Neither Tom Cruise nor the Church of Scientology is a stranger to media attention, though lately that attention has taken a very different tone. You've no doubt read or seen something about Tom Cruise's controversial video, which seems to have cropped up across the media spectrum. You've also likely seen the Church of Scientology's (Scientology) cease and desist letter demanding its removal, and the subsequent online declaration of war by a group calling itself “Anonymous,” which promises to “systematically dismantle” the Church. The resulting legal and public relations battle has given bloggers and lawyers alike no shortage of entertainment.Screen capture of Anonymous

Scientology is a “religion” with a controversial past. Born of the writings of science fiction author L. Ron Hubbard in 1952, the Church is headquartered in Clearwater, Florida. Although Scientology enjoys tax-exempt status in the United States, other countries have not been as accommodating. As explained in St. Petersburg Times: “Scientology has been shut down in Greece, indicted in Spain, restricted in Russia, rebuffed by Sweden”s highest court, expelled from college campuses in Norway, convicted of crimes in Canada and denied status as a charitable organization or a religion in most European countries.”

In contrast, Anonymous is a bit harder to pin down. According to them, you are Anonymous. I am. Everyone is. A recent Fox News report characterized Anonymous as an organized group of cyber-terrorists, who counted exploding vans among their methods. While the exploding vans were an apparent result of bad reporting, their threats of cyber-terrorism don't seem to be idle. Incensed by what they consider rampant internet censorship by Scientology and its supporters, Anonymous unveiled “Project Chanology” on January 16th, prompted to act by Scientology's copyright claim against YouTube for hosting material from the Tom Cruise video. This “game of mental warfare” is a result of what it sees as Scientology's misuse of copyright and trademark law, as well as attempts to subvert free speech by silencing those who speak out against them.

The conflict began with a video posted on the web of Tom Cruise singing the praises of Scientology. The video included lines such as, “We are the way to happiness…we are the authorities on the mind.” Predictably, Scientology immediately sent their legal team after any site hosting that video. Due in part to the litigious nature of Scientology, and what they considered an attack on free speech and free expression, a group calling itself “Anonymous” released their “Message to Scientology.” The message came in the form of a YouTube video, featuring an eerie computerized voice making its point against a backdrop of clouds amidst a darkening sky. Again, this “message” was nothing short of a declaration of war, promising to “expel [Scientology] from the internet and systematically dismantle Scientology in its present form.” The first attacks were against Church information centers, knocking out and defacing a number of Scientology-friendly websites and harassing them via phone and fax. Shortly thereafter, Anonymous released a video titled “Call to Action.” This video called for mass protests in front of all Scientology locations on February 10th.

Tom Cruise's Video Plight

The video itself came from a 2004 Scientology production, which, according to the cease and desist letter sent to Gawker (an online gossip casino site), is copyrighted work stolen from one of their churches. The Scientologists claim that although the video can be seen in any of its Churches, the version available online is a pirated and edited version of a three-hour ceremony awarding Tom Cruise the Medal of Valour. In the video, Mr. Cruise makes a number of claims glorifying Scientology, including the oft quoted: “When you”re a Scientologist, and you drive by an accident, you know you have to do something about it, because you know you”re the only one who can really help”–apparently, EMTs and fire personnel get the day off when Mr. Cruise is on the road.

Unsurprisingly, both the video and the Church”s reaction raise some interesting legal questions. There are Scientology”s copyright claims, as well as Gawker”s fair use claims in response. Of course, this discussion would be incomplete without mention of the potential criminal actions of Anonymous.

Scientology's Copyright Claims

Scientology has always been fanatical about maintaining control over the information available about their religion, their members, and their religious practices. They have done so primarily through filing lawsuits whenever negative information is released. Of particular interest is a 1995 suit filed against The Washington Post in response to an article revealing Scientology “secrets,” that ultimately ended in the Post's favor. They later tried again, filing a $400 million lawsuit against Time magazine over a 1991 cover story entitled “The Cult of Greed,” exposing a number of facts that Scientology wished to keep confidential. Time Warner spent five years and nearly $7 million before finally declaring victory.

The video itself is copyrighted material, and includes a number of copyrighted marks of Scientology. Copyright is a simple concept enacted nearly worldwide to give the creator of a work exclusive right to it. Copyright infringement is any unauthorized reproduction of material covered by a copyright, in violation of the owner's rights. Although the Church of Scientology International is responsible for general ecclesiastical management, they leave their trademark and copyright issues to a sister non-profit, the Religious Technology Center (RTC). The RTC is aggressive in its registration of all Scientology materials, publications, booklets, and iconography–they even trademarked the word “Scientology.”

Pointing to BMG Music v. Gonzalez (and BMG's reference to In Re Aimster Copyright Litigation), Scientology attorneys argue that in posting and hosting the video, YouTube, Gawker, and others are “direct” copyright infringers. In response, Gawker claims their posting falls under “fair use” in the course of news reporting, which would negate Scientology's copyright infringement claims. A fair use analysis considers four factors:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Most importantly, Gawker can say that the video is posted for the purpose of its newsworthiness, which is a valid, non-commercial use. Also helpful is the fact that it is only an excerpt of a three-hour production, and given it was never for sale, the impact on market value seems irrelevant. Since the video was admittedly produced for marketing purposes (and one could argue that any publicity is good publicity), Gawker appears to have a pretty solid argument and should be in the clear even if Scientology pushed the last factor. Regardless, knowing Scientology's aggressive strategy, Gawker has a difficult fight ahead.

Anonymous' Actions

Through a number of coordinated DDoS (distributed denial-of-service) attacks on January 18th, and sporadically since, a number of Scientology-affiliated websites were rendered unavailable. Anonymous also claims to be engaging in both prank phone calls and black-faxing, which involves sending endless loops of completely black faxes to use up the targeted machine's ink. The DDoS attacks are themselves illegal, though difficult to prosecute–their very nature makes it time-consuming and costly to locate the culprit. Should an Anonymous member lose their anonymity, however, they would be subject to the Computer Fraud and Abuse Act (CFAA), which makes it a crime to send a transmission with the intent to damage a computer (or network), or to prevent the use of a computer (or network).

Furthermore, the USA PATRIOT Act amended the CFAA, and increased the penalties associated with computer crimes. Currently, a first-time offender can receive up to 10 years imprisonment, and 20 years for a second. The Act goes on to state that the attackers need only intend to cause damage generally, and that in determining damages, time and money spent investigating the crime can be taken into account.

Interestingly, Chez Pazienza of the Huffington Post penned an article as to exactly why Scientology can't win this battle, noting the challenges in responding to the threat that Anonymous represents. Scientology is in the difficult position of being unable to ignore Anonymous, given the early successes they've already enjoyed. But if Scientology takes the steps to recognize the threat Anonymous poses, they risk empowering the campaign as a result.

What does the future hold?

The reality is that if Scientology knew the identity of the offending Anonymous members they would already be suing them. A Scientology affiliate, also a victim of DDoS attacks, issued a $5,000 reward for information leading to the identification of Anonymous members involved in the threats and attacks against the Church. The most recent video released by Anonymous is titled “Call to Action.” It warned of international protests outside Scientology centers on February 10th, and featured Anonymous” now characteristic time-lapse photography and creepy computerized voice. In U.S. v. Grace, the Supreme Court held that “there is no doubt that as a general matter peaceful picketing [is] expressive activity involving speech” protected by the First Amendment.” So long as these planned protest activities remain peaceful, Anonymous should have few legal issues.

Anonymous' activites have received significant media attention, with outlets such as CNet”s Buzz Report going so far as to side with the hackers. Despite the support, Scientology will not simply give up. If Anonymous is as determined as they claim, neither will they. Should Scientology attempt to bring Gawker to trial, we can expect the legal battle to be drawn out but ultimately unsuccessful. Meanwhile, the possible repercussions from Anonymous” actions are setting their own precedents–the digital vigilantism nearly mirrors the legal overreach of Scientology. Assuming the hackers never cross the line into actual terrorism, as Chez Pazienza put it: it”s tough not to enjoy this a little.

Charles Bradlaugh said it best:“Without free speech no search for truth is possible; without free speech, no discovery of truth is useful.“