I. INTRODUCTION AND STATEMENT OF COUNSEL

II. THE GRANTING OF SUMMARY JUDGMENT IN FAVOR OF THE NON-MOVING PARTY WAS NOT APPROPRIATE

2 A. An Appellate Court Should not Grant Summary Judgment for a Non-Movant
2 B. Maaherra was not Afforded a Full and Fair Opportunity to Ventilate the Issues
2 C. There are Material Factual Issues in Dispute

III. CONCLUSION

Appellee, Kristen Maaherra ("Maaherra"), hereby petitions the Court for a rehearing.

This Court's decision resolved many of the legal issues raised by the parties in their briefs. The Court also granted summary judgment for the Foundation, although the Foundation never filed a cross-motion for summary judgment and never argued in its briefs that the facts of the case were undisputed. In granting summary judgment, the Court overlooked that many of the "facts" on which the Court's conclusion was based are contested. There are many disputed material facts which create a genuine issue as to the nature and extent of the contact commission's role in the creation and publication of The Urantia Book. The contentions of the Foundation regarding the development of The Urantia Book were not agreed to by Maaherra, either before the district court or on appeal.

The record developed before the district court contains substantial evidence that the contact commission engaged in only the most ministerial of functions and did not select and arrange revelations to be included in the Book. Further, now that a different legal theory from that underlying the district court's summary judgment has been applied, there is additional evidence to be put forward before the district court. Because no cross-motion for summary judgment was ever filed, and the Urantia Foundation never argued to the district court or in its appeal brief that it possessed a copyright by virtue of its selection and arrangement of revelations, Maaherra should be accorded an opportunity to contest this theory.

Accordingly, this case should be remanded to the district court for further proceedings consistent with this court's decision, including a factual determination of the actual role of the contact commission in preparing the Book for publication and in transferring a purported copyright interest in the Book, and legal determinations in the first instance by the district court of whether that activity was sufficient to give the contact commission a copyrightable compilation under Feist Publications, Inc. v. Rural Telephone Service Company, 499 U.S. 340 (1991), and whether the compilation also qualifies as a composite work.

A. An Appellate Court Should not Grant Summary Judgment for a Non-Movant

The Court reversed the grant of summary judgment in favor of Maaherra and granted summary judgment to the non-moving party. Such action is generally inappropriate on appeal. 10A C. Wright, A. Miller and M. Kane, Federal Practice and Procedure 2720, at 35 (2d ed. 1983). Where an appellate court determines that the trial court's entry of summary judgment was in error,

"it should reverse and remand the case for the trial court to make further rulings on the basis of the reviewing court's opinion. If on remand the lower court decides that summary judgment would be proper for the party who opposed the original summary judgment motion and the movant has had an opportunity to contest this finding, judgment under Rule 56 may be entered."

Id. See also Fountain v. Filson, 336 U.S. 681, 683 (1949) (non-movant must be given an opportunity to present a defense before the trial court and dispute facts material to the claim); Cf. Buckingham v. U.S., 998 F.2d 735, 742 (9th Cir. 1993). Maaherra should have the opportunity to contest the Foundation's entitlement to summary judgment.

B. Maaherra was not Afforded a Full and Fair Opportunity to Ventilate the Issues

The Court must exercise "great care" in order "to assure that the original movant has had an adequate opportunity to show that there is a genuine issue and that his opponent is not entitled to judgment as a matter of law. Thus an appellate court should not reverse a summary judgment and order judgment for the non-moving party on the basis of an issue that the movant had no opportunity to meet in the district court." 10

A Wright, Miller & Kane, supra, 2720 at 34. As this Court has held, even at the district court level, summary judgment must not be granted to a non-movant unless the moving party has had an opportunity to "ventilate the issues." Cool Fuel, Inc. v. Connett, 685 F.2d 309, 312 (9th Cir. 1982). Maaherra has been denied such an opportunity in this case.

The Court has held that a copyright in a compilation of revelations (as opposed to the underlying revelations themselves) could be claimed by humans who selected and arranged them in an original manner. It is Maaherra's position that the contact commission neither selected the revelations that appear in the Urantia Papers, nor arranged them in the order in which they appear. Rather, the group's role involved nothing more than reading the papers and the ministerial acts of preparing the completed papers for printing.

Maaherra's contentions were clearly stated before the district court. She did not agree with the Foundation's statement of facts about the "questions" supposedly submitted to the spiritual beings, but was willing to concede certain facts solely for purposes of her motion. Maaherra's brief stated:

"Maaherra does not dispute that members of the groups referred to as the contact commission and forum read and studied the Urantia papers shortly after the Urantia papers were received on this planet from spiritual and celestial beings. For purposes of this Motion, Maaherra accepts the Foundation's contention that questions were provided by members of the contact commission and forum, that the subject matter of portions of the Urantia papers was suggested in part by these questions, and that the questions were a vital part of the process by which the Urantia papers were delivered." Memorandum in Support of Motion for Partial Summary Judgment, Clerk's Record No. 204, at p. 7 (emphasis added), attached at A-2.

[Footnote 1: References to the Excerpts of Record are denoted by (R- ); references to the Addendum to this Petition are denoted by (A- ). End of Footnote 1]. Maaherra never conceded these matters for any purpose beyond her own motion. See 10A Wright, Miller & Kane, supra, 2720, at 20-22; 11 James W. Moore, Moore's Federal Practice 56.10[6], at 56-77 (3d ed. 1997).

In this appeal, the Foundation disagreed with the district court's holdings on several legal issues. However, each of the Foundation's grounds for appeal was based on the claim that there were sufficient unresolved factual disputes so as to require a trial. The Foundation never suggested in either its opening brief or reply brief on appeal that it was entitled to summary judgment in its favor. Nor did the Foundation argue that the copyright was valid on the basis of its predecessor having selected and arranged public domain religious revelations.

[Footnote 2: The Foundation claimed that its predecessor's submission of questions was a basis for sustaining the copyright on the ground that this act was sufficient to have made the book a work for hire--an argument rejected by this Court. Opinion at 6759.].

Thus, Maaherra did not have an adequate opportunity to point out the factual questions and demonstrate why summary judgment should not be granted for the Foundation.

By concluding that the contact commission materially contributed to the structure of the Papers and the arrangement and order of the Papers, this Court has made a factual finding that is contrary both to Maaherra's factual contentions

[Footnote 3: In reaching this conclusion the court appears to have accepted as true the Foundation's assertions as to the origin of the Book, notwithstanding Maaherra's objections to the "evidence" cited by the Foundation. See Appellee's Brief at 13, and Brief of Fifth Epochal Fellowship, Inc. as Amicus Curiae. The latter brief, which was not referenced in this Court's decision, points out in detail the lack of any sound evidentiary basis for the Foundation's story as to the creation of The Urantia Book. These evidentiary issues were raised before the district court, but the court had no occasion to resolve them since these facts were not material to the court's rationale expressed in its opinion. in this case and her religious belief. Maaherra should be accorded an opportunity to address these factual contentions. See Fountain v. Filson, supra, 336 U.S. at 683. See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); 11 J. Moore, supra, 56.11[5][a] at 56-105.

[Footnote 4: Maaherra did not describe herself as an "avid reader" of the Book as attributed to her in the decision. She considers herself to be a Urantian whose religion is founded on the fundamental belief that The Urantia Book is a purely divine work, without any dilution or contamination by any form of human contribution. (R-630, 668-670).]

C. There are Material Factual Issues in Dispute

Maaherra was denied the opportunity to demonstrate that there are material factual issues in dispute that preclude summary judgment for the Foundation. If permitted to "ventilate the issues," Maaherra is prepared to set forth substantial evidence to challenge the Foundation's contentions regarding the role of the contact commission in the publication of The Urantia Book. At this juncture, this evidence must be accepted as true, and all reasonable inferences are to be drawn in Maaherra's favor. Anderson, supra, 477 U.S. at 255. This evidence clearly establishes a factual dispute which precludes the grant of summary judgment to the Foundation.

Although she conceded certain facts for the purpose of her motion, Maaherra disputes the Foundation's statement of facts about the existence and effect of "questions" allegedly submitted to spiritual beings. Indeed, evidence already of record contradicts the Foundation's story about the papers resulting directly from questions. The "history" attributed to Dr. Sadler states that "the Contact Commissioners had no editorial authority. Our job was limited to `spelling, capitalization, and punctuation.'" (R-314).

[Footnote 5: Maaherra had no occasion to point out these issues or introduce contradictory evidence because her motion was not dependant on these facts, and there was no cross-motion pending. ] There is also much additional probative evidence developed before the district court, but not included in the excerpts of record. For example, discussing the forum group, the Foundation's President wrote

"The important thing is that these people did not write The Urantia Book. It is entirely revelatory. The Forum members merely studied the Urantia Papers prior to initial publication in 1955."

(Mundelius Dep. Ex. 20, A-12). One of the purported contact commissioners confirmed that group's limited role, stating that "[o]ur only jurisdiction had to do with typing, proof-reading and publication." (A-16). None of these ministerial tasks would have affected the structure of The Urantia Book.

There is evidence that the arrangement of the revelations in the Book was not done by the contact commission. The Book itself, which both parties acknowledge as the most authoritative source of information on its creation, states that the papers were "sponsored, formulated, and put into English by spiritual beings. . . ." (R-443 (emphasis added)).

[Footnote 6: The Book does describe the participation of one particular human individual in its creation, but the Foundation is not claiming a copyright through this person, who was not a member of the Contact Commission. On remand, this person's contribution must also be examined.]. The Foundation's president also admitted that The Urantia Book was not "arranged and assembled" by the Foundation or its predecessor, but appears as it was received. (A-18). Another officer wrote that the "sequence of studies in their present arrangement" was not made by the Foundation or contact commission and that they merely "reproduced" the Book and were not "engaged in its original compilation." (A-17, 20.)

There is also evidence that the contact commission made no selection as to what would be included in the Book. As the Foundation wrote in response to an inquiry on the subject, "[t]he papers have not been edited by human authors and all the Papers that were authored by the Revelatory Commission are included in the Book." (Forsythe Dep. Ex. 12, attached at A-7 (emphasis added)). If all of the revelations were used, there was no selection. See Feist Publications, Inc., supra. As one of the purported contact commissioners explained while serving as a Trustee of the Foundation, "I can categorically assure you that no humans decided the content of The Urantia Book." (Forsythe Dep. Ex. 8, A-5).

An effect of the court's ruling is to "humanize" the papers in contravention of the Maaherra's (and other Urantian's) religious beliefs that the entirety of the Book, including its arrangement, is revelatory in nature and was not created (or changed) by the humans who received the text. See n. 4, supra. Nor does the Foundation apparently desire this result. As its president wrote, "[i]f the Urantia teachings are of superhuman authorship and part of the divine plan for upstepping our planetary religious thought, then it would be presumptuous for mere mortals to affect any changes." (Mundelius Dep. Ex. 8, A-9). Another Foundation officer put it more directly, admitting that "[n]o human being had any part in authorship itself." (Mundelius Dep. Ex. 27, A-14). See also R-306, ("The Celestial Revelators do not want any human being--any human name--ever to be associated with The Urantia Book . . . the Book [was to be] wholly free from all mortal connections.").

This Court's decision was predicated on the assumption that the contact commission contributed the structure, selection and arrangement of the revelations. Opinion at 6755. When all inferences from the evidence are drawn in Maaherra's favor, it is clear that the Foundation and its predecessor were merely recipients of a tangible literary work and did not make the significant contribution this Court had assumed. Therefore, Maaherra has met her burden of showing the existence of a genuine issue of material fact by presenting significant probative evidence to refute the Foundation's claim. See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

The question of whether the structure of the Book satisfied the definition of a "composite work" is also unresolved. As noted in this Court's decision, "the district court assumed that it did" constitute a composite work. Opinion at 6759. The district court's decision focused on the Foundation's "proprietorship" of the work, and its holding on this ground was reversed. However, the underlying question of whether the Book structurally qualifies as a composite work can only be resolved after the facts regarding the Book's creation have been fully ventilated. Not every compilation also qualifies as a composite work. See 1 M. Nimmer and D. Nimmer, Nimmer on Copyright 3.02, at 3-6, 3-7 (1996).

Upon remand, the district court should weigh the evidence of both parties and determine whether the proven contribution of the contact commission entitles the Foundation to claim a copyright in The Urantia Book, and if so, the scope of the copyright.

[Footnote 7: While the standard of copyrightability set forth in Feist is low, it is not without meaning. Since Feist was decided, there have been a number of cases in which courts have found that literary works failed to meet the test. See, e.g., Mid America Title Co. v. Kirk, 59 F.3d 719 (7th Cir. 1995), cert. denied, __ U.S. __, 116 S.Ct. 520, 133 L.Ed.2d 428 (1996); Bellsouth Advertising v. Donnelley Information Publishing, 999 F.2d 1436 (11th Cir. 1993), cert denied, 510 U.S. 1101 (1994); Victor Lalli Enterprises Inc. v. Big Red Apple Inc., 936 F.2d 671 (2d Cir. 1991); Sinai v. California Bureau of Automotive Repair, 25 USPQ2d 1809 (N.D. Cal. 1992); Micro House International Inc. v. Octagon Micro Devices Inc., 23 USPQ2d 1400 (M.D. Fla. 1992).]

The factual determinations made by the court are largely contained in the second paragraph on page 6751 of the opinion (third and fourth sentences), the last paragraph beginning on page 6754, and the first full paragraph on page 6756. Maaherra submits that it is appropriate for the court to delete these portions of the decision (and the ultimate conclusion) and remand the case to the district court for further proceedings in accordance with the Court's opinion.

For the foregoing reasons, this Petition for Rehearing should be granted because the Court overlooked the fact that there were unresolved factual issues which preclude the grant of summary judgment. The case should be remanded to the district court for further proceedings consistent with the legal holdings in the Court's decision.

Respectfully submitted,

(Attorneys for Defendant-Appellee Kristen Maaherra)