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The Court of Appeal in The Hague last week rejected all of the Church of Scientology's claims its action against the Dutch ISP Xs4all, writer Karin Spaink and ten other internet providers for publishing copyrighted material on the web.

As a result, Spaink's website which Scientologists had sought to remove, is entirely legal.

The court also overturned two lower court rulings, one of which stated that linking to material that infringed a copyright was itself actionable. The victory for Xs4all represents a significant narrowing in the ability of copyright claimants to harass ISPs, observers believe.

The case started about nine years ago, when former Scientologist Steven Fishman was brought to court because he had committed several crimes in order to get the money to pay for his courses. When Fishman in Time magazine blamed the Church of Scientology for his crimes, the sect sued him for slander.

Fishman used several secret Scientology documents to support claims that he had been brainwashed by the Church. As a result, these documents became public material. The Fishman Affidavit has been travelling on the Net ever since. Karin Spaink was one of many to publish these secret scriptures as early as 1995.

In September 1995 a bailiff raided the Amsterdam premises of provider Xs4all to seize materials of subscribers the Church of Scientology claimed to be in violation of its copyright. The sect also initiated exhaustive judicial proceedings, but each time the court decided in favor of Spaink.

However, the decision of the Amsterdam District Court of June 1999 included a separate declaratory judgment stating that providers must take action if they are made aware of material on their servers that infringes upon a copyright if "the correctness of the notification of this fact cannot be reasonably doubted".

This judgment was reason for Xs4all to initiate appeal proceedings of its own. In a press release Xs4all says that "Unless the criteria for removing information from a site are clearly delineated, commercial interests of providers may all too readily prevail over the protection of freedom of opinion".

The decision of June 1999 also made reference to hyperlinks to copyrighted material. If a provider is aware of this, it must also take action against these hyperlinks. But Xs4all believed that the court went too far with this. After all, a hyperlink is merely a road marker on the Internet, and can never be unlawful. The Appellate Court has now set aside this judgment of the District Court in Amsterdam. ®

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