Raising the Ruins (34 page)

Precisely
. They had no interest in exploiting the
Mystery of the Ages
“market.” But now that they had convinced the Ninth Circuit to reverse, they were keenly interested in the donations of
PCG
members who were inspired by reading the book. As the case wore on, we felt that judges and juries would come to see the insincerity behind the
WCG
’s litigation-inspired activities. They weren’t interested in using the copyright law to protect the free expression of ideas. Their ambition was to suppress Mr. Armstrong’s religious views and help themselves to some of our money in the process.

The
Harvard Law Review
concluded, “The court’s failure to see the case for what it was—a church’s attempt to suppress heresy by using copyright law—led it to overlook the purposes of the fair use doctrine and facilitate the monopolization of a religious idea.”
¹²

Hanging by the Counterclaim

In our appeal to the Supreme Court, we continued insisting that, their litigation ploy notwithstanding, the
WCG
had no intention of ever publishing
Mystery of the Ages
:
“While anyone should be free to debate the validity of the creator’s ideas, no one should have the power to suppress those ideas simply because he or she disagrees with them.”
¹³

On April 2, the United States Supreme Court let the Ninth Circuit’s reversal stand, deciding not to hear our appeal. The court did not give a reason as to why the appeal would not be heard. But as hard as it is to get your case heard in Washington, it’s all the more difficult when there is still litigation pending at a lower level. In our case, the damages trial had yet to begin.

Additionally, the counterclaim we filed against the
WCG
for 18 other works had yet to be resolved. So we remained hopeful that the high court would reconsider the case once everything else had been finally decided.

The damages trial was set to begin in February of 2001. And by this point in the case, Judge Letts had obtained a semi-retired “senior status,” which allowed him to withdraw from his involvement in our case. Thus, to allow time for a new judge to be brought up to speed, everything was pushed back.

In a May 7 hearing, with Judge Christina Snyder now presiding over the case, our motion to add Congress’s Religious Freedom Restoration Act (
RFRA
) to our counterclaim was approved. Congress passed the law to help protect religious practices from being burdened by other laws. In this case, the Copyright Act, as interpreted by the Ninth Circuit, prevented our free exercise of religion. Early on in the lawsuit, the constitutionality of
RFRA
had been called into question in other cases. And since Judge Letts did not consider it necessary for our case anyway, he disallowed its use for
Mystery of the Ages
.
But since that time, the Supreme Court had upheld the law in certain federal cases. Unfortunately, because
RFRA
had been removed from our case, it was not used as a defense at the Ninth Circuit level. So this is why we wanted to re-insert it into our case. And while the new judge would not allow us to raise the
RFRA
defense in the damages trial for
Mystery of the Ages
,
she did allow us to raise it as part of our defense in the counterclaim.

Meanwhile,
WCG
pressed forward for summary judgment on the counterclaim. They argued, quite simply, that everything the Ninth Circuit ruled on the
Mystery
case should be broadly applied to the other 18 works we were seeking in the countersuit. Going into the lawsuit, one could easily assume that our best chance,
by far,
was to gain fair use to print
Mystery of the Ages
,
especially in light of the high praise Mr. Armstrong and Tkach Sr. both had for the book and their mutual desire for its wide distribution in 1985 and 1986. But now four years into litigation, the legal landscape had changed.

You will recall that the first time we heard about the “annotated”
Mystery of the Ages
was during Tkach Jr.’s deposition on September 8, 1998. He admitted it wouldn’t be a high priority, but that Greg Albrecht would be looking into it. Albrecht testified to making a few phone calls. That was enough for two judges at the Ninth Circuit to tip the scales on the fourth fair use factor in favor of the
WCG
or, “at worst, neutral.” The fourth factor (“potential market”), you recall, is what the Supreme Court considers the “most important” of the four. And since the Ninth Circuit considered this the
WCG
’s weakest argument, the annotation sham tilted the balances in their favor—even if
barely
.

All this now presented a problem for the
WCG
with respect to our counterclaim because there was no evidence of any plans for annotating those other 18 works. In fact, in the very same deposition where Albrecht fumbled through all the contacts he supposedly made regarding the annotated
Mystery of the Ages
, we asked him if the
WCG
had planned to publish any of the other works we had listed on our counterclaim. Besides possibly re-working the Bible correspondence course, Mr. Albrecht responded, “I know of no such plans at this time.”
¹⁴
Thus, if the Ninth Circuit forced us to accept the annotated sham as a possibility,
fine
. We didn’t believe it, but we had to live with it. But with respect to the
other
works, the man given charge of the
Mystery
annotation himself admitted there were “
NO SUCH PLANS
.” These facts would push the fourth fair use factor in our favor, we argued. Did they now have annotation plans for
The Incredible Human Potential
? What about
The Missing Dimension in Sex
?
The United States and Britain in Prophecy
?

E-Publishing

Besides showing the court that the
WCG
had no plans to produce any of the 18 works, we also reasserted the fact that it would have been futile for the
PCG
to obtain permission from the
WCG
to print the works. We continued to point to the “Christian duty” statement, as well as Albrecht’s 1997 e-mail which said the
WCG
does “not allow others to publish our former teachings and doctrines.”
¹⁵
To counter our futility argument, by the end of the summer in 2001, the
WCG
indicated in court filings that it would have,
all along,
objectively considered any offer to license the works of Mr. Armstrong. They went on to suggest that we should—
even then
—make them an offer. Furthermore, they produced board minutes saying that Tkach Jr.’s “Christian duty” statement reflected his own “personal” views, not an official church position.
¹⁶

On October 19, 2001, the
WCG
’s secretary of the board of directors, Matthew Morgan, wrote my father a letter. In it, Morgan explained that once the
PCG
began distributing
Mystery of the Ages
in 1997,
WCG
suspended all considerations regarding “how it could best utilize its copyright assets” (the book was an “asset”). But since the lawsuit had now been “resolved in favor” of
WCG
(with the Ninth Circuit’s decision),
WCG
’s board had now decided what to do.
¹⁷
Drum roll, please
. Believe it or not, the
WCG
now had “plans” for Mr. Armstrong’s other material! And it just so happened to be the exact same literature we were seeking in our counterclaim.
Mystery of the Ages
would not be available—just the ones that had
not
been resolved in court! They decided to make the 18 works available via the never-before-utilized world of “e-publishing.”

So, to win
Mystery,
they told the courts about grandiose plans to “annotate” the book
.
Then, to explain why these plans never materialized, they said they
had
to be put “on hold” until litigation had been resolved. After the Ninth Circuit ruling, they turned their attention to the counterclaim, telling the courts about their concrete plans,
not
for
Mystery,
but
for the 18 works!

Here is what Morgan proposed in his letter to my father: The
PCG
would pay all of the
WCG
’s costs
for publishing; we would
withdraw our counterclaim;
the
WCG
would still be able to claim damages over the
Mystery of the Ages
infringement; they would collect royalties for every document downloaded; and they reserved the right to stop publishing the books at a moment’s notice
¹⁸
(perhaps after we withdrew our counterclaim!).

And they wonder why we wouldn’t make them an offer.

On October 31, 2001, the
WCG
then informed us that all their communications concerning the “offer” would be presented to the court in response to our argument that it would be futile to request a license. Of course, that’s the whole reason they floated the e-publishing scheme to begin with. It was yet another litigation ploy designed to undermine our futility defense. In his letter, Allan insisted that the
PCG
make a “direct, immediate and unequivocal response to the
WCG
’s solicitation.”
¹⁹

The stage was set for our November collision to determine whether or not Judge Snyder would grant the
WCG
summary judgment on the counterclaim or if she would deny it and allow the case to go to trial. Matthew Morgan’s letter was the
WCG
’s last-ditch effort to persuade the judge to rule in their favor.

But she didn’t
.

In her November 14 order, the judge referred to our point that there was no evidence of plans to republish the 18 works in any form. She then referred to Morgan’s letter and a subsequent
WCG
board resolution to “publish” the works in question. But because there were still several disputed facts along these lines, she ruled, “[T]he Court cannot find as a matter of law that summary judgment is appropriate on
PCG
’s fair use claim.”
²⁰

The case was going to trial! What this meant was that, as the
WCG
pressed forward in its damages trial over our copyright “infringement” of
Mystery of the Ages
,
we pressed forward with our counterclaim seeking the right to distribute these other 18 works by Mr. Armstrong.

Thus, when all hope appeared to be lost—after the Ninth Circuit reversal, after the Supreme Court’s decision to refuse our case—the countersuit came galloping in to the rescue. When my father made the decision to file the counterclaim, a mere seven weeks into the case, you will recall that it was because he wanted us to stay on the offensive. And were it not for that critical decision, our chances for victory, after the Supreme Court rejection in April 2001, would have been all but dead.

As it was, we now had life.

“We’re not going to make a deal with the devil.”

— Gerald Flurry

Sermon, April 6, 2002

By early spring 2002, we decided it was time to call
WCG
’s bluff. After conducting our own investigation at headquarters to determine from others in the publishing industry what a fair offer would be, we put
WCG
to the test of their willingness to consider an offer from
PCG
“in good faith.”

My dad drafted a letter to Matthew Morgan on March 14. In it, we requested to print and distribute
Mystery of the Ages
and the 18 works we were seeking in our counterclaim. He mentioned to Morgan that Tkach Jr. had vowed in 1997 to keep these works out of print because of his “Christian duty.” And yet, my father continued, the
WCG
had curiously made recent representations before the court indicating a willingness to license the works. He reminded Morgan of Mr. Armstrong’s lifelong policy of giving away literature at no cost to the recipient. Nevertheless, “based on
WCG
’s recent representations to the court, we are making an offer in good faith to license these works.”
¹

We offered to pay the
WCG
a royalty of 10 cents for every booklet we distributed, 25 cents per book and 50 cents for each correspondence course sent out. My dad concluded the letter by saying,

W
CG
recently made an “offer” to have
PCG
underwrite the expense of so-called “e-publishing” most of these works. Aside from not being a license to
PCG
at all, this “offer” suffered from numerous problems, among them that
WCG
apparently could withdraw the works from circulation immediately upon the conclusion of the court case between our two churches. W
CG
’s previously announced “plan” to produce an “annotated” version of
Mystery of the Ages
—which by all appearances was created solely to gain a litigation advantage and (to our knowledge) has never been pursued—informs our concern in this regard. This concern is reinforced by, among other things, the facts that, outside the court case, neither Mr. Tkach nor anyone else has renounced
WCG
’s avowed “Christian duty” to keep Mr. Armstrong’s works out of print; and that
WCG
does not (to our knowledge) “e-publish” any other work in which it claims to hold a copyright. I look forward to receiving your response to
PCG
’s offer to license these works.
²

In all the posturing
WCG
had made before the court—acting as if they were more than happy to license—they had actually
never even made an offer to license the works
. And
NOW WE HAD.

Here is how Matthew Morgan responded on April 8:

As an initial matter, Mr. Flurry, with all due respect, I feel it is necessary to mention that your letter, after 12 years of silence, is belated and fraught with self-serving comments. Its obvious purpose is to gain some type of legal advantage. Nevertheless, we will afford the courtesy of a response regarding your inquiry about a license. So there is no misunderstanding, and although we do not address each one of your self-serving comments, they should be considered as denied.
³

The bottom line, however, is this: They are the ones who brought the subject of licensing before the court, even though they never made an offer. They are the ones who tried to gain the upper hand in litigation. And no matter how “belated” our offer might have been, it was, nevertheless, a reasonable offer. And they rejected it flatly.

Morgan went on to explain how “valuable” Mr. Armstrong’s writings were to the
WCG
, which is why they were now moving forward on the e-publishing front. “Therefore,” Morgan wrote, “no need exists to engage in complicated negotiations over the terms of a license. Your church will now be able to purchase as many legal copies of the 19 works as it desires and finds necessary to fulfill all its
alleged
spiritual needs.”
⁴
(The
WCG
had since added
Mystery of the Ages
to the list of works they intended to e-publish, after we assailed their initial offer to publish everything
except
the one book the Ninth Circuit had allowed them to suppress.)

After all their harping,
Make us an offer! Make us an offer!
, they now said flatly—no need for “complicated negotiations.”

The Deal That Almost Happened

Not long after my father sent the letter offering to license the works, he gave a sermon in Edmond in which he said it was impossible to make peace with a terrorist, using the example of Yasser Arafat. He said, “[I]f you give Yasser Arafat what he wants, he is
still
going to be trying to destroy Jerusalem and drive the Jews into the sea. That’s his goal.”
⁵
In tying this in with the court case, he went on to say, “Now we’re not going to make a deal with the devil—we’ll have to fight through courts and go through a lot of problems like that, but we’re
not going to make a deal
with the devil .…”

By not making a deal, he meant that he wasn’t about to make one concession after another in hopes that we would somehow fall back into the
WCG
’s good graces. He didn’t want the
PCG
to be put in a compromising position where the
WCG
could then turn around and pistol-whip us into submission.

That said, however, it did not mean his conscience prevented him from ever paying the
WCG
money
. He had, after all, offered to license Mr. Armstrong’s works just three weeks before the sermon quoted above. And a month before that, Dennis Leap told our
Trumpet
readers, “Unless the case is settled out of court, a damages trial must take place.”
⁶
So we hadn’t ruled out settling, it just had to be according to ironclad terms that would prevent
WCG
from jerking the rug out from under us later on,
after
litigation.

Soon after our court case began, we seriously considered buying the
WCG
’s former college campus in Big Sandy, Texas. In May 1998, a little over a year after our lawsuit began, we anonymously offered them $5 million for the property, which they rejected. A year and a half later, with the property still on the market, we upped our offer to $6.5 million. A few days later, the realtor got back to our attorney and said that the
WCG
still considered the offer much too low and they didn’t like the fact that we were concealing our identity. But they were listening.

In February 2000, the
WCG
opted to use an auction firm to sell off the property and all the materials inside the structures. In sensing that they might be getting desperate to unload the campus, we worked furiously the next few weeks, trying to arrange financing that would allow us to make a $7 million offer. We hadn’t planned on attending the auction, but we felt that if we could give them an offer high enough to prevent them from having to auction off everything over the course of five days, that maybe we could sneak in and make a last-minute transaction.

As it turns out, that’s exactly what happened—except Hobby Lobby is the group that swooped in with an $8.5 million bid on the eve of the auction.
We missed it by $1.5 million
.

Of course, a lot has happened since our initial disappointment after Big Sandy fell through. Using the benefit of hindsight, we now see that God didn’t want us to have that campus.

But that’s not the point. The
point
is that
we were prepared to pay the Worldwide Church of God 7 million dollars for the Big Sandy campus
. So it’s not like we were averse to giving them money in exchange for property. It just had to be a clear-cut deal, with no strings attached.

The same was true with Mr. Armstrong’s literature. Paying them for Mr. Armstrong’s works did not violate our conscience. But the circumstances for any such deal had to be just right.

The “Hook”

Matthew Morgan concluded his April 8 rejection letter by saying, “[T]he
WCG
is extremely pleased that it’s [sic] decision to publish, not only serves as the best means for the church to capitalize on its literary copyrighted assets, but also has the additional benefit of fulfilling your church’s alleged spiritual needs as well.”
⁷
They were now
extremely
pleased to be able to serve our alleged spiritual needs! Several weeks later, we found out
why
they were willing to make the literature available online (besides to gain a litigation advantage): Every e-published work would include a treacherous preface written by Joe Jr.’s childhood buddy, Michael Feazell. This was exactly the kind of “deal” we wanted no part of.

Feazell began the preface by saying Mr. Armstrong was a “gifted communicator” who, after years of personal study, began teaching religious doctrines that were “at odds with traditional Christianity.”
⁸
But because of his “enthusiastic preaching,” he attracted millions of followers, Feazell concluded—as if
what
he taught was of little or no consequence. He was just enthusiastic.

After Mr. Armstrong’s death, the church “carefully reviewed” his doctrines and replaced them with “theologically sound ones.” Here again, we’re not talking about
review, reform, modify
or even
replace
.
More like an unprecedented repudiation of foundational beliefs, the likes of which had never been seen in the history of religion!

Mr. Armstrong developed his unique body of beliefs because of a “personal bias against traditional orthodoxy,” Feazell wrote. That bias was imbedded into the “church’s culture” and it gave Mr. Armstrong a “unique advertising hook that captured many people’s interest.”
⁹
According to
Webster,
“bias” is “a highly personal and unreasoned distortion of judgment.” Feazell was saying that Mr. Armstrong’s
unreasoned distortion of judgment
was the “hook” that caught people like fish. He just
hooked
people and reeled them in by his own craftiness and distortion of judgment. Of course, Feazell is entitled to his own opinion, but how vain and arrogant to utterly disregard the opinions of 80,000 others who were either forced out of the
WCG
or left in disgust.

Most of them don’t believe they were duped by an advertising hook. If anything, they were duped and deceived by Tkachism.

Feazell continued, “In conducting his studies, however, Armstrong had no seminary training and lacked any disciplined study of church history, biblical interpretation and original languages of Scripture.”
¹⁰
Of course, neither did Joseph Tkach Sr., as we noted in chapter 4.

Feazell went on to say that Mr. Armstrong viewed the adherents of other churches as “children of the devil.” Talk about a personal bias! This is the preface to be included at the beginning of all the literature we were seeking, and its whole point was to make us look like a hate-filled cult. Yes, the Bible says Satan is “the god of this world”
¹¹
and that the whole world is deceived.
¹²
To say otherwise is to reject the Bible as God’s inspired word. But the Bible also speaks of
all
deceived people and churches eventually being given a chance for salvation.
¹³
We believe that too. Jesus Christ died for this world—not for one church only.
¹⁴

We look upon all peoples of this world as potential sons of God, whether they are presently Catholic, Protestant, Muslim, Buddhist or atheist. Where else is there a Christian denomination with teachings that offer hope for all peoples everywhere—even those who die without ever having known Jesus?

Feazell continued in his preface,

Armstrong also had many unusual ideas about prophecy, and for some these may have been the most attractive doctrines of all. He taught that the United States and Britain are the modern descendants of the lost 10 tribes of Israel, and that most biblical prophecies therefore apply to the Anglo-Saxon peoples.
¹⁵

As if God were only concerned about the Anglo-Saxon peoples. In his book, Tkach Jr. said church members used
The United States and Britain in Prophecy
as an
excuse
not to repent of racism. Quoting from a study paper on the subject, Tkach wrote in his book,

In the church, non-Anglo-Saxons sometimes found fellow Christians looking down on them simply because they were not “Israelites.” To these people, being German, African-American, Hispanic, Asian, Ukrainian, Italian, Polish (or a member of any other ethnic group) was to be inferior. Perhaps as a form of psychological self-defense, a few of Eastern or Southern European descent would speculate that, perhaps due to Israel’s wanderings, they were Israelite, not Gentile. It somehow seemed inferior to be 100 percent Gentile. Obviously, such views do not belong among God’s people.
¹⁶

How sad. We had racism in the church all those years—and all because of Mr. Armstrong’s literature
.

Yet, one of Mr. Armstrong’s final acts as pastor general in the
WCG
was to appoint, as his successor, a Gentile man of Russian descent whose parents were both born in Czechoslovakia.

And On It Goes

Feazell wrote, “Armstrong had complete authority doctrinally and administratively. Disloyalty among ministers was dealt with by firing and expulsion from the church fellowship.”
¹⁷
He described Mr. Armstrong as a harsh dictator. And yet, when you look at how the
WCG
’s transformation was brought about, it could not have happened without authoritarian rule from the Tkaches
forcing
their new religion down our throats—or else forcing us out of the Worldwide Church of God. Tkach Jr. (and his father before him) has driven out nearly 75 percent of the church’s membership, including even his own sister and brother-in-law.