the separate works in the composite 17 work must itself be copyrightable. The person who assembles 18 the contributions of independent works into a collective whole 19 is the author and is entitled to copyright. The terms 20 "composite work" and "collective work" are synonymous. 21 A composite work results where the author selects the 22 preexisting materials in such a way that the resulting whole 23 constitutes an original and creative work of authorship. 24 Original means that the assembler independently made his 25 selection and did not copyright the selection from others. 01040 {11:18:22am} 01 Creative means that the selection is more than typical, 02 mechanical or routine, is not obvious or commonplace as to be 03 expected or inevitable. 04 In contrast, a composite work does not result where 05 relatively few separate elements have been brought together. 06 Examples would be a composition consisting of words and music, 07 a work published with illustrations or front matter, or three 08 one-act plays. In such cases, the originality involved in 09 selecting an arrangement is too minimal to warrant a composite 10 work copyright. 11 Generally, a composite work is created by assembling a 12 number of independent works by different authors into one 13 collective whole. However, it is also possible to create a 14 composite work by collecting a number of independent works by 15 the same author into one collective whole. To create a 16 protectable composite from the works of another -- of one 17 author, the resulting composite must consist of writings of 18 that author that are intended to stand alone. This is because 19 a composite consisting of all of a given author's writing 20 involves no selection and thus lacks no originality or 21 authorship. 22 Keep in mind that where the works of only one author are 23 involved, the intent of the author is controlling. If the 24 subject authored separate and independent works, each of which 25 was intended to exist on a stand alone basis, and if the 01041 {11:20:06am} 01 Urantia Foundation or its predecessors then assembled those 02 independent works in an order of its own choosing into one 03 collective whole that it published as The Urantia Book, then 04 The Urantia Book can be a composite work. By contrast, -- 05 MR. ABOWITZ: If it please the Court, I think that 06 word should be "cannot." 07 THE COURT: I think we did. "Cannot be a composite 08 work." I think that's correct. Do you agree, gentlemen? We 09 left out a "not." I'll make that -- find a pen here and I'll 10 make that correction. 11 I have handwritten the correction in there, ladies and 12 gentlemen. Let me read that again. 13 THE LAW CLERK: Judge, I'm not entirely sure that's 14 correct. 15 MR. HILL: Yeah, I'm not either. 16 THE COURT: All right. Let me see counsel at the 17 bench here. 18 (THE FOLLOWING PROCEEDINGS WERE HAD AT THE BENCH, OUT OF 19 HEARING OF THE JURY:) 20 THE LAW CLERK: They're separate and independent and 21 they compile -- 22 THE COURT: Wait just a minute. Let me read this. 23 It didn't read right when I read it. 24 MR. ABOWITZ: That's what I meant, Judge. This is 25 what I'm talking about. You read "can" instead of "cannot." 01042 {11:21:25am} 01 MR. HILL: I thought you were farther up. 02 THE LAW CLERK: He was. 03 THE COURT: Right here, wasn't it, where I was? 04 MR. HILL: You said it right because it should be 05 "can be" and then by contrast -- 06 THE COURT: Okay. All right. Do you agree with 07 that, gentlemen? 08 MR. PLOURDE: I'm sorry, Judge. 09 MR. HILL: He wasn't down to the bottom yet. 10 THE COURT: Let me read this sentence. 11 I believe I'll ignore them -- or I'll direct them to 12 ignore my attempted correction. 13 MR. ABOWITZ: You want to start over? 14 THE COURT: I'll start back at the entire paragraph. 15 (THE FOLLOWING PROCEEDINGS WERE HAD IN OPEN COURT AND 16 WITHIN THE PRESENCE AND HEARING OF THE JURY:) 17 THE COURT: I correct my correction. Ladies and 18 gentlemen, disregard. I've written a "not" in there and have 19 stricken through it, so you'll disregard that. But I'll read 20 the entire paragraph then. Perhaps it will make more sense. 21 Keep in mind that where the works of only one author are 22 involved, the intent of the author is controlling. If the 23 subject authored separate and independent works, each of which 24 was intended to exist on a stand alone basis, and if the 25 Urantia Foundation or its predecessors then assembled those 01043 {11:22:59am} 01 independent works in an order of its own choosing into one 02 collective work that it published as The Urantia Book, then The 03 Urantia Book can be a composite work. By contrast, if the 04 subject intended to author related pieces at different times 05 which The Urantia Foundation or its predecessor published 06 wholesale as The Urantia Book, then The Urantia Book cannot be 07 a composite work. 08 While you should keep these general guidelines in mind in 09 making this determination, you must also consider that as a 10 matter of law in this case the simple act of adding a table of 11 contents to The Urantia Book does not transform the resulting 12 combination into a composite work. 13 Once you have made a determination regarding whether The 14 Urantia Book is a composite work, you should indicate your 15 decision on interrogatory number 2. 16 Now, having found that The Urantia Book is not a work for 17 hire or a -- if you determine that The Urantia Book is not a 18 work for hire or a commissioned work, and if you further find 19 that it is not a composite work, then your deliberations with 20 regard to the copyright portion of the suit is complete. The 21 result is that the renewable copyright is invalid and you must 22 indicate that result by placing X next to B in section I, 23 Copyright Validity on the verdict form. 24 However, if you have found that The Urantia Book is not a 25 work for hire or a commissioned work but that it is a composite 01044 {11:24:37am} 01 work, then you must find Urantia Foundation's renewal copyright 02 to be valid and you must indicate this result by placing an X 03 next to C in section I, Copyright Validity on the verdict 04 form. In each event, you must also refer to sections number 28 05 through 29 to determine whether McMullan contributorily 06 infringed Urantia Foundation's renewal copyright in The Urantia 07 Book. 08 Infringement as a Matter of Law. If you determine Urantia 09 Foundation's renewal copyright in The Urantia Book to be valid, 10 I charge you that Michael Foundation is liable to Urantia 11 Foundation as a matter of law because Jesus - A New Revelation 12 infringes Urantia Foundation's copyright in The Urantia Book. 13 You must then determine whether McMullan is contributorily 14 liable for Michael Foundation's infringement of Urantia 15 Foundation's copyright in The Urantia Book. 16 In this case, Urantia Foundation claims that Michael 17 Foundation has infringed the copyright in The Urantia Book. 18 That if -- let me read that again. 19 In this case, Urantia Foundation claims that if Michael 20 Foundation has infringed the copyright in The Urantia Book, 21 then McMullan is also liable for contributing to the 22 infringement. Thus, in the event that you have found that 23 Urantia Foundation's renewal copyright is valid, you should 24 also indicate whether McMullan is liable for contributory 25 copyright infringement. 01045 {11:26:17am} 01 A third party is liable for copyright infringement by 02 another party if the third party, one, knew or should have 03 known of the infringing activity; two, induced, caused or 04 materially contributed to the activity. This is known as 05 contributory infringement. 06 If either of these two elements is not present, you may 07 not find the third party liable for the alleged infringement. 08 "Should have known" means constructive knowledge as opposed to 09 actual knowledge. A reckless disregard for a copyright owner's 10 rights is sufficient to establish constructive knowledge. 11 The copyright claimant has the burden of proving by a 12 preponderance of the evidence that the third party knew or 13 should have known of the infringing activity and induced, 14 caused or materially contributed to the infringing activity. 15 You should indicate your finding as to whether McMullan is 16 liable for contributory infringement on section number II, 17 Copyright Infringement on the verdict form. 18 Now, if you find for Urantia Foundation on its copyright 19 infringement claim, you must then determine the amount of 20 damages, if any, that Urantia Foundation is entitled to 21 recover. Urantia Foundation has the burden of proving damages 22 by a preponderance of the evidence. 23 Urantia Foundation has chosen to recover statutory damages 24 which are damages fixed by the Copyright Act. I will now 25 provide you with guidelines to consider in determining the 01046 {11:27:54am} 01 amount of statutory damages you may award. 02 In determining Urantia Foundation's statutory damage, you 03 may fix any damage award between a minimum of $750 and a 04 maximum of $30,000 for any infringement involved in the action 05 with respect to any one work for which any one infringer is 06 liable individually, or for which any two or more infringers 07 are liable. Within this range, you are to determine the amount 08 of the statutory damage award by deciding what is just or fair 09 under the circumstances. However, this range may be modified 10 under the following two circumstances: 11 First, if Urantia Foundation has sustained its burden of 12 proving and you ultimately find that the infringement was 13 committed willfully, you have the option of increasing the 14 award of statutory damages to a sum of up to $150,000. To have 15 acted willfully, an infringer must have knowledge that the 16 infringing conduct constitutes copyright infringement. 17 Alternatively, if Michael Foundation and/or McMullan have 18 sustained their burden of proving and you have -- and you 19 ultimately find that Michael Foundation and/or McMullan were 20 not aware and had no reason to believe that their acts 21 constituted an infringement or copyright, you have the option 22 of reducing the award of statutory damages to a sum of not less 23 than $200. 24 Indicate your finding as to willfulness on interrogatory 25 number 3. In light of this finding, indicate the amount of 01047 {11:29:38am} 01 statutory damages on section number 3, Copyright Damages on the 02 verdict form. 03 Now, the fact that I have given you instructions 04 concerning the issue of damages should not be interpreted in 05 any way as an indication that I believe that any party should 06 or should not prevail in this case. 07 Your verdict and answers to the interrogatories must 08 represent the considered judgment of each juror in this case. 09 In order to return a verdict and to answer these 10 interrogatories, it is necessary that each juror agree 11 thereto. In other words, your verdict and interrogatory 12 answers must be unanimous. 13 It is your duties as jurors to consult with one another 14 and to deliberate with a view to reaching an agreement if you 15 can do so without violence to individual judgment. Each of you 16 must decide the case for yourself but only after an impartial 17 consideration of all the evidence in the case with your fellow 18 jurors. In the course of your deliberations, do not hesitate 19 to reexamine your own views and change your opinion if 20 convinced it is erroneous. But do not surrender your honest 21 conviction as to the weight and effect of such evidence solely 22 because of the opinion of your fellow jurors or for the mere 23 purpose of returning a verdict. A verdict -- or answering an 24 interrogatories. I'm sorry. Let me read that sentence again. 25 Do not surrender your honest conviction as to the weight 01048 {11:31:07am} 01 or effect of the evidence solely because of the opinion of your 02 fellow jurors or for the mere purpose of returning a verdict or 03 answering an interrogatory. 04 Remember at all times, you are not partisans. You are 05 judges of the facts. Your sole interest is to seek the truth 06 from the evidence in this case. 07 Now, ladies and gentlemen, I have one instruction 08 remaining, number 33, which outlines the verdict form and the 09 interrogatories about which I'll give to you after the closing 10 arguments are given. I want you to -- we're going to take a 11 break at this point, as I said, rather than start the closing 12 argument and have them interrupted. We'll be recessed until 13 1 o'clock for lunch. I want to remind you that although you've 14 heard all of the evidence, almost all of the instructions of 15 the Court, there remains the argument of counsel. I don't want 16 you to form or express any opinion with regard to this case 17 until you go to the jury room for your deliberations. With 18 that admonition, you'll be excused until 1 o'clock. Be back in 19 the jury assembly room and don't permit anyone to discuss this 20 case with you or in your presence. 21 Would everyone please stand. 22 (THE JURY WAS EXCUSED FROM THE COURTROOM, AFTER WHICH THE 23 FOLLOWING PROCEEDINGS WERE HAD IN OPEN COURT:) 24 THE COURT: Gentlemen, I think we agreed earlier on 25 50-minutes closing argument; is that correct? 01049 {11:32:41am} 01 MR. ABOWITZ: Yes, sir. 02 THE COURT: How do you want to divide it? 03 MR. ABOWITZ: I've also informed the clerk. 04 THE COURT: You have also? All right. See you here 05 at 1 o'clock. 06 MR. PLOURDE: Your Honor, when did you want to 07 consider the renewal of the -- 08 THE COURT: You can do that right now, if you'd like. 09 MR. PLOURDE: All right. Your Honor, we've argued 10 extensively in chambers regarding this. 11 THE COURT: And a transcript of that was made, and 12 you can adopt all of those positions. 13 MR. PLOURDE: Thank you, Your Honor. We'll do that. 14 And we have -- we've submitted some suggested instructions 15 in the course of many, many jury instruction conferences. Some 16 of those have not been filed. 17 THE COURT: File all of them that you have requested, 18 counselor, and they will be a part of the record. And to the 19 extent not given, you have an exception to the Court's ruling. 20 MR. PLOURDE: And I notice that you changed one of 21 those instructions slightly as you were giving it. Was it the 22 Court's intent to just -- 23 THE COURT: I may have read a word or two 24 differently, "his" and "her" and that sort of thing. I don't 25 think the content of any of them -- but there will be a 01050 {11:33:44am} 01 transcript of that as well. 02 Anything else, gentlemen? 03 MR. PLOURDE: No, sir. Thank you 04 THE COURT: Court's in recess. 05 (THE LUNCHEON RECESS WAS TAKEN) 06 01051 { 1:03:24pm} 01 AFTERNOON SESSION 02 TUESDAY, JUNE 19, 2001 03 --------------------------------------------------------------- 04 (THE FOLLOWING PROCEEDINGS WERE HAD IN OPEN COURT, OUT OF 05 THE PRESENCE AND HEARING OF THE JURY:) 06 THE COURT: All right. Go ahead. Let the record 07 reflect that Mr. Hill wishes to make a record with regard to 08 the Court's instructions. Go ahead, Mr. Hill. 09 MR. HILL: That's correct, Your Honor. What I'd like 10 to do is just reincorporate the objections that I stated this 11 morning in chambers when we were going through the 12 instructions, and also express an objection to the failure to 13 include the definition of encyclopedia that was previously 14 submitted by Urantia Foundation. 15 And I also would like to raise a related issue to the 16 issue that I raised this morning regarding the use of requests 17 for admissions. I think that should extend to anything in the 18 case that hasn't been actually admitted into evidence, 19 including the use of either reading from deposition transcripts 20 that were not admitted into evidence in the case or shown pages 21 of deposition transcripts and the like. My understanding of 22 the rule, Judge, is that to show portions of transcripts of 23 depositions, especially when the depositions are not in 24 evidence in the case as exhibits, and none were tendered here, 25 unduly highlights certain portions or risks highlighting 01052 { 1:03:24pm} 01 certain portions of witness testimony as opposed to others. 02 So, we certainly, since we don't have a transcript of what 03 every witness has said in this case, we think it's unduly 04 prejudicial to show line-by-line the questions and answers from 05 depositions. I'm not sure that -- 06 THE COURT: Well, I'm not sure that they'll attempt 07 to do that, but if they do, if there's any objection, you'll be 08 permitted to make them at the time they attempt to do it. 09 MR. HILL: Thank you, Judge. 10 MR. ABOWITZ: Your Honor, I'd like to address that 11 now. We intend to offer testimony of depositions that we read 12 in evidence. 13 THE COURT: One that was read in evidence? 14 MR. ABOWITZ: Yes, sir. 15 THE COURT: The portions -- 16 MR. HILL: Of Forsythe? 17 THE COURT: The portions that were read? 18 MR. ABOWITZ: Yes. 19 THE COURT: You can refresh their memory with regard 20 to those. 21 MR. HILL: Your Honor, is he allowed to show the 22 line-by-line testimony by scanning the deposition in and 23 projecting the actual -- projecting the actual deposition 24 transcript on the big screen? Or is he just allowed to remind 25 the jury -- 01053 { 1:03:24pm} 01 THE COURT: He's apparently just going to read 02 from -- 03 MR. ABOWITZ: No, I'm going to project. That would 04 be the same thing as if I'd projected it when it was -- 05 THE COURT: A document and so forth? Yeah, he can do 06 that. 07 MR. HILL: Okay. Thanks, Judge. 08 THE COURT: As long as it's restricted to the 09 testimony that was read and given to the jury, you can reflect 10 it up on -- 11 MR. ABOWITZ: I have one more matter since we don't 12 -- I don't want to have a problem while we're arguing. We 13 intend to do that same thing with respect to the testimony of 14 Mr. Keeler that was offered here live. 15 THE COURT: Do you have any problem with that? 16 MR. HILL: Wait a second. Are you talking about the 17 transcript? 18 THE COURT: Do you have a transcript? 19 MR. ABOWITZ: Yeah. 20 MR. HILL: Do you have a transcript of Keeler? 21 MR. ABOWITZ: Yeah. 22 THE COURT: Where'd you get it? Is it a certified 23 transcript? 24 MR. ABOWITZ: Yes. Ross ordered it from the court 25 reporter and it was delivered this morning. 01054 { 1:03:24pm} 01 MR. HILL: Judge, I didn't get an opportunity to get 02 the same transcript. I don't know what to say here except I 03 didn't -- nobody called me and asked me -- 04 THE COURT: Let him see it. I think if he has a 05 transcript of testimony that was given in court by Mr. Keeler, 06 he'd be allowed to use that in closing argument and project it 07 up but he ought to furnish you with a copy of it so you'll know 08 what portions he's going to offer so you'll have an opportunity 09 to see it. 10 What we might do -- have you made an extra copy? 11 THE COURT REPORTER: Yes, I have an extra copy. 12 THE COURT Sell it to Mr. -- 13 MR. ABOWITZ: Isn't the second copy $750? 14 THE COURT: About that. 15 No, let him use that -- 16 MR. HILL: Maybe you can just show me that page. 17 MR. ABOWITZ: Why don't you spend the money? 18 THE COURT: Would that help you, Mr. Hill, if you had 19 a copy of the -- a second copy of the transcript so you could 20 follow along? 21 MR. HILL: Sure. 22 MR. ABOWITZ: I'll just give you the pages. 23 THE COURT: He'll give it to you. 24 MR. HILL: That's fine. We'll take the copy but -- 25 THE COURT: He didn't make a copy and furnish it to 01055 { 1:03:24pm} 01 you forthwith, did he? 02 MR. HILL: No, sir. 03 THE COURT: He's just taking care of the reporter's 04 interests, that's all. 05 MR. ABOWITZ: Your Honor, it's a close market. 06 THE COURT: It is indeed. It is indeed. All right. 07 THE COURT REPORTER: I can run get a copy if you'd 08 like. 09 THE COURT: Yeah, we probably have time. Go ahead, 10 run down there and get it and we'll lend it to -- 11 THE COURT REPORTER: It will just take 30 seconds. 12 MR. ABOWITZ: Do we have time to go out in the hall? 13 THE COURT: Sure. 14 (PAUSE) 15 THE COURT: I don't recall how you divided your time. 16 MR. ABOWITZ: 35 and 15, Judge. 17 THE COURT: And what kind of warning have you asked 18 for? 19 MR. ABOWITZ: Three minutes. 20 MR. HILL: 10. 21 THE COURT: Do you have them, Bev? 22 THE COURTROOM DEPUTY: Yes. 23 (THE FOLLOWING PROCEEDINGS WERE HAD IN OPEN COURT AND 24 WITHIN THE PRESENCE AND HEARING OF THE JURY:) 25 THE COURT: Be seated, ladies and gentlemen of the 01056 { 1:05:16pm} 01 jury. 02 May I inquire if anything occurred during the recess that 03 would prevent any of you from continuing to serve as fair and 04 impartial jurors in this case? 05 I gather not. 06 Now, ladies and gentlemen of the jury, as I explained to 07 you before, I have given you all but the very last instruction, 08 which I'll give after the closing arguments. The attorneys now 09 have an opportunity to make closing argument of this case. The 10 plaintiff, because they have the burden of proof, will go first 11 in this case, and then the defendant will make their entire 12 closing argument, after which the plaintiff will have the right 13 to the last word. They will take a portion of their allotted 14 time in the closing closing argument. 15 Now, again, I want to remind you that statements of the 16 attorneys in this case are not evidence but they're designed to 17 assist you in recalling what the evidence was and to suggest 18 conclusions which you might want to draw. You're not bound by 19 those suggestions but, indeed, you are the finders of the fact 20 and it's your decision with regard to those matters that 21 controls. 22 I'll call on counsel for the plaintiff to make his opening 23 statement, please. (sic) 24 MR. ABOWITZ: Thank you, Your Honor. 25 Good afternoon, ladies and gentlemen. Let me first put 01057 { 1:06:46pm} 01 this lawsuit in perspective. But before I do that, let me 02 thank you on behalf of Mr. McMullan, The Michael Foundation, 03 and I'm sure The Urantia Foundation, for your, in my view, 04 anyhow, surprisingly rapt attention over the last week. I know 05 some of the testimony has been difficult, and we do appreciate 06 your attention and we appreciate your jury service and we will 07 appreciate your decision, whatever that may be. 08 Harry, McMullan, as he testified in this case, after the 09 Maaherra case, looked at a legal opinion and decided, based on 10 that legal opinion, that notwithstanding what the Court did in 11 Maaherra, that there was a legal challenge to be made on the 12 validity of the copyright of Urantia Foundation in The Urantia 13 Book. The Court has instructed you that you're to disregard 14 what occurred in the cases about which you have heard other 15 than this one. There was the Burton King case, there was the 16 Burton case, there was the Maaherra case. 17 Just to put it into context, you will recall that the 18 district court ruled that The Urantia Foundation copyright was 19 invalid, put the book into the public domain, the Court of 20 Appeals reversed that, and it was at that point that 21 Mr. McMullan decided to mount his legal challenge based upon 22 his good-faith determination that this legal opinion that 23 pointed out the shortcomings in the validity of the copyright 24 was one that could be pursued. He published Jesus - A New 25 Revelation. He didn't sue anybody. He was sued, and that case 01058 { 1:08:57pm} 01 was filed in New Mexico, it was dismissed, and then The Michael 02 Foundation filed a case here setting out a challenge to the 03 validity of that copyright. And that brings us up to date. 04 We've had this trial and it's now up to you to determine 05 whether or not that copyright is valid. 06 Before I get into the substance of this argument, I would 07 first like to call your attention to the bit of evidence that 08 was discussed yesterday on rebuttal, this business about 09 driving a yellow Ryder truck in front of The Foundation in 10 terms of Timothy McVeigh. I apologize for that for my client. 11 He did apologize. It lacked good judgment, at its best. It 12 was tasteless and I found it offensive. I trust that you 13 probably did as well. I would ask you to put that aside. We 14 all say things that sometimes we say and we'd like to get them 15 back. In this case, it was said in what Mr. McMullan thought 16 was the privacy of an e-mail to a single person. That doesn't 17 make it right, that doesn't make it less offensive, that 18 doesn't make it any less poor judgment, that doesn't make it 19 any less tasteless, but that's the way it is and I would ask 20 you to put that aside. 21 May I have instruction 4, please? 22 There's one other matter that I'd like to briefly touch 23 upon. The Court has instructed you that our system doesn't 24 permit jurors to be governed by prejudice or sympathy or public 25 opinion, and that you are to follow the law as stated and reach 01059 { 1:11:09pm} 01 a just verdict regardless of consequences. I trust you will do 02 that. But you have heard testimony in this case that from time 03 to time there were disputes between Mr. McMullan, The 04 Foundation, Mr. Keeler, Mr. Siegel, Mr. Jameson. That is not 05 part of whether or not this copyright is valid and I would ask 06 you to put that aside. Again, it's unfortunate, things happen, 07 and I think Mr. McMullan aptly described it but 08 unfortunately -- but fortunately all of us don't have to get on 09 the witness stand and explain things we've said in the heat of 10 the moment. You know, that's a difficult position. Anyhow, 11 I'd ask you to please disregard that. 12 Let me start now with where we are in this case. 13 May I have instruction 5, please? 14 After this week-long of evidence about who was the author, 15 you now can proceed on the basis that the patient, who the 16 Court has decided to call the subject, is the legal author of 17 The Urantia Book. The Court has instructed you that in order 18 for you to find a valid copyright in The Urantia Foundation, 19 you'd have to find two things: that The Urantia Book is a work 20 for hire and a commissioned work, and that it is a composite 21 work. 22 May I have instruction 23, please? May I have the second 23 page? 24 You will have the instructions when you go back. I was 25 trying to watch expressions while the Judge was reading those 01060 { 1:13:27pm} 01 instructions and you were probably saying to yourself, "How am 02 I going to remember all that?" You're going to have these 03 instructions when you go back into your deliberations. 04 But I'd like you to pay attention to the portion of the 05 instructions where the Court gives you several factors to 06 control here. Whether the work was created at the 07 commissioning party's insistence and expense; whether the 08 commissioning party possessed or exercised the right to direct 09 the manner in which the work was done, though actual exercise 10 of that right is not controlling; whether the commissioning 11 party supplied capital; and whether the preparer was hired as 12 an employee to do the work; whether he was hired and whether 13 they possessed or exercised the right to direct the manner in 14 which the work was done. 15 Now, what is the evidence on those points? The patient 16 wasn't paid. And there is no evidence of any employment 17 agreement. Remember, the evidence is that this man was ill 18 with something, we don't know what, and came with his wife to 19 the home of the Sadlers looking for medical treatment. He was 20 a patient. He was not a volunteer. There is no evidence that 21 he volunteered for this duty to be the subject in this equation 22 that produced The Urantia Book. 23 The issue of control, and I'll show you some specific 24 pieces of evidence that go to that, the evidence is 25 undisputed. I anticipate you will hear argument that The 01061 { 1:15:38pm} 01 Contact Commission, what we called the other day the Sadler 02 team, which is now which they've changed to The Contact 03 Commission, is the commissioning party. Well, it doesn't fit 04 with the evidence. You recall the evidence that the revelatory 05 commission, these unseen friends, these celestial beings, 06 controlled this whole process. The evidence is undisputed that 07 every word of that Urantia Book is, in its first instance, the 08 first tangible instance of the writing, is in the handwriting 09 of the patient. There isn't anything in that book that wasn't 10 in the handwriting of the patient. Everybody has testified to 11 that. 12 Now, there has been testimony about questions. Questions 13 were posed. Who controlled the questions? Well, I anticipate 14 you'll hear argument that because we asked the questions, we 15 ought to have a share in the creative work, not only a share, 16 but we ought to be entitled to it as a work for hire or 17 commissioned work. That's not so. Think about it. If I ask 18 you a question and you choose not to answer it, what creative 19 instance is there there? There is none. And the evidence, 20 again, is undisputed. The questions were posed, yes. The 21 revelators, through the patient, decided which ones were going 22 to be answered and how they were going to be answered. The 23 answers to the questions came back to the patient in 24 handwriting. Is that control? Is that supervision? The 25 supervision is all the other way, from the revelatory 01062 { 1:17:46pm} 01 commission through the patient subject. You ask a question and 02 if I don't want to answer it, I don't answer it. You ask a 03 question that I choose to answer, I choose to answer in the 04 form I want to answer, I choose the length of the answer, I 05 choose the style of the answer, and I submit it through the 06 patient. No supervision, no control. 07 Now, let me share some evidence with you. 08 May I have exhibit 20, please? 09 "The papers were published just as we received them. The 10 Contact Commissioners had no editorial authority." Control -- 11 does that say "control"? No. Actually what it says is a lack 12 of control. 13 "Our job was limited to spelling, capitalization and 14 punctuation." 15 That does not speak to control. 16 May I have exhibit 50, please? 17 "The Urantia Book was published just as we received it in 18 English. There was no editing." Did they have control over 19 the final copy of the book, the final text of the book? No. 20 Back up please. 21 "Our only jurisdiction had to do with typing, proofreading 22 and publication." Control? No. Supervision? No. 23 Next exhibit, please. 24 Emma Christensen was a Contact Commissioner and Urantia 25 Foundation trustee and the last surviving member of that 01063 { 1:19:32pm} 01 Contact Commission. 02 "Nothing can be added or subtracted from The Urantia 03 Book. It will stand as it was given to us by the revelatory 04 commission," through the patient, subject. Is there a dispute 05 about that? No. 06 May I have the next exhibit, please? 07 "No human scholars edited the book." The book went from 08 the handwriting of the patient into the final copy. "No human 09 editors edited the book." Supervision and control? It doesn't 10 speak to that. In fact, it negates it. No control. 11 May I have the next exhibit, please? 12 "The Urantia Book was published precisely as it was given 13 to the people of this planet." It was given to the patient and 14 the patient transmitted it on to The Contact Commission. They 15 didn't edit it. They didn't change it. They didn't -- they 16 didn't pose -- they didn't control who answered the questions 17 and how. 18 May I have the next exhibit? 19 "The Urantia Book is arranged and assembled exactly as 20 revealed." Remember, there are 196 papers. The 196 papers 21 appear in that book precisely as they came in the handwriting 22 of the patient subject. Did anybody alter the order of the 23 papers? No. Does that speak to control? It does not. 24 May I have the next exhibit? 25 There was some indication that Ms. Christensen took down 01064 { 1:21:42pm} 01 in shorthand what the subject patient was saying. She says, "I 02 didn't do that." That evidence contradicts all this other 03 evidence that says no supervision, no control. This letter is 04 consistent with no supervision, no control. 05 Now, may I have the testimony of Mr. Keeler, please? 06 I just wanted to run quickly through this. This is the 07 gentleman that testified the first day of the trial. He was 08 the president of The Urantia Foundation, and this all proves 09 that there is no supervision and no control. 10 Can you see this? 11 Can you enhance that, please, and put a color behind it? 12 THE VIDEOGRAPHER: What line? 13 MR. ABOWITZ: I want the whole thing. 14 This is what I just said. 15 "Do you agree that the patient voluntarily appeared as a 16 patient, not as a subject, not as a conduit for this book?" 17 "That's what I was told by Dr. Sadler." 18 "And this wasn't a case where Dr. Sadler went out and 19 recruited somebody and said, 'You're a volunteer' or 'I want 20 you to do this as a volunteer' or 'I will pay you to do it' or 21 'I won't pay you'?" 22 "That didn't happen." 23 "Is there any evidence that Dr. Sadler or anyone else told 24 the celestial beings what messages to convey that resulted in 25 this writing?" 01065 { 1:23:50pm} 01 Would you scroll it up, please? 02 "True." And he says, "But I would make a qualifying 03 statement." 04 And I say, "Your lawyer will do that." And I say, "And 05 you are not aware of any evidence that Dr. Sadler or anyone 06 else told the celestial beings what to communicate to the 07 patient?" 08 "By asking questions. No questions. Indirectly, they 09 told through asking -- they told the celestial beings to 10 write." 11 "There were questions; right?" 12 "Yes, they asked questions." 13 "Now, they had no control over how the questions were 14 answered?" 15 "True." 16 "They had no control over whether or not someone chose to 17 answer or not answer?" 18 "I agree." 19 "You know of no evidence that indicated that Dr. Sadler or 20 The Contact Commission or anyone that could be considered to be 21 a predecessor of The Urantia Foundation told the celestial 22 beings or directed them that this was the end of the book?" 23 "No evidence." 24 "And if the communication was the basis of the book, 25 communication from celestial beings was the basis for the book, 01066 { 1:25:09pm} 01 the decision as to how much and what and when to end it was all 02 the decision of these celestial beings?" 03 "I agree." 04 Control, supervision? No. 05 "And how did the celestial beings communicate?" 06 "Through the handwriting of the patient." 07 The patient is the author in this. Without the patient, 08 there's no book. 09 "You say it wasn't published until '55 and one of the 10 reasons it wasn't published is that you were waiting for the 11 celestial beings to tell you what the right time was?" 12 "That's one reason." 13 "And is it accurate, sir, that in your view of these 14 things, that the celestial beings controlled the process of 15 producing the book?" 16 "But in cooperation." 17 "Let's address that. You've indicated that there was no 18 control over how they answered the questions?" 19 "True." 20 "No control that Dr. Sadler or The Contact Commission or 21 any predecessor dictated what would be in the book?" 22 "True." 23 What was in the book was in the handwriting of the patient 24 and according to the doctrine of The Urantia Foundation, that 25 information was imparted by celestial beings and they had no 01067 { 1:26:43pm} 01 control. They had no supervision. 02 And then I asked a series of questions. They couldn't 03 control how long the book would be, how many papers it would 04 consist of, what the subject of the papers were, the content of 05 the specific papers. None of that. All of the things that 06 were necessary to produce this book, The Contact Commission, 07 predecessor of The Urantia Foundation, had absolutely no 08 supervision, no control. No employment relationship. No 09 voluntary presence by the patient. Can it be a commissioned 10 work? No. 11 Now, they say it's a work for hire. The Court has 12 instructed you when they renewed, 1983, they call it a work for 13 hire. Let me show you what rationale they used then. 14 May I have exhibit 89, please? 15 This is a letter from Richard Keeler, the man that 16 testified here, re: The Urantia Book, and we went over this in 17 his testimony. He says -- he's responding to, "Why did you put 18 the lie on the copyright which says the revelation was a work 19 made for hire and what prevents Urantia from precisely speaking 20 the truth about the book's unseen authors?" 21 He responds as -- 22 May I have the next section, please? 23 "Toby, The Foundation chose to renew the copyright, 24 characterizing the book as a work for hire. This was done 25 because William S. Sadler, Jr., the doctor's son, designed the 01068 { 1:28:33pm} 01 first 66 pages calling it parts of the book, titles of the 02 paper and contents of the book." 03 May I have the next part? 04 "The trustees have given careful consideration about how 05 to preserve the copyright. There is a part of the book we can 06 revise. All the material have Roman numerals, the first of 66 07 pages ahead of the foreward. They are not at all inspired. I 08 designed them myself. When the copyright is nearing running 09 out, we'll revise the first 66 pages." 10 In 1983, they weren't telling anybody that this was a 11 commissioned work, that there was control and supervision over 12 how the book was produced. What they were saying is, "We've 13 got Sadler, Jr.'s forward pages in this book, table of 14 contents, index, that kind of thing, and when this copyright 15 comes up, we'll just change it and say it's a new work and 16 we'll renew the copyright as a work for hire because Sadler's 17 working for us, so he's a volunteer." Do you see anything 18 about composite work? Do you see anything about commissioned 19 work? 20 The Urantia Foundation is like a chameleon. It's that 21 lizard. When I was a kid when we went to the circus, we always 22 wanted our parents to buy us one of these lizards that you clip 23 onto your clothes. What happens is is the lizard changes 24 colors. They've changed the colors to meet the situation. 25 Thank you. 01069 { 1:30:23pm} 01 Now, there's one other thing that I briefly want to talk 02 about, and let me pose the question: Is it fair for The 03 Urantia Foundation to come in here and say that this is a 04 commissioned work, this is a work for hire, or this is a 05 composite work when they control the facts? 06 Fact, oath of secrecy. Fact, don't reveal the identity of 07 the patient. Fact, don't reveal even if you know when the 08 patient died. Fact, the work's not published until 1955, some 09 20 years after it's completed. Why? One of the reasons is 10 they're waiting for the revelatory commission to tell them it's 11 okay. Fact, there's no evidence in the record that this man 12 who was a patient, we don't know what his medical condition is, 13 we don't know his competency, we don't know that he was advised 14 of his rights, what he was giving up, what the consequences of 15 giving it up were, what impact it would have on his heirs, none 16 of that. Remember Ms. Newsome that testified the other day? 17 "We have missing links." 18 The evidence also is that The Urantia Foundation said, 19 "Don't pay any attention to the origins of the book because if 20 we told you, you wouldn't understand. Instead, I want you to 21 reflect on the substance." 22 It's like the Wizard of Oz. Remember that movie, where 23 the guy is behind the curtain turning these knobs and creating 24 green smoke, and Dorothy and Toto try to go behind the curtain 25 and the voice says, "Don't go behind the curtain." 01070 { 1:32:23pm} 01 It's not fair for them to come here and tell you, "Find in 02 our favor but you don't know all the facts. Trust us. You 03 wouldn't understand it if you knew." 04 Now, let me get into, if I might, the composite work. 05 May I have instruction number 26, please? Instruction 06 26. There we go. 07 The terms "composite work" and "collective work" are 08 synonymous, one in the same. 09 Would you go to the next page, please? 10 There are a number of things recited here but the essence 11 of it is, "If the subject intended to author related pieces at 12 different times, which Urantia Foundation or its predecessors 13 published wholesale as The Urantia Book, then The Urantia Book 14 cannot be a composite work." 15 May I have exhibit 142, please? 16 Do you recall the debate over the last five days: Is it 17 published as a unified work, is it published as a whole? The 18 answer is always yes, except for Ms. Baney the other day said, 19 "Well, we can take sections out. We have study groups on the 20 papers. We talk about what's within the papers." But was it a 21 unified work? Was it meant to be published as a whole? Was it 22 meant to be inviolate? 23 Mr. Jameson was on the stand, and remember what he said? 24 This is his speech in Finland to a group of the Urantia 25 leaders, and he's talking about Jesus - A New Revelation. 01071 { 1:34:39pm} 01 "There are those who would cut the revelatory commission's 02 picture up in the name of dissemination. Imagine taking a 03 picture of the Mona Lisa and cutting it into four parts and 04 displaying a quarter of that beautiful picture in its own 05 frame. I don't think that's what Leonardo da Vinci had in mind 06 nor do I believe that's what the revelatory commission had in 07 mind." They did not mean for this book to be divided at all. 08 The analogy that he uses is the Mona Lisa. It has to be viewed 09 as a whole or it loses its beauty and loses its significance 10 and loses its continuity. 11 What else does he say? 12 "My son Michael enjoys puzzles. What would happen if I 13 only gave him a box with only one-quarter of the pieces? It 14 doesn't seem appropriate, does it? The revelatory commission 15 put a massive puzzle together in an exceedingly artistic and 16 careful way." The point of this message is, regardless of what 17 Michael Foundation did, there's nothing you can do to affect 18 us. This is one work. It was meant to be one work and that's 19 how we want it treated. 20 May I have, quickly, please, the next exhibit? 21 This is the letter we talked about with Ms. Baney the 22 other day. 23 May I have the text of that, please? 24 She's talking -- this is the critique of Jesus - A New 25 Revelation. "It does not preserve the text, the entire text, 01072 { 1:36:37pm} 01 inviolate." 02 May I have the next comment? 03 "It must frustrate the efforts of the authors of the book 04 as they have given us a carefully painted picture as he is 05 portrayed in parts I through IV of the book." 06 She is the one that said you can discuss these, you can 07 discuss parts of the Constitution, you can parts of the 08 Declaration of Independence, the Magna Carta, all the great 09 works. That doesn't mean that they are not meant to be 10 produced, printed, and distributed as a whole and that is the 11 position of Urantia Foundation. 12 Now, the letter I just showed you, the e-mail from 13 Mr. Keeler and Toby, the past comes back to haunt them. It 14 does again with respect to composite work. 15 May I have exhibits -- first, exhibit 9, please? 16 This is the affidavit of Mr. Root we talked about the 17 other day. We have provided a transcription of it. This is 18 hard to read. 19 Remember, I showed you collective work equals composite 20 work, the Judge has instructing you of that? 21 "The Urantia Book is not a collective work, since the 22 material therein was not in existence before the arrangement of 23 it was placed in tangible form, and it was in existence prior 24 to publication thereof only in manuscript form." 25 This man is a long-time well-respected, well-credentialed 01073 { 1:38:20pm} 01 copyright lawyer for Urantia Foundation. This is an official 02 letter that he's sending to the copyright office. 03 Let me ask you a question that I hope you're asking 04 yourself. If they've taken this position back when, why are 05 they changing it now? The reason they're changing it now is 06 because they're nervous about this copyright. 07 May I have Mr. Forsythe's testimony, please? I'd like you 08 to begin, please, at page 111. I'm sorry. That's wrong. Page 09 145. 10 Mr. Forsythe -- we read this the other day. "We might 11 wish to avoid drawing attention to the renewal of the copyright 12 in the book and the voiding of the permissions during the 13 initial term of the copyright." 14 "What book are you referring to?" 15 "The Urantia Book." 16 Would you scroll it, please? Would you scroll it again, 17 please? Here it is. Hold on. Back up. Please scroll it 18 forward. Okay. Hold it. 19 "Somebody might create problems at that time" -- please 20 turn the page -- "and challenge the copyright." 21 I've got one last exhibit. I'm running out of time. 22 May I have Urantia Foundation exhibit 26, please? 23 "Every epochal revelation has been part of a plan and its 24 purveyors have been given instructions." This is a letter to 25 Mr. McMullan. 01074 { 1:40:57pm} 01 "The revelation came with the Declaration of Trust which 02 tells us to keep the text inviolate and does not sanction 03 splitting up the book, printing parts of the book separately." 04 Is it one work? Is it a unified work? It is. The 05 conclusion here is that when you get to the interrogatories 06 where it says, "Do you find that this is a work for 07 hire/commissioned work?" the answer to that is, "No." No 08 supervision, no control, no employment, nothing. 09 Composite work, no. For the same reason; it's a whole. 10 Thank you. 11 THE COURT: Mr. Hill? 12 MR. HILL: Could I have just a moment to set up, Your 13 Honor? 14 THE COURT: Sure. 15 MR. HILL: On behalf of Urantia Foundation, we too 16 want to thank you for your service. I know at times this has 17 probably been confusing and perhaps even startling. 18 The case started, I think, a little bit with the parties 19 saying different things in the opening statement than what 20 you're hearing now in the closing argument. I thought in 21 Mr. Abowitz's opening on behalf of Michael Foundation and 22 Mr. McMullan the object was to protect the subject and the 23 heirs of the subject and I was the one explaining that my 24 client has these beliefs about the supernal origins of The 25 Urantia Book, and now it seems like it's time to focus in on 01075 { 1:43:09pm} 01 what the law is and look to the legal consequences and the 02 things that happened in the material universe, and Mr. Abowitz 03 is telling you with how the revelatory commission or the unseen 04 friends controlled this process; therefore, it can't meet any 05 of the legal tests required for copyright renewal. Something 06 has to give here. 07 I submit that context is key. As I told you in my opening 08 statement, if you can't understand that some of the exhibits 09 that you're seeing emanate from people's hearts and their minds 10 about what it is that they believe about faith and religion, 11 then you'll never understand some of the context in which these 12 exhibits were authored. I submit that anyone who believes that 13 a work is revelatory in nature would never on the witness stand 14 testify that it's anything other than unified or that the 15 unseen friends intended it to be that way. But we're in a 16 court of law now and we have to focus on the evidence of what 17 happened in the material world, the things that can actually be 18 proven by observation and experience. 19 A major theme that has emerged in this case is a theme of 20 creation versus destruction. Urantia Foundation and its 21 predecessor, The Contact Commission, were dedicated to the 22 creation and ultimately the publication and dissemination of 23 The Urantia Book, which is undeniably an original work. I 24 think that is one thing that we all can agree on. It is an 25 original work and there was nothing like it on the market at 01076 { 1:44:51pm} 01 the time The Urantia Book first hit the marketplace in 1955. 02 It took 486 Forum members, six Contact Commissioners, one 03 subject, and an initial board of trustees of Urantia Foundation 04 that numbered six as well, in order to get this book into the 05 marketplace. It took well over $100,000, which in 1955 terms 06 and earlier is quite a bit of money, in order to get this book 07 into the marketplace. 08 It has taken exactly five-and-a-half days for Mr. McMullan 09 and Michael Foundation to try to eviscerate Urantia Foundation 10 and its copyright upon which it depends in order to effectively 11 market and distribute the book, not only in the United States 12 but through the translation efforts that you heard some 13 testimony about. 14 Jesus - A New Revelation, on the other hand, is not an 15 original work. We've heard the testimony that it represents a 16 copy of the last 76 papers of The Urantia Book. It has 995 17 consecutive pages of plaguerized work taken right out of The 18 Urantia Book word for word, and you'll see that when you take 19 the evidence back with you for your deliberations. 20 The way that we got this book was through a number of 21 different stages, and Ms. Newsom's testimony yesterday sort of 22 highlighted the base of some of those stages. 23 Stage one, and I'm using ball-park numbers here because 24 there's some debate on the margins about when all of this 25 started, but using Dr. Sadler's work, The Mind of Mischief, 01077 { 1:46:31pm} 01 I've established 1911 as the latest date upon which these 02 events occurred, and 1925 would be the date when the earliest 03 actual papers began to arrive in response to questions. 04 Bob, can I call up Urantia Foundation exhibit 102? The 05 next page, please. 384. 06 In this -- Can you highlight that for the jury, please? 07 In this book, Dr. Sadler is saying that in 1929, when he 08 wrote this book, that there were 250 night sessions at that 09 point, many of which had been attended by a stenographer who 10 made voluminous notes. Now, you heard the testimony that Emma 11 Christensen in the early part of this process was taking down 12 these notes and then going back and typing them up, and that's 13 how we got the first 57 of these Urantia Papers that were 14 ultimately the building blocks through the question-and-answer 15 process for all of the subsequent revisions and expansions 16 until we ultimately had 196 papers. 17 Can you pull up Michael Foundation 102? 18 This is a good time to advise you that when you're looking 19 at these snippets that each of the parties are pulling up for 20 you, you're not always getting the entire story; you're just 21 getting the portion of the document that the other side wants 22 you to see. 23 This is a letter that was shown to you by Mr. Abowitz in 24 his portion of the closing argument for the proposition that 25 Ms. Christensen never used shorthand in connection with the 01078 { 1:48:26pm} 01 Urantia Papers. But that is not exactly what she goes on to 02 say. She says, "I did use my shorthand a good deal but not for 03 the papers as we have them in book form today." 04 In other words, she's not saying that she didn't use 05 shorthand in connection with the earlier stages to create these 06 building blocks from which the final form of all 196 papers 07 were ultimately written. In fact, she was intimately involved 08 in that process. 09 Moreover, if you recall the Clarence Bowman diaries handed 10 around during the testimony of Carolyn Kendall, there was a 11 1925 reference in that diary to the fact that there were 181 12 questions generated by The Forum in one of these early sessions 13 leading up to the receipt of the first Urantia Paper. 14 Turn the page, please. 15 Stage two, Dr. Sadler writes in the history of the Urantia 16 movement, "No questions, no papers." To signify the seminal 17 role that the questions played in driving this process and 18 giving rise to both the initial round of papers and the 19 subsequent expansions and revisions of those papers until we 20 finally have 196 papers. If you understand that the revelatory 21 commission is not of this world and you focus on who was 22 driving this process in the material arena, you see that it was 23 The Contact Commission. No questions, no papers. 24 Turn the page, please. 25 There is an issue in this case that Mr. Abowitz alluded 01079 { 1:50:13pm} 01 to. They contend that the papers were completed by 1935. The 02 evidence does not bear that out. The History of The Urantia 03 Movement document -- 04 Bob, can you pull up Urantia Foundation exhibit 8, page 05 9? 06 The History of the Urantia Movement document, which was 07 reviewed in some length in Mr. Keeler's testimony early last 08 week, contains the statement, "The last meeting of The Forum as 09 a genetic assembly was held May 31, 1942. During the period of 10 the reception of the Urantia Papers, upwards of 300 different 11 persons participated in asking these genetic questions." These 12 questions continued through The Forum through May 31st, 1942, 13 not 1935. Although Mr. McMullan testified that The Urantia 14 Book itself says it was completed in 1935 and no later, that's 15 not actually the language that is used in the book. The book 16 says the papers were indicted by 1934 or 1935, and I have 17 absolutely no idea or confidence in what that term might mean 18 on these facts and with this document saying that the last 19 genetic question was asked in 1942. 20 Furthermore, you've heard the testimony from Richard 21 Keeler, from Carolyn Kendall, from Forum members who were 22 actually there in the 1930s. Katharine Harries began attending 23 meetings in 1938. Papers were still coming in. Revised papers 24 were still coming in. There were partial papers that she 25 actually reviewed. The same for Helen Carlson, who is deceased 01080 { 1:51:58pm} 01 now, but testified from her deposition taken in the Kristen 02 Maaherra litigation, that she began attending meetings in 1935 03 and the papers were not complete. 04 Finally, we have the Clarence Bowman diaries that 05 Ms. Kendall produced from her father, and those diaries, of 06 course, confirm that in 1935 through 1937 revised papers were 07 being reviewed by him as a member of The Forum. All of this 08 evidence cumulatively dwarfs the evidence that they have 09 suggested proves that the papers were complete by 1935, and 10 that is a major cog in their wheel, because if you don't 11 believe that the papers were completed in absolute final form 12 by 1935, then they don't have the cloud of 20-year suspicion 13 between the time the papers were completed and the time they 14 were ultimately published. And if you consider that it was 15 1941 in which the contract was entered into by Contact 16 Commissioner Wilfred Kellogg in order to set these papers down 17 on printing plates and you consider the time that proofreading 18 and other things take as a part of this process, it's pretty 19 easy to see how with such a lengthy book this process would 20 drag on. 21 Bob, would you show Urantia Foundation exhibit 72, please? 22 Urantia Foundation exhibit 72 is the printing contract 23 that I just referred to dated 1941 between R. R. Donnelley & 24 Sons and Wilfred Kellogg, who was one of the members of The 25 Contact Commission. As you can see, it's a 1941 agreement for 01081 { 1:53:39pm} 01 the composition and the posting of the paper down on plates for 02 a book form. 03 Would you turn to Urantia Foundation exhibit 73, Bob? 04 This is the assignment that Mr. Kellogg entered into where 05 he handed over his rights in that contract to the initial board 06 of trustees of Urantia Foundation in 1950 upon its creation by 07 virtue of the Declaration of Trust. 08 Would you turn to Urantia Foundation exhibit 5? 09 Second 303 of Urantia Foundation's Declaration of Trust 10 states that it is supposed to retain absolute control over the 11 means of reproduction for The Urantia Book. The persons who 12 contributed the money to finance the creation of the book on 13 these printing plates wanted Urantia Foundation to have those 14 rights, donated those plates to Urantia Foundation with the 15 requirement that Urantia Foundation maintain control over the 16 reproduction of the text of the book. The way that that is 17 maintained, of course, is through copyright law. 18 Would you turn to the next page? 19 Of course, as I've already alluded to, from 1935 to 1942, 20 you have more questions coming in and a general refinement of 21 all of these papers going on. 22 Would you turn the page? 23 Less there be no understanding, I want everyone to 24 understand exactly the way that you get these papers. You have 25 The Contact Commission driving this train, at least in the 01082 { 1:55:27pm} 01 material realm. The Contact Commission sets up The Forum as a 02 process for contributing questions that it would take, arrange, 03 and take into sessions with this subject. Those questions 04 would be submitted and a paper would be received in response to 05 the question. Dr. Sadler writes in Michael Foundation exhibit 06 134 that this was a unique process of questions bringing forth 07 papers. 08 I'm not asking you to believe that every single literary 09 work that's out there is created this way. When Mr. McMullan 10 testified on the stand that this is a book created just like 11 any other book, I nearly fell out of my chair. The one thing I 12 think is obvious from this evidence is that it is not a garden 13 variety creative process. This was extremely unique and The 14 Contact Commission was in a position to supervise both The 15 Forum and the subject and was thus in supervisory control over 16 the entirety of the creative process if we concentrate on what 17 was going on in the material realm and don't factor in the 18 spiritual or faith beliefs of various persons. 19 Next pad. 20 Now, this is important because when we turn to the issues 21 in this case and we look at the prevailing law, we can 22 understand, when we take the evidence in context, why Urantia 23 Foundation has a proper and subsisting renewal copyright. 24 I told you at the beginning of the case that this is a 25 case about plagiarism. That's what it's about in its genesis. 01083 { 1:57:19pm} 01 Urantia Foundation exhibit 51, please, Bob. 02 In 1975, Mr. McMullan writes a letter to Emma Christensen, 03 a Urantia Foundation trustee. In that letter, he says -- go 04 ahead and blow it up -- "Needless to say, I support The Urantia 05 Foundation 100 percent in your efforts to combat infringement 06 of the copyright. I think of you often." 07 Mr. McMullan has requested on many occasions the right for 08 permission to quote. He has done so in connection with these 09 works, which will go back with you into your deliberation 10 room. 21 Steps to a Spiritual Awakening and When Things Go 11 Wrong. Urantia Foundation granted him permission to quote from 12 The Urantia Book in connection with those works. 13 Would you pull up Urantia Foundation exhibit 50, Bob? 14 In 1989, Urantia Foundation and Mr. McMullan entered into 15 an agreement with one another. And that agreement, 16 Mr. McMullan acknowledged in not one but two places that 17 Urantia Foundation is the owner of all right, title and 18 interest in and to the copyright in a book entitled The Urantia 19 Book. 20 Something has changed in Mr. McMullan and I submit that 21 what the evidence shows has changed is that in late 1989 22 Urantia Foundation and Urantia Brotherhood broke up and that 23 this is more than a case about copyright for Mr. McMullan. The 24 reason that I point to that is because if you look at the cover 25 of Jesus - A New Revelation and you think about the 01084 { 1:59:00pm} 01 circumstances that caused him to go out to the museum in 02 Scotland and license the copyright to use that painting on the 03 cover art of his book, it wasn't Dali that he was paying, it 04 wasn't Dali's heirs. It was an organization that had obtained 05 the rights in the work, and he did that despite his 06 understanding, which he testified to on cross-examination, that 07 Dali was painting from divine inspiration. I submit that 08 there's something different between what he's doing with 09 Urantia Foundation and what he's doing with that museum in 10 Scotland that owns the right to the cover art. 11 This is also a case about willfulness and state of mind, 12 and Mr. McMullan's state of mind is definitely an issue, and 13 you have to determine whether or not Mr. McMullan knew that 14 there was a valid copyright here and chose to disregard it as a 15 way of exercising some type of grudge. 16 I told you in my opening statement that I thought there 17 was a hint of revenge in this case. 18 Would you please turn the page? 19 And I think we've shown you that that is, in fact, the 20 case. And whether it is because of The Urantia Foundation/ 21 Urantia Brotherhood split or whether it is because of the 22 contribution that Mr. McMullan made to the Maaherra case that 23 was unsuccessful in challenging Urantia Foundation's copyright, 24 it plays itself out certainly when you consider that 25 Mr. McMullan was offered numerous attempts to work with Urantia 01085 { 2:00:34pm} 01 Foundation in an effort to avoid this very court case and 02 turned them all down. Mr. McMullan, I submit, is out for a 03 little bit of revenge in this case. 04 Turn the page, please. 05 This is also a case about control. Mr. McMullan, if you 06 understand the variety of organizations that he has founded and 07 operates, there's one common denominator among them and that is 08 that he is in control or at least has some measure of control 09 over what those organizations do and how they do it. 10 Mr. McMullan does not have that control with respect to Urantia 11 Foundation. 12 I think that there are a couple of things the evidence 13 shows this case is not about. The case is not about religion. 14 If it was, I can't imagine that Mr. McMullan ever would have 15 written that letter saying he supported efforts to combat 16 copyright infringement. Mr. McMullan has been free to write 17 his books with permission of Urantia Foundation. He testified 18 from the stand that he's free to believe what he wants to 19 believe. Nobody is telling him what study groups to 20 participate in. Nobody is telling him how to worship God. 21 This is a case about commercial copyright law. And look no 22 further than the fact that he was offering Jesus - A New 23 Revelation for sale at a $5 profit per book to understand that 24 this is a commercial case and not about religion. 25 This is not a case about fair use. The evidence showed 01086 { 2:02:14pm} 01 Urantia Foundation has generous fair-use policies in relation 02 to the publishing industry and there is no fair-use defense 03 asserted in this case. 04 And it's not a case about attribution. During the trial 05 there was a lot of discussion from Mr. Abowitz in questioning 06 witnesses about Mr. McMullan offering to mention Urantia 07 Foundation in Jesus - A New Revelation. I believe it was that 08 line of questioning that gave rise to the spirited analogies 09 about stealing cattle from ranches and deer racing through 10 state parks. However, it's not a case about attribution. 11 Attribution is no defense to copyright infringement. 12 Turn the page, please. 13 So why do you register copyrights with the United States 14 Copyright Office? One reason is to give notice that you claim 15 ownership as against the rest of the world. So that when 16 Mr. Keeler claims that his family has had a longstanding ranch 17 in the middle of Oklahoma and Mr. McMullan comes along and says 18 no, he's entitled to stay on that land because it's really a 19 state park, you can go to the local county records office and 20 check the deeds to see who, in fact, if anyone, claims 21 ownership in that piece of property. 22 Urantia Foundation did that, the evidence shows, in 23 Michael Foundation exhibit 44. 24 Can you pull that up, please, Bob? 25 The evidence shows, in Michael Foundation exhibit 44, that 01087 { 2:03:44pm} 01 the secretary for Dr. Sadler is writing a letter in 1932 to the 02 acting register of copyrights inquiring about how to go about 03 claiming copyright as a proprietor. 04 Can you turn to the next page of that exhibit, Bob? 05 And in response, a letter is received from the copyright 06 office saying, "It is not essential that the statutory 07 copyright be taken out by the author in the first instance and 08 then transferred to the organization; for up to the time of 09 publication the author can confer upon an association or 10 corporation the right to take out the copyright in its own 11 name. Perhaps in this connection you will be interested also 12 to have your attention called to the provision in section 68 of 13 the Copyright Act that the word 'author' shall include an 14 employer in the case of works made for hire. Under this 15 provision, it would seem that the corporation, which employs 16 others to produce some work of authorship, would in many cases 17 be entitled to claim the copyright as employer for hire without 18 the need of a formal transfer." 19 In this case, the Judge has instructed you already that 20 Urantia Foundation, as a matter of law, is the proprietor of 21 copyright in The Urantia Book, and what you're going to have to 22 decide is whether or not the creative process and the other 23 elements that went into getting this book into the marketplace 24 make The Urantia Book a work for hire or, more specifically, 25 that special type of work for hire that I alluded to in my 01088 { 2:05:26pm} 01 opening statement, a commissioned work, which is outside of the 02 traditional notions of employer/employee relationship and may 03 include contributions by volunteers who are working with no 04 expectation of payment. We'll talk a little bit more about 05 that as we move along. 06 In 1955, of course, Urantia Foundation took out its 07 copyright registration. 08 Exhibit 3-A. Go to the next page, please. 09 In the application for registration of copyright, it 10 states -- can you blow that up a little bit -- "For authors, in 11 the case of a work made for hire, the employer is the author." 12 And on its registration certificate with the United States 13 Copyright Office, Urantia Foundation, of course, listed itself 14 as the author of the work. 15 And it's interesting to note, there was some evidence 16 during the testimony of Ms. Baney, that Urantia Foundation has 17 a number of letters in its files from Dr. Sadler. Once Urantia 18 Foundation was formed, Dr. Sadler was actually writing letters 19 to Urantia Foundation seeking copyright permission before he 20 quoted from The Urantia Book in various secondary works that he 21 created. It is important to note that although Dr. Sadler's 22 son served as an initial trustee of Urantia Foundation, 23 Dr. Sadler himself never did. How does that jibe with the 24 proposition that Mr. McMullan articulated on cross-examination 25 that Dr. Sadler was in this for his own benefit? As far as the 01089 { 2:07:14pm} 01 evidence shows, Dr. Sadler didn't benefit at all from this, 02 thus the cloud of suspicion that is attempted to be cast on 03 this entire process, well, it doesn't seem to be anything more 04 than a thin read, incapable of supporting an argument that the 05 copyright in this case is invalid. 06 In 1983, of course, Urantia Foundation renewed its 07 copyright in The Urantia Book. 08 Exhibit 3-B, page 2. 09 And in that renewal application, Urantia Foundation stated 10 that it was the proprietor of a work for hire. 11 Now, Mr. Abowitz has pointed you to an e-mail that Richard 12 Keeler, a board trustee, sent to someone inquiring of how you 13 could make the statement that anyone was hired in connection 14 with the process. Mr. Keeler's response was that someone was 15 hired: a trustee, William Sadler, Jr., who did the introductory 16 material. 17 Mr. Keeler, I submit, is not the world's finest expert on 18 copyright law, ladies and gentlemen of the jury. What the 19 application for renewal stated was that Urantia Foundation 20 claimed proprietor of the work for hire in the entire work. A 21 commissioned work is a special class of works for hire, and if 22 you find that it is, in fact, a commissioned work based upon 23 the evidence, then, of course, the copyright is valid. 24 I would also point out that Mr. Keeler was not a Urantia 25 Foundation trustee in 1983. He did not join the board, as he 01090 { 2:08:56pm} 01 testified, until 1989. I'm not exactly sure what the source of 02 his information would be other than the common knowledge that 03 Bill Sadler, Jr. did, in fact, author, as an employee of The 04 Foundation, those introductory comments in The Urantia Book. 05 Would you turn the page, Eric, please? 06 Let's talk about works for hire for a moment. There are 07 two classes of works for hire under the law. There are those 08 that fall within the class of the traditional employment 09 relationship, and then there are those commissioned works. And 10 as the Judge has already instructed you, commissioned works 11 include works where people are working as volunteers with no 12 actual expectation of payment or compensation. 13 It's going to be important to understand the difference 14 between the traditional for-hire work and the notion of 15 commissioned works, and the Judge will emphasize that in the 16 instructions by noting every time he mentions the phrase "works 17 for hire" in the instructions, he also says "or commissioned 18 works." You'll have a set of the instructions back with you 19 when you deliberate to appreciate that there is a difference 20 between the two. 21 Would you turn the page, please? Bob, can you call up 22 instruction 24, please? Can you blow it up, please? 23 This is the instruction that the Judge read to you 24 already. It says, "Urantia Foundation is an organization, but 25 is nonetheless a person that can claim the legal rights of an 01091 { 2:10:45pm} 01 author for purposes of copyright law. 02 "The copyright law allows an organization or person to 03 claim a copyright ownership of a work that was made by 04 employees or independent contractors in a for-hire 05 relationship. If the Urantia Book was made for hire or 06 commissioned for Urantia Foundation, or a predecessor or 07 assignor thereof, i.e., The Contact Commission, then the law 08 considers Urantia Foundation the copyright owner of the work." 09 Can you go to instruction 23, Bob? 10 Mr. Abowitz showed you portions of this instruction but we 11 need to balance out the portion that he showed you with the 12 rest. 13 "Under the copyright law as it applies to the work in this 14 case, the employer of a work for hire is deemed to be the 15 author of the work," just the way that Urantia Foundation 16 listed itself as author on its initial copyright registration 17 certificate and the way that it listed itself as proprietor of 18 a work for hire on its renewal application. 19 "This is true even though the employee actually created 20 the work. There is a class of works that are regarded as works 21 for hire known as commissioned works which are created or 22 prepared by one or more persons on special commission from 23 another. You should not be guided merely by traditional 24 notions of the employment relationship." 25 Can you turn the page, please? Actually, can you blow the 01092 { 2:12:32pm} 01 entire page up? 02 I've replicated the factors that are important in 03 evaluating whether or not this was, in fact, a volunteer or 04 commissioned work in this case. "One, whether the work was 05 created at the commissioning party's insistence and expense; 06 two, whether the commissioning party possessed or exercised the 07 right to direct the manner in which the work was done, though 08 actual exercise of that right is not controlling; three, 09 whether the commissioning party supplied capital for the 10 production of the work." 11 Mr. Abowitz made no reference to the fact that there was 12 over $100,000 that was contributed in order to get this project 13 into its completion, actually have The Urantia Book in the 14 marketplace for people. 15 "Four, whether the preparer was hired as an employee to do 16 the work." 17 I notice that Mr. Abowitz placed great emphasis on this 18 instruction but he did not read to you what comes immediately 19 thereafter. 20 "Works of volunteers for commissioning parties may be 21 works for hire or commissioned works where the works may fairly 22 be said to be at the insistence and expense of the 23 commissioning party or where the work is produced under the 24 commissioning party's direction, supervision or control, and 25 where the volunteer has no expectation of payment." 01093 { 2:13:54pm} 01 Let's talk about how the evidence in this case slips into 02 those factors. 03 Can you turn the page, please, Eric? 04 It's important to note that this is a balancing test that 05 the Court has given you. You are the ultimate arbiters of the 06 fact and you must determine the facts and figure out how they 07 fit into this ultimate balancing test. Each of these are 08 factors that you ought to consider in that process but none of 09 them is, in and of itself, dispositive. 10 First of all, insistence and expense. If you factor out 11 the revelatory commission above and you look at the creative 12 process that's going on in this case, the evidence firmly 13 establishes that the questions preceded each and every one of 14 these papers. In each and every one of the three stages of 15 creation, questions drove the process. 16 Can you pull up Urantia Foundation exhibit 82, please, 17 Bob? 18 THE VIDEOGRAPHER: What was the exhibit number? 19 MR. HILL: 82, Urantia Foundation exhibit 82. 20 The questions also, as Helen Carlson and Ticky Harries 21 testified, influenced alterations that were made to partial 22 papers before they were completed. Helen Carlson's testimony 23 was that she would ask a question -- she recalled asking a 24 question and then about a week later a new paper was received 25 that had the old content that had led her to ask the question, 01094 { 2:15:36pm} 01 and it had the revision that answered her question 02 particularly. 03 It is undisputed that as between the subject, The Contact 04 Commission and The Forum, The Contact Commission controlled 05 these questions. They controlled the solicitation of the 06 questions from The Forum. They selected and arranged what 07 questions they were going to ask in the sessions with the 08 subject, and they were the ones that asked the questions. 09 And it's interesting that the evidence shows that this 10 process started sometime around 1911 and ended in approximately 11 1942. 31 years this went on. No questions, no papers. 31 12 years this subject participated in this process and they're 13 asking you to draw a conclusion that the subject did not do so 14 voluntarily. He was not a volunteer. That is the conclusion 15 they draw from this evidence. Of course, we disagree. We 16 think that the evidence of 250 contact sessions occurring 17 between 1911 and 1929, as reported by Dr. Sadler in The Mind of 18 Mischief, indicates a certain amount of persistence on the part 19 of the Contact Commission. Certainly The Contact Commission 20 did not have to engage in this process. The Contact Commission 21 had numerous sessions, spent numerous amounts of time, expended 22 much energy in connection with not only these sessions but the 23 weekly Forum meetings that were going on starting in the mid 24 1920s until May 31st, 1942 as well. 25 This persistence and the -- and the fact that The Contact 01095 { 2:17:22pm} 01 Commission was in control of this question process, which seems 02 to drive the formation of these Urantia Papers, is strong 03 evidence that The Contact Commission was the insistent party as 04 between The Contact Commission, the subject and The Forum. 05 That meets the insistence prong of the analysis. 06 The expense prong is undisputed. The evidence shows that 07 beginning with Emma Christensen taking down notes with her 08 stenography equipment, The Contact Commissioners dedicated 09 equipment, time, resources and ultimately raised the money 10 necessary to get this book into the marketplace. It was 11 definitely done at the expense of the Contact Commission and 12 later The Urantia Foundation, the successor in interest to The 13 Contact Commission. 14 The next factor, of course, is the right to supervise or 15 direct the manner in which the work is done. 16 Consider the following points: One, The Contact 17 Commission supervised the subject in these sessions. That 18 evidence does not seem to be disputed. Secondly, Emma 19 Christensen took down what was said in many of these contact 20 sessions and later typed it up from her shorthand notes. These 21 papers constituted the 57 papers that formed the building 22 blocks for all of the final 196 papers that we have in The 23 Urantia Book, that Emma Christensen had control over that part 24 of the process and the evidence stands unrefuted on that point. 25 The Contact Commission had control over what questions 01096 { 2:19:00pm} 01 were asked or whether a question would be asked at all. When 02 questions were asked, of course, the subject persistently wrote 03 papers to answer those questions. And remember the 04 hypothetical I posited to Mr. McMullan on cross-examination 05 when I asked him whether or not, given the undisputed evidence 06 that there are some secondary sources that are incorporated 07 into the Urantia Book, he sees this process as The Contact 08 Commission presenting questions in these sessions with the 09 subject, and the subject then running off to the library or 10 some place in order to compile and gather the answers and bring 11 back new papers, and he said he was fine with that. I submit, 12 ladies and gentlemen of the jury, that if that's the case, the 13 subject was taking orders, the subject was under the control of 14 the Contact Commission. 15 The sessions, both with respect to The Forum and the 16 subject, were, of course, controlled by The Contact Commission, 17 and that control was exercised for a number of years. This 18 process went on for a great deal of time. 19 And the Bowman diaries that Carolyn Kendall testified 20 about showed the order of the material in the book is not the 21 same as it was in the early -- in the early stages of the 22 papers. Something changed there. And I have no doubt that if 23 the Contact Commission rearranged any of the subject matter 24 into the manner in which it currently exists in the book, they 25 did so believing that that they were under the direction of 01097 { 2:20:40pm} 01 higher authorities per their own spiritual faiths about what 02 this process was. But that is not evidence of an author in 03 this case. That is not evidence of control. We all have free 04 will. We all, to some extent, believe that we're under the 05 control of a higher power. 06 The Contact Commission was writing the copyright office in 07 1932, as I showed you again indicating that while this process 08 was going on, they believed they were in control of this 09 process. They believed they were going to be able to take 10 copyright out in whatever emerged from the process. 11 The third factor is supplying the capital for the 12 production of the work. This factor cannot be understated. We 13 look at Urantia Foundation exhibit 82, page 19, Dr. Sadler 14 writes in an article that he wrote about the Urantia Papers 15 that he never made a dime on this process. But he invested -- 16 but people invested over $100,000. $100,000 in 1950 terms. 17 We've already seen, of course, The Contact Commissioner 18 Wilfred Kellogg entered into the initial contract to have the 19 printing plates created by R. R. Donnelley & Sons. When we 20 consider that along with the time and effort expended over the 21 30-year process by The Contact Commission, and when we consider 22 the donation of the stenography commitment and the typewriting, 23 we see a lot of supplying of capital in terms of financial 24 resources, in terms of human capital, in terms of equipment 25 donated to the process. 01098 { 2:22:27pm} 01 The question then arises: Was the subject paid or was he 02 a volunteer? They're emphasizing on the fourth prong of the 03 work for hire/commissioned work test that this person wasn't 04 paid and we're, of course, pointing out that although he wasn't 05 paid, there's no evidence that they've presented that there was 06 any expectation of payment on the part of the subject and 07 that's what the instruction requires you to inquire about. The 08 subject benefited from the sessions. We saw that yesterday in 09 Michael Foundation exhibit 1 when Barbara Newsom was asked to 10 read that portion. The subject felt better after the 11 sessions. The subject was never charged for the sessions. 12 There's no evidence, although there is a claim here that 13 this started off in the doctor/patient relationship, there is 14 no evidence that he was ever charged any money or didn't 15 benefit from the fact that these sessions took place in ways 16 other than taking a copyright to the finished Urantia Papers. 17 Furthermore, the subject participated in this process for 18 a good 30 years, and there were hundreds of these sessions, as 19 the evidence shows. There's no conclusion that can be drawn 20 from that, members of the jury, other than this was a voluntary 21 process and this subject participated by his own free will. 22 The evidence does not permit the assertion that 23 Mr. McMullan made from the witness stand that this was somehow 24 the subject being manipulated against his will by Dr. Sadler. 25 30 years, hundreds of sessions, going to the home of the 01099 { 2:24:06pm} 01 subject? The evidence does not permit that conclusion. 02 What is their evidence? They're trying to argue 03 inferences about whether this was a commissioned work or not 04 from a lack of certain evidence about the subject based on 05 nothing more than Mr. McMullan's unfounded suspicions. You 06 have the testimony of Richard Keeler, Carolyn Kendall and 07 Barbara Newsom, all of whom were told by Dr. Sadler that the 08 subject was shown the papers when he was -- when he was not in 09 the sessions and he read them and he was interested in them. 10 Michael Foundation exhibit 1, on page 5, also states that very 11 proposition. 12 Furthermore, we have the evidence, although there is the 13 contention that we're hiding something. The evidence actually 14 shows that we're not hiding anything other than the things that 15 Dr. Sadler himself did not completely understand about this 16 process. But we have to decide, based upon the actual evidence 17 we have, not based upon unfounded suspicions due to a missing 18 link here or there in the evidence, especially when the 19 statement about missing links that Dr. Sadler was made had to 20 do with the psychic origin of the content of the papers, not 21 with respect to the process of creating the papers through the 22 Contact Commission and The Forum. 23 Keep in mind, of course, that the Sadler team, as 24 Mr. Abowitz referred to them, named themselves The Contact 25 Commission. And if they were not commissioning The Urantia 01100 { 2:25:46pm} 01 Book, then I'm not sure what it was that they were 02 commissioning at all in this process. The evidence compels the 03 conclusion that this was a commissioned work, and it was a 04 volunteer process, and it was long-term, and The Contact 05 Commission was in control as between The Contact Commission, 06 the subject, and The Forum. 07 And, remember, there is no evidence suggesting anything 08 other than that Dr. Sadler received these unpublished 09 manuscripts one by one, and there is no evidence entered by the 10 other side in this case to suggest that there's any conclusion 11 to be drawn from that but that the subject brought these 12 manuscripts to Dr. Sadler. 13 Would you turn the page, please, Eric? 14 When you understand that these factors compel the 15 conclusion that The Urantia Book is a result of a volunteer 16 process, a long-term process, and that it was, in fact, 17 especially commissioned by The Contact Commission, -- would you 18 turn the page again -- and, Bob, can you pull up special 19 interrogatory, page 2? 20 You're going to have, on your special -- on your verdict 21 form some special questions that you're going to be required to 22 answer. 23 Would you highlight questions one, interrogatory one? 24 The first of these questions you're going to have to 25 answer is, "Was The Urantia Book either a work for hire or a 01101 { 2:27:27pm} 01 commissioned work?" 02 The evidence compels the conclusion that the answer to 03 that question is yes, and we would ask you to check that on 04 your verdict form and on your special interrogatories. 05 When you check that, you will be finding -- can you turn 06 the page again, please, Eric? -- that there is infringement on 07 the part of Michael Foundation in publishing Jesus - A New 08 Revelation as a matter of law. But you will have to answer the 09 question number three -- would you highlight interrogatory 10 number 3, please, Bob? -- "Was Michael Foundation's and/or 11 McMullan's infringement of Urantia Foundation's copyright 12 willful?" We suggest that you have to answer yes to this 13 question based on the evidence. 14 I remind you of the e-mail that Mr. McMullan sent 15 immediately after the Maaherra decision which upheld Urantia 16 Foundation's renewal copyright was decided saying that he 17 wanted to get right back into court over this very issue. 18 Furthermore, I remind you of the letter he wrote to the 19 trustees of Urantia Foundation, which will go into evidence as 20 Michael Foundation exhibit 35, reminding you that copyright for 21 him is not the issue. The issue for him was Urantia Foundation 22 attempting to control what he felt he needed to do to advance 23 his religion. 24 Also remind you of the evidence that he had just finished 25 contributing $73,000 to Ms. Maaherra's unsuccessful challenge 01102 { 2:28:55pm} 01 to the copyright. And he would not waive the attorney/client 02 privilege. He claims that he acted in good faith based upon 03 conversations that he had with his counsel before he published 04 Jesus - A New Revelation, but he asserts attorney/client 05 privilege so that we're precluded from understanding exactly 06 what he was told, how he was told it, and what exactly it was 07 that he relied upon. 08 This was a willful act and it was undertaken with 09 knowledge of the copyright by Mr. McMullan and you must find 10 that this was willful infringement. 11 Turn the page, please, Eric. 12 The next question that you're going to have to answer -- 13 can you turn to page 2 of the verdict form, Bob? -- "Is 14 Mr. McMullan contributorily liable for infringement of 15 copyright?" Here, there is a two-prong section that the Judge 16 has instructed you to follow. And this is section number two 17 on your verdict form indicating McMullan is or is not liable 18 for contributory infringement of this copyright. 19 The first issue is: "Did he know or should he have known 20 of the infringing activity of Michael Foundation? Two, did he 21 materially contribute to the activity?" He gave over $60,000 22 to Michael Foundation to fund the Jesus - A New Revelation 23 project. And in Michael Foundation exhibit 35, he stated that 24 he was assisting with that project. Furthermore, he is in 25 control of Michael Foundation and we submit the answer 01103 { 2:30:25pm} 01 therefore is yes, he is contributorily liable. 02 Can you turn the page, please, Eric? 03 Can you turn back to the special interrogatories, page 2, 04 Bob? 05 When you find that the answer to interrogatory number 06 three is that Michael Foundation and/or McMullan infringed the 07 renewal copyright willfully, you're going to have to make a 08 determination of damages and the law entitles you to award 09 Urantia Foundation damages up to $150,000. 10 The human and financial toll of this litigation will never 11 be compensated to Urantia Foundation by the award of $150,000 12 but it is the maximum amount Urantia Foundation can ask for 13 under the law. 14 We would suggest that $150,000 is the right amount in this 15 case in order to send the right message to Mr. McMullan that 16 if, as Ms. Baney testified and as he acknowledged on cross- 17 examination, he wants to keep Urantia Foundation in the courts 18 for the rest of his life, there will be a price to be paid. 19 Turn the page, please, Eric. 20 You have to make your decision in this case by weighing 21 the evidence, and the Judge has already instructed you on the 22 preponderance of the evidence standard. 23 If we were at an Oklahoma Sooners football game, I'd be 24 telling you that what you'd be looking at is who got the ball 25 into the other side's territory. You've got to get past the 01104 { 2:31:59pm} 01 50-yard line. Did they get farther into our territory and show 02 that the renewal copyright of The Urantia Book is invalid, or 03 did Urantia Foundation get closer to their end zone in showing 04 that it has a valid copyright and, in fact, that copyright has 05 been infringed? 06 You have to weigh the evidence and consider all of the 07 testimony that you heard in this case, not only regarding the 08 origin but also regarding Mr. McMullan's state of mind. And 09 for that reason, we look forward to your verdict. 10 MR. ABOWITZ: May I proceed? 11 THE COURT: Sure. 12 MR. ABOWITZ: I was wondering whether I did anything 13 right when I heard that argument. I must have done something 14 right because he has conceded that this was not a composite 15 work. There was not word uttered by him in support of his 16 proposition that this is a composite work. So when you get 17 back to the jury room, you can check "no" to that without any 18 further consideration. 19 Let me address some of the things that counsel spoke 20 about. One of them is that Mr. McMullan has hidden behind the 21 attorney/client privilege. They have had access to the opinion 22 upon which he relied in 1994 through the discovery process of 23 this case. That was a disingenuous comment. He was not hiding 24 behind the attorney/client privilege. Let's talk about hiding 25 behind. 01105 { 2:33:57pm} 01 May I have the Forsythe testimony, please, beginning at 02 page 109? 03 "There is a statement of certain things that will never be 04 known?" 05 "Uh-huh." 06 "And a pledge of secrecy?" 07 May I have the next page, please? 08 "Uh-huh." 09 "What people do you believe had such a pledge of secrecy? 10 "The people who were in The Forum." 11 And you heard the other testimony of Mr. Keeler, and I 12 guess we can believe him now because he's president of The 13 Foundation, but The Contact Commission also took that oath of 14 secrecy. 15 Counsel said we couldn't produce any evidence about this, 16 we couldn't produce any evidence about that, we couldn't 17 produce any evidence about something else, and you shouldn't -- 18 you should hold that against us and not be concerned about a 19 few missing links. We don't know what the few missing links 20 are. We don't know what they're withholding under this oath of 21 secrecy. We did the best we could. We presented the evidence 22 to you as it was found in their documents. That's the only 23 evidence that we have. Where is the handwritten manuscript 24 which would absolutely solve a lot of these problems and answer 25 a lot of these questions? The undisputed evidence is they 01106 { 2:35:45pm} 01 destroyed it. 02 Think about it in terms of a work of art. This is a 03 monumental work. They call it a work of faith, a work of 04 spirit. Think about that. If you had a handwritten version of 05 this monumental great influential work, would you destroy it? 06 And if you would destroy it, ask yourself the question of why 07 you would destroy it. 08 Now, let me address something else. 09 May I have exhibit 20, please? Is this exhibit 8 or 10 exhibit 20? Not that one. Keep going. It's the one with the 11 dates on it. I can't read that fast. Slow down. There it is. 12 It's like we made up the completion and certification of 13 these works by 1935. This is The History of The Urantia 14 movement edited, produced, printed, authored not by 15 Mr. McMullan but by Dr. Sadler, the evidence is. "Completed 16 and certified to us in A.D. '34. The Jesus papers were not so 17 delivered, completed and certified until 1935." That's what he 18 says. He's the man that was at the heart of all this thing. 19 This is a history he wrote. Nobody at the time when he wrote 20 it said, "Dr. Sadler or Bill or William, you're mistaken. This 21 went on until 1942 with the give and take in these questions." 22 That's the best evidence that we could come up with, given this 23 cloak of secrecy, given all the other things that we have to 24 deal with here, the missing links. 25 Now, let's talk about the questions. Control of the 01107 { 2:38:25pm} 01 questions. "Mr. Abowitz is talking about revelatory 02 commissioners, unseen friends." That's the evidence that came 03 from the witness stand. I didn't make that up. That's what we 04 had to deal with, this cloak of secrecy and missing links. Who 05 had the control? 06 Let me ask you a question. I say to you: Tell me, I'm 07 interested in the 1960 presidential election, John Kennedy and 08 Richard Nixon. Tell me what effect the press had on the 09 outcome of that election. You answer the question, or you 10 choose not to answer the question. Do I have control over it 11 because I asked the question? No. Do I have control over how 12 you answer it? No. Do I have control over what you do to 13 answer it? No. Do I have control over whether you come out in 14 favor of the media effect or no media effect? No. Do I have a 15 creative process in that? No. Who does? You do. You 16 answered the question. Who answered the question in this 17 case? The patient, the subject. Who has the creative 18 process? Who controls the creative process? The questioner? 19 No. The people that answer the question? The people that do 20 the research? The people that compile the facts? The people 21 that produce the information? The people that answer the 22 question? Absolutely. 23 Now, do we know that this man was a volunteer? We don't 24 know a lot of things about him. Why don't we know about him? 25 Why didn't we produce that evidence? We don't know. We can't 01108 { 2:40:19pm} 01 get behind this cloak of secrecy. We don't know what the 02 missing links are. And they say, "Oh, well, they haven't 03 pushed the ball onto our side of the field." Yes, we have. 04 Think about it when you get back into your deliberation room, 05 all the things I said about who controlled and who supervised. 06 Now, there's one issue that was brought up about the 07 money. $100,000 necessary to produce the work. Consider 08 this: What work are we talking about? The papers were 09 produced. They said, "Well, we gave them some pencils and we 10 did some other things." That's incidental. What they're 11 talking about is the $100,000. When was the $100,000 paid? 12 Undisputedly, after the creative process in terms of the dates 13 described by Dr. Sadler after 1935. 14 Are they entitled to call this a commissioned work because 15 they put money into it to get it published after the creative 16 process? Think about it. You create a book. You don't have 17 the money to publish it. You go to the publisher. The 18 publisher says, "This is great. This will sell in commercial 19 quantities. I'll print the book. I will advance the expenses 20 to print the book." The publisher does. Does the publisher 21 have the copyright? Does the publisher have the creative 22 process? No. You have the creative process. 23 Was Mr. McMullan willful? He had this opinion. He had a 24 good-faith view that this copyright was invalid. The very fact 25 that we're here into the fifth or sixth day of trial asking you 01109 { 2:42:32pm} 01 people to determine this issue is an indication that it's a 02 good-faith attack on that copyright. Was he happy with what 03 happened in the Maaherra case? We don't know whether he was 04 happy or not. I suspect that he wasn't happy. He was of the 05 view that this copyright is not valid. 06 Ladies and gentlemen, I will submit to you that the 07 evidence is overwhelming. Did we get the ball on their field? 08 We did. If we hadn't had the cloak of secrecy, if we hadn't 09 had the original manuscript destroyed, if we hadn't had the 10 missing links, the game would be over. 11 I submit to you and request that you consider this 12 evidence. I appreciate your attention. I would ask you to go 13 back in your deliberations and check "no" to commissioned work 14 so that you will have "no" for commissioned, you will have "no" 15 for composite, you will have "no" for infringement. That's the 16 right and just result in this case. 17 Remember, I showed you exhibit 4. Counsel alluded to 18 this, "Oh, well, you know, that's our deal and we've had it for 19 all these years." The Court instructed you and I'd ask you 20 to -- and I know you will faithfully fulfill your obligations 21 as a jury. The consequences are not to be considered by you. 22 If the evidence supports no valid copyright and that that book 23 is in the public domain, so be it. And I would request that 24 you conclude that. 25 Thanks for your attention and we will await your verdict. 01110 { 2:44:30pm} 01 THE COURT: Ladies and gentlemen of the jury, upon 02 retiring to the jury room, you should first select one of your 03 number to act as your foreperson who will preside over your 04 deliberations and who will be your spokesperson here in court. 05 A verdict form and interrogatories have been prepared for your 06 convenience. You will take the verdict form and the 07 interrogatories to the jury room and when you have reached a 08 unanimous agreement as to your verdict and as to the answers to 09 the interrogatories, you will have your foreperson complete the 10 forms, date and sign them, and then return to the courtroom. 11 If during your deliberations you should desire to 12 communicate with the Court, please reduce your message or 13 question to writing, signed by the foreperson, and pass the 14 note to my bailiff who will bring it to my attention. I will 15 then respond as promptly as possible, either in writing or by 16 having you return to the courtroom so that I can address you 17 orally. 18 I caution you, however, with regard to any message or 19 question you might send, that you should never state or specify 20 your numerical division at that time. 21 Ladies and gentlemen of the jury, I'll ask the bailiff if 22 he'll please stand at this time to be sworn. 23 (BAILIFF SWORN) 24 THE COURT: Ladies and gentlemen of the jury, I'll 25 deliver a copy of my -- a set of my instructions. It has on 01111 { 2:46:20pm} 01 the top of it a set of interrogatories, the three 02 interrogatories. You may not need to answer all of them, but 03 the three interrogatories are on top, and the verdict form -- 04 the verdict forms are immediately below the interrogatories, so 05 you'll have all that in the courtroom -- or in the jury 06 deliberation room. He'll deliver them to one of you at random 07 as you go in to begin your deliberations. And then when you 08 elect a foreperson, you can turn the instructions and the 09 interrogatories and the verdict form over to that person to 10 keep and maintain until you all have had an opportunity to 11 answer them. 12 Now, I don't ordinarily send out any of the documents to 13 the jury room, the ones that have been admitted, but in the 14 event that you feel the need to examine any of them at any 15 time, again, all you have to do is notify my bailiff in writing 16 that you want some or all of the documents that have been 17 admitted into evidence and your wishes will be complied with. 18 We ordinarily will -- you want me to -- you can recess in 19 the jury deliberation room. There are restroom facilities and 20 everything available there. We'll ordinarily -- I don't want 21 to anticipate how long you'll be required to deliberate to 22 determine this but we will ordinarily recess deliberations 23 right around 5 o'clock so that you'll be able to get out. If 24 you need to recess anytime earlier than that for any reason, 25 communicate that to me and we'll consider your request at that 01112 { 2:47:57pm} 01 time. 02 I'll ask everyone to please stand and remain standing 03 until the jurors clear the courtroom. If you'll follow my 04 bailiff, ladies and gentlemen of the jury, we'll await your 05 verdict. Go right through here. There's a bit of an obstacle 06 course but this is the way. 07 (THE JURY WAS EXCUSED FROM THE COURTROOM, AFTER WHICH THE 08 FOLLOWING PROCEEDINGS WERE HAD IN OPEN COURT:) 09 THE COURT: Do the parties feel the need to make 10 additional record at this time? 11 All right. If you decide to leave the courtroom, please 12 keep Bev aware of where you can be reached in the event we get 13 a communication from the jury and we'll contact you if we do 14 that. 15 All right. Court will be in recess. 16 (RECESS) 17 (PLEASE REFER TO VOLUME VII) 18 19