The letter we received on 9 June from Nancy Shaeffer provides the following summary of the Foundation’s position:

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         Copyright:

                          1.  Display of translations and sponsorship of competing translations.

                          2.  Pop-up commentary and other Fellowship changes to the 1955 First Printing.

         Trademark:

                          3.  Use of Urantia Foundation trademarks, including use in domain names, real names, and metatags.

4.    The name "The Urantia Book Fellowship."

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Before proceeding further, it is interesting to note that the style tag on this summary text in Nancy’s original file in MSWord is in Finnish. Finnish style tags also appear in the first paragraph of “Conclusion” and in the close “Very truly yours.” The rest of the text is alternately tagged “normal” or “body text indent” (even if not indented) suggesting it was edited on at least two different MSWord English language installations and at least one of the operators was inattentive to details of proper word processor use.

We need to consider two areas—the actual legal position and the position adopted by the General Council in Dallas at the February meeting. It is my understanding that, in February, the Council did not adopt a formal resolution, but seemed to support of the following positions:

·         The Council is not willing to comply with the Foundation’s demands for removal of translations from the Fellowship website and is prepared to risk litigation, at least in its initial stages, rather than capitulate to Foundation attempts to restructure the license under which this material is presented.

·         The Council is not willing to abandon use of the name, “The Urantia Book Fellowship,” and views this matter in the same light as removal of the translations from the website.

It is possible that my recollection of these matters is incomplete or incorrect. We should pool our notes on and memories of this discussion to try to pin down what the Council was thinking.

I generally tend towards the position that the Council should take a position and stick with it. Of course, if these matters were not established as formal resolutions (does anyone know?) they are subject to being ignored, rather than being formally revised at a future meeting.

In reflecting on this situation, I think it is possible the Fellowship is making a mistake by not publicizing its willingness to defend a specific position and by not sticking with its decisions. While keeping an adversary ignorant of your intentions can be an advantageous position if the adversary is somewhat timid and uncertain of how far to push, it is actually detrimental to the goal of controlling the behavior of an adversary irrationally determined to seize your property by any possible means, as long as the cost is not too high. Unless this latter adversary understands the certainty of a very strong defensive response, they are likely to engage in fantastic exploits that have no hope of success, yet lead directly to unnecessary and wasteful battles.

In any case, it is clear that the Council positions, if I have recalled them correctly and if they are subsequently upheld, preclude settlement of the Foundation’s complaints #1 and #4. It is not clear to me that the Council positions were sufficiently well-defined to provide much guidance on items #2 and #3.

Before going further in this direction, let’s now consider the actual legal position, insofar as it is understood in the absence of actual legal advice:

1.        On this point the Foundation seeks two things—linking of all presented translations to the Foundation website (a) and removal of all competing translations (b).

a.       Linking of translations to the Foundation website is not a requirement of our existing license with the Foundation. In addition, the Foundation has shown itself to be technically incapable of developing translations as a genuinely useful web asset. Finally, there are technical reasons this is not practical, including the very limited bandwidth available from the Foundation’s site.

b.       The “competing translations” fall into two categories—new translations in languages where the Foundation already publishes translations (i) and translations in languages where the Foundation does not currently have translations (ii).

                                                               i.      Providing a forum for comparing translations and criticizing official and unofficial translations is an important service of the Fellowship to the international community of scholars. The size and nature of the Book, as well as the use being made of the translations and our present arrangement that identifies and registers those who access this material provides a strong fair use defense against claims of infringement. I do not see how we can claim these activities are covered by the license, however.

                                                              ii.      The arguments for providing a forum for development of new, partial translations into languages where official translations do not exist are similar to (i) above. These productions are even more defensible as fair use and clearly do not compete in any way with publications of the Foundation. To the extent that less than 25,000 words from the Book are included in any single work, these translations may be considered to be authorized by the Foundation under its own policies.

                                                            iii.      A related issue to (ii) is the Foundation’s fear that the Fellowship, by sponsoring private, independent translation efforts, is unethically undermining the Foundation’s own efforts to assemble and control translation teams. There is no directly copyright issue here, although the Foundation will claim this behavior is not consistent with reasonable expectations of a licensee. On the other hand, the license is silent on such matters, and this is a projection of the Foundation’s fears into the situation.

2.        This group of complaints appears to be frivolous. I do not believe any court would agree with the Foundation that the popup items and paragraph numbers in the Fellowship presentation of the English text are in any way a violation of the license. The mere fact that this is being brought up by them indicates that their goal is to achieve a bizarre doctrinal religious objective by force of law. I think they will be laughed out of court.

3.        There are three issues mixed together here—domain names (a), real names (b), and metatags (c).

a.       It seems clear to me that the Fellowship has registered certain domain names that constitute technical infringements of the Foundation’s trademark “URANTIA” (i) and others that do not (ii).

                                                               i.      I would, personally, put www.urantialink.org, www.urantianet.org, www.urantiaweb.org in the infringing category. Perhaps it would be appropriate to share David’s thinking on these matters with the rest of the EC.

                                                              ii.      The other three domain names in question are www.urantiabook.org, www.librourantia.org, www.librourantia.cl,. It seems clear to me that the claim of infringement here must be based on the name of the Book and not the word “URANTIA”. Such a claim would seem to have little merit. Of course, a court might see this differently. I note that these names are actually in active use by the Fellowship, especially www.urantiabook.org.

b.       The Real Names the Fellowship owns are “Urantia”, “Urantia Book”, and “Libro de Urantia”. Urantia Foundation has failed to register a timely complaint about these names, and, in my opinion, only “Urantia” would seem to constitute a possible case of trademark infringement. David Kantor informs me that Real Names no longer permits registration of these types of terms, so that there is no way we could transfer their ownership to the Foundation, even if we wished to. We could, however, abandon them, which would cause them to become indiscriminate search terms leading to all sites claiming Urantia associations.

c.       It seems the Foundation has no actual understanding or grasp of the metatagging issue. They make reference to Brookfield Communications v. West Coast Entertainment, a case I have not sought to review. It is possible that this case is irrelevant to the issue with the Foundation or that the court ruled in ignorance of the technical purpose of metatagging. I do not believe this to be a cogent objection to our webpage, and other statements in their complaint indicate that they have doubts about it also. The implications of dropping the specific metatags “Urantia” “Foundation” “International” and “Association” would need to be examined from a technical viewpoint, but I think this position was written by someone who just “didn’t get it”.

4.        I personally think this is the ONLY real issue here for the Foundation. They said (verbally in our meeting) that they have decided to seek a Federal trademark registration for “The Urantia Book”. They need the Fellowship’s active cooperation to get this to happen. They have failed to object to our use of “The Urantia Book Fellowship” for some two years, thereby creating the presumption that it was unobjectionable to them. I believe it is too late for them to retrieve this situation in their favor without our active cooperation. It is, therefore, possible that, if we supported their registration rather than opposing it, they could be made to settle all the other classes of objections permanently and in perpetuity. Of course, I may be overestimating the importance they attach to this.

Based on this analysis, I believe the Foundation’s legal case would be extremely weak. There are some small areas, primarily the domain names, in which our case might be weak. If this is going to court, we should retain these as “bargaining chips.” In addition, if this goes to court, we might consider retracting some of the more absurd concessions that we included in our earlier response.

In any case, if this should go to court, the Foundation would probably try to avoid having the details of these discussions admitted into evidence. I believe we could turn this to our advantage because the nature of so many of their complaints demonstrates their dogmatic rather than legal basis and their desire for maintaining secrecy would raise the suspicions of a rational judge. Of course, not all judges are rational, as we know from the 9^th circuit opinion in Foundation v. Maaherra.

Now, what can/should we do about this?

A.      There is no point in the Executive Committee trying to make decisions at this time. We should focus on how to move this forward to the Council for determinative action.

B.       We need to figure out some way to handle TDA involvement.

C.       It is possible that the Executive Committee should retain legal counsel prior to the Council meeting.

D.      We need to verify the website status with respect to minor issues raised in the Foundation response.

E.       At some point we must make clear to Nancy, et al, that we will not discuss these four issues with their group (assuming the Council adheres to this view). This must be communicated clearly to the Trustees, along with a reiterated request for an exclusive meeting with them. We should think through the parameters of this desired meeting more clearly before repeating the request. This should be prepared before the Council, but not delivered until after review with the Council.

F.       More and more??????