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Friday, 1 February 2013

Legal terrorism against watch men: Threatened Lawsuit by The Harbinger Publisher & Author



The Harbinger

Original Cover 

Present Cover  




Threatened Lawsuit by The Harbinger Publisher & Author

http://www.biblicalintegrity.org/blog/2013/01/31/threatened-lawsuit-harbinger-publisher-author/  

Published | ByDave James

 

We have received letters threatening legal action related to the publication of my book The Harbinger: Fact or Fiction? These letters were from a lawyer with a firm which “serves as litigation counsel for Charisma Media, publisher of The Harbinger by Rabbi Jonathan Cahn and published by Charisma Media.”

Therefore, we are asking that concerned believers everywhere make this a matter of prayer—that the Lord would graciously give us wisdom and that He would protect us in the midst of this challenge. We also believe it is important to bring this matter to the attention of the Body of Christ and would encourage you to share this article with others given the millions of people who have now been influenced by The Harbinger and its author.

_____________________

IS THIS MUCH ADO ABOUT NOTHING?


Some may be wondering if the controversy surrounding The Harbinger really is a big deal. I want to assure you that it definitely is – and it show no signs of slowing down. Last spring I suggested that The Harbinger could well end up being one of the most significant theological issues of 2012. As it turns out, this could extend well into this year. It was recently announced that The Harbinger passed one million copies sold (in just twelve months), and also achieved the distinction of being the longest running Christian book presently on The New York Times bestseller list.

And, the influence that Jonathan Cahn and his teachings are having through his book, the many interviews and his numerous messages continues to grow unabated. He was even the keynote speaker at one of the main annual (though not official) inaugural prayer breakfasts in Washington D.C. on January 21.

The author has said that he has been approached numerous times concerning turning The Harbinger into a movie and I would not be at all surprised if the production of a movie will be announced sometime this year. If that happens, the influence of The Harbinger will receive another significant boost and reach people who otherwise might not even be aware of it. Given the inevitable artistic license taken in most book-to-movie adaptations, with all the problems already in The Harbinger, what might we expect in a movie version?


THE THREAT OF LEGAL ACTION


The following is an excerpt from the lead article by T.A. McMahon in the February edition of The Berean Call monthly newsletter.

Although for decades we at TBC have been exhorting and encouraging believers to be Bereans (i.e., to check out everything they are being taught by searching the Scriptures-Acts 17:10-11), we too have experienced the increased intensity of the spiritual battle and witnessed its exponential growth. The latest issue, which we submit to you for prayer support, is a threatened lawsuit over the book we published by David James (The Harbinger: Fact or Fiction?). The complaint is that the author used too many quotes from the New York Times best-selling book, The Harbinger, without permission from author “rabbi” Jonathan Cahn and publisher Charisma Media Publications (CMP). The complaint further states that our use of the quotes has inhibited the sales of The Harbinger and has thus financially damaged Cahn and CMP in an amount yet to be determined. In effect, we are being told that we must limit our documentation in warning the body of Christ of the biblical errors in The Harbinger. In other words, we cannot be Bereans or like the watchman of Ezekiel 3:17-19 without Cahn’s permission.

This is the first time in my 35 years of working with Dave Hunt and our addressing nearly every major religion, religious cult, aberrational Christian sect, unbiblical trend, religious publication, book, media production, etc., that any organization or individual has even hinted at suing us. Now, however, we are being threatened with legal action by those claiming to be in the church. More critical than the unbiblical action of a brother threatening to take another brother to court (1 Corinthians 6) is the issue of preventing the biblical evaluation of a work that is influencing hundreds of thousands of professing and confessing Christians, as well as those who don’t profess to know Christ. We have hired a copyright attorney to address the legal issues and have responded to the attorney for Cahn and CMP. Even so, we covet your prayers that the Lord will be glorified throughout the process.

In October we received the first letter from Charisma’s lawyer concerning my use of quotes from The Harbinger. This threat of litigation was followed by two additional letters about a month apart making various demands for specific information concerning sales of my book and actions that we must take, including specific deadlines for compliance. So, although this is the first time we have made this issue public in writing, we have had these threats hanging over our heads for several months.

Furthermore, the October letter was actually the second threat of legal action. The first threat came less than two weeks after my book became available in early August and concerned the original cover design of The Harbinger: Fact or Fiction? In that first letter the attorney made the following charges:

Our client learned that you, along with author David James, are using a strikingly similar book cover design of The Harbinger in commerce in connection with your book The Harbinger: Fact or Fiction. The book cover of The Harbinger: Fact or Fiction infringes Charisma’s intellectual property rights in the trade dress of its book The Harbinger. No doubt exists that the cover for your book The Harbinger: Fact or Fiction is designed to confuse consumers into thinking that either (1) this book is actually The Harbinger and/or (2) that the book is sponsored, affiliated with or approved by Charisma.

The basis for the threat of legal action involves two primary points: 1) that we intended to confuse consumers and 2) that consumers would actually be confused. Regarding the first charge, it is pure speculation with no supporting evidence whatsoever. But more importantly, it is both judgmental and factually wrong. There was never any intention by anyone to deceive, mislead of confuse. A comparison of the two covers (shown below) makes this obvious.

Regarding the second charge, once again, even a cursory glance makes it clear that my book is a direct negative response to The Harbinger, and therefore, obviously neither produced by nor endorsed by Charisma Media. Of course, we wanted people to understand that my book is about The Harbinger, but almost every design element of my cover was intentionally different to avoid any question of copyright infringement.

However, as a demonstration of good faith we changed the cover without a fuss. Of course, because of our belief that it is vitally important for my book to be available as a response to The Harbinger, and given the threat, we were also concerned that the Charisma lawyers might try to tie things up in the courts and thus keep my book off the market.

Now, in an unexpected and inexplicable turn of events, the Charisma attorney claims in the most recent letter (of January 22) that the fact that we changed the cover is itself an admission of guilt on my part that we had indeed infringed copyright.

Mr. James eventually recognized that he had violated Charisma’s trade dress and changed the cover on his critique. That Mr. James infringed Charisma’s rights in its intellectual property with respect to the cover is without dispute. Yet, Mr. James’ admitted infringement is curiously absent from his recent diatribe against my client and its author.

Once again, this is not only pure speculation, but the allegation is factually wrong because neither I nor The Berean Call have ever believed that we ever violated Charisma’s trade dress. We did not intend to violate copyright. We intentionally

sought to avoid violating copyright. And we continue to believe that we were completely successful in not violating copyright. So, the charge that we admitted guilt in this matter is difficult to comprehend – even baffling.

Another odd aspect of this recent letter is that the Charisma lawyer attributed to me the article which was written by T.A. McMahon (referenced above), and called it a “diatribe against Charisma and Jonathan Cahn.” Earlier the letter also states that the article was published on my website—which is also wrong because the article is actually on The Berean Call website. Besides being a bit strange, these are unnecessary “unforced errors” that could have been easily avoided with even the least bit of research.

Returning to the second threat of legal action, the following are excerpts from the first letter concerning that threat.

Dear Mr. James,
Our firm serves as litigation counsel for Charisma Media, publisher of The Harbinger by Rabbi Jonathan Cahn and published by Charisma Media. I write concerning your critique of The Harbinger, The Harbinger: Fact or Fiction (“Fact or Fiction”) and your use of significant portions of The Harbinger’s original copyrighted work in your book. In short, we believe your use of The Harbinger‘s text, which comprises over 10% of your book, constitutes infringement of Charisma Media’s exclusive copyright in the text of your book. We further believe your considerable use of The Harbinger‘s text is not defensible under the fair use doctrine.

Although we have always been confident that my book is well within the boundaries of the fair use doctrine, unfortunately these threats of litigation made it necessary to seek the services of an experienced copyright lawyer. His well-informed opinion is that there is no basis for bringing a lawsuit against us and he sent his findings and conclusions to the Charisma Media attorney in the middle of December. Last week we received the fourth letter as a response to our legal counsel’s letter in which the Charisma lawyer completely rejected the argument in our defense.

Later in the letter, Charisma’s attorney goes on to make further allegations.

Specifically, Fact or Fiction was written with the specific purpose of deriving a financial benefit from Charisma Media’s copyrighted materials as evidenced by the original infringing cover for Fact or Fiction; you are profiting from the use of the text, but have not obtained consent or paid a license fee for its use. Although Fact or Fiction purports to be a critique of The Harbinger, your use of The Harbinger’s original and protectible expression, including extensive use of the dialogue created by Rabbi Cahn to analyze Isaiah 9:10, is usurping demand for Rabbi Cahn’s work and will continue to do so as long as Fact or Fiction remains in circulation.

Several things can be noted about the above allegations.

First, building on the unsubstantiated claim in the first threat concerning the cover of my book, they once again argue that I wrote the book for the specific purpose of deriving financial benefit from Rabbi Cahn’s work. And once again, this is pure speculation from a legal perspective, clearly judgmental from a moral perspective, and from a factual perspective it couldn’t be further from the truth.

Second, the phrase “purports to be a critique” clearly suggests that I intentionally employed a ruse in order to deceive the public by making my book only appear to be a critique, but with the real alleged purpose being to profit financially from Rabbi Cahn’s work. One has to wonder if someone could scan my book in even the most cursory way and then suggest that The Harbinger: Fact or Fiction is anything but a very serious and well-researched critique of The Harbinger.

Third, the Charisma lawyer contends that because of quoting The Harbinger to the degree that I did, demand for my book has undermined demand for their book. Through this they argue that I have been accumulating sales for myself while denying what would have been sales for Jonathan Cahn. Once again, it is difficult to express how far removed from reality this charge really is. When my book was released in early August, I believe the sales of The Harbinger were somewhere in the neighborhood of 700,000 copies sold. Then in January (as previously noted) it was reported that Jonathan Cahn had achieved two important milestones during the 2012 calendar year. The first was that his book had surpassed one million copies sold (meaning that nearly one third of his sales have happened since the appearance of Fact or Fiction). The second milestone was that at the end of 2012 it was the longest running Christian book currently on The New York Times bestsellers list.

Unfortunately, the most recent letter from Charisma’s legal counsel further expands the range of allegations and accusations against us to include a charge of defamation of character:

Second, I write to put you on notice that Mr. James’ recent fund raising efforts at the expense of both Charisma and Rabbi Cahn are defamatory in nature and intentionally designed to impugn both Charisma and Rabbi Cahn’s character for the benefit of Mr. James.

Once again, in this new threat, the Charisma lawyer gets so many factual things wrong that it should be almost embarrasing. He accuses me personally of 1) trying to raise funds with the article, 2) by defaming Charisma and Rabbi Cahn; 3) then claims that it was intentional, 4) and further alleges that it was designed to impugn their character, 5) and finally argues that I did it with the intent to accrue personal financial benefit to me.
Where do I begin?

1. I didn’t write the article and was only aware of it shortly before it was published on The Berean Call (not my) website. As previously noted, Tom McMahon wrote the article and it was approved by The Berean Call Board of Directors. (The full article can be found here: http://www.thebereancall.org/content/demise-biblical-discernment)

2. There is nothing in the article that makes any reference to money whatsoever. There is no appeal for funds and it was never intended to be a fund-rasing effort. The only thing that McMahon requests anywhere in the article is that believers make this a matter of prayer.

3. There was no intention to defame Charisma or Jonathan Cahn. There is a well-documented pattern of repeated attempts by Jonathan Cahn to contain and respond to any and all criticism of The Harbinger. This has happened time and again – and a video on YouTube is available where Cahn specifically (and quite cynically and sarcastically) responds to the critics of The Harbinger (with many swipes at things I have written and said)—and yet he offers no specifics whatsoever.

4. It seems to me that the accusation that I intentionally impugned Charisma and Jonathan Cahn’s character for the purpose of financial gain, while using demonstrably false information, is the very definition of defamation itself. Who has defamed whom? And since this is in the context of claiming that my book is damaging sales of The Harbinger this obviously raises the question of exactly who is pursuing this for financial gain. The reader can decide.

Returning to the accusation that I exceeded fair use of The Harbinger in my book and thus have violated copyright law, the following salient points are provided from the Citizen Media Law Project website.

The Four Fair Use Factors


1.      Purpose and Character of Your Use

If you use another’s copyrighted work for the purpose of criticism, news reporting, or commentary, this use will weigh in favor of fair use. See Campbell v. Acuff-Rose Music, 510 U.S. 569, 578 (1994). Purposes such as these are often considered “in the public interest” and are favored by the courts over uses that merely seek to profit from another’s work. Online Policy Group v. Diebold, Inc., 337 F. Supp. 2d 1195, 1203 (N.D. Cal. 2004). When you put copyrighted material to new use, this furthers the goal of copyright to “promote the progress of science and useful arts.”

In evaluating the purpose and character of your use, a court will look to whether the new work you’ve created is “transformative” and adds a new meaning or message. To be transformative, a use must add to the original “with a further purpose or different character, altering the first with new expression, meaning, or message.” Campbell, 510 U.S. at 579. Although transformative use is not absolutely necessary, the more transformative your use is, the less you will have to show on the remaining three factors.

Clearly, my book, The Harbinger: Fact or Fiction? meets this criteria. I am not seeking to merely profit from Cahn’s work as has been alleged. Rather my work is both completely transformative and is “in the public interest,” while putting the material in The Harbinger to a completely new use. There is no copyright violation.

2. Nature of the Copyrighted Work
In examining this factor, a court will look to whether the material you have used is factual or creative, and whether it is published or unpublished. Although non-fiction works such as biographies and news articles are protected by copyright law, their factual nature means that one may rely more heavily on these items and still enjoy the protections of fair use. Unlike factual works, fictional works are typically given greater protection in a fair use analysis. So, for example, taking newsworthy quotes from a research report is more likely to be protected by fair use than quoting from a novel. However, this question is not determinative, and courts have found fair use of fictional works in some of the pivotal cases on the subject. See, e.g., Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, 456 (1984).
Once again, my book meets this criteria because as the author states in his note at the beginning of The Harbinger, “What you are about to read is presented in the form of a story, but what is contained within the story is real.” Furthermore, Jonathan Cahn has stated publicly in a radio interview with Brannon Howse that his book is only 10% fiction and 90% factual. Again, there is no copyright violation.

3. Amount and Substantiality of the Portion Used
Unfortunately, there is no single guide that definitively states how much of a copyrighted work you can use without copyright liability. Instead, courts look to how such excerpts were used and what their relation was to the whole work. If the excerpt in question diminishes the value of the original or embodies a substantial part of the efforts of the author, even an excerpt may constitute an infringing use.

If you limit your use of copyrighted text, video, or other materials to only the portion that is necessary to accomplish your purpose or convey your message, it will increase the likelihood that a court will find your use is a fair use.

Of course, if you are reviewing a book or movie, you may need to reprint portions of the copyrighted work in the course of reviewing it in order to make you points. Even substantial quotations may qualify as fair use in “a review of a published work or a news account of a speech that had been delivered to the public or disseminated to the press.” Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 564 (1985). However, substantial quotations from non-public sources or unpublished works do not enjoy the same protections.

There are two relevant and important issues in meeting the third criteria for fair use that can be observed. The first is that the “over 10%” of The Harbinger that I quoted (referred to by the Charisma attorney) is irrelevant when the other criteria are considered. The 10% is an arbitrary number with no legal significance. Far less than 10% can violate fair use if the other criteria are not met, while far more than 10% can be used if they are. Quotes from The Harbinger do comprise over 10% of my book, but they are also under 13%.

Similarly, I only quoted a little more than 10% of The Harbinger, which in the context of such an indepth and detailed critique is a very small amount. I could have easily quoted much more to further bolster my argument, but was careful to use no more than necessary to keep from being accused of taking things of out context.

However, more importantly, relevant to the second major point, my use of The Harbinger clearly qualifies as fair use because it is “a review of a published work…”

4. The Effect of Your Use Upon the Potential Market for the Copyrighted Work

In examining the fourth factor, which courts tend to view as the most important factor, a court will look to see how much the market value of the copyrighted work is affected by the use in question. This factor will weigh in favor of the copyright holder if “unrestricted and widespread” use similar to the one in question would have a “substantially adverse impact” on the potential market for the work…

Assessing the impact on a copyrighted work’s market value often overlaps with the third factor because the amount and importance of the portion used will often determine how much value the original loses. For instance, the publication of five lines from a 100 page epic poem will not hurt the market for the original in the same way as the publication of the entirety of a five-line poem.

This fourth factor is concerned only with economic harm caused by substitution for the original, not by criticism. That your use harms the copyright holder through negative publicity or by convincing people of your critical point of view is not part of the analysis. As the Supreme Court has stated:

[W]hen a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act. Because “parody may quite legitimately aim at garroting the original, destroying it commercially as well as artistically,” the role of the courts is to distinguish between ‘[b]iting criticism [that merely] suppresses demand [and] copyright infringement[, which] usurps it.’”

The significance of this point cannot be overstated because the Charisma attorney contends that my book is usurping demand (his words) for his client’s book. However, it can be easily argued that the controversy surrounding the entire issue has only served to increase demand for The Harbinger as evidenced by the 300,000+ copies that have been sold since the release of my book.

In summary, although courts will balance all four factors when assessing fair use, the fair use defense is most likely to apply when the infringing use involves criticism, comment, news reporting, teaching, scholarship, or research.  In addition, some general rules of thumb can be helpful in analyzing fair use:

  • A use that transforms the original work in some way is more likely to be a fair use;
  • A non-profit use is more likely to be considered a fair use than a for-profit use;
  • A shorter excerpt is more likely to be a fair use than a long one; and
  • A use that cannot act as a replacement for the original work is more likely to be a fair use than one that can serve as a replacement.

One has to wonder why such an influential media empire like Charisma Media would threaten a lawsuit against an essentially unknown individual, particularly when my book falls so far within the boundaries of the fair use doctrine. But more importantly, why would a Christian organization (Charisma Media), with a Christian founder and CEO (Steve Strang), along with a local church pastor (Jonathan Cahn) threaten to sue another believer in this way, particularly in light of what the apostle Paul says about such lawsuits in 1 Corinthians 6?

None of this makes any sense from a biblical, ethical, legal or financial perspective. One has to wonder exactly what is the motivation behind this. Why is it so necessary to try make it so difficult to keep my book, The Harbinger: Fact or Fiction? on the market. Why all this effort to get it off the market?

One thing we do know is that my book is presently the only one that has been written and published which exposes the many significant problems in The Harbinger. And as the influence of The Harbinger in America continues to increase, the need for people to also read The Harbinger: Fact or Fiction? is greater than ever. We hope you will take time to read it if you haven’t – and if you do, please take time to leave a brief review on Amazon.com because these are extremely important in the process of getting the message into the hands of more and more people.

Once again, we covet your prayers, not only in relation to the threatened legal action against us, but also concerning getting the important information in my book into the hands of believers who have been influenced, confused and misled by The Harbinger, the accompanying DVD and the dozens of interviews and messages by Jonathan Cahn.

If you want to stand with us in the midst of this challenge, please take a moment to shoot me an email at dave@jamesjournal.org.