Church can't distribute copyrighted book, federal appeals panel rules

The Freedom Forum Online, September 27, 2000
By David Hudson

The Philadelphia Church of God does not have a First Amendment right to copy and distribute a book written by a deceased religious leader without obtaining the copyright holder's permission, a divided federal appeals court panel has ruled.

In 1934, Herbert Armstrong founded the Radio Church of God, which was later renamed the Worldwide Church of God. In 1985, Armstrong completed a 380-page book, Mystery of the Ages, when he was 92 years old.

Armstrong, who died in 1986, bequeathed the book's copyright to the WCG, which distributed over nine million free copies of the work. However, in 1987, leaders of the religious group decided to stop distributing the book, believing it contained outdated and racist views.

In 1989, two former WCG ministers founded a new religious group called the Philadelphia Church of God. The ministers split from the WCG and founded the new church because they believed people should strictly adhere to Armstrong's teachings.

Until 1997, the PCG distributed thousands of existing copies of Armstrong's book. Then, the group started copying the book for its own use without seeking permission from the WCG.

The WCG sued in federal court later that year, claiming copyright violations. The PCG countered that its reproduction and distribution of Armstrong's book was protected under the copyright defense of fair use, the free-exercise clause of the First Amendment and the Religious Freedom Restoration Act.

After a federal district court ruled that the PCG's use of the book was fair use, the WCG appealed to the 9th U.S. Circuit Court of Appeals.

On Sept. 18, a three-judge panel of the 9th Circuit ruled 2-1 in favor of the WCG in Worldwide Church of God v. Philadelphia Church of God.

The panel majority determined that the WCG's copyright protections were "not affected by the religious nature of its activity."

The PCG argued that it was entitled to a fair-use defense. One section of the federal Copyright Act provides that "the fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching ... scholarship or research, is not an infringement of copyright."

However, the panel majority determined that the PCG's wholesale reproduction and distribution of the WCG's copyrighted work did not constitute fair use. "Religious, educational and other public interest institutions would suffer if their publications invested with an institution's reputation and goodwill could be freely appropriated by anyone," the majority wrote.

The majority cited federal case law stating that "we must be careful not to deprive religious organizations of all recourse to the protections of civil law that are available to others."

The majority also rejected the PCG's defense under the Religious Freedom Restoration Act, a federal law passed in 1993 that provides that "government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability" without showing that the regulation passes the highest degree of judicial review, known as strict scrutiny.

Although the Supreme Court struck down RFRA as applied to state and local laws in the 1997 decision City of Boerne v. Flores, most federal courts have determined that RFRA is still valid as applied to federal laws. The 9th Circuit panel rejected the PCG's RFRA defense, saying the church "failed to demonstrate that the copyright laws subject it to a substantial burden in the exercise of its religion."

"Having to ask for permission and presumably to pay for the right to use an owner's copyrighted work may be an inconvenience, and perhaps costly, but it cannot be assumed to be as a matter of law a substantial burden on the exercise of religion," the majority wrote.

Judge Melvin Brunetti dissented, finding that the PCG was protected by the fair-use doctrine. "In this lawsuit, WCG appears less interested in protecting its rights to exploit MOA (Mystery of the Ages) than in suppressing Armstrong's ideas which now run counter to church doctrine." Allan Browne, attorney for WCG, said "this is a very important decision in the sense that it is going to prevent piracy in all intellectual property cases."

"With respect to the RFRA argument, the court majority was totally correct because PCG never asked for a license but just appropriated the book in a blatant and inappropriate manner," he said. "There are many copies of this book available in circulation; there is no substantial burden." The lead attorney for the PCG was in depositions and could not be reached for comment.

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