Full opinion text
ORDER GRANTING IN PART AND DENYING'IN PART PLAINTIFFS’ APPLICATION FOR A PRELIMINARY INJUNCTION AND DEFENDANT ERLICH’S MOTION TO DISSOLVE THE TRO; DENYING PLAINTIFFS’ APPLICATION TO EXPAND THE TRO; DENYING PLAINTIFFS’ MOTION FOR CONTEMPT; GRANTING ERLICH’S MOTION TO VACATE THE WRIT OF SEIZURE; AND DENYING PLAINTIFFS’ REQUEST FOR SANCTIONS AGAINST ER-LICH’S COUNSEL WHYTE, District Judge. This case involves the scope of intellectual property rights on the Internet. Plaintiffs, two Scientology-affiliated organizations claiming copyright and trade secret protection for the writings of the Church’s founder, L. Ron Hubbard, brought this suit against defendant Dennis Erlich (“Erlich”), a former Scientology minister turned vocal critic of the Church, who allegedly put plaintiffs’ protected works onto the Internet. On June 23, 1995, this court heard the parties’ arguments on eight motions, five of which relate to Erlich and are discussed herein: (1) plaintiffs’ motion for a preliminary injunction against Erlich and Erlich’s related motion to dissolve or amend the Amended TRO; (2) plaintiffs’ application to expand the TRO; (3) plaintiffs’ motion for contempt against Erlich; (4) Erlich’s motion to vacate the writ of seizure; and (5) and plaintiffs’ request for sanctions against Er-lich’s counsel. For the reasons set forth below, the court grants in part and denies in part plaintiffs’ motion for a preliminary injunction against Erlich and Erlich’s motion to dissolve the TRO, denies plaintiffs’ application to expand the TRO, denies plaintiffs’ motion for contempt against Erlich, grants Erlich’s motion to vacate the writ of seizure, and denies plaintiffs’ request for sanctions against Erlich’s counsel. I. BACKGROUND Defendant Dennis Erlich was a member of the Church of Scientology (“the Church”) from approximately 1968 until 1982. During his years with the Church, Erlich received training to enable him to provide ministerial counseling services, known as “auditing.” While with the Church, Erlich had access to various Scientology writings, including those of the Church’s founder, L. Ron Hubbard (“Hubbard”), which the Church alleges include published literary works as well as unpublished confidential materials (the “Advanced Technology works”). According to plaintiffs, Erlich had agreed to maintain the confidentiality of the Advanced Technology works. Since leaving the Church, Erlich has been a vocal critic of Scientology and he now considers it part of his calling to foster critical debate about Scientology through humorous and critical writings. Erlich has expressed his views about the Church by contributing to the Internet “Usenet newsgroup” called “alt.religion.scientology” (“the newsgroup”), which is an on-line forum for the discussion of issues related to Scientology. Plaintiffs allege that in the six months prior to their filing suit, Erlich unlawfully posted to the newsgroup works from two separate categories of writings by Hubbard which are contained in Exhibits A and B of the FAC. Following Hubbard’s death in 1986, ownership of Hubbard’s copyrights passed to Author’s Family Trust-B. In 1993, the copyrights were distributed to the Church of Spiritual Technology (“CST”), a California nonprofit religious corporation. Plaintiff Bridge Publications, Inc. (“BPI”), a nonprofit branch of the Church, claims to be the exclusive licensee of CST’s copyrighted literary works listed in Exhibit A to the Complaint (“Exhibit A works”), which consist mainly of policy letters and bulletins from the Church. Plaintiff Religious Technology Center (“RTC”), a nonprofit religious corporation, “was formed by Scientologists, with the approval of [Hubbard], to act as the protector of the religion of Scientology and to own, protect, and control the utilization of the Advanced Technology in the United States.” FAC, Ex. C, at 2. RTC claims to be the exclusive licensee of the copyrights and the owner of the other rights in the unpublished Advanced Technology works listed in Exhibit B to the Complaint (the “Advanced Technology” works or the “Exhibit B works”). BPI and RTC allege that Erlich infringed the copyrights in the Exhibit A and B works. RTC also alleges that Erlich misappropriated its trade secrets in the Exhibit B works, the confidentiality of which it alleges has been the subject of elaborate security measures. RTC further claims that those works are extremely valuable to the Church. Erlich admits to having posted excerpts from some of the works, but argues that the quotations were used to provide context for debate and as a basis for his criticism. Erlich further argues that he has neither claimed authorship of any of the works nor personally profited from his critique, satire, and commentary. Erlich contends that all of the Exhibit B documents he posted had been previously posted anonymously over the Internet, except for item 1, which he claims he received anonymously through the mail. From August to December 1994, plaintiffs exchanged a series of letters with Erlich, warning him to stop posting their protected writings onto the newsgroup. Plaintiffs also demanded that defendants Netcom and Klemesrud take actions to prevent Erlich’s continued postings of protected materials. Erlich indicated that he would not stop, claiming he had a right to continue with his criticism and satire. On February 8, 1995, plaintiffs filed this action against Erlich, Klemesrud, and Netcom for copyright infringement and, against Erlich alone, for misappropriation of trade secrets, seeking actual, statutory, and punitive damages, in-junctive relief, impoundment of the infringing materials and equipment, and attorneys’ fees and costs. On February 10, 1995, the court granted plaintiffs’ ex parte application for a temporary restraining order (“TRO”) prohibiting Erlich from making unauthorized use of works identified in the exhibits to the complaint and an order directing the clerk to issue a writ of seizure under 17 U.S.C. § 503(a). On February 13,1995, in execution of the writ of seizure, local police officers entered Erlich’s home to conduct the seizure. The officers were accompanied by several RTC representatives, who aided in ■ the search and seizure of documents related to Erlich’s alleged copyright infringement and misappropriation of trade secrets. Erlich alleges that RTC officials in fact directed the seizure, which took approximately seven hours. Erlich alleges that plaintiffs seized books, working papers, and personal papers. After locating Erlich’s computers, plaintiffs allegedly seized computer disks and copied portions of Erlich’s hard disk drive onto floppy disks and then erased the originals from the hard drive. Although plaintiffs returned to Erlich’s counsel some of the articles seized, Erlich contends that plaintiffs have not returned all of the seized articles, including ones that are unrelated to the litigation. On February 23, 1995, the court issued an “Amended TRO,” which sought to clarify what types of use were prohibited and to emphasize that Erlich could make “fair use” of the Exhibit A works. II. Preliminary Injunction/Dissolution of Temporary Restraining Order A. Legal Standards A party seeking a preliminary injunction may establish its entitlement to equitable relief by showing either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) serious questions as to these matters and that the balance of hardships tips sharply in its favor. First Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1378, 1381 (9th Cir.1987). These two tests are not separate, but represent a continuum of equitable discretion whereby the greater the relative hardship to the moving party, the less probability of success need be shown. Regents of University of California v. American Broadcasting Cos., 747 F.2d 511, 515 (9th Cir.1984). The primary purpose of a preliminary injunction is to preserve the status quo pending a trial on the merits. Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980). B. Likelihood of Success on Copyright Infringement Claims To establish copyright infringement, plaintiffs must demonstrate (1) they own a valid copyright and (2) Erlich violated any of their exclusive rights, including, inter alia, the rights to reproduce or prepare derivative works from the original, or to distribute or display copies publicly. 17 U.S.C. §§ 106(1)-(3) & (5), 501(a); Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 361-63, 111 S.Ct. 1282, 1296, 113 L.Ed.2d 358 (1991). Erlich, for the most part, admits to having “copied” the Exhibit A and B works, but contends that plaintiffs are not able to establish ownership of a valid copyright interest in those works. Erlich also argues that his activities do not constitute infringement because his use was a “fair use.” 1. Ownership of a Valid Copyright Proof of ownership of an existing, valid, and registered copyright interest is a statutory prerequisite to filing an infringement action. 17 U.S.C. § 411. Registration, when “made before or within five years after first publication of the work[,] shall constitute pri-ma facie evidence of the validity of the copyright,” including originality, compliance with statutory formalities, and eopyrightability. Id., § 410(c); 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright (1995) (“Nimmer”) § 12.11[B]. When registration is made more than five years after first publication, the evidentiary weight of the certificate of registration is within the court’s discretion. Id. § 12.11[A], [B], When the plaintiff is not the author of a work, he must provide evidence of a chain of title from the registrant to him. Nimmer § 12.11[C]. Plaintiffs provide evidence of registration for all of the Exhibit A and B works. See FAC, Ex. H. Plaintiffs further provide copies of assignment and licensing agreements purportedly showing the necessary chain of title from Hubbard, the author of the works, to plaintiffs RTC and BPI. Attached to the FAC are assignments of all rights in the Advanced Technology works from Hubbard and his estate to RTC. Id., Exs. C, D, F & G. Under the “Literary Agreement” attached to the FAC, BPI is the exclusive licensee of various published, non-fiction Hubbard works, including those works in Exhibit A to the FAC. Id., Ex. E. Erlich sets forth in his “Appendix re: Copyright Issues” a host of purported irregularities and defects with the registrations, maintaining that plaintiffs have failed to prove a likelihood of success on ownership of many, if not all, of the works. The court finds that, except as to item 4 of Exhibit A, Erlich has failed to rebut the presumption of validity. Erlich’s contention that item 4 of Exhibit A (“20 Nov 1961, Routine 3D Commands”) has fallen into the public domain appears to be correct. The registration for item 4 gives a first publication date of 1961. Under the Copyright Act of 1909 (“the 1909 Act”), which still applies to works that were first published prior to January 1, 1964, an author is entitled to an initial 28-year copyright term, which expires unless the copyright is renewed by the author or his statutory successors during the final year of the initial term. 2 Nimmer § 9.05[B][1]. The copyright notice date on item 4 is evidence that the work was first published in 1961. See New Era Publications International, ApS v. Carol Publishing Group, 729 F.Supp. 992, 995 (S.D.N.Y.), aff'd in part, rev’d in part, 904 F.2d 152 (2d Cir.), cert. denied, 498 U.S. 921, 111 S.Ct. 297, 112 L.Ed.2d 251 (1990). Because there is no evidence that the copyright for item 4 was renewed in 1989, 28 years after its initial publication, the court finds that it fell into the public domain and cannot be the subject of an action for infringement. See id. Plaintiffs argue, however, that item 4 was part of a collection that was registered in 1976, the year that it was first published. As such, plaintiffs contend that the collective work is not yet subject to renewal. While those parts of the 1976 collection that were first published in 1976 were not subject to renewal in 1989, those previously published portions of the collection, such as item 4, must still be timely renewed notwithstanding the registration as a collection in 1976. See 1 Nimmer §§ 3.07[C], 3.04[A], at 3-19. Erlich’s next claim is that plaintiffs have not registered the works that were infringed, but only the compilations in which they were included. Where, as here, the author of a collection or derivative work is also the author of the preexisting work, registration of the collection is sufficient. Abend v. MCA, Inc., 863 F.2d 1465, 1471-72 (9th Cir.1988), aff'd, 495 U.S. 207, 110 S.Ct. 1750, 109 L.Ed.2d 184 (1990); 2 Nimmer § 7.16[B][2], at 7-168 to -170 (distinguishing this situation from that where copyright owner of collective work is not also the owner of the preexisting work). Here, Hubbard was the author of the underlying work and was also the author of the collection of his own works. Accordingly, registration of the collections that include the Exhibit A works constitutes registration of the underlying works. Erlich’s next argument, that plaintiffs have not shown that Hubbard’s statutory successors assigned the renewal terms of the copyrights to plaintiffs, is clearly rebutted by the evidence. See Hawkins Deck, Exs. A-I. The Exhibit B works do not require renewal because they were unpublished as of January 1, 1978, the effective date of the Copyright Act of 1976 (“the 1976 Act”), and were thus protected only by common law copyright. See 2 Nimmer § 9.01[B][2], at 9-17 to -18. As of January 1, 1978, these works became protected by statutory copyright under the new scheme of the 1976 Act, which does not require renewal. Id Finally, Erlich contends that the automatic statutory presumption of validity does not apply because many of the works were published more than five years before registration. The dates specified in a copyright notice are evidence of the date of publication. New Era, 729 F.Supp. at 995. As to the unpublished Exhibit B works, registrations were made before first publication in accordance with section 410(c) and thus the presumption is still valid. However, it appears Erlich is correct that the statutory presumption does not apply as to items 1, 2, 4, 5, 6, 7, and 8 of Exhibit A, It is within the court’s discretion what weight to give the copyright registrations in determining the validity of the copyright interests of those works for which plaintiffs are not entitled to an automatic presumption of validity. In light of plaintiffs’ evidence of validity, see Hawkins Deck, and the lack of a persuasive challenge to the validity of the copyrights by Erlich, the court finds that plaintiffs’ registrations are strong evidence of the validity of their claimed copyrights. 2. Direct Infringement Except as to item 9 of Exhibit A and item 9 of Exhibit B, see Oakley May 12, 1995 Deck, Ex. B, Erlich does not dispute that he engaged in “copying,” which would constitute direct infringement under section 106. As to the item 9 works, there is no evidence that Erlich ever made any postings of or otherwise copied those items. The court will therefore consider plaintiffs’ infringement claims as to the remaining works. 3. Fair Use Defense “Infringement” consists of violating the author’s exclusive rights. 17 U.S.C. § 501. Although the author has the exclusive rights to reproduce, distribute, and display a copyrighted work under section 106, these rights are limited by the defense of “fair use”: Notwithstanding the provisions of section 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies ... or by any other means specified in that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. 17 U.S.C. § 107 (emphasis added). The defense “permits and requires courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, -, 114 S.Ct. 1164, 1170, 127 L.Ed.2d 500 (1994) (citation omitted). Congress has set out four nonexclusive factors to be considered in determining the availability of the fair use defense: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107. The fair use doctrine calls for a case-by-ease analysis. Campbell, 510 U.S. at -, 114 S.Ct. at 1170. All of the factors “are to be explored, and the results weighed together, in light of the purposes of copyright.” Id. 510 U.S. at - - -, 114 S.Ct. at 1170-71. a. First Factor: Purpose and Character of the Use The first statutory factor looks to the purpose and character of the defendant’s use. Erlich argues that his use was criticism, which is one of those uses listed in the preamble to section 107. Similarly, Erlich maintains that his use was meant to “evoke discussion regarding various Scientology philosophies.” Mot. To Dissolve at 22. Use for the purpose of criticism weighs in favor of fair use. See New Era, 904 F.2d at 156-57 (using Hubbard’s works in critical biography meets first factor for fair use). Plaintiffs contest Erlich’s characterizations of his use, claiming that most of Erlich’s postings were verbatim copies, with little or no added comment or criticism. Plaintiffs further contend that Erlich’s purpose was spite or some other destructive reason. However, plaintiffs give no explanation as to why Erlich’s purpose was other than to criticize or to evoke discussion regarding Scientology. Because there is insufficient evidence to support plaintiffs’ claim that Erlich’s copying was made out of spite or for other destructive reasons, the court will assume Erlich’s intended purpose was criticism or comment. Transformative Use Plaintiffs’ argument that the amount of added criticism belies Erlich’s critical purpose can also be construed as an attack on the “transformative” nature of Erlich’s use. In Campbell, the Supreme Court held that the central purpose of the first inquiry is to determine whether the new work is transformative (also described as “productive”), that is, whether it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” 510 U.S. at -, 114 S.Ct. at 1171. Erlich’s use is only minimally trans-formative since, unlike the typical critic, Er-lich adds little new expression to the Church’s works. Accordingly, despite Er-lich’s purported critical purpose, the actual character of his use does not weigh heavily in his favor because it has only a slight trans-formative nature. In any case, the Supreme Court held in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 455 n. 40, 104 S.Ct. 774, 795 n. 40, 78 L.Ed.2d 574 (1984) that the fair use defense is not “rigidly circumscribed” by the productive use requirement. The Court found that a home viewer’s verbatim copying of copyrighted television shows for the purposes of time shifting was fair use even though there was only a minimal showing of increased convenience to the home user. Commercial Nature of Use Where the use is not highly transformative, as here, the court will focus on whether the use is of a commercial nature. The Campbell Court emphasized that a commercial use does not dictate against a finding of fair use, as most of the uses listed in the statute are “generally conducted for profit in this country.” 510 U.S. at -, 114 S.Ct. at 1174. Nonetheless, the Court recognized that a commercial use weighs against a finding of fair use. Id. The fact that there is no evidence that Erlich gains financially from his criticism of the Church weighs in his favor. Plaintiffs argue, however, that Erlich personally gains through increased status and recognition among his peers and the public. In Weissmann v. Freeman, 868 F.2d 1313 (2d Cir.), cert. denied, 493 U.S. 883, 110 S.Ct. 219, 107 L.Ed.2d 172 (1989), the Second Circuit recognized that, in the unusual setting of academia, a defendant can profit personally from copying despite the lack of a monetary gain. The defendant in Weissmann was a professor who copied a former assistant’s scholarly work, used it for the same purpose as the author, and claimed credit for himself, thereby aiding his professional advancement. Id. at 1324. Here, there is neither evidence that Erlich took credit for any of plaintiffs’ works nor that he is personally profiting, professionally or otherwise, as a result of his postings. If mere recognition by one’s peers constituted “personal profit” to defeat a finding of a noncommercial use, courts would seldom find any criticism fair use and much valuable criticism would be discouraged. Thus, the court finds that Weissmann is inapplicable here, and that its holding should not be stretched to swallow all nonprofit criticism motivated by concern for status. Accordingly, based on the clearly noncommercial nature of the use and the protected purpose of criticism, the court finds that the first fair use factor weighs slightly in Erlich’s favor despite the minimally transformative nature of Erlich’s use. Defendant’s Conduct Plaintiffs contend that, regardless of the results of weighing the four fair use factors, a finding of fair use is nonetheless precluded because Erlich’s copies were made not from legitimate copies of the works but from unauthorized copies. Although plaintiffs discuss this purported “good faith” prerequisite to fair use apart from the four factors, it is properly a factor to be considered with the first statutory factor regarding the character of the use. 3 Nimmer § 13.05[A][l][d], at 13-171 to -174 (discussing “defendant’s conduct” as one aspect of the first statutory factor). The court finds that plaintiffs’ showing on bad faith is mixed at best. There is no evidence here that Erlich obtained his copies of plaintiffs’ works through deceit. Cf. Atari, 975 F.2d at 836, 843 (finding no fair use where defendant obtained plaintiff’s source code by lying to copyright office). Unlike Sega, there is no admission by the defendant that he does not possess any legal copies. As to several of the Exhibit A works, it appears that Erlich possessed legitimate, published books containing some of the works; plaintiffs offer no evidence that Er-lich obtained these books in some unlawful or illegitimate manner. However, as to those works where Erlich claims he obtained his copies over the Internet or anonymously through the mail, this does not negate an inference that he received those copies in an improper manner. Erlich’s copies of Exhibit B works were more likely unauthorized than not; plaintiffs have provided substantial evidence that the Advanced Technology works are kept confidential, see infra part II.C.2, and that Erlich would not have been given permission to keep a copy of those works. For most of the disputed works, the fact that Erlich may have obtained his copies in an unauthorized manner tends to weigh in plaintiffs’ favor. This finding, however, will not bar Erlich’s fair use defense, but will merely be considered with the other factors. b. Second Factor: Nature of the Copyrighted Work The second factor focuses on two different aspects of the copyrighted work: whether it is published or unpublished and whether it is informational or creative. Published vs. Unpublished The unpublished status of a work is “a critical element of its ‘nature.’ ” Harper & Row, 471 U.S. at 564, 105 S.Ct. at 2232 (finding no fair use where The Nation magazine used unpublished manuscript to scoop Time magazine). The Nation case held that “the scope of fair use is narrower with respect to unpublished works.” Id. In a ease involving copying of allegedly unpublished works by Hubbard, the Second Circuit recognized that where the works were unpublished no court had yet found in favor of the infring er on the second factor. New Era, 904 F.2d at 155. Nevertheless, the Second Circuit affirmed a finding of fair use where a biographer quoted portions of unpublished letters. Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir.1991); see also Norse v. Henry Holt & Co., 847 F.Supp. 142, 147 (N.D.Cal.1994) (finding fair use where 50 words copied from unpublished letters and all but the second factor weighed in favor of defendant). In 1992, Congress amended section 107 of the 1976 Act to clarify that the unpublished nature of a work should not itself bar a finding of fair use. See H.R.Rep. No. 102-286, 102d Cong., 2d Sess. 8 (1992) (House Report) (citing Wright with approval and criticizing earlier Second Circuit decisions that created a per se rule against fair use of unpublished works); see also 3 Nimmer § 13.05[A][2], at 13-184 to -186. Congress construed the Nation’ s statement that the scope of fair use is narrower for unpublished works to mean that the amount of permissible copying will be less in the case of an unpublished work. Id. Even though a work is read by a large group of people, it is still unpublished where it is held confidential and the authors do not relinquish control over their copies of the work. See College Entrance Examination Board v. Cuomo, 788 F.Supp. 134, 139-41 (N.D.N.Y.1992) (finding that administered secure tests were necessarily unpublished because author did not relinquish control and finding for author on second fair use factor). Plaintiffs have adequately demonstrated that the Exhibit B Advanced Technology works are kept confidential using tight security measures. See infra part II.C.3. Although there is evidence that individuals may have made unauthorized public disclosures of some of these works, see id., the works are still “unpublished” for the purposes of the fair use defense. See discussion supra note 9. However, the Exhibit A works, with one exception, are published. Accordingly, this portion of the second factor weighs in Er-lich’s favor as to the published Exhibit A works and strongly in plaintiffs’ favor as to the Exhibit B works. Informational vs. Creative The second aspect of this factor looks to broaden the protection of those works that are creative, fictional, or highly original and lessen the protection for those works that are factual, informational, or functional. See Campbell, 510 U.S. at -, 114 S.Ct. at 1175. The Second Circuit noted the obvious difficulty in applying this test in a case involving a large number of works by Hubbard: We agree ... that there is no easy distinction between works that are “factual” on the one hand, and “creative” or “expressive” on the other, because “ ‘[c]reation of a nonfiction work, even a compilation of pure fact, entails originality.’ ” Thus, reasonable people can disagree over how to classify Hubbard’s works. New Era, 904 F.2d at 158 (citations omitted). The Second Circuit concluded that “although some of the quoted passages can accurately be described as expressive — e.g., Hubbard’s poetry — our review of the record persuades us that most simply cannot be so characterized.” A district judge in this Circuit, considering works that are part of the Church’s Advanced Technology, concluded that “Hubbard’s works are the product of his creative thought process, and not merely informational.” Bridge Publications, Inc. v. Vien, 827 F.Supp. 629, 635-36 (S.D.Cal.1993). In the present case, this court also finds the task of categorizing Hubbard’s writings difficult. In their complaint, plaintiffs describe Hubbard as the author of “original works on applied religious philosophy and spiritual healing technology, including training materials and course manuals of the Scientology religion.” FAC ¶ 9. In reviewing the Exhibit A works, which are predominantly “policy letters” of the Hubbard Communications Office, the court finds that these works, although creative, are primarily functional or instructive. Item 1 of Exhibit B, the Class VIII “Assists” Tape, appears more original and creative than the other works, and is thus deserving of greater fair use protection. The remaining Exhibit B works, however, are part of the methodology of the Church’s “applied religious philosophy,” and as such are more instructive and functional than fictional. This court is not convinced, however, that this factor should play a major role in the context of religious works, which do not easily fit into the creative/informational dichotomy. Because the Exhibit B works are unpublished and large portions of them were copied by Erlich, see infra part II.B.3.C, this factor weighs heavily against Erlich with respect to those works, despite the informational nature of most of them. The Exhibit A works, however, are published and primarily informational, and this factor weighs in favor of Erlich as to those works. c. Third Factor: Amount and Substantiality of the Portion Used The third factor concerns both the percentage of the original work that was copied, and whether that portion constitutes the “heart” of the copyrighted work. Harper & Row, 471 U.S. at 564-65, 105 S.Ct. at 2232-33. The copying of an entire work will ordinarily militate against a finding of fair use, although this is not a per se rule. Sony, 464 U.S. at 449-450, 104 S.Ct. at 792 (finding exception to this rule for time-shifting by home viewers to enable them to see works that they were invited to see in their entirety free of charge). The amount of copying that is acceptable will depend on the character of the use and degree to which the copy transforms the original. Campbell, 510 U.S. at - - -, 114 S.Ct. at 1175-76 (finding parody can copy enough of original to “conjure [it] up” so the audience will recognize what is being parodied). Less copying will be acceptable where the original is unpublished. See 3 Nimmer § 13.05[A][2], at 13-185 n. 200. Plaintiffs allege that Erlich’s postings copy substantial amounts of the originals or, in some cases, the entire works. Erlich responds that, as to some of the copied works, the original documents are actually only a small part of a larger collection. See Oakley Reply Deck, Ex. C. Erlich claims that the court should look at the entire registered collective work to determine the percentage of that work which Erlich copied. However, the Ninth Circuit held in Hustler Magazine, Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1155 (9th Cir.1986) that “[a] creative work does not deserve less protection just because it is part of composite work.” The Second Circuit held in American Geophysical Union v. Texaco, Inc., 802 F.Supp. 1, 17 (S.D.N.Y.1992), aff'd, 37 F.3d 881 (2d Cir.1994) that copying an entire article from a journal whose copyright has been registered as a whole still constitutes copying the entire work. Similarly, here, although many of Hubbard’s lectures, policy statements, and course packets are collected into larger volumes, and registered as a whole, they may still constitute separate works for the purposes of this factor. It appears Erlich copied all or almost all of many of the works, which were predominantly short documents of less than three pages, and mostly with no comments or with very brief comments at the beginning or end. See McShane February 27, 1995 Deck, Ex. A, B, C-l. The court further finds that where Erlich only copied a portion of a work, that portion constituted the “heart” of the work. Compare February 27, 1995 App. in Support of Warren McShane, Exs. 1A-188A with 1B-188B; see Harper & Row, 471 U.S. at 564-65, 105 S.Ct. at 2232-33 (finding quotation of 300 out of 200,000 words that were “essentially the heart of the book” not fair use). Accordingly, this factor weighs heavily in plaintiffs’ favor, especially as to the unpublished works, where the amount of acceptable copying is even lower. d. Fourth Factor: Effect of the Use upon the Potential Market for the Work The fourth and final statutory factor concerns “the extent of market harm caused by the particular actions of the alleged infringer” and “ “whether unrestricted and widespread conduct of the sort engaged in by the defendant ... would result in a substantially adverse impact on the potential market’ for the original.” Campbell, 510 U.S. at -, 114 S.Ct. at 1177 (quoting 3 Nimmer § 13.05[A][4]) (remanding for consideration of this factor). Although the results of all four factors must be weighed together, id. at -, 114 S.Ct. at 1171, the fourth factor is central to the fair use analysis, 3 Nimmer § 13.05[A][4], at 13-188 to -189 (citing Harper & Row, 471 U.S. at 566, 105 S.Ct. at 2233), 13-207 (observing that fourth factor explains results in recent Supreme Court cases). Plaintiffs contend that Erlich’s posting of plaintiffs’ copyrighted works over the Internet, where more than 25 million subscribers could access them, could potentially have a detrimental effect on plaintiffs. Plaintiffs point to the fact that, in the past, the Church has faced “ex-parishioners using copyrighted materials to set up and market ‘religious’ training adapted from the Scientology religion.” Pltfs.’ Opp’n at 39. In Vien, the defendant had left the Church of Scientology to start her own competing ministry, taking with her some of the Church’s Advanced Technology works, which she used in her courses and offered for sale. 827 F.Supp. at 632-34. The court held that “since defendant uses the works for the same purpose intended by plaintiffs, it appears defendant’s unauthorized copies fulfill the ‘demand for the original’ works and ‘diminish or prejudice’ their potential sale.” Id. at 636. Plaintiffs’ case is not as strong here as it was in Vien. The demand of those seeking out the Church’s religious training will hardly be met by Erlich’s postings. Even if Erlich’s copying of plaintiffs’ works were not for a critical purpose, plaintiffs would still have not shown that Erlich’s postings diminish the demand by Church followers in the courses. According to the Church, these courses must be studied in a systematic fashion, following one “course” at a time, with proper guidance. McShane May 31, 1995 Deel. ¶¶ 7-8; see Wollersheim, 796 F.2d at 1091 (noting RTC’s argument that Advanced Technology works are trade secrets whose misappropriation would cause “‘religious harm’ ... [to] adherents from premature unsupervised exposure to the materials”). Although many of Erlich’s postings contain much of an original work, each of these works is only a small portion of the teachings necessary for a particular “course.” See Oakley Reply Deck, Ex. C. For the most part, Erlich’s postings are sporadic and incomplete. The court is thus not convinced that postings like Erlich’s could be effectively used by rival Scientology-like religious groups. Moreover, there is no evidence that the Church currently faces any competition by ex-parishioners, see Oakley Reply Deck, Ex. B., McShane Depo. at 95, although there is circumstantial evidence that such competition could occur in the future, based on the fact that several groups have competed with the Church in the past. See id. at 93-94. There is little evidence of a systematic attempt by Erlich at posting the complete works necessary for setting up a competing religious group. It seems unlikely, although possible, that Erlich’s postings, if continued and expanded, could supply such a group with the means to compete with plaintiffs. See discussion infra part II.B.3. While the demand for a particular work may be suppressed through criticism, it is unlikely that the demand for the Church’s unique ability to provide parishioners with a complete and guided access to the various course materials will be suppressed. The court finds it unlikely that Erlich’s noncommercial use, or widespread conduct like Erlich’s use by others, would diminish or prejudice the potential sale of plaintiffs’ works, interfere with their marketability, or fulfill the demand for the works. See Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1264 (2d Cir.1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2201, 95 L.Ed.2d 856 (1987) (finding no market harm where pro-ehoiee work was excerpted in antiabortion book because of differing viewpoints and editorial formats); Hustler, 796 F.2d at 1155-56; Religious Technology Center v. Lerma, 897 F.Supp. 260, 265 (E.D.Va.1995) (finding fair use defense probably valid in part because no separate market for Advanced Technology works where Scientolo-gists cannot effectively use them without the Church’s supervision); Religious Technology Center v. F.A.C.T.NET, Inc., 901 F.Supp. 1519, 1524-26 (D.Colo.1995) (finding valid fair use defense because financial harm to the Church was unlikely and there was no showing of a potential effect on the market for plaintiffs’ works). Accordingly, the court finds that this factor weighs in Erlich’s favor, e. Equitable Balancing In balancing the various factors, the court finds that the percentage of plaintiffs’ works copied combined with the minimal added criticism or commentary negates a finding of fair use. Although criticism is a favored use, where that “criticism” consists of copying large portions of plaintiffs’ works — and sometimes all of those works— with often no more than one line of criticism, the fair use defense is inappropriate. Erlich has not adequately justified his copying verbatim large portions of plaintiffs’ works. The amount of copying was particularly unacceptable with the unpublished Exhibit B works. While copying all or most of a work does not necessarily preclude fair use, those eases recognizing fair use for complete copying are easily distinguishable. Although the Sony Court found acceptable the copying of entire television shows with no added content, this was necessary for the purpose of time-shifting. Unlike Erlich, the time-shifters in Sony were already given permission to view the works in their entirety for free. Sony, 464 U.S. at 449-450, 104 S.Ct. at 792. The Court further noted in Sony that time-shifters are just as likely to buy prerecorded videos as live viewers, and thus there is no effect on the market for the original. Id. at 450 n. 33, 104 S.Ct. at 792 n. 33. The case that perhaps best supports Erlich’s position, Bel-more, is also distinguishable. See supra note 17. The original work copied verbatim in Belmore was shorter than many of the works Erlich copied and the added criticism in Bel-more was far longer than most of the criticism' that Erlich made. 880 F.Supp. at 678-79. Additionally, unlike the district court in Belmore, this court does not find reasonable Erlich’s claim that he copied no more than was necessary for his purpose. Moreover, this court is not convinced that Belmore is supported by Ninth Circuit law. See Supermarket of Homes, Inc. v. San Fernando Valley Board of Realtors, 786 F.2d 1400, 1409 (9th Cir.1986) (“Generally, no more of a work may be taken than is necessary to make the accompanying comment understandable.”). While use of a large percentage or the “heart” of the copyrighted work does not rule out fair use per se, other factors are not sufficiently in Erlich’s favor to overcome this third factor. Further, the second factor weighs strongly against Erlich as to the unpublished works. The almost verbatim copying here shows that Erlich’s work is only minimally transformative and that it is unlikely that Erlich is “truly pursuing a different •functional milieu” from the original. 3 Nimmer § 13.05[D][1], at 13-231. In addition, as to the unpublished materials, Erlich’s use of possibly illicit copies of those works weighs against him. Thus, Erlich’s showing on the first factor is not very strong despite his critical purpose. Similarly, Erlich’s showing on the fourth factor does not persuasively suggest fair use. If Erlich’s use were to become widespread, it could potentially have an effect on the market for plaintiffs’ works by supplying future splinter groups with the materials needed to compete with the Church. The court views this potentiality as somewhat remote. Nevertheless, given plaintiffs’ very strong showing on the third factor, the court finds that, on balance, the equities do not favor a finding of fair use. The case against fair use is even more compelling for the unpublished works. But see Lerma, 897 F.Supp. at 265 (order denying temporary restraining order against defendant Washington Post from using Advanced Technology documents obtained from open court files in Church of Scientology v. Fishman, 1994 WL 467999 (9th Cir.1994); finding fair use defense exists where no separate market for works because Scientologists cannot effectively use them without the Church’s supervision); F.A.C.T.NET, 901 F.Supp. at 1524-26 (denying preliminary injunction against copying of Advanced Technology works based on fair use defense because financial harm to the Church was unlikely, there was no commercial motive, works were used in part of “ongoing dialogue” on the Internet, and there was no showing of a potential effect on the market for plaintiffs’ works). 4. Conclusion Accordingly, plaintiffs have demonstrated a likelihood of success on its claims that Erlich infringed their copyrights on all of the Exhibit A and B works, except items 4 and 9 of Exhibit A and item 9 of Exhibit B. C. Likelihood of Success on Trade Secret Claim In the third cause of action, plaintiff RTC alleges that Erlich misappropriated its trade secrets. California has adopted a version of the Uniform Trade Secret Act (“UTSA”), Cal.Civ.Code § 3426.1 et seq. The UTSA defines a trade secret as information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Cal.Civ.Code § 3426.1(d). The UTSA further defines “misappropriation” of a trade secret as (1) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (2) Disclosure or use of a trade secret of another without express or implied consent by a person who: (A) Used improper means to acquire knowledge of the trade secret; or (B) At the time of disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was: (i) Derived from or through a person who had utilized improper means to acquire it; (ii) Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (iii) Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) Before a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake. Id. § 3426.1(b). To establish its trade secret claim, RTC must show, inter alia, that the Advanced Technology works (1) have independent economic value to competitors and (2) have been kept confidential. 1. Nature of Works As a preliminary matter, Erlich argues that the Advanced Technology works cannot be trade secrets because of their nature as religious scriptures. In Wollersheim, 796 F.2d at 1090-91, the Ninth Circuit rejected the Church’s application for a preliminary injunction on the basis of a trade secret claim against a splinter Scientology group that had acquired stolen copies of the Advanced Technology. The Church argued not that the works gave them a competitive market advantage but that disclosure of the works would cause its adherents “religious harm ... from premature unsupervised exposure to the materials.” Id. Although the Ninth Circuit rejected plaintiffs’ trade secret argument based on the spiritual value of the harm, it later noted that it had left open the question of whether the Advanced Technology works could qualify as trade secrets, assuming plaintiffs could prove that the secrets confer on them an actual economic advantage over competitors. Religious Technology Center v. Scott, 869 F.2d 1306, 1310 (9th Cir.1989); cf. Vien, 827 F.Supp. at 629. Nonetheless, the court noted that such an allegation would “raise grave doubts about [the Church’s] claim as a religion and a not-for-profit corporation.” Id. (quoting Wollersheim, 796 F.2d at 1091). The Church contends that the Advanced Technology works consist of “processes and the theory behind those processes ... that are to be used precisely as set forth by L. Ron Hubbard to assist the parishioner in achieving a greater spiritual awareness and freedom.” McShane February 27,1995 Deck ¶ 9 (emphasis added). Erlich responds that the works are essentially religious texts. Cf. FAC ¶9 (describing Hubbard as author of “applied religious philosophy and spiritual healing technology” and works as “training materials and course manuals of the Scientology religion”). Erlich argues that the Church cannot have trade secrets because trade secret law is necessarily related to commerce. See Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 481, 485, 94 S.Ct. 1879, 1886, 1888, 40 L.Ed.2d 315 (1974). The Church contends that, like other organizations, it must pay bills, and that licensing fees from these documents allow it to continue operating. McShane February 27, 1995 Deel. ¶ 7. The Church’s status as a religion does not itself preclude it from holding a trade secret. Restatement § 39 cmt. d, at 429 (“[Nonprofit entities such as ... religious organizations can also claim trade secret protection for economically valuable information such as lists of prospective members or donors.”); UTSA § 3426.1(e) (defining “person” to include a “corporation ... or any other legal or commercial entity”); cf. United Christian Scientists v. Christian Science Board of Directors, 829 F.2d 1152, 1169 (D.C.Cir.1987) (noting that Church was entitled to copyright protection on same basis as nonreligious groups). With the exception of the Vien case, there is little authority to support a finding that religious materials can constitute trade secrets. However, there is “no category of information [that] is excluded from protection as a trade secret because of its inherent qualities.” Clark v. Bunker, 453 F.2d 1006, 1009 (9th Cir.1972) (citing Restatement of Torts, § 757 cmt. b, at 5) (upholding as a trade secret a “detailed plan for the creation, promotion, financing, and sale of contracts for ‘prepaid’ or ‘pre-need’ funeral services”); see also Smith v. Dravo Corp., 203 F.2d 369, 373 (7th Cir.1953) (“We assume that almost any knowledge or information used in the conduct of one’s business may be held by its possessor in secret.”). Nor is there any authority to support Erlich’s argument that the Church’s religious texts cannot be trade secrets because, unlike most trade secrets, these secrets are not used in the production or sales of a commodity but are the commodities themselves. The Church’s Advanced Technology “course” materials, which are an integral part of the Church’s spiritual counseling techniques, do not appear fundamentally different from the course manuals upheld as trade secrets in SmokEnders, Inc. v. Smoke No More, Inc., 184 U.S.P.Q. 309 (S.D.Fla.1974): The [SmokEnders (“SE”)] program requires attendees to follow a rigid structured regimen comprised of specific assignments and detailed] concepts as recited in [the manual].... The SE program is a step-by-step regimented program which requires that each person attending a SE program perform each act of the program at a particular time. Each act required by a SE seminar attendee must be performed by attendees at the same time in the program, with each a minimum departure from the program. The SE trade secret resides in the composite program as it is arranged for step-by-step delivery to the attendees. Id. at 312 (emphasis added). SmokEnders is arguably distinguishable because only the “moderators” and not the attendees were given access to the course materials in that case. However, the adherents of the Church, unlike the attendees and like the moderators in SmokEnders, are under a duty of confidentiality as to the materials. This case is analogous to SmokEnders because in both cases the “commodity” that is produced from the trade secrets is the result achieved by the person using the course materials and their techniques (whether it be stopping smoking or reaching a “higher spiritual existence”). Thus, there is at least some precedent for granting trade secret status to works that are techniques for improving oneself (though not specifically spiritually). Conversely, there is no authority for excluding religious materials from trade secret protection because of their nature. Indeed, there is no authority for excluding any type of information because of its nature. While the trade secret laws did not necessarily develop to allow a religion to protect a monopoly in its religious practices, the laws have nonetheless expanded such that the Church’s techniques, which clearly are “used in the operation of the enterprise,” Restatement § 39, at 425, are deserving of protection if secret and valuable. Although trade secret status may apply to works that are techniques for spiritually improving oneself, the secret aspect of those techniques must be defined with particularity. See Restatement § 39 cmt. d, at 430 (requiring plaintiff to define the information claimed as a trade secret with sufficient definiteness). It appears that plaintiffs are claiming that the entire works themselves, which they describe as “processes and the theory behind those processes,” constitute the trade secrets. See Pltfs.’ Mem. in Support of PrelimJnj. at 17. This definition is problematic because it is impossible to determine when the “secret” has been lost after portions of the works have been disclosed. Cf. F.A.C.T.NET, 901 F.Supp. at 1527 (“In the course of the hearing ... RTC changed its position with regard to what materials constitute the purported trade secrets.”). Although plaintiffs’ definition has at least some support in SmokEnders, where the court upheld as a trade secret a “composite [stop-smoking] program” found in an instructional manual, 184 U.S.P.Q. at 312, this court is not satisfied that plaintiffs have identified their trade secrets with sufficient definiteness to support injunctive relief. 2. Independent Economic Value A trade secret requires proof of “independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use.” UTSA § 3426.1(d)(1). A trade secret must have sufficient value in the owner’s operation of its enterprise such that it provides an actual or potential advantage over others who do not possess the information. Restatement § 39 cmt. e, at 430. RTC’s president, Warren McShane, attests that [t]he Advanced Technology is a source of substantial revenue for RTC in the form of licensing fees paid by Churches that are licensed to use the Advanced Technology. These Churches themselves receive a significant amount of their income from donations by parishioners for services based upon the Advanced Technology. These Churches pay RTC a percentage of the donations paid by parishioners for the services based upon the Advanced Technology. These donations and fees provide the majority of operating expenses of these various Church organizations. McShane May 31, 1995 Decl. ¶ 16; see also Vien, 827 F.Supp. at 633 (finding Advanced Technology has value to Church by helping support its operations world-wide). The Church’s need for revenues to support its services is no less because of its status as a religion. Id. (citing Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 111, 63 S.Ct. 870, 874, 87 L.Ed. 1292 (1943)). RTC points out that it receives six percent of what the individual churches receive in licensing fees. J. Kobrin May 31, 1995 Decl, Ex. A (“McShane Depo.”), at 43. This evidence is sufficient to establish the value of the Advanced Technology works to the Church. Erlich also argues that, to constitute a trade secret, information must give its owner a competitive advantage, which implies that the Church must have competitors, as it did in Vien. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1011 n. 15, 104 S.Ct. 2862, 2877 n. 15, 81 L.Ed.2d 815 (1984); ABBA Rubber Co. v. Seaquist, 235 Cal.App.3d 1, 18, 286 Cal.Rptr. 518 (1991). Although Erlich is clearly not a “competitor” of the Church, there is no requirement that a trade secret have any value to the defendant; the value can be to others who do not possess it. Rest. § 39 cmt. e, at 430. The Church has admitted, however, that it currently has no “competitors.” McShane Depo. at 95. However, the definition of trade secret does not require that there currently be competitors, only that there be actual or potential value from the information being secret. Thus, potential competition is sufficient. Id. This evidence can be shown by direct evidence of the impact of the information on the business or by circumstantial evidence of the resources invested in producing the information, the precautions taken to protect its secrecy, and the willingness of others to pay for its access. Restatement § 39 cmt. e, at 431. The several past instances of breakaway Scientology-like groups exploiting RTC’s Advanced Technology works for their profit constitute reasonable circumstantial evidence that these works give the Church a competitive advantage. See McShane Depo. at 93-94 (citing several former Church members who started rival factions); Vien, 827 F.Supp. at 634 (describing a rival faction); Wollersheim, 796 F.2d at 1078 (same). In fact, McShane’s declaration constitutes direct evidence that the works have a significant impact on the donations received by the Church, providing a majority of its operating expenses. McShane May 31, 1995 Decl. ¶ 16. The status of the Advanced Technology works as trade secrets should not depend on Erlich’s use of them. Accordingly, this court finds support for the court’s conclusion in Vien that the Church has shown independent economic value. 3. Secrecy Information is protectable as a trade secret where the owner has taken “efforts that are reasonable under the circumstances to maintain its secrecy.” UTSA § 3426.1(d)(2) (emphasis added). “Reasonable efforts” can include advising employees of the existence of a trade secret, limiting access to the information on a “need to know basis,” Courtesy Temporary Service, Inc. v. Camacho, 222 Cal.App.3d 1278, 1288, 272 Cal.Rptr. 352 (1990), requiring employees to sign confidentiality agreements, MAI Systems Corp. v. Peak Computer, 991 F.2d 511, 521 (9th Cir.1993), and keeping secret documents under lock, 1 Milgrim § 1.04, at 1-126. Accord Restatement § 39 cmt. g, at 435. The court finds that RTC has put forward sufficient evidence that it took steps that were reasonable under the circumstances to protect its purported trade secrets. RTC’s president describes elaborate means taken to ensure the confidentiality of the Advanced Technology works, including use of locked cabinets, safes, logging and identification of the materials, availability of the materials at only a handful of sites worldwide, electronic sensors attached to documents, locked briefcases for transporting works, alarms, photo identifications, security personnel, and confidentiality agreements for all of those given access to the materials. McShane February 8, 1995 Decl. ¶¶ 13-18. McShane testifies that all copies of the Advanced Technology works that are outside of the Church were gained through improper means, such as by theft. Id. ¶¶ 22-24. Thirty-five other de-clarants confirm that the measures mentioned by McShane have been used, though not in exactly the same manner, in other Churches and at other times. See e.g., Sy-dejko Decl. (describing measures used at Er-lich’s facilities during relevant time period); Byrne Deck ¶ 15 (stating works have been kept confidential since at least 1968). There is further evidence that Erlich himself signed confidentiality agreements with respect to the Advanced Technology materials and, specifically, the upper-level “NOTS” course materials. See McShane February 8, 1995 Deck, Exs. H-I; McShane February 27,1995 Deck, Exs. D-F; McShane Depo. at 201-03; H. Kobrin Mary 31, 1995 Deck, Ex. A (“Er-lich Depo.”), at 84r-88. The court is unpersuaded by Erlich’s claims that the Church’s measures have not covered all locations where the Advanced Technology works are found and do not cover crucial time periods. Efforts at maintaining secrecy need not be extreme, just reasonable under the circumstances. Legislative Committee Comment— Senate, Cal.Civ.Code § 3426.1, at 147 (West Supp.1995). The Church has made more than an adequate showing on this issue. Erlich raises a number of objections to the Church’s claims of confidentiality. Erlich argues that the Church’s trade secrets have been made available to the public through various means. The unprotected disclosure of a trade secret will cause the information to forfeit its trade secret status, since “[[Information that is generally known or readily ascertainable through proper means by others ... is not protectable as a trade secret.” Restatement § 39 cmt. f, at 432; see also Cal.Civ.Code § 3426.1(d); Kewanee Oil, 416 U.S. at 484, 94 S.Ct. at 1887; Chicago Lock Co. v. Fanberg, 676 F.2d 400, 404 (9th Cir.1982); 1 Milgrim at 1-135. Once trade secrets have been exposed to the public, they cannot later be recalled. In re Remington Arms Co., 952 F.2d 1029, 1033 (8th Cir.1991); Smith, 203 F.2d at 373. Erlich argues that many of the Advanced Technology documents have been available in open court records in another case, Church of Scientology Int’l v. Fishman, Case No. 91-6426 HLH (C.D.Cal.), destroying the necessary element of secrecy. Cf. Lerma, 897 F.Supp. at 262 (noting that some of Advanced Technology works were available in the court file in Fishman and that they were not subject to a sealing or protective order). However, the Fishman court recently issued an order sealing the file pending a decision on whether the documents are trade secrets. Even if those records were temporarily open to the public, the court will not assume that their contents have been generally disclosed, especially when this question is still pending before the district court in Fishman. Such a disclosure, without evidence that the secrets have become generally known, does not necessarily cause RTC to forfeit its trade secrets. See Gates Rubber Co. v. Bando Chemical Industries, Ltd., 9 F.3d 823, 848-49 (10th Cir.1993) (finding that information retained its secret status despite being disclosed at hearing, where plaintiff evidenced continuing intent to maintain its secrecy by acting to seal the record). The contrary result would mean that if documents were ever filed without a sealing order, even for a short time, the court would not be able to decide that they should be sealed because the documents would have lost their potential trade secret status by virtue of the temporary unsealing. The only fair result would be to allow trade secret status for works that are otherwise protecta-ble as trade secrets unless they were somehow made generally available to the public during the period they were unsealed, such as by publication. Erlich further asserts that the Advanced Technology has been largely disclosed in the popular press, as evidenced by various publications attached to the Be